Motion to Set Aside / Vacate Default Judgment (Debt) - California

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [____________]

NOTICE OF MOTION AND MOTION TO SET ASIDE / VACATE DEFAULT AND DEFAULT JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF DEFENDANT

(Cal. Code Civ. Proc. §§ 473(b), 473(d), 473.5)

NOTICE OF MOTION

TO PLAINTIFF AND ITS ATTORNEY OF RECORD (OR TO PLAINTIFF, IF UNREPRESENTED):

PLEASE TAKE NOTICE that on [__/__/____] at [____], or as soon thereafter as the matter may be heard in Department [____] of the above-entitled Court located at [____________], Defendant [____________] ("Defendant") will and hereby does move the Court for an order:

1. Setting aside and vacating the default entered against Defendant on [__/__/____] and the default judgment entered against Defendant on [__/__/____] in the amount of $[____________];

2. Granting Defendant leave to file the proposed Answer lodged with this Motion and to defend this action on the merits; and

3. Staying and recalling all enforcement of the judgment, including any writ of execution, bank levy, and earnings withholding order (wage garnishment), pending determination of this Motion.

This Motion is made on the following grounds, as more fully set forth in the accompanying Memorandum of Points and Authorities and the Declaration of Defendant:

☐ Cal. Code Civ. Proc. § 473.5 — Service of the summons did not result in actual notice to Defendant in time to defend the action, and this Motion is brought within the time permitted by § 473.5(a).

☐ Cal. Code Civ. Proc. § 473(d) — The default judgment is VOID because service of process was defective and the Court lacked personal jurisdiction over Defendant.

☐ Cal. Code Civ. Proc. § 473(b) (discretionary) — The default and judgment were taken against Defendant through Defendant's mistake, inadvertence, surprise, or excusable neglect, and this Motion is brought within six months of entry.

☐ Cal. Code Civ. Proc. § 473(b) (mandatory) — The default and judgment resulted from the mistake, inadvertence, surprise, or neglect of Defendant's attorney, whose sworn affidavit of fault accompanies this Motion.

This Motion is based on this Notice; the attached Memorandum of Points and Authorities; the Declaration of Defendant [and the Declaration / Affidavit of Fault of counsel]; the [Proposed] Answer lodged herewith; all pleadings, records, and papers on file; and such further evidence and argument as may be presented at the hearing.

Dated: [__/__/____]

/s/ [____________________________________]

[____________________________________]
☐ Defendant, in pro per ☐ Attorney for Defendant
California State Bar No. (if attorney): [____________]
[Street Address] | [City], California [____]
Telephone: ([____]) [____]-[________] | Email: [____________________________________]

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

1. This is a debt-collection action in which Plaintiff obtained a default judgment against Defendant without Defendant ever having an opportunity to defend on the merits. Defendant brings this Motion to set aside the default and default judgment, to obtain leave to file the proposed Answer lodged herewith, and to stay enforcement.

2. Defendant first learned of the [default / default judgment] on [__/__/____], when [☐ Defendant's wages were garnished / ☐ Defendant's bank account was levied / ☐ Defendant received a notice of levy or earnings withholding order / ☐ Defendant received a copy of the judgment / ☐ other: [____________]]. Defendant acted promptly upon learning of the judgment, as set forth in the accompanying Declaration.

3. The law strongly favors disposition of cases on their merits, and any doubt in applying section 473 must be resolved in favor of the party seeking relief. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Relief is warranted here for the reasons below.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Plaintiff filed the Complaint on [__/__/____], alleging [☐ common counts / ☐ breach of contract / ☐ account stated / ☐ open book account] arising from an alleged consumer debt originally owed to [ORIGINAL CREDITOR].

5. A purported proof of service of summons states that Defendant was served on [__/__/____] by [☐ personal service / ☐ substituted service / ☐ service by publication / ☐ mail] at [____________].

6. The clerk entered Defendant's default on [__/__/____], and the Court entered a default judgment on [__/__/____] in the total amount of $[____________] (including $[____] principal, $[____] interest, $[____] costs, and $[____] attorney's fees).

