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This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 17:54:50 (UTC).

TRACY PUGH ET AL VS OCWEN MORTGAGE SERVICING INC ET AL

Case Summary

On 10/21/2016 TRACY PUGH filed a Property - Foreclosure lawsuit against OCWEN MORTGAGE SERVICING INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7959

  • Filing Date:

    10/21/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiffs

FONG ALICIA

PUGH TRACY

Defendants and Respondents

OCWEN MORTGAGE SERVICING INC.

DOES 1 TO 10

TRINITY FINANCIAL SERVICES LLC

ETS SERVICES LLC

Attorney/Law Firm Details

Plaintiff Attorney

AUSTIN LEROY BISHOP ESQ.

Defendant Attorney

LAWRENCE DELEYLA ASSEFA

 

Court Documents

GENERAL DENIAL AND AFFIRMATIVE DEFENSES OF DEFENDANT OCWEN LOAN SERVICING, LLC TO COMPLAINT

1/30/2018: GENERAL DENIAL AND AFFIRMATIVE DEFENSES OF DEFENDANT OCWEN LOAN SERVICING, LLC TO COMPLAINT

PROOF OF SERVICE - TRINITY FINANCIAL SERVICES LLC

3/9/2018: PROOF OF SERVICE - TRINITY FINANCIAL SERVICES LLC

Minute Order

4/11/2018: Minute Order

SUBSTITUTION OF ATTORNEY

4/13/2018: SUBSTITUTION OF ATTORNEY

DEFENDANT OCWEN LOAN SERVICING, LLC?S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

5/17/2018: DEFENDANT OCWEN LOAN SERVICING, LLC?S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

DECLARATION OF DELEYLA A. LAWRENCE PURSUANT TO CAL. CODE CIV. PROC. ? 439

5/17/2018: DECLARATION OF DELEYLA A. LAWRENCE PURSUANT TO CAL. CODE CIV. PROC. ? 439

Minute Order

7/12/2018: Minute Order

NOTICE OF ENTRY OF ORDER AND JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO DEFENDANT

7/17/2018: NOTICE OF ENTRY OF ORDER AND JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO DEFENDANT

Minute Order

8/1/2018: Minute Order

Minute Order

11/13/2018: Minute Order

Minute Order

1/29/2019: Minute Order

Minute Order

3/15/2019: Minute Order

Case Management Order

5/1/2019: Case Management Order

Minute Order

5/1/2019: Minute Order

SUMMONS

10/21/2016: SUMMONS

COMPLAINT 1. WRONGFUL FORECLOSURE; ETC

10/21/2016: COMPLAINT 1. WRONGFUL FORECLOSURE; ETC

NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

11/7/2016: NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

11/7/2016: NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

17 More Documents Available

 

Docket Entries

  • 05/01/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (why sanctions including monetary sanctions in the amount of $200 and/or dismissal should not be imposed) - Held - Continued

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  • 05/01/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (entry of Default and Default Judgment) - Held - Continued

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  • 05/01/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Held - Continued

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  • 05/01/2019
  • Case Management Order; Filed by Clerk

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  • 05/01/2019
  • Minute Order ( (Case Management Conference; Order to Show Cause Re: entry of ...)); Filed by Clerk

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  • 03/15/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 03/15/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (entry of Default and Default Judgment) - Not Held - Continued - Court's Motion

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  • 03/15/2019
  • Case Management Order; Filed by Clerk

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  • 03/15/2019
  • Minute Order ( (Order to Show Cause Re: entry of Default and Default Judgment...)); Filed by Clerk

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  • 01/29/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Held - Continued

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45 More Docket Entries
  • 06/08/2017
  • Minute Order

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  • 03/21/2017
  • at 08:30 AM in Department 42; Case Management Conference (Conference-Case Management; Matter continued) -

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  • 03/21/2017
  • Minute Order

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  • 03/21/2017
  • Minute order entered: 2017-03-21 00:00:00; Filed by Clerk

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  • 11/07/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 11/07/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

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  • 11/07/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE: PROOF OF SERVICE

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  • 10/21/2016
  • Complaint; Filed by Tracy Pugh (Plaintiff); Alicia Fong (Plaintiff)

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  • 10/21/2016
  • COMPLAINT 1. WRONGFUL FORECLOSURE; ETC

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  • 10/21/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC637959    Hearing Date: July 17, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

 

 

Superior Court of California

County of Los Angeles

Department 26

tracy pugh and ALICIA FONG,

Plaintiffs,

v.

OCWEN MORTGAGE SERVICING, INC.,; TRINITY FINANCIAL SERVICES, LLC, et al.,

Defendants.

