U.S. Bank National Association, as Trustee for RMTP Trust Series 2021 Cottage-TT-V v. Business Unlimited 27, LLC

In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                 ___________________________
                      No. 02-25-00315-CV
                 ___________________________

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR RMTP TRUST
            SERIES 2021 COTTAGE-TT-V, Appellant

                                V.

            BUSINESS UNLIMITED 27, LLC, Appellee



               On Appeal from the 96th District Court
                      Tarrant County, Texas
                  Trial Court No. 096-362639-25


           Before Sudderth, C.J.; Womack and Wallach, JJ.
         Concurring Memorandum Opinion by Justice Wallach
                  CONCURRING MEMORANDUM OPINION

       I concur with the majority opinion that the trial court’s default judgment should

be affirmed because USB failed to satisfy the second prong of the Craddock test. I would

hold that USB also failed to meet the first prong of the Craddock test.

       I.     Background

       According to Appellee’s (Unlimited) original petition in its suit to quiet title, the

genesis of this saga occurred on May 21, 2013, when Michael Jackson, Unlimited’s

predecessor in interest, took title to the real property in question, recording his deed in

the Tarrant County deed records. He simultaneously executed a deed of trust in favor

of Mortgage Electronic Registration Systems as nominee for R. H. Lending, Inc., which

was also recorded in the deed records. Unlimited alleged that USB now claims

ownership of Jackson’s deed of trust through a chain of assignments, recording its

assignment on March 7, 2023. However, Unlimited alleged that USB’s predecessor

accelerated the note secured by the deed of trust no later than December 13, 2016,

when it filed a Notice of Substitute Trustee’s Sale. Unlimited claimed it acquired the

property at an HOA lien sale on November 13, 2024, and recorded its deed. Unlimited

requested that the trial court quiet title in its name and declare the prior deed of trust

unenforceable because the statute of limitations had expired on the unexecuted powers

of sale. See Tex. Civ. Prac. & Rem. Code § 16.035.

      Unlimited requested service of process on USB’s registered agent, C.T.

Corporation System in Dallas, Texas, which occurred on March 17, 2025. USB did not

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answer or appear before the answer date and a default judgment was taken on April 9,

2025. USB filed its Motion for New Trial on April 30, 2025. Although the motion

referenced an affidavit as being attached, none was. Unlimited filed its Response to

Motion for New Trial on May 19, 2025. The affidavit of Michael G. Patiuk, offered in

support of the Motion for New Trial by USB, was not filed until May 23, 2025, more

than thirty days after the judgment was signed and shortly before the hearing on the

Motion for New Trial. A Zoom hearing was held on the motion on May 23, 2025. No

evidence was offered or admitted. The court denied the Motion for New Trial on the

record and also by written order signed the same day. This appeal ensued.

       II.    No Abuse of Discretion in Denial of Motion for New Trial

       The standard of review for a denial of a motion for new trial following a no-

answer default judgment is an abuse of discretion Craddock v. Sunshine Bus Lines, Inc.,

133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939); 1 Solar Solution, LLC v. S&A Wholesale

Inc., No. 02-25-00220-CV, 2025 WL 2989767, at *2 (Tex. App.—Fort Worth Oct. 23,

2025, no pet.) (mem. op.); Century Sports Wears, Inc. v. Wallis Bank, No. 02-20-00201-CV,

2021 WL 1685957, at *1 (Tex. App.—Fort Worth Apr. 29, 2021, pet. denied) (mem.

op.). Under the first prong of the Craddock test, when a defendant relies on his agent to

file an answer, he must demonstrate that both he and his agent were free of intent or

conscious indifference and that the failure to timely answer was due to accident or

mistake. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); 1 Solar Solution,

LLC, 2025 WL 2989767, at *4.

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       To support the motion for new trial, the defendant must make factual allegations

that are supported by evidence, such as affidavits, setting forth facts which, if true,

satisfy the Craddock standard. 1 Solar Solution, LLC, 2025 WL 2989767, at *3. “Affidavits

attached to the motion for new trial do not have to be offered into evidence in order

to be considered by the trial court for the meritorious defense element or any other

element of the Craddock test.” Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d

266, 268 (Tex. 1994); Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston

[14th Dist.] 1998, no pet.) (“A motion for new trial to set aside a default judgment is a

complaint on which evidence must be heard.”).

       Affidavits cannot be conclusory, and they must be factually sufficient to establish

that the failure to answer was the result of accident or mistake, and not the result of

intent or conscious indifference. See Holt Atherton Indus., Inc., 835 S.W.2d at 82 (stating

that conclusory allegations in affidavits are insufficient); 1 Solar Solution, LLC, 2025 WL

2989767, at *4; Century Sports Wears, Inc., 2021 WL 1685957, at *5; Motiograph, Inc. v.

Matthews, 555 S.W.2d 196, 197 (Tex. App.—Dallas 1977, writ ref’d n.r.e.). Factually

insufficient, conclusory affidavits will not support a reversal for abuse of discretion in

denying a motion for new trial. 1 Solar Solution, LLC, 2025 WL 2989767, at *4; Uptown

RE Invs., LLC v. COP Enters., LLC, No. 05-24-00906-CV, 2025 WL 1261944, at *4

(Tex. App.—Dallas Apr. 30, 2025, no pet.) (mem. op.); Century Sports Wears, Inc., 2021

WL 1685957, at *5.



