dissenting.
I respectfully dissent.
Because Mr. Dispensa received a rule 239a notice of default judgment entered against him within five days of entry of the judgment, the majority concludes he had actual notice of the judgment at a time when he could have had the judgment set aside simply by showing that he was not served with citation. While this is no doubt true, a default judgment entered with no notice of the pendency of the action renders the default judgment constitutionally invalid. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 (1965). Armstrong involved a default judgment entered against the biological father in an adoption proceeding in Texas. Id., 85 S.Ct. at 1189. Armstrong, the natural father, learned of the judgment shortly after the entry of judgment and filed a motion for new trial in the trial court asking that the judgment be set aside and a new trial be granted upon the ground that he had been given no notice of the adoption proceeding. Id. 85 S.Ct. at 1189-90. On the hearing of Armstrong’s motion for new trial, the trial court heard evidence by Armstrong that he had not failed to contribute to his daughter’s support. Id. 85 S.Ct. at 1190. The trial court denied Armstrong’s motion and confirmed the adoption decree. MArmstrong appealed to the Texas court of civil appeals on the grounds that the trial court had erred in not setting aside the adoption decree because the entry of the decree without notice to him had deprived him “of his child without due process of law.” MThe court of civil appeals affirmed the judgment of the trial court and the Texas Supreme Court refused an application for writ of error. Id. The United States Supreme Court stated: “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finali*931ty is notice reasonably calculated, under all the circumstances, to apprise interested parties of the ‘pendency of the action and afford them an opportunity to present their objections.” Id. 85 S.Ct. at 1190. The Supreme Court further disagreed with holding of the Texas Court of Civil Appeals that whatever constitutional infirmity resulted from the failure to give the petitioner notice had been cured by the hearing subsequently afforded to him upon his motion to set aside the decree. Id. 85 S.Ct. at 1191 [referring to In re Adoption of Armstrong, 371 S.W.2d 407, 412 (Tex.Civ.App.-El Paso 1963, writ refd n.r.e.) ]. Upon remand to the El Paso Court of Civil Appeals, the El Paso Court adopted the entire opinion of the Supreme Court as the opinion of the El Paso Court of Civil Appeals. In re Armstrong’s Adoption, 394 S.W.2d 552 (Tex.Civ.App.-El Paso1965, no writ). The pertinent portion of the holding applicable to this case was:
A fundamental requirement of due process is “the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. His motion should have been granted.
Armstrong, 85 S.Ct. at 1191; In re Armstrong’s Adoption, 394 S.W.2d at 556.
In Peralta the United States Supreme Court held that Peralta was entitled to have a default judgment set aside in a Texas bill of review case on the grounds that he did not receive proper service of process, even though he did not have a meritorious defense. Peralta, 108 S.Ct. at 900. It was not denied by the Medical Center that a judgment entered without notice or service is constitutionally infirm. Id. at 899. However, the Texas courts held that to have the judgment set aside, Peralta was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgment entered without notice. /(¿The United States Supreme Court found this reasoning untenable because, had Peralta had notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. Id. The Court concluded: “Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, ‘it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.’ ” Id. at 900. Citing Armstrong, 85 S.Ct. at 1191, the Court stated only “wiping the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.’” Id. at 900.
In this case, the majority argues that because Dispensa admitted receiving the notice of default judgment within five days of the entry of the judgment, he could have attacked the judgment by motion for new trial, or at least by writ of error within six months. Instead, Dispensa waited until after the statute of limitations had run for filing a bill of review (four years), and then filed a collateral attack on the judgment on the theory that the initial judgment was void for want of personal service. The majority contends that by receiving the default judgment notice, Peralta and due process are not violated because Dispensa received “notice at a meaningful time and in a meaningful manner that would have given him an opportunity to be heard.” To satisfy due process, the “notice” must be of the “pendency of the action and afford them the opportunity to present their objections.” Peralta, 108 S.Ct. at 899. Notice after the action, triggering post-judgment remedies, does not afford due process. A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990). Dunn’s knowledge that Wilson had sued him and his actual receipt of suit papers was not suffi*932cient to invoke the district court’s jurisdiction to render default judgment against him. Id. Absent service, waiver, or citation, mere knowledge of a pending suit does not place any duty on a defendant to act. Id.
