Here is a pleading template for a post-judgment motion to challenge a default judgment entered in favor of any one of the multiple National Collegiate Student Loan Trusts. No matter what the number of the Trust, it makes no difference in litigation, except that the pleadings are different between the three law firms that have been prosecuting these cases in Texas: Regent and Associates (older cases), Michael J. Scott & Associates (sometimes SCOTT, PARNELL & ASSOCIATES, PC) and JAVITCH BLOCK, LLC. An earlier blog post provided a general summary of what remedies are available to deal with a default judgment in Texas. See --- > How to attack default judgments in Texas by post-judgment motion and appeal. For a discussion of TSI's dubious affidavits and to view sample affidavits filed in support default or summary judgments, follow the link to -- > Robosigned affidavits by Transworld Systems Inc. (TSI).
Cause No.
_______________________
NATIONAL COLLEGIATE STUDENT IN THE COURT AT LAW
LOAN TRUST
A DELAWARE STATUTORY TRUST
PLAINTIFF
NO
_______ JUDICIAL DISTRICT
V.
__________________________________, ________COUNTY, TEXAS
DEFENDANT
MOTION FOR NEW TRIAL
BY DEFENDANT _________________________________
AFTER DEFAULT JUDGMENT
AFTER DEFAULT JUDGMENT
AND REQUEST FOR JUDICIAL NOTICE
Pursuant
to Clerk’s Notice of Judgment issued in this cause, a final default judgment
was signed on or about ________________, 201__.
Pursuant to the Texas
Rules of Civil Procedure, Defendant now moves for a new trial as a matter
of right within thirty days (30) of the judgment, and thus within the court’s
plenary power.
Defendant would additionally show
that reasons exist why this judgment should be set aside based on facts that were
not known to the Defendant prior to the entry of the judgment
Defendant, as movant for a new
trial, would show that Plaintiff moved for and procured the judgment with an
affidavit signed by an employee of Transworld Systems, Inc. (TSI).
Defendant
has learned that TSI has entered into a CONSENT ORDER with the CFPB concerning certain
irregularities in affidavit production, and that the terms of the CONSENT ORDER
require TSI to refrain from producing faulty affidavits and withdraw faulty affidavits already on file.
The
Court is requested to take judicial notice of the CONSENT ORDER pursuant to TEX. R. EVID. 201. The ORDER is posted on an official U.S. government website at the following URL:
http://files.consumerfinance.gov/f/documents/201709_cfpb_transworld-systems_consent-order.pdf
As merits grounds for relief from the
default judgment, Defendant would show that the affidavit filed in this case is
faulty and that the fault is apparent on the face of the record.
The Court is respectfully requested
to set aside the final judgment procured with an affidavit from TSI, reopen
this case, and assure that the Trust, as Plaintiff seeking affirmative relief, and the Trust's attorneys and other agents, comply with the terms of the CONSENT ORDER
between TSI and the CFPB.
Defendant requests additional time to
attempt to find an attorney willing to take this case and/or to conduct research at the
County Law Library to be in a better position to proceed pro se with the help of litigation resources available at the law library and the guidance of the library's well-versed staff.
In the alternative, to the extent
the judgment is not final or not deemed final, Defendant respectfully requests
that the Court set aside the interlocutory default judgment and issue a new scheduling or docket control order.
PRAYER
Wherefore, premises considered,
Defendant as movant herein, respectfully requests that the Court set aside the default
judgment and reinstate this case as an active case on the court’s docket.
Respectfully
submitted,
___________________________
Defendant’s First and Last Name
Defenant’s Mailing Address
Defendant’s Phone Number
Defendant,
currently still appearing pro se
CERTIFICATE OF SERVICE
The
undersigned party hereby certifies compliance with Rule 21a of the Texas
Rules of Civil Procedure by the serving this motion upon the attorney of record for the National Collegiate Student Loan Trust using one of the methods of service as set forth in the rule.
____
e-service by fax or email to the Trust's Texas counsel on
________________, 2017
____
service by snail mail to the Trust's Texas attorney
for record, as shown below,
on ___________________2017
Counsel for the Trust shown on the
docket and/or pleadings:
JOSEPH, DIMPLE ABRAHAM
TYSOR, R. CHAN, Jr.