III. LEGAL STANDARD

A. Section 473.5 — Service That Did Not Result in Actual Notice

7. Code of Civil Procedure section 473.5(a) provides: "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 the party in the action, the party 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 the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered."

8. The motion must 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 the party's avoidance of service or inexcusable neglect," and the moving party "shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action." (§ 473.5(b).) Upon the required findings, the court "may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action." (§ 473.5(c).)

B. Section 473(d) — Void Judgment

9. Code of Civil Procedure section 473(d) provides that the court "may, … on motion of either party after notice to the other party, set aside any void judgment or order." A default judgment entered against a defendant who was not served with the summons in the manner prescribed by statute is void for lack of personal jurisdiction. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) The California Supreme Court has held that a section 473(d) motion to vacate a judgment that is void for lack of proper service is not subject to the judicially created two-year limitation. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 102.)

C. Section 473(b) — Discretionary and Mandatory Relief

10. Discretionary relief. Section 473(b) provides that the court "may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Application must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken," and an application to set aside a default must be accompanied by "a copy of the answer or other pleading proposed to be filed therein."

11. Mandatory relief (attorney affidavit of fault). Section 473(b) further provides: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." When a complying affidavit is filed, relief is mandatory even if the neglect was inexcusable. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)

IV. ARGUMENT

A. ☐ The Judgment Should Be Set Aside Under § 473.5 / § 473(d) Because Service Was Defective and Did Not Give Actual Notice

12. Defendant was never personally served with the summons and complaint and did not receive actual notice of this action in time to defend. [Explain the facts: e.g., Defendant did not live at the address of service on the date alleged; the person allegedly served was not a member of Defendant's household; the proof of service is false or describes "sewer service"; Defendant moved before the action was filed.] Because service did not result in actual notice through no avoidance of service or inexcusable neglect by Defendant, the default and judgment must be set aside under section 473.5. To the extent the manner of service failed to comply with sections 415.10 through 415.95, the Court never acquired personal jurisdiction and the judgment is void under section 473(d).

B. ☐ The Default Resulted from Defendant's Mistake, Inadvertence, Surprise, or Excusable Neglect (§ 473(b))

13. [Explain the excusable circumstance: e.g., Defendant received the papers while seriously ill or hospitalized; reasonably but mistakenly believed the matter was being handled or had been resolved through a payment plan; was misled by the collector; or experienced a comparable surprise that ordinary prudence could not have guarded against.] Defendant acted diligently upon discovering the default, filing this Motion within six months of entry.

C. ☐ Mandatory Relief Is Required on Counsel's Affidavit of Fault (§ 473(b))

14. The default [judgment] was caused by the mistake, inadvertence, surprise, or neglect of Defendant's counsel, as attested in the accompanying sworn Affidavit of Fault. Relief is therefore mandatory under section 473(b).

D. Defendant Has a Meritorious Defense

15. As detailed in Section V below and in Defendant's Declaration, Defendant has one or more meritorious defenses to the alleged debt. While a meritorious defense is not a prerequisite for relief under section 473.5 or for vacating a void judgment under section 473(d), it confirms that setting aside the judgment will serve the interests of justice and is not a futile exercise.

V. MERITORIOUS DEFENSE (Debt-Specific)

16. Defendant has the following meritorious defenses, any one of which would defeat or reduce Plaintiff's claim (check all that apply):

☐ Statute of limitations. The alleged debt is time-barred. An action on a written contract or a book account/account stated based on a writing must be brought within four years (Cal. Code Civ. Proc. § 337(a), (b)); an oral contract within two years (§ 339). Under § 337(d), a person may not bring suit to collect a debt once the limitations period has run. The last payment/charge-off occurred on or about [__/__/____].

☐ Wrong defendant / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt, the account does not belong to Defendant, or the account is the product of identity theft.

☐ Incorrect amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges that Defendant never agreed to and that Plaintiff cannot substantiate.

☐ Paid, settled, or discharged. The alleged debt has been paid, settled, released, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____]).