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         The only evidence offered by Appellant in support of its Motion for New Trial

was the affidavit of Michael G. Patiuk.1 He identified himself as a Vice President of

U.S. Bank National Association. His affidavit was sworn before a notary public in

Ramsey County, Minnesota. Mr. Patiuk did not identify where he lives, where his work

with the Bank is located, or what his duties and responsibilities are. Although he stated

that he has personal knowledge of the facts stated, he did not demonstrate the factual

bases for this conclusion. Additionally, he did not establish that he had any position

with C.T. Corporation, Appellant’s registered agent for service of process, or how he

might have gained knowledge of facts about how business is conducted at C.T.’s

Corporation’s office in Dallas, Texas, where the service of process occurred.

         Mr. Patiuk’s affidavit, relative to the issue of the failure to file a timely answer,

stated

         On March 17, 2025, Plaintiff’s Original Petition and Citation were
         delivered to the office of Defendant’s registered agent, at 1999 Bryan St.,
         Dallas, TX 75201. However, due to an administrative oversight,
         Defendant’s intake procedures were not followed. Specifically, Plaintiff’s
         Original Petition and Citation were never uploaded into Defendant’s legal
         tracking system. Consequently, Defendant was unaware that it had been
         served. Defendant also has no record of receiving Plaintiff’s Motion for
         Default Judgment, nor does Defendant have any record of receiving
         notice of any hearing on Plaintiff’s Motion for Default Judgment.

       For purposes of this concurrence, I am assuming that this affidavit was properly
         1

before the court for consideration since Appellee’s counsel represented to the trial court
during the Zoom hearing that he did not oppose the late filing of the affidavit.
Otherwise, it would have been a nullity without the trial court having granted
permission for late filing. Henderson v. Henderson, No. 03-10-00531-CV,
2011 WL 2768549, at *4 (Tex. App.—Austin July 13, 2011, pet. struck) (mem. op.).


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       Defendant’s failure to file an answer prior to, or appear on or before its
       appearance day, or file an answer sufficient to place the merits of
       Plaintiff’s claims in issue, was the result of a mistake and not due to
       intentional or conscious indifference.

This affidavit is conclusory and factually insufficient in the following respects:

       1) it fails to establish how the affiant had any personal knowledge of how C.T.
          Corporation, its agent for service of process, handled the process in question
          and why its mishandling of the process was accidental or mistaken or not the
          result of intent or conscious indifference;

       2) it fails to establish how the affiant had any personal knowledge of the
          “[d]efendant’s intake procedures” and fails to factually explain how they were
          not followed;

       3) it concludes that there was an “administrative oversight” by C.T.
          Corporation, which was the reason for the mishandling, but offers no factual
          basis to support this conclusion;

       4) it concludes that the defendant’s failure to answer in a timely fashion was the
          result of accident or mistake and not due to intent or conscious indifference
          but offers no factual support for this conclusion other than the factually
          insufficient conclusion above; and

       5) it is silent as to any grounds of a meritorious defense.

       This type of conclusory and factually insufficient testimony regarding accident

or mistake and lack of intent or conscious indifference in failing to timely answer will

not support reversal for abuse of discretion by the trial court in denying a motion for

new trial. 1 Solar Solution, LLC, 2025 WL 2989767, at *5; Uptown RE Invs., LLC,

2025 WL 1261944, at *4; Dixie House Café, Inc. v. Eckman, No. 02-24-00280-CV,

2025 WL 285354, at *5–6 (Tex. App.—Fort Worth Jan. 23, 2025, no pet.) (mem. op.);

Century Sports Wears, Inc., 2021 WL 1685957, at *5; see also Scenic Mountain Med. Ctr. v.

Castillo, 162 S.W.3d 587, 590–91 (Tex. App.—El Paso 2025, no pet.) (holding that

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conclusory statements in an affidavit attached to a motion for new trial, which recited

that the medical center’s failure to answer was not intentional or the result of conscious

indifference but was a mistake or accident, were contradicted by the affiant’s trial

testimony showing that she had no knowledge about what had actually transpired

regarding the service and failure to answer and were of no effect). As stated in Castillo,

“The appropriate witnesses, either the registered agent, or a corporate office

representative with personal knowledge of the facts and circumstances surrounding the

failure to answer, did not appear in person or by affidavit.” 162 S.W.3d at 590–91

(emphasis added). 2

       For all these reasons I find no abuse of discretion in the trial court’s denial of

Appellant’s Motion for New Trial and concur in the judgment to affirm the trial court’s

judgment.

                                                           /s/ Mike Wallach

                                                           Mike Wallach
                                                           Justice

Delivered: April 16, 2026


       2
        The majority states that Unlimited’s attorney “raised no challenge as to whether
Patiuk’s affidavit sufficed to establish lack of conscious indifference, the first prong of
the Craddock test.” However, the burden was on USB, not Unlimited, to prove that its
failure to answer was not the result of intentional or consciously indifferent conduct
but was due to accident or mistake, and conclusory statements in an affidavit are not
sufficient to meet that test. Holt Atherton Indus., Inc., 835 S.W. 2d at 82; Polignone v. Bulldog
Chemicals, LLC, No. 01-16-00633-CV, 2018 WL 4128002, at *6 (Tex. App.—Houston
[1st Dist.] Aug. 30, 2018, no pet.) (mem. op).


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