Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00426-CV

WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF STANWICH 

MORTGAGE LOAN TRUST F,

Appellant

v.

HOCKESSIN HOLDINGS, INC., AS TRUSTEE OF THE LOST ARROW 25214 LAND 

TRUST,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2021CI06649

Honorable Cynthia Marie Chapa, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Beth Watkins, Justice

Delivered and Filed: November 30, 2022

REVERSED AND REMANDED

Appellant Wilmington Savings Fund Society, FSB, as Trustee of Stanwich Mortgage Loan 

Trust F (“Wilmington Savings”) brings this restricted appeal, arguing in two issues that appellee 

Hockessin Holdings, Inc., as Trustee of the Lost Arrow 25214 Land Trust (“Hockessin Holdings”) 

failed to properly serve it resulting in an erroneous no-answer default judgment in favor of

Hockessin Holdings. 
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Because Hockessin Holdings did not comply with Texas Civil Practice and Remedies Code 

section 17.028, which is “mandatory and provides the exclusive methods of service for financial 

institutions,” we reverse and remand. U.S. Bank Nat’l Ass’n v. Moss, 644 S.W.3d 130, 137 (Tex. 

2022); see also TEX. CIV. PRAC. & REM. CODE ANN. § 17.028.

BACKGROUND

The underlying dispute concerns real property. After obtaining title to the property in 

dispute following the foreclosure of a homeowners’ association lien, Hockessin Holdings sued 

Wilmington Savings, who held a superior lien on the property. Hockessin Holdings sued 

Wilmington Savings, seeking among other remedies, to quiet title in favor of Hockessin Holdings 

and declare it as sole owner of the property, without any liens or encumbrances, and declare all 

deeds of trust or subsequent assignments as void and extinguished. 

Hockessin Holdings alleged in its petition that Wilmington Savings, a federal savings bank 

and foreign corporate fiduciary, had neither an office nor a designated agent in Texas, and thus 

based on various statutes, Wilmington Savings could be served through the Secretary of State. A 

citation was issued for Wilmington Savings and served on the Secretary of State. Based on this 

method of service and return, Hockessin Holdings then sought and obtained a no-answer default 

judgment on May 19, 2021, based on Wilmington Savings’ failure to answer. Wilmington Savings 

filed a notice of restricted appeal on October 4, 2021. 

STANDARD FOR RESTRICTED APPEALS

AND APPLICABLE LAW

Rule 30 of the Texas Rules of Appellate Procedure governs restricted appeals. See TEX. R.

APP. P. 30. To prevail in a restricted appeal, an appellant must establish (1) it filed notice of the 

restricted appeal within six months after the judgment was signed, (2) it was a party to the 

underlying lawsuit, (3) it did not participate in the hearing resulting in the judgment complained 
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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. Rodriguez v. Gonzalez, No. 04-21-00104-

CV, 2022 WL 2230937, at *1 (Tex. App.—San Antonio June 22, 2022, no pet.) (mem. op.); see 

also Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); Alexander v. Lynda’s Boutique, 134 

S.W.3d 845, 848 (Tex. 2004) (citing TEX. R. APP. P. 30). Only the last element is at issue in this 

restricted appeal.

Because a trial court lacks personal jurisdiction over a defendant who is not properly served 

with process, service must strictly comply with the rules. Spanton v. Bellah, 612 S.W.3d 314, 316 

(Tex. 2020); see also TEX. R. CIV. P. 106. “Strict compliance” is construed “to mean just that.” 

Spanton, 612 S.W.3d at 316. We indulge no presumptions in favor of valid issuance, service, or 

return of citation, and service of process failing to strictly comply is invalid and of no effect. Id. at 

316–17. Moreover, strict compliance must affirmatively appear on the face of the record. See id.

at 316; Ex parte E.H., 602 S.W.3d 486, 497 (Tex. 2020). In a restricted appeal, the face of the 

record consists of all the papers before the trial court when it rendered judgment, including all 

papers filed with the clerk. See Sherrand v. Signad, Ltd., 637 S.W.3d 192, 196 (Tex. App.—

Houston [14th Dist.] 2021, no pet.).

