It is not uncommon for our firm to receive calls from potential new clients explaining that they just found out they have a default judgment against them because they failed to file an answer to a lawsuit. Sometimes the failure to answer occurred because they were never personally served or service occurred and there was some other reason for failing to answer. People usually discover the judgment (sometimes years later) in the process of selling real estate where an abstract of judgment has been recorded or applying for credit where the judgment has been listed on various credit reports. The good news is there is a process called a bill of review under Texas law where a judgment may be set aside after time has passed to file a motion for new trial and the judgment is no longer appealable.
Service was Proper and Defendant Failed to Answer
The typical setting where a bill of review is needed is where service of process on the defendant was proper and the defendant failed to file an answer. To set aside this kind of default judgment a defendant must plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 568–69, 226 S.W.2d 996, 998 (1950). Proving element one above is usually a fairly low hurdle as a general denial of plaintiff's claim will suffice; however, it is a much higher standard to prove that failure to answer was absent any negligence of the defendant.
Default Judgment where Service was Improper
Where a defendant was failed to be served or service was improper for some reason, the granting of a bill of review is almost a foregone conclusion. The courts have held that failure for a defendant to be served or improper service deprives him of constitutional due process. This lack of due process trumps other elements that would be required to be proven in a bill of review. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).
The proper use and filing of a bill of a review in Texas is a complex process that should always involve a competent attorney. Additionally, there are strict deadlines in Texas where a defendant may benefit from the equitable remedy of a bill of review.
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