TD Bank USA, N.A. vs. R. E. Zaragoza Reynoso

24CV-05262 TD Bank USA, N.A. vs. R. E. Zaragoza Reynoso

Motion to Set Aside Default and Vacate Default Judgment

The motion by Defendant to set aside the default and vacate the default judgment on the ground that Defendant did not receive actual notice in time to file a timely response in the action is DENIED because the motion is untimely and deficient under both Code of Civil Procedure sections 473(b) and 473.5.

The proof of service of summons and complaint filed on January 1, 2025, indicates Defendant was served by substituted service on a co-resident at Defendant’s residence on December 8, 2024. Defendant’s default and default judgment were entered on February 20, 2025. After earlier attempts in May 2026, the present motion to set aside the default and vacate the default judgment was filed on June 29, 2026.

Defendant’s motion under Section 473(b) to vacate the default judgment is untimely. A motion under Section 473(b) must be made within a reasonable time, in no case exceeding six months, after the judgment was taken, and must be accompanied by a copy of the proposed answer. In this case, the motion was made more than a year after the judgment was entered and is not accompanied by a copy of Defendant’s proposed answer.

The Court also finds Defendant’s motion under Section 473.5 to vacate the default judgment is untimely. The notice of a motion under Section 473.5 “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.” (Code Civ. Proc., § 473.5, subd. (a).)

The motion “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 the party’s avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subd. (b).)

Plaintiff’s declaration submitted in opposition to Defendant’s motion states that on December 11, 2025, Plaintiff mailed correspondence that notified Defendant that judgment had been entered in this case. (D’Anna Decl., ¶ 10, Exh. 2.) The letter is dated more than 180 days prior to the filing of the present motion. Plaintiff’s supporting declaration also states that Defendant contacted Plaintiff to discuss settlement in March 2025 and April 2026. (D’Anna Decl., ¶¶ 9, 11.)

Further, Defendant’s declaration does not expressly state that his lack of actual notice in time to defend the action was not caused by his avoidance of service or inexcusable neglect. Based on the competing declarations from Plaintiff and by Defendant, the Court does not find Defendant acted within a reasonable time to file and serve his motion within a reasonable time after written notice of the judgment in December 2025, and his declaration does not establish that his lack of actual notice in time to defend that action was not caused by his avoidance of service or inexcusable neglect.

Motion to Stay Enforcement of Judgment

Defendant’s motion to stay execution of judgment is DENIED. The request for stay of execution of judgment under Code of Civil Procedure section 918 is untimely and Defendant has not cited any other applicable legal authority.