“Whether service strictly complied with the statutes and rules is a question of law that we 

review de novo.” HSBC Bank USA, Nat’l Ass’n v. Kingman Holdings LLC, No. 02-21-00087-CV, 

2022 WL 872474, *3 (Tex. App.—Fort Worth March 24, 2022, no pet.) (mem. op) (citing LEJ 

Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 866 (Tex. App.—Fort Worth 2013, no pet.)). “When 

there is a specific statute that sets out the steps that must be taken for proper service, the inquiry is 

not whether the defendant had actual knowledge of the proceeding against [it] but rather whether 

that knowledge was conveyed to [it] in the required statutory manner.” Stanwich Mortg. Loan 
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Trust F v. Oak Creek Owners Ass’n, No. 02-21-00382-CV, 2022 WL 3651973, *2 (Tex. App.—

Fort Worth Aug. 25, 2022, no pet.) (mem. op.) (citing HSBC Bank, 2022 WL 872474, *3).

As this court recognized earlier this year, the Texas Supreme Court recently determined 

that section 17.028 provides the exclusive means for service of process on a financial institution. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 17.028; Moss, 644 S.W.3d at 137 (“[T]he Legislature 

intended for section 17.028 to provide the exclusive methods of service on financial institutions. 

We therefore hold . . . that compliance with section 17.028 is mandatory when the defendant is a 

financial institution.”); see also CR+ Enterprises, Inc. v. Deutsche Bank Nat’l Trust Co., No. 04-

21-00206-CV, 2022 WL 2135541, at *2–*3 (Tex. App.—San Antonio June 15, 2022, no pet.)

(mem. op.). 

ANALYSIS

Wilmington Savings is undisputedly a financial institution and must be served according 

to section 17.028.1 See TEX. CIV. PRAC. & REM. CODE ANN. § 17.028; Moss, 644 S.W.3d at 137; 

see also TEX. FIN. CODE ANN. § 201.101. Hockessin Holdings did not serve Wilmington Savings 

by (1) serving the financial institution’s registered agent, or (2) if no registered agent, the president 

or a branch manager at any office located in this state. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 17.028(b). If citation is not properly served as provided by section 17.028, then the financial 

institution “may maintain an action to set aside the default judgment.” Id. § 17.028(d).

Error is apparent on the face of the record because Hockessin Holdings did not serve 

Wilmington Savings pursuant to section 17.028. See id.; Moss, 644 S.W.3d at 137; Spanton, 612 

S.W.3d at 316. Accordingly, the trial court erred by granting the default judgment, and a default 

1 Because section 17.028 of the Texas Civil Practice and Remedies Code provides the exclusive means for service of 

process for a financial institution, Hockessin Holdings’ reliance on section 504.004 of the Texas Estates Code or 

section 17.044 of the Texas Civil Practice and Remedies Code to attempt to serve Wilmington Savings through the 

Texas Secretary of State was improper. See TEX. CIV. PRAC. & REM. CODE ANN. § 17.028; Moss, 644 S.W.3d at 137.
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judgment is improper against a defendant who has not been served in strict compliance with the 

law, accepted or waived process, or entered an appearance. TEX. R CIV. P. 124; Moss, 644 S.W.3d 

at 137. We sustain Wilmington Savings’ appellate issues.2

CONCLUSION

Having found that error is apparent on the face of this record, we must reverse the default 

judgment and remand this cause for further proceedings consistent with this opinion. 

Irene Rios, Justice

2 We note that while Moss and CR+ Enterprises were not decided when Hockessin Holdings filed suit or when it 

sought its default judgment, “[w]hen the applicable law changes during the pendency of the appeal, the court of appeals 

must render its decision in light of the change in the law.” Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex. 1993).