Because the judgment in this case was void, it can be collaterally attacked. The record in this case clearly reflects Dispensa was denied constitutional due process because he did not receive notice of the pending action. Peralta, 108 S.Ct. at 899; LBL Oil Co. v. International Power Services, Inc., 777 S.W.2d 390, 390-91 (Tex.1989). The certificate of the Secretary of State stated the process mailed to Dispensa was returned “unclaimed.” The Texas Supreme Court has held that proof that the Secretary of State Forwarded a copy of the process is essential to establish the jurisdiction of the trial court over the person of the defendant. Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex.1973). See also: Royal Surplus Lines Insurance Co. v. Samaria Baptist Church, 840 S.W.2d 382, 383 (Tex.1992)(default judgment invalid where Secretary of State forwarded citation and petition to wrong address, and letter was returned “unclaimed”); World Distributors, Inc. v. Knox, 968 S.W.2d 474, 480 (Tex.App.-El Paso 1998, no writ)(because defendant was not validly served with non-resident service of citation, the trial court failed to obtain in personam jurisdiction over it and the default judgment was void); Whiskeman v.Lama, 847 S.W.2d 327 (Tex.App.-El Paso 1993, no writ) (plaintiff made no showing that defendant’s address was “home or home office” as required by long arm statute, and trial court never obtained personal jurisdiction over defendant); Barnes v. Frost Nat. Bank, 840 S.W.2d 747, 750 (Tex.App.-San Antonio 1992, no writ) (letter from Secretary of State with process returned “unclaimed;” trial court erred in granting default judgment because the court had no in personam jurisdiction over nonresidents); Boreham v. Hartsell, 826 S.W.2d 193, 197 (Tex.App.-Dallas 1992, no writ) (plaintiff made no showing that defendant’s address was “home or home office” address required by long-arm statute, and trial court never obtained personal jurisdiction over defendant). Failure to obtain proper service is “fundamental error” and voids the judgment because it was rendered without proof of personal jurisdiction over the defendant. Nueces Housing v. M & M Resources, 806 S.W.2d 948, 950-51 (Tex.App.-Corpus Christi 1991, writ denied). Because the trial court never acquired in personam jurisdiction over Dispensa, the default judgment was void, nor merely voidable.
Dispensa waited six years before filing this suit to set aside the default judgment. In this proceeding he collaterally attacked the judgment as being void because no notice was served on him of the pending action. By the time Dispensa filed this suit, limitations had run on all direct attacks available: (1) motion for new trial (30 days), (2) writ of error (six months), and (3) bill of review (four years). Therefore, his only recourse was to collaterally attack the judgment. A collateral attack is any proceeding that does not meet all the requirements of a valid direct attack, but seeks to avoid the effect of a judgment. Dept. of Transp. v. T. Brown Const., 947 S.W.2d 655, 659 (Tex.App.-Austin 1997, writ denied). There is neither a set procedure for a collateral attack nor any statute of limitations. Id. A party making a collateral attack does not need to meet the requirements of a bill of review to set aside a void judgment. Id. Collateral attacks may only be used to set aside a judgment that is void or involved fundamental error. Id A judgment is void if it is shown that the court lacked jurisdiction: (1) over a party or the property; (2) over the subject matter; (3) to enter a particular judgment; or (4) to act as a court. Min this case, the judgment is void because appellant was never given proper notice as required by the long-arm statute, and the trial court never acquired personal jurisdiction over appellant. Whitney, 500 S.W.2d at 96. Therefore, the default judgment was subject to collateral attack. Dept. of Transp. v. T. Brown Const. 947 S.W.2d at 659. The granting of the Bank’s motion for summary judgment denying collateral relief was error. I would reverse the judgment of the trial court, vacate the default judgment, and remand this cause to the trial court for a new trial.