Case No.: BC637959

Hearing Date: July 17, 2020

[TENTATIVE] order RE:

Dedendant Trinity financial services, llc’s motion to set aside entry of default and to quash

Background

On October 21, 2016, plaintiff Tracy Pugh and Alicia Fong (‘Plaintiffs’) filed the instant action against defendants Ocwen Mortgage Servicing, Inc.[1], ETS Services, LLC[2], Trinity Financial Services, LLC, and Does 1 to 10 exclusive. On September 12, 2019, default was entered against defendant Trinity Financial Services, LLC (“Trinity”). On February 20, 2020, Plaintiffs filed a request for entry of default judgement against Trinity.

On March 4, 2020, Trinity filed a motion to quash service of process and to dismiss the complaint as to Trinity for Plaintiffs’ failure to prosecute under Code of Civil Procedure section 583.210. Trinity’s motion to quash was initially noticed for hearing on November 18, 2020.

On March 6, 2020, Trinity specially appeared and filed a motion to set aside its default.

On March 16, 2020, the court advanced Trinity’s motion to set aside default to be heard on May 1, 2020. (Minute Order 3/16/20.) Due to the COVID-19 pandemic, the hearing for Trinity’s motion to vacate default was continued from May 1, 2020 to July 17, 2020 at 3:00 pm. (Minute Order 4/27/20.) On April 30, 2020, Trinity filed proof of service of notice of the July 17, 2020 hearing date for Trinity’s motion to vacate default on all parties.

On June 8, 2020, the Court advanced the hearing on Trinity’s motion to quash for lack of service and to dismiss the complaint as to Trinity from November 18, 2020 to July 17, 2020 at 3:00 pm. (Minute Order 6/8/20.) On July 8, 2020, Trinity filed proof of service of notice of the July 17, 2020 hearing date for Trinity’s motion to quash and to dismiss on all parties.

No opposition has been filed.

Legal Standard

Vacate Default

Code of Civil Procedure section 473(b) provides, in relevant part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(CCP § 473(b).) The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil of Procedure section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” The six month time limit is jurisdictional. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App. 3d 965, 970.) Six months is defined as half a year for the purposes of this section. (Davis v. Thayer, (1980) 113 Cal.App.3d 892, 901-904.)

Motion to Quash Service of Process

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152, [alterations in original].) If service of process is insufficient a defendant may move to quash service of summons on or before the last day to plead in response to the complaint or within such further time as the court may allow for good cause. (CCP § 418.10(a)(1).)

When a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) However, when there has been a filing of a proof of service by a registered process server, there is “a rebuttable presumption that the service was proper.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441) As explained by Evidence Code § 647, “[t]he return of a process server registered pursuant to … upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

“The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604.)

Discussion

Motion to Vacate Default

Trinity contends that the Court should set aside the entry of default under Code of Civil Procedure 473(b) due to surprise.

Code of Civil Procedure section 473(b) provides that “[n]otwithstanding 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.” (CCP § 473(b).) “Because the law favors the adjudication of disputes on the merits, courts liberally construe the statute in favor of relief.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340 [internal citation omitted].) However, “[t]he six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Ibid.)

Here, default was entered on September 12, 2019. Trinity filed the instant motion to set aside the default on March 6, 2020. As this application was made within 176 days of the entry of default, Trinity has timely brought its motion within the six-month period. Accordingly, the Court has jurisdiction and authority to grant relief.

Trinity asserts that the entry of default was a surprise as Trinity was never properly served. Plaintiff’s proof of service of the summons, filed on March 9, 2018, reflects service on “Kevin Fitzgerald, authorized agent to accept service of process” at “268 East Hamilton Avenue Ste. E Campbell, CA 95008” on January 5, 2018. (Liu Decl. in support of motion to set aside default, Ex. 1.) However, the President of Trinity states that “Kevin Fitzgerald is not authorized in any manner to accept service on behalf of [Trinity]. Kevin Fitzgerald is not in any way affiliated with [Trinity], is not an employee or agent and is not a president, chief executive officer, officer in any manner, vice president, secretary or assistant secretary, a treasurer or assistant treasurer, controller or chief financial officer, or a general manager for [Trinity]. Further, [Trinity] has not ever designated Kevin Fitzgerald as its agent for service of process.” (Madden III Decl. in support of motion to set aside default ¶ 7.) Instead, “Registered Agent Solutions, Inc., is the registered agent for [Trinity].” (Madden III Decl. in support of motion to set aside default ¶ 8.) Moreover, “[Trinity] has never had or maintained an office located at 268 East Hamilton 22 Avenue, Suite E, Campbell, CA 95008.” (Madden III Decl. in support of motion to set aside default ¶ 6.)

Trinity learned of this case and the entry of default on February 13, 2020, through a pending unlawful detainer action between the parties, in which Plaintiff served an opposition referencing this case. (Zakari Decl. in support of motion to set aside default ¶ 4, Ex. 1.)

The court finds that Plaintiffs failed to properly serve Trinity. The entry of Trinity’s default is void as “[f]ailure to give notice violates ‘the most rudimentary demands of due process of law.’” (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84; See also Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”].)

