CROSSOVER: Dallas Court: Default Judgment Void on Restricted Appeal When Service on LLC Fails Strict Compliance

Newrez LLC d/b/a Shellpoint Mortgage Servicing v. Kinney L. Barcuch, 05-24-01416-CV, May 05, 2026.

On appeal from 471st Judicial District Court of Collin County, Texas

Synopsis

The Dallas Court of Appeals reversed a default judgment on restricted appeal because the face of the record showed that the plaintiff never strictly complied with Texas service rules: citation was served on persons or entities not affiliated with the defendant LLC and not its actual registered agent. The court also rejected the argument that the appeal failed for want of a supposedly incomplete clerk’s record, holding the existing appellate record was sufficient to establish nonparticipation and no timely post-judgment filings.

Relevance to Family Law

This opinion matters in Texas family litigation because default divorces, default SAPCR modifications, post-divorce enforcement actions, and suits involving third-party entities regularly turn on service precision. When a petitioner takes a default against a spouse, a non-appearing parent, or an LLC tied to the marital estate without strict compliance in issuance, service, and return, the judgment is vulnerable to restricted appeal and can be undone months later, even after significant strategic reliance on the default.

Case Summary

Fact Summary

Barcuch sued Newrez LLC d/b/a Shellpoint Mortgage Servicing over alleged damages arising from an asserted loan-agreement breach involving Newrez’s predecessor. The service problem began at the pleading stage. In the original petition, Barcuch identified an individual, at a residential address in McKinney, as the person through whom Newrez could be served, and the process server’s affidavit recited that this individual was Newrez’s registered agent. The opinion makes clear she was not affiliated with Newrez.

Barcuch then amended his petition and changed course, this time identifying Newrez as a South Carolina LLC and naming an alleged registered agent in Charleston, South Carolina. That entity was likewise not Newrez’s registered agent. Newrez’s actual Texas registered agent was Corporation Service Company in Austin, Texas. The opinion also notes Newrez maintained a South Carolina registered agent, but not the one Barcuch served.

Relying on the second return, Barcuch obtained a default judgment. Notice of the judgment was sent to the incorrect South Carolina agent rather than to Newrez’s actual registered agent in Texas or to the correct South Carolina registered agent. Newrez did not answer, did not file post-judgment motions, and did not perfect a conventional appeal because it was unaware of the suit and judgment. Once it learned of the default, it filed a restricted appeal within six months of the judgment.

Issues Decided

• Whether Newrez satisfied the procedural prerequisites for a restricted appeal under Texas Rules of Appellate Procedure 26.1(c) and 30.
• Whether an allegedly incomplete clerk’s record prevented Newrez from proving it did not participate in the hearing and did not timely file post-judgment motions or requests for findings.
• Whether defective service was apparent on the face of the record where citation was served on persons or entities not affiliated with the defendant LLC and not its registered agent.
• Whether the court of appeals could take judicial notice of certified public records for the first time on appeal in assessing the service issue.
• Whether the default judgment was void for lack of personal jurisdiction due to failure of strict compliance with service rules.

Rules Applied

The court applied the familiar four-part restricted-appeal framework under Texas Rules of Appellate Procedure 26.1(c) and 30. To prevail, the appellant had to show that it timely filed within six months of judgment, was a party to the underlying suit, did not participate in the hearing that produced the judgment and did not timely file post-judgment motions or requests for findings, and that error was apparent on the face of the record.

The opinion reiterated several default-judgment service principles that appellate lawyers and trial lawyers alike ignore at their peril:

• In a restricted appeal, defective service constitutes error apparent on the face of the record.
• Whether service strictly complied with the rules is reviewed de novo.
• There is no presumption in favor of valid issuance, service, or return of citation.
• Texas courts rigidly enforce service rules when a default judgment is entered.
• If the record does not affirmatively show strict compliance, service is invalid, personal jurisdiction never attaches, and the default judgment is void.

The court cited, among others, Ex parte E.H., Pike-Grant v. Grant, Greystar, LLC v. Adams, Dolly v. Aethos Communications Systems, Inc., Lawton Candle, LLC v. BG Personnel, LP, Primate Construction, Inc. v. Silver, and Hubicki v. Festina.

On the service mechanics themselves, the court referenced the Texas Business Organizations Code provisions authorizing service on an entity’s registered agent, president, or any vice president, including sections 5.201 and 5.255. The court also relied on Texas Rule of Appellate Procedure 34.5 regarding contents of the clerk’s record and Texas Rule of Evidence 201 concerning judicial notice of facts capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned.

Application

The court first dealt with Barcuch’s threshold attempt to derail the restricted appeal by arguing the clerk’s record might be incomplete. That argument failed because Rule 34.5 itself prescribes what belongs in the clerk’s record, and the record included the docket sheet and did not reflect any post-judgment activity by Newrez. Just as importantly, Barcuch could not identify any actually missing document that would show participation or post-judgment filings. The court refused to indulge speculation about a hypothetical incomplete record.

From there, the opinion moved to the dispositive service defect. Newrez supplemented its appellate presentation with certified Secretary of State and Comptroller records showing that it was a Delaware LLC, identifying its sole member and officers, and confirming that its Texas registered agent was Corporation Service Company in Austin. None of those records tied Newrez to the individual first served in McKinney. Nor did the face of the trial-court record show that the South Carolina company later served was Newrez’s registered agent. The court took judicial notice of the certified public records and treated the facts they established as beyond reasonable dispute.

That left Barcuch with no jurisdictional bridge. He had served neither Newrez’s registered agent, nor one of the officers authorized by statute, nor any other person shown by the record to be an agent authorized to receive service. The defect was not latent or inferential; it was visible from the papers themselves. Because strict compliance is mandatory in the default setting, the attempted service was ineffective as a matter of law, the trial court never acquired in personam jurisdiction, and the default judgment could not stand.

