                                  NO. 12-12-00198-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DEUTSCHE BANK NATIONAL TRUST                    §           APPEAL FROM THE
COMPANY, AS TRUSTEE ON BEHALF
OF THE CERTIFICATE HOLDERS OF
THE MORGAN STANLEY ABS CAPITAL
I INC. TRUST 2004-HE1, MORTGAGE
PASS THROUGH CERTIFICATES,
SERIES 2004-HE1,
APPELLANTS                                      §           COUNTY COURT AT LAW

V.


DAVE LEWIS AND GLENDA LEWIS,
APPELLEES                                       §           VAN ZANDT COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Deutsche Bank National Trust Company, as Trustee on Behalf of the Certificateholders
of the Morgan Stanley ABS Capital I Inc. Trust 2004-HE1, Mortgage Pass Through Certificates,
Series 2004-HE1 (Deutsche Bank) brings a restricted appeal in which it complains that the trial
court erred in awarding a default judgment in favor of Dave Lewis and Glenda Lewis. Deutsche
Bank raises two issues on appeal. We reverse and remand.


                                         BACKGROUND
       The Lewises applied for and received a home equity loan from AAMES Home Loan.
AAMES transferred the loan to Morgan Stanley, and Morgan Stanley deposited the note into a
securitized loan trust with Deutsche Bank serving as the trustee.
       The Lewises concluded that they were charged loan fees in excess of those allowed by
the Texas Constitution. They notified Deutsche Bank and sought a refund of the overcharge plus
the interest paid on the overcharge. When Deutsche Bank failed to comply with their request,
the Lewises filed suit. Before they served Deutsche Bank with citation, the Lewises filed an
amended petition.
       Deutsche Bank is a foreign entity and does not maintain a registered agent in Texas.
Consequently, the Lewises sought to have Deutsche Bank served through the Texas Secretary of
State. They sent a copy of the citation and their amended petition to the Secretary of State. The
Secretary of State’s return of service made no reference to the citation and amended petition.
Instead, the notation on the return stated that a copy of “the 24071067” was served on Deutsche
Bank. The return of service was filed in the trial court on March 2, 2012.
       After the return of service had been on file for the required number of days, the Lewises
filed a motion for default judgment. On March 27, 2012, the trial court signed a default
judgment in favor of the Lewises and against Deutsche Bank.
       On April 17, 2012, Deutsche Bank filed its original answer, including affirmative
defenses and a counterclaim. On May 23, 2012, Deutsche Bank filed a notice of restricted
appeal. And finally, on May 30, 2012, the Secretary of State’s corrected return of service was
filed in the trial court, showing that a copy of the citation and amended petition had been served
on Deutsche Bank.


                                      DEFAULT JUDGMENT
       In their first issue, Deutsche Bank contends that the trial court erred in rendering a default
judgment against it because the evidence before the trial court did not establish that Deutsche
Bank was served with a copy of the citation and amended petition.
Applicable Law
       A restricted appeal is available to a party who did not participate, either in person or
through counsel, in the hearing that resulted in the judgment complained of, and did not timely
file a postjudgment motion, request for findings of fact and conclusions of law, or notice of
appeal. TEX. R. APP. P. 30. Notice of the restricted appeal must be filed within six months after
the judgment or order is signed. TEX. R. APP. P. 26.1(c).
       A party can prevail in a restricted appeal only if error is apparent on the face of the
record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). When a default
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judgment is attacked in a restricted appeal, there are no presumptions in favor of valid issuance,
service, and return of citation. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.
1994) (error apparent on face of record where return of service failed to indicate party was
served with proper petition).
Application
         In this case, the Secretary of State’s return of service should have stated that a copy of the
citation and the amended petition were mailed to and received by Deutsche Bank, but it did not.
Although the Secretary of State corrected the error, the corrected return of service was not on file
at the time the default judgment was rendered. Instead, the record at that time showed only that
Deutsche Bank had been served with a copy of “the 24071067.”                  This defect in service
constitutes error apparent from the face of the trial court record. See id. Moreover, Deutsche
Bank did not participate, either in person or through counsel, in the hearing that resulted in the
default judgment. See TEX. R. APP. P. 30. Nor did it timely file a postjudgment motion, request
for findings of fact and conclusions of law, or notice of appeal. See id. Deutsche Bank also filed
its notice of restricted appeal within six months after the default judgment was signed. See TEX.
R. APP. P. 26.1(c). Therefore, Deutsche Bank has satisfied the requirements for prevailing in a
restricted appeal. See id.; Alexander, 134 S.W.3d at 848.
         We hold, and the Lewises concede in their brief, that the trial court erred in rendering the
default judgment based upon the record before it at the time. See Silver, 884 S.W.2d at 152.
Accordingly, we sustain Deutsche Bank’s first issue. Because we have sustained Deutsche
Bank’s first issue, we do not consider its second issue. See TEX. R. APP. P. 47.1.


                                                    DISPOSITION
         Having sustained Deutsche Bank’s first issue, which is dispositive, we reverse the trial
court’s default judgment in favor of the Lewises and against Deutsche Bank, and remand for
further proceedings.
                                                                BRIAN HOYLE
                                                                  Justice
Opinion delivered November 30, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                                    (PUBLISH)

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                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                       NOVEMBER 30, 2012


                                      NO. 12-12-00198-CV

        DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
       ON BEHALF OF THE CERTIFICATE HOLDERS OF THE MORGAN
         STANLEY ABS CAPITAL I INC. TRUST 2004-HE1, MORTGAGE
              PASS THROUGH CERTIFICATES, SERIES 2004-HE1,
                                  Appellants
                                      V.
                     DAVE LEWIS AND GLENDA LEWIS,
                                   Appellees
_____________________________________________________________________________
                        Appeal from the County Court at Law
                  of Van Zandt County, Texas. (Tr.Ct.No. CV04634)
_____________________________________________________________________________

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings and that all costs of this appeal are hereby adjudged against the Appellees, DAVE
LEWIS AND GLENDA LEWIS, in accordance with the opinion of this court; and that this
decision be certified to the court below for observance.
                        Brian Hoyle, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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