Teresa Cox and Terry De Los Santos v. National Collegiate Student Loan Trust 2006-2, a Delaware Statutory Trust

• Court: Court of Appeals of Texas
• Decided: November 24, 2014
• Docket: 07-14-00253-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00253-CV

TERESA COX AND TERRY DE LOS SANTOS, APPELLANTS

V.

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-2, A DELAWARE STATUTORY TRUST, APPELLEE

On Appeal from the 251st District Court Randall County, Texas Trial Court No. 66,224A, Honorable Ana Estevez, Presiding

November 24, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

In this restricted appeal, Teresa Cox and Terry De Los Santos appeal from

default judgments taken against them in favor of National Collegiate Student Loan Trust

2006-2 (the Trust) for recovery on student loans. Teresa and Terry contend the trial

court erred in granting a default judgment because they filed an answer. We reverse.

The Trust filed a petition seeking to recover for default in the repayment of

student loans to Teresa which Terry had co-signed. Service was made on September 17, 2013. On September 24, 2013, Terry filed a handwritten pro se letter in which she

stated:

To Whom It May Concern,

In response to cause numbers 66224C 66219A 66223A 66220C My daughter owes an unknown amount to NCP for student loans which I cosigned for.

Sincerely, Terry DeLosSantos

An address and telephone number followed Terry’s name. On the same day, Teresa

also filed a handwritten pro se letter which stated:

In response to cause No. 66224C, 66219A, 66223A, & 66220C. I owe an unknown amount to National Collegiate Partners for Student loans.

Sincerely, Teresa Cox

Again, an address and phone number followed the name. Terry and Teresa contend

that these letters constitute an answer in the lawsuit which prevents the taking of a no

answer default judgment.1

An answer does not necessarily have to follow a standard form, and a letter that

is signed with the name of the parties, the cause number, and an address constitutes an

answer which prevents the taking of a default judgment. Smith v. Lippman, 826 S.W.2d

1 The Trust argues that Terry and Teresa filed their notice of restricted appeal one day late. A restricted appeal must be filed within six months after the date the judgment or order is signed. TEX. R. APP. P. 26.1(c). The judgment was signed on January 6, 2014, and the restricted appeal was filed on July 7, 2014. However, July 6 was a Sunday. If the last day for filing a document is a Sunday, the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. TEX. R. APP. P. 4.1(a); TEX. R. CIV. P. 4.

2 137, 138 (Tex. 1992); Faunce v. NCNB Tex. Nat’l Bank, 846 S.W.2d 876, 877 (Tex.

App.—Houston [14th Dist.] 1992, no writ). The letters sent by Terry and Teresa were

signed by them and contained the relevant cause numbers, their names, and their

addresses. So too were they filed of record before the Trust moved the court to enter

“no answer” default judgments. Simply put, the letters in question constituted answers

preventing the entry of “no answer” default judgments.

Nevertheless, the Trust would have us affirm the “no answer” default judgments

by characterizing them as judgments nihil dicit. This characterization we eschew.

Though akin to a “no answer” default judgment, their use is generally limited to

situations where 1) the defendant made a plea, usually dilatory in nature but the

pleading has not placed the merits of the plaintiff's case in issue before it is overruled, or

2) the defendant has placed the merits of the case in issue by filing an answer but has

withdrawn that answer. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177,

184 n.8 (Tex. 2012). Neither situation is before us. The appellants filed answers, not

dilatory pleas, which answers they did not withdraw.

Moreover, by filing answers, both Terry and Teresa appeared in the cause. See

In re I.L.S., 339 S.W.3d 156, 159 (Tex. App.—Dallas 2011, no pet.) (stating that an

answer constitutes an appearance). Defendants who appear are entitled to notice of

the trial setting as a matter of due process. LBL Oil Co. v. International Power Services,

Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). This is of import here since a hearing on a

motion for default judgment is effectively a trial setting, id. at 391, and the record fails to

show that either defendant had actual or constructive notice of that hearing. Indeed, the

motions for default filed by the Trust do not even contain certificates of service which

3 would allow us to presume that Terry or Teresa even had notice of the motions being

filed.

We reverse the default judgments and remand the causes to the trial court.

Brian Quinn Chief Justice