Holding

The court held that Newrez satisfied the prerequisites for restricted appeal. Its notice was filed within six months of the judgment, it was a party to the suit, and the record established that it neither participated in the default proceedings nor filed timely post-judgment motions or requests for findings. The court rejected the appellee’s suggestion that uncertainty about the clerk’s record defeated those showings.

The court further held that error was apparent on the face of the record because Barcuch failed to strictly comply with Texas service rules. The record showed service on an unrelated individual and later on an incorrect out-of-state entity, not on Newrez’s actual registered agent or another statutorily authorized person.

Finally, the court held that because service was invalid, the trial court acquired no personal jurisdiction over Newrez. The default judgment was therefore void, requiring reversal and remand.

Practical Application

For family lawyers, the immediate lesson is that default practice remains a jurisdictional minefield. If you are taking a default in a divorce, SAPCR, modification, enforcement, or suit affecting property rights against a spouse who may be evasive, an out-of-state parent, or a business entity holding marital assets, you must ensure the record affirmatively demonstrates strict compliance with every service requirement. A “close enough” approach to naming the registered agent, using an outdated address, serving a bookkeeper or office manager, or relying on internet-scraped corporate information invites reversal by restricted appeal.

The opinion is equally powerful for the defense side. If your client first learns of a default property division, debt allocation, turnover order, or entity-related injunction after plenary deadlines have passed, restricted appeal should be assessed immediately. This case is especially useful where the petitioner served the wrong LLC, the wrong registered agent, a dissolved agent, a mail drop, a relative, or a person never shown to be authorized to accept service. The court’s rejection of the “incomplete clerk’s record” argument is also practical: appellees cannot defeat a restricted appeal by merely speculating that something might be missing when the docket and clerk’s record do not show participation or post-judgment activity.

In property cases, this matters when one spouse sues closely held entities, mortgage servicers, lenders, title companies, or trustees during or after divorce. An order reallocating liabilities or adjudicating claims against a non-served entity may look useful in settlement leverage, but if service was defective, the order may later evaporate. In custody litigation, the same reasoning applies to default modifications, contempt-adjacent proceedings, or ancillary claims against third parties where notice and service are jurisdictional prerequisites.

Checklists

Checklist for Taking a Default Against an Entity

• Confirm the defendant’s exact legal name from current Secretary of State records.
• Confirm the entity type and state of formation.
• Identify the current Texas registered agent and registered office from certified or current official records.
• If serving an officer instead of the registered agent, confirm the officer’s title fits the governing statute.
• Match the petition, citation, return, and motion for default to the exact same defendant identity.
• Verify the address used for service is the registered office or another statutorily authorized service location.
• Review the return before default prove-up for discrepancies in names, titles, addresses, dates, and manner of service.
• Attach or be prepared to present supporting public records if the agent identity could later be challenged.
• Confirm the clerk sends notice of judgment to the correct defendant or authorized agent.

Checklist for Defending a Default by Restricted Appeal

• Calendar the six-month deadline from the date the judgment was signed.
• Confirm the client was a party to the underlying suit.
• Confirm the client did not participate in the hearing that led to judgment.
• Confirm no timely post-judgment motion, request for findings, or ordinary notice of appeal was filed.
• Obtain the clerk’s record, including the docket sheet, citation, returns, petitions, and judgment.
• Compare the served person or entity against official public records for the actual registered agent or authorized officer.
• Examine whether the return affirmatively shows valid service, not merely attempted service.
• Consider requesting judicial notice of certified Secretary of State and Comptroller records on appeal.
• Frame the argument as lack of strict compliance and lack of personal jurisdiction, rendering the judgment void.

Checklist for Family Law Petitioners Seeking Default Relief

• Do not rely on a spouse’s informal admission about where a business can be served.
• If a spouse owns or controls an LLC relevant to property division, separately verify service information for that entity.
• In suits involving out-of-state parties or entities, confirm the governing Texas method of service before using foreign addresses.
• Ensure substituted service orders, if any, are obtained and followed exactly.
• Review every citation and return before the prove-up hearing, not after judgment.
• Avoid default prove-up if the service record contains any mismatch in names, capacities, or addresses.
• Preserve a clean jurisdictional record because post-judgment reliance does not cure void service.

Checklist for Family Law Respondents Who Discover a Default Late

• Determine the date your client first learned of the judgment, but do not confuse that with the restricted-appeal deadline.
• Pull the entire file immediately, including docket sheet and returns.
• Scrutinize service on both the individual client and any related entities affected by the judgment.
• Look for defects in identity, address, capacity, method of service, or return formalities.
• Assess whether the judgment is merely erroneous or jurisdictionally void.
• If within six months, prioritize restricted appeal analysis before shifting to bill of review.
• If outside six months, evaluate bill-of-review grounds, but still preserve service-defect evidence.

Citation

Newrez LLC d/b/a Shellpoint Mortgage Servicing v. Barcuch, No. 05-24-01416-CV, 2026 WL ___ (Tex. App.—Dallas May 5, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This is the kind of civil opinion that can be weaponized effectively in family court because default orders are often used to create immediate tactical advantage—especially in property characterization fights, business-valuation disputes, enforcement proceedings, and modification cases where one side is hard to locate or slow to respond. For the petitioner, the case is a warning that an aggressive default strategy built on sloppy entity service may produce only a temporary paper victory and expose counsel to an avoidable reversal. For the respondent, the opinion is a sharp appellate tool: if a divorce decree, enforcement order, or ancillary judgment reached a nonappearing spouse or a related LLC through defective service, Newrez supports framing the judgment as void on the face of the record rather than merely unfair, which is a far stronger position procedurally and strategically.

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