MICHAEL J. SCOTT
SCOTT & ASSOCIATES, P.C.
P.O. BOX 115220
CARROLLTON TX 75011
Phone 214-234-8456
Fax 214-234-8454
FIGELMAN, JACOB M
MELAMED, MARC A.
GUENTHER, KAREN
ELAINA MOORE
JAVITCH BLOCK, LLC
275 W. Campbell Road, Suite 312
Richardson TX 75080
Phone 214-383-9088
Fax 214-383-5890
Email DAL@jbllc.com
___________________________
Defendant’s First and Last Name
== END OF PRO
SE TEMPLATE ==
TEXAS CASELAW SNIPPETS
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| Highly Questionable Case Style from the Loads-of-Levity-at-Law Series (TM appl. not pending) |
TEXAS CASELAW SNIPPETS
JUDICIAL NOTICE OF MATERIAL ON GOVERNMENT WEBSITES, AGENCY ACTS
Courts may take judicial notice of
the official records of another judicial entity of this state or the federal government. See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (supreme court may take judicial notice of trial judge's
federal, criminal plea agreement demonstrating financial interest in civil case
making judge's orders void); see also Office of Pub. Util. Counsel v. Public
Util. Comm'n, 878 S.W.2d 598, 600
(Tex. 1994) (holding that court of appeals must take judicial notice of
agency's published order if asked to do so) (citing Tex. R. Civ. Evid.
201(b)(2)); Hendee v. Dewhurst, 228
S.W.3d 354, 377 n.30 (Tex. App.-Austin 2007, pet. denied) (likening agency
decisions to court decisions with regard to judicial notice).
Material issued by a public
authority pursuant to law is self-authenticating. See TEX. R. EVID. 902(5). Accordingly, it is proper to take
judicial notice of documents on government websites. See Williams Farms Produce Sales, Inc. v. R
& G Produce Co.,443
S.W.3d 250, 259 (Tex. App.-Corpus Christi 2014, no pet.). For the same reason, the Fifth Circuit has determined that
courts may take judicial notice of governmental websites. See Kitty Hawk Aircargo, Inc. v. Chao,418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of approval by the National
Mediation Board published on the agency's website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005)
(per curiam) (taking
judicial notice of Texas agency's website).
Also see City of El Paso v. Fox, 458 S.W.3d 66, 71-72 (Tex.App. — El Paso 2014, no pet.) (taking
judicial notice of minutes from meeting of city council that were available on
city's website); Bridgeport Ind. Sch. Dist. v. Williams, 447 S.W.3d 911, 916 n.4 (Tex.App. — Austin 2014, no pet.) (taking judicial
notice of undisputed facts contained in a letter from the Texas Education
Agency because those facts impacted the court's jurisdictional inquiry).
MOTION FOR NEW TRIAL BASED ON NEW EVIDENCE
A
party seeking a new trial based on newly discovered evidence must show the
trial court that (1) the party did not discover the evidence until after trial;
(2) the failure to discover the evidence was not due to lack of diligence; (3)
the evidence is not cumulative or merely for impeachment; and (4) the evidence
is so material that it would probably produce a different result if a new trial
were granted. See Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex.1983), overruled on other grounds
by Moritz v. Preiss,121
S.W.3d 715, 720-21 (Tex.2003). We review the trial court's ruling on
a motion for new trial for an abuse of discretion. MRT, Inc. v. Vounckx, 299
S.W.3d 500, 511-12 (Tex. App.-Dallas 2009, no pet.).
NEW TRIAL MOTION UNDER CRADDOCK AND LACK OF NOTICE SCENARIO
"Generally, the standard for setting aside a default judgment is set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)." That test typically requires
a person seeking to set aside such a judgment to show that (1) his failure to appear was not intentional or the result of conscious indifference on his part, but was due to a mistake or an accident, (2) he had a meritorious defense he was prevented from presenting, and (3) the motion to set aside the judgment was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to the plaintiff.
Id. at 814-15 (citing Craddock, 133 S.W.2d at 125).
