2016-00199701-CL-CL

Bank of America vs. Rowena D. Kumar

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Kumar, Rowena

Defendant Rowena D. Kumar’s Motion to Set Aside Default and Default Judgment is unopposed and is granted.

This is a collection case for a credit account issued by the plaintiff. The plaintiff obtained a default and default judgment on January 31, 2017. The defendant, Rowena Kumar contends that she did not learn about this lawsuit until July 24, 2018 when her joint bank account with her spouse was levied by the plaintiff. She

contends that she was never served with the Summons and Complaint. (Declaration of Rowena D. Kumar)

Defendant was purportedly served by substituted service at her address, 200 Moon Cir. Unit 221, Folsom, CA, on October 2, 2016. She states that the description of the person served does not match anyone who lived in their house.

The description of the person allegedly served was listed as “Jane Doe, Roommate, Co-resident, who tried to refuse service, a Middle Eastern female approx. 25-35 years of age, 5′- 5’4” tall weighing 80- 120 lbs with black hair. Defendant states that she is Filipino and that she does not look Middle Eastern. No one living at the house at that time matches the description of the person served. She states that if she had known about the lawsuit she would have filed an Answer to avoid the taking of her default. (Declaration of Rowena Kumar)

CCP 473.5 provides:

“(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

The Court finds that defendant did not have actual notice of the action in time to defend it, and that the motion is made within two years of the entry of the default judgment. Therefore, the unopposed motion is granted.

The Defendant shall file and serve the proposed Answer on or before September 10, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.