☐ Lack of standing / no proof of assignment. Plaintiff is a debt buyer that has not established a complete, unbroken chain of assignment from the original creditor and is not the real party in interest (Cal. Code Civ. Proc. § 367).

☐ No § 1692g validation / FDCPA & Rosenthal Act violations. Plaintiff and/or its predecessors failed to provide the validation required by 15 U.S.C. § 1692g and/or engaged in false, deceptive, or unfair collection practices actionable under the FDCPA, 15 U.S.C. § 1692 et seq., and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.

☐ Other: [____________________________________]

17. Defendant's proposed Answer asserting these defenses is lodged with this Motion as required by sections 473(b) and 473.5(b).

VI. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court vacate the default and default judgment, grant Defendant leave to file the lodged Answer, stay and recall all enforcement of the judgment, and grant such other relief as is just.

Dated: [__/__/____]

/s/ [____________________________________]

[____________________________________]
☐ Defendant, in pro per ☐ Attorney for Defendant

DECLARATION OF DEFENDANT IN SUPPORT OF MOTION

I, [____________________], declare:

1. I am the Defendant in this action. I have personal knowledge of the facts stated below and, if called as a witness, could and would competently testify thereto.

2. No actual notice / defective service. [State the facts of non-service or lack of actual notice: where you actually lived and worked on the date of alleged service; that you were not served and did not receive the summons and complaint; who, if anyone, lives at the service address; and that your lack of notice was not caused by any avoidance of service or inexcusable neglect on your part.]

3. How and when I learned of the judgment. I first learned of the [default / default judgment] on [__/__/____], when [____________]. I did not know of this lawsuit before that date.

4. Excusable circumstances (if proceeding under § 473(b)). [Describe the mistake, inadvertence, surprise, or excusable neglect that caused the default, if applicable.]

5. Diligence. Upon learning of the judgment, I promptly [consulted counsel / prepared this Motion / contacted the Court]. I have not delayed in seeking relief.

6. Meritorious defense. [State the facts supporting each defense checked in Section V — e.g., the date of last payment for the limitations defense; that the account is not mine; the correct balance; proof of payment or bankruptcy discharge; or that I never received a § 1692g validation notice.]

7. Hardship from enforcement. [Describe the harm from the garnishment/levy, e.g., inability to pay rent, utilities, or for necessities, to support a stay of enforcement.]

8. Attached as Exhibit(s) [__] are true and correct copies of [the notice of levy / earnings withholding order / proof of payment / bankruptcy discharge / correspondence].

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [____________], California.

/s/ [____________________________________]

[____________________________________], Defendant

ATTORNEY'S AFFIDAVIT OF FAULT (Mandatory Relief Under § 473(b)) — OPTIONAL

I, [ATTORNEY NAME], declare:

1. I am [was] the attorney of record for Defendant in this action (California State Bar No. [____]).

2. The default [and default judgment] entered against Defendant was caused by my own mistake, inadvertence, surprise, or neglect, specifically: [describe — e.g., I failed to calendar the response deadline / failed to file a timely answer].

3. The default was in fact caused by my conduct and not by any neglect of Defendant.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [____________], California.

/s/ [____________________________________]
[ATTORNEY NAME]

REQUEST TO STAY EXECUTION / GARNISHMENT

18. Defendant requests that the Court stay enforcement of the judgment — including any writ of execution, bank levy, and earnings withholding order under the Enforcement of Judgments Law (Cal. Code Civ. Proc. §§ 699.010 et seq., 706.010 et seq.) — pending the hearing and determination of this Motion, and that the Court order any garnished or levied funds held and not disbursed to Plaintiff.

☐ Defendant has separately filed a Claim of Exemption (wage garnishment) and/or ex parte application to stay enforcement and recall the writ/levy.