"However, when the defendant did not receive actual or constructive notice of trial, he has met the first prong of Craddock,and due process prevents the application of the second and third prongs of the Craddock test." Id. at 815.
MOTION TO SET ASIDE DEFAULT JUDGMENT GRANTED EVEN THOUGH DEFENDANT WAS NOT SERVED (must generally be filed 30 days after the judgment signed)
A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990). "[T]he Rules of Civil Procedure with respect to service of citation are mandatory and a failure to comply with them renders any attempted service void." Devine v. Duree, 616 S.W.2d 439, 441 (Tex. Civ.App.-Dallas 1981, writ dism'd by agreement).
Unless a defendant has waived citation, a trial court lacks personal jurisdiction over a defendant to whom citation has not been "issued and served in a manner provided for by law." See Wilson, 800 S.W.2d at 836. "If service is invalid, it is `of no effect' and cannot establish the trial court's jurisdiction over a party." In re E.R., 385 S.W.3d 552, 563 (Tex.2012) (quoting Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985) (per curiam)).
In a direct appeal from a no-answer default judgment, there is no presumption of valid issuance, service, and return of citation. See id. In the face of a direct attack, a default judgment cannot stand appellate scrutiny unless the record actually reflects that there has been strict compliance with the rules for service of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam).
Whether a trial court has personal jurisdiction over a defendant is a question of law, which is reviewed de novo on appeal, Haaksman v. Diamond Offshore (Bermuda), Ltd., 260 S.W.3d 476, 479 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).
RESTRICTED APPEAL AS A MEANS TO ATTACK A DEFAULT JUDGMENT WHEN NO MOTION FOR NEW TRIAL (or notice of appeal to initiate a regular appeal) WAS TIMELY FILED WITHIN 30 DAYS OF THE JUDGMENT
To prevail on its restricted appeal, appellant must establish: (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander, 134 S.W.3d at 848; Lytle v. Cunningham, 261 S.W.3d 837, 839 (Tex.App.-Dallas 2008, no pet.) (citing TEX.R.APP. P. 26.1(c)). For purposes of a restricted appeal, the record consists of all papers filed in the appeal, including the reporter's record. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.-Dallas 2011, no pet.).[2]
There is no presumption in favor of proper issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Lytle, 261 S.W.3d at 841. If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, there is error apparent on the face of the record and attempted service of process is invalid and of no effect. Lytle,261 S.W.3d at 840. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Id.
A restricted appeal is a direct attack on the judgment. Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The default judgment can only be sustained if the record before the trial court affirmatively shows that Paramount was served in strict compliance with the Texas Rules of Civil Procedure. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); Barker CATV Constr., 989 S.W.2d at 792. If the record before the trial court does not affirmatively show, at the time that default judgment is requested, that the defendant has appeared, was properly served, or waived service in writing, the trial court lacks personal jurisdiction over the defendant. Marrot Commc'ns, Inc. v. Town & Country P'ship, 227 S.W.3d 372, 376 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). "In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment." Barker CATV Constr., 989 S.W.2d at 792. Failure to comply strictly with the Rules of Civil Procedure constitutes reversible error on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255-56 (Tex.2009).
SIX MONTH LIMIT TO BRING RESTRICTED APPEAL, COUNTING FROM THE DATE OF JUDGMENT
SIX MONTH LIMIT TO BRING RESTRICTED APPEAL, COUNTING FROM THE DATE OF JUDGMENT
To prevail on his restricted appeal, appellant must establish that (1) he filed notice of the
restricted appeal within six months after the judgment was signed, (2) he was a
party to the underlying lawsuit, (3) he did not participate either in person or
through counsel in the hearing that resulted in the judgment complained of and
did not timely file any postjudgment motions or requests for findings of fact
and conclusions of law, and (4) error is apparent on the face of the
record. See TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re Baby Girl S., 353
S.W.3d 589, 591 (Tex. App.-Dallas 2011, no pet.). Each element of a
restricted appeal is mandatory and jurisdictional. Ibarra v. City
of Laredo, Nos. 04-11-00035-CV, 04-11-00037-CV, 2012 WL
3025709, *4 (Tex. App.-San Antonio July 25, 2012, pet. denied)
(mem. op.) (citing Serna v. Webster, 908
S.W.2d 487, 491 (Tex. App.-San Antonio 1995, no writ)).
