PORTFOLIO RECOVERY ASSOCIATES LLC VS SILVA, FERNANDO L

Tentative Rulings

Case Number: 12K12976    Hearing Date: November 20, 2019    Dept: 94

Portfolio v. Silva, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d))

TENTATIVE RULING:

Plaintiff Portfolio Recovery Associates, LLC’s Motion to Vacate Default and Default Judgment is GRANTED and the case is dismissed with prejudice.

ANALYSIS:

I. Background

After default judgment was entered in Fall 2012, Plaintiff Portfolio Recovery Associates, LLC (“Plaintiff”) brought the instant Motion to Vacate Default and Default Judgment (the “Motion”) on July 11, 2019. Plaintiff contends that Defendant’s account was placed in dispute status and Plaintiff resolved the dispute in favor of Defendant. (Motion, pp. 3-4.) As such, Plaintiff does not intend to pursue collection of the debt against Defendant and requests the Court dismiss the action with prejudice. (Ibid.)

II. Discussion

Plaintiff moves under CCP § 473(d) which states that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

However, although “it is well settled in this state that a court has no power to set aside on motion a judgment or order not void on its face unless the motion is made within a reasonable time, and it has been definitely determined that such time will not extend beyond the limited time fixed by section of the Code of Civil Procedure as at present in force, (Citations)…to the rule just stated there is a well-established exception which provides that although the judgment or order is valid on its face, if the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts, then it is the duty of the court to declare the judgment or order void. (Thompson v. Cook (1942) 20 Cal.2d 564, 568.) Because the default judgment was the result of identity theft, Plaintiff’s Motion to Vacate Default is granted, and the case is dismissed with prejudice.

Court clerk to give notice.

II. Conclusion & Order

The Motion is therefore GRANTED. The default judgment is vacated, and the case is dismissed with prejudice.

Plaintiff to give notice.