Judge Ashfaq G. Chowdhury, Case Number: 24NNCV00921, Date: 2024-09-20 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV00921, Date: 2024-09-20 Tentative Ruling

Case Number: 24NNCV00921 Hearing Date: September 20, 2024 Dept: E

Hearing Date: 09/20/2024 -8:30am

Case No: 24NNCV00921

Trial Date: UNSET

Case Name: WELLS FARGO BANK, N.A…v. JOSE ALAONZO, AN INDIVIDUAL…

TENTATIVE RULING - MOTION TO SET ASIDE DEFAULT

RELIEF REQUESTED
Defendant, Jubilio Escalera, will move this Court for an order setting aside Plaintiff’s, Wells Fargo Bank, N.A., entry of default and to quash service of Wells Fargo’s summons to complaint.

Said motion will be made on the grounds that the alleged service of the summons and the complaint was not personally, or by way of subservice, served upon Defendant, Escalera, resulting in Defendant, Escalera, receiving actual notice to defend the action. Escalera did not live at the location where the alleged service was made. The location where the alleged service was made is a rental property occupied by tenants. As a result, Wells Fargo, wrongfully obtained an entry of Default against Defendant, Escalera.

This motion will be further based upon this Notice of Motion, the Memorandum of Points and Authorities, and the Declaration of Jubilio Escalera, and attached Exhibits, all pleadings, records and papers on file and oral and documentary evidence which may be offered at the hearing of this motion.

Procedural

Moving Party: Defendant, Jubilio Escalera
Responding Party: Plaintiff, Wells Fargo Bank, N.A., As Trustee, for Park Place Securities, Inc. Asset-Backed Pass-Through Certificates, Series 2005-WCW2

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion; Order; Proposed Answer

Opposition Papers: Response

Reply Papers: No Reply Submitted

ANALYSIS
On 4/12/2024, Plaintiff, Wells Fargo Bank, N.A., As Trustee, for Park Place Securities, Inc. Asset-Backed Pass-Through Certificates, Series 2005-WCW2, filed a Verified Complaint for: (1) Quiet Title, (2) Cancellation of Instrument, and (3) Declaratory Relief.

On 6/6/2024, an entry of default was entered on the Verified Complaint against Defendant, Jubilio Escalera.

Defendant, Escalara, argues that the entry of default entered against him should be set aside under CCP § 473.5.

As stated in CCP § 473.5:

(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(CCP § 473.5.)

Escalara argues he does not reside at the address wherein the substitute service was effectuated. Escalara argues that he was not at the address where substitute service was effectuated and thus service of the summons and complaint should be deemed defective.

Escalara also argues that service of summons should be quashed for lack of personal jurisdiction because he was never properly served and never attempted to avoid service of process.

TENTATIVE RULING
While CCP § 473.5 requires lack of actual notice to set aside a default, Defendant’s motion does not include an affidavit showing that Defendant lacked actual notice. In fact, Defendant does not seem to admit lack of actual notice in his motion. Defendant seems to be arguing that he wasn’t properly served by substitute service because he didn’t live at the address that substitute service was effectuated.

Plaintiff argues that it offered to stipulate to set aside the default on multiple occasions before Defendant’s motion was filed.

Plaintiff argues it does not oppose setting aside the default because Defendant has made his intent to participate in this action known.

Here, the Court GRANTS Defendant’s motion to set aside default because Plaintiff stated it did not oppose setting aside the default.

The Court will hear argument as to Defendant arguing that service of summons should be quashed for lack of personal jurisdiction due to improper service.

The Court will hear argument on quashing service of summons for several reasons. First, Defendant did not properly file a motion to quash service of summons. Defendant simply combined this argument in his motion to set aside default. Combining two motions into one appears improper.

Second, as a practical matter, the Court does not understand the function of quashing service of summons. In fact, with the instant motion, Defendant included a proposed answer to the Verified Complaint. Therefore, it seems unnecessary to quash service of summons when Defendant seems to indicate a desire to appear in the action by filing a proposed answer with the moving papers.

The Court will discuss issues of service with the parties.