CAUTION: RESTRICTED APPEAL NOT AVAILABLE WHEN PARTY FILED TIMELY POST-JUDGMENT MOTION
Texas Rule of Appellate Procedure 30 permits a restricted appeal from an appellant "who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion ..." See Tex. R. App. P. 30. Here, the Sintims timely filed a motion for new trial challenging the default judgment. See Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex.App.-Dallas 2000, no pet.) (concluding court of appeals lacked jurisdiction over restricted appeal where appellant filed a timely motion for new trial).
Because appellant filed a timely motion for new trial, he is precluded from filing a restricted appeal. See Lab Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.-Dallas 2000, no pet.). Accordingly, we grant appellees' motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).
ATTACK ON A DEFAULT JUDGMENT BY BILL OF REVIEW
If a judgment is not challenged by a timely direct or restricted appeal, a bill of review is the exclusive method of vacating the judgment. See id.; see also TEX. R. APP. P. 30; TEX. R. CIV. P. 329b(f). Courts do not look on bills of review with favor, and the grounds on which they are granted are narrow and restricted. See Vickery v. Vickery, 999 S.W.2d 342, 367 (Tex. 1999). A petition for bill of review must allege factually and with particularity the required elements of a bill of review. See Jones v. Tex. Dept. of Protective and Regulatory Servs., 85 S.W.3d 483, 488 (Tex. App.-Austin 2002, pet. denied).
IN TEXAS, A BILL OF REVIEW IS THE ULTIMATE REMEDY AGAINST A DEFAULT JUDGMENT (4-YEAR SOL), BUT IT REQUIRES A NEW LAWSUIT IN WHICH THE JUDGMENT-DEBTOR IS THE PETITIONER AND THE CREDITOR THE DEFENDANT
A bill of review proceeding, like an equitable motioTn for new trial and a restricted appeal, is a method of attacking a default judgment. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). The bill of review is the chosen method when the default judgment under attack is no longer subject to a motion for new trial or appealable. Tex. R. Civ. P. 329b(f); Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010), cert. denied,562 U.S. 1180 (2011).
While a motion for new trial is filed in the same original case and a restricted appeal is an appeal taken from the trial court's judgment in the original case, a bill of review proceeding is filed as a separate cause of action.[2] In re J.J., 394 S.W.3d 76, 81 (Tex. App.-El Paso 2012, no pet.) (explaining that "[a]lthough a bill of review directly attacks a judgment rendered in a particular case, it is nonetheless an independent, separate suit filed under a different cause number"); see also Tex. R. App. P. 30 ("Restricted Appeals to Court of Appeals in Civil Cases); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) ("Assuming that Philbrook was properly decided . . . [it] demands no more than that `the motion for new trial must be filed in the same cause as the judgment the motion assails.'").
[Nota bene: A bill of review is a complicated procedure with specific requirements, incl verification of facts relied upon as a basis for it.]
TEXT OF TRCP
RULE 306a. Because appellant filed a timely motion for new trial, he is precluded from filing a restricted appeal. See Lab Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.-Dallas 2000, no pet.). Accordingly, we grant appellees' motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).
ATTACK ON A DEFAULT JUDGMENT BY BILL OF REVIEW
If a judgment is not challenged by a timely direct or restricted appeal, a bill of review is the exclusive method of vacating the judgment. See id.; see also TEX. R. APP. P. 30; TEX. R. CIV. P. 329b(f). Courts do not look on bills of review with favor, and the grounds on which they are granted are narrow and restricted. See Vickery v. Vickery, 999 S.W.2d 342, 367 (Tex. 1999). A petition for bill of review must allege factually and with particularity the required elements of a bill of review. See Jones v. Tex. Dept. of Protective and Regulatory Servs., 85 S.W.3d 483, 488 (Tex. App.-Austin 2002, pet. denied).