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully prays that the Court:

A. Vacate and set aside the default entered [__/__/____] and the default judgment entered [__/__/____];

B. Grant Defendant leave to file the [Proposed] Answer lodged with this Motion;

C. Quash service of the summons and recall any writ of execution, bank levy, or earnings withholding order issued on the judgment;

D. Stay all enforcement of the judgment pending determination of this Motion and order any seized funds held;

E. Award Defendant costs and any other relief the Court deems just and proper.

Dated: [__/__/____]

/s/ [____________________________________]

[____________________________________]
☐ Defendant, in pro per ☐ Attorney for Defendant

[PROPOSED] ORDER

The Motion of Defendant [____________] to set aside and vacate the default and default judgment came on for hearing on [__/__/____] in Department [____]. Having considered the moving papers, the Declaration of Defendant, any opposition and reply, and argument, and good cause appearing:

IT IS ORDERED that the Motion is GRANTED. The default entered [__/__/____] and the default judgment entered [__/__/____] are VACATED AND SET ASIDE. Defendant is granted leave to file the lodged Answer within [____] days. All enforcement of the judgment is recalled and discharged, and any writ of execution, bank levy, or earnings withholding order is QUASHED.

DATED: ____________________

_______________________________
Judge of the Superior Court

PROOF OF SERVICE

I, the undersigned, declare that I am over the age of 18 and not a party to this action. My business/residence address is [____________]. On [__/__/____], I served the foregoing NOTICE OF MOTION AND MOTION TO SET ASIDE / VACATE DEFAULT AND DEFAULT JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DEFENDANT; AND [PROPOSED] ORDER on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) by the following method (Cal. Code Civ. Proc. §§ 1013, 1010.6):

☐ U.S. First-Class Mail, postage prepaid
☐ Electronic service through the court's e-filing/e-service system (where authorized)
☐ Personal Delivery
☐ Overnight Delivery

Addressed to:

[____________________________________]
[____________________________________]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [____________], California.

/s/ [____________________________________]

[____________________________________]

CALIFORNIA PRACTICE NOTES

• Choose the right statute. Defective service / no actual notice → § 473.5 (earlier of 2 years after the default judgment or 180 days after written notice). Judgment void for lack of proper service / personal jurisdiction → § 473(d) (no two-year limit per California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 102). Mistake/excusable neglect → § 473(b) (reasonable time, not exceeding 6 months). Attorney fault → § 473(b) mandatory with a sworn affidavit of fault.
• Attach the proposed Answer. Both § 473(b) (set-aside of default) and § 473.5(b) require lodging a copy of the proposed answer or pleading with the motion. Omitting it is a common, fatal defect.
• Hearing / notice. Set the hearing per CCP § 1005(b) and reserve a hearing date with the department; check local rules, tentative-ruling procedures, and courtesy-copy requirements.
• § 473.5 sunset. Verify the operative text of § 473.5; it was amended by Stats. 2025, ch. 563 (AB 747) with a Jan. 1, 2027 repeal/replacement. Confirm before filing.
• Stay/recall enforcement. Ask for a stay (CCP § 918) and recall of the writ/levy; for wage garnishment, file a Claim of Exemption (Form WG-006/WG-008). The Court may impose "just terms" when setting aside under § 473.5.
• Limitations on debt: written contract / book account or account stated based on a writing — 4 years (CCP § 337(a), (b)); oral — 2 years (§ 339); § 337(d) bars suing on a time-barred debt. AB 1414 (Stats. 2023) excluded consumer debt from the "book account" definition — verify current text.

Sources and References

• Cal. Code Civ. Proc. § 473 (relief; discretionary and mandatory; § 473(d) void judgment): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=473.&lawCode=CCP
• Cal. Code Civ. Proc. § 473.5 (service not resulting in actual notice): https://law.justia.com/codes/california/code-ccp/part-2/title-6/chapter-8/section-473-5/
• Cal. Code Civ. Proc. § 418.10 (motion to quash): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=418.10.&lawCode=CCP
• California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 102 (no two-year limit on § 473(d) void-service motions): https://www.courts.ca.gov/opinions/documents/S277510.PDF
• Elston v. City of Turlock (1985) 38 Cal.3d 227 (law favors trial on the merits; doubts resolved for relief).
• Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432 (mandatory attorney-fault relief).
• Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426 (default judgment void for defective service).
• California Courts Self-Help — Set aside a default / vacate a judgment: https://selfhelp.courts.ca.gov/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=CIV&division=3.&title=1.6C.