IN TEXAS, A BILL OF REVIEW IS THE ULTIMATE REMEDY AGAINST A DEFAULT JUDGMENT (4-YEAR SOL), BUT IT REQUIRES A NEW LAWSUIT IN WHICH THE JUDGMENT-DEBTOR IS THE PETITIONER AND THE CREDITOR THE DEFENDANT
A bill of review proceeding, like an equitable motioTn for new trial and a restricted appeal, is a method of attacking a default judgment. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). The bill of review is the chosen method when the default judgment under attack is no longer subject to a motion for new trial or appealable. Tex. R. Civ. P. 329b(f); Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010), cert. denied,562 U.S. 1180 (2011).
While a motion for new trial is filed in the same original case and a restricted appeal is an appeal taken from the trial court's judgment in the original case, a bill of review proceeding is filed as a separate cause of action.[2] In re J.J., 394 S.W.3d 76, 81 (Tex. App.-El Paso 2012, no pet.) (explaining that "[a]lthough a bill of review directly attacks a judgment rendered in a particular case, it is nonetheless an independent, separate suit filed under a different cause number"); see also Tex. R. App. P. 30 ("Restricted Appeals to Court of Appeals in Civil Cases); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) ("Assuming that Philbrook was properly decided . . . [it] demands no more than that `the motion for new trial must be filed in the same cause as the judgment the motion assails.'").
[Nota bene: A bill of review is a complicated procedure with specific requirements, incl verification of facts relied upon as a basis for it.]
PERIODS TO RUN FROM SIGNING OF JUDGMENT
1. Beginning of Periods. The date of judgment or order is signed as
shown of record shall determine the beginning of the periods prescribed by
these rules for the court's plenary power to grant a new trial or to vacate,
modify, correct or reform a judgment or order and for filing in the trial court
the various documents that these rules authorize a party to file within such
periods including, but not limited to, motions for new trial, motions to modify
judgment, motions to reinstate a case dismissed for want of prosecution,
motions to vacate judgment and requests for findings of fact and conclusions of
law; but this rule shall not determine what constitutes rendition of a judgment
or order for any other purpose.
2. Date to Be Shown. Judges, attorneys and clerks are directed to use
their best efforts to cause all judgments, decisions and orders of any kind to
be reduced to writing and signed by the trial judge with the date of signing
stated therein. If the date of signing is not recited in the judgment or order,
it may be shown in the record by a certificate of the judge or otherwise;
provided, however, that the absence of a showing of the date in the record
shall not invalidate any judgment or order.
3. Notice of Judgment. When the final judgment or other appealable
order is signed, the clerk of the court shall immediately give notice to the
parties or their attorneys of record by first-class mail advising that the
judgment or order was signed. Failure to comply with the provisions of this
rule shall not affect the periods mentioned in paragraph (1) of this rule,
except as provided in paragraph (4).
4. No Notice of Judgment. If within twenty days after the judgment or
other appealable order is signed, a party adversely affected by it or his
attorney has neither received the notice required by paragraph (3) of this rule
nor acquired actual knowledge of the order, then with respect to that party all
the periods mentioned in paragraph (1) shall begin on the date that such party
or his attorney received such notice or acquired actual knowledge of the signing,
whichever occurred first, but in no event shall such periods begin more than
ninety days after the original judgment or other appealable order was signed.
5. Motion, Notice and Hearing. In order to establish the application of
paragraph (4) of this rule, the party adversely affected is required to prove
in the trial court, on sworn motion and notice, the date on which the party or
his attorney first either received a notice of the judgment or acquired actual
knowledge of the signing and that this date was more than twenty days after the
judgment was signed. 6. Nunc Pro Tunc Order. When a corrected judgment has been
signed after expiration of the court's plenary power pursuant to Rule 316, the
periods mentioned in paragraph (1) of this rule shall run from the date of
signing the corrected judgment with respect of any complaint that would not be
applicable to the original document. 7. When Process Served by Publication.
With respect to a motion for new trial filed more than thirty days after the
judgment was signed pursuant to Rule 329 when process has been served by
publication, the periods provided by paragraph (1) shall be computed as if the
judgment were signed on the date of filing the motion.