Accordingly, Trinity’s motion to set aside the entry of default is GRANTED as the entry of default is void.

Motion to Quash

Similarly, in Trinity’s motion to quash service of process, Trinity states that it was never properly served. As noted above, the proof of service indicates service on “Kevin Fitzgerald, authorized agent to accept service of process” at “268 East Hamilton Avenue Ste. E Campbell, CA 95008.” (Liu Decl. in support of motion quash, Ex. 1.) Also as noted above, “Kevin Fitzgerald is not authorized in any manner to accept service on behalf of [Trinity]. Kevin Fitzgerald is not in any way affiliated with [Trinity], is not an employee or agent and is not a president, chief executive officer, officer in any manner, vice president, secretary or assistant secretary, a treasurer or assistant treasurer, controller or chief financial officer, or a general manager for [Trinity]. Further, [Trinity] has not ever designated Kevin Fitzgerald as its agent for service of process.” (Madden III Decl. in support of motion to quash ¶ 7.) As “Registered Agent Solutions, Inc., is the registered agent for [Trinity].” (Madden III Decl. in support of motion to quash ¶ 8.) Moreover, “[Trinity] has never had or maintained an office located at 268 East Hamilton 22 Avenue, Suite E, Campbell, CA 95008.” (Madden III Decl. in support of motion to quash ¶ 6.)

Accordingly, Trinity has shown that Plaintiff never served the summons of the complaint on Trinity. Trinity’s motion to quash service of summons is GRANTED.

Motion to Dismiss

Trinity also moves to dismiss the complaint with prejudice for lack of service within three years of filing the complaint.

Pursuant to CCP § 583.210:

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.”

(CCP § 583.210.)

CCP § 583.250 provides that:

“(a) [i]f service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted, and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

Accordingly, a Plaintiff must timely file proof of service of summons within 3 years and 60 days from the date of filing the complaint. (Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1251.) Moreover, “[b]ecause the summons and complaint must be ‘served’ within three years, an answer will excuse the failure to do so only if it is filed within that period. [Citations.] Similarly, because the summons must be returned within 3 years, 60 days, an answer during that period likewise excuses compliance.” (Ibid.)

“Only a valid service complies with the requirement of section 583.210 that the summons and complaint be served within three years. [Citation.] Accordingly, while a motion to quash is the procedure usually employed to challenge the validity of service, the same issue is raised by a motion to dismiss under section 583.210. [Citation] Thus, a motion to dismiss is properly granted if the service on the defendants was invalid. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1433.)

Moreover, “The statute is ‘jurisdictional’ in the sense that the court has no power to excuse the delay, nor can it refuse to act merely because the party fails to make a motion for dismissal. It has power to act only in a certain way, that is, by ordering a dismissal. [Citations.] Not only is the court's duty to dismiss independent of any request by the defendant, dismissal can be entered without notice to either party.” (Floyd Neal & Associates, Inc. v. Superior Court (1977) 72 Cal.App.3d 734, 738.)

Here, the complaint was filed on October 21, 2016. The last day on which Plaintiff could timely serve the complaint and summons, in compliance with Code of Civil Procedure section 583.210, was October 21, 2019. Alternatively, the last day on which the filing of an answer by Defendant would have excused Plaintiff’s failure to comply with section 583.210 was December 20, 2019. Trinity never filed any such answer or made any general appearance within that time. Moreover, as noted above, Plaintiff failed to effect valid service on Trinity prior to October 21, 2019. Accordingly, Trinity’s motion to dismiss the complaint for failure to prosecute under Code of Civil Procedure sections 583.210 and 583.250 as to Trinity Financial Services LLC is GRANTED.

Conclusion and ORDER

Based on the foregoing, Defendant Trinity Financial Services LLC’s motion to set aside the entry of default is GRANTED.

Defendant Trinity Financial Services LLC’s motion to quash the service of summons and to dismiss the complaint with prejudice as to Trinity Financial Services LLC is GRANTED.

Defendant ETS Service, LLC appears to be the only remaining defendant as the court dismissed Ocwen Loan Servicing, LLC on July 12, 2018. Default was entered against ETS Service, LLC on August 27, 2019. The default judgment package (declaration, brief, and proposed judgment) that Plaintiffs filed on February 20, 2020 appears to address only Trinity’s liability for damages and does not address what damages, if any, are attributable to defendant ETS. Therefore, if Plaintiff wishes to proceed against defendant ETS Service, LLC, Plaintiff must electronically file a new default judgment package addressing the damages for which defendant ETS should be held liable. Plaintiff is to electronically file a default judgment package addressing ETS’s liability for damages within 3 weeks. Plaintiff’s Counsel is ordered to appear on September 4, 2020 at 8:30 am and explain why sanctions (including monetary sanctions of at least $500 and/or dismissal) should not be imposed for failure to cause entry of default judgment as to all defaulted defendants, including defendant ETS. If default judgment has not been entered as to defendant ETS have not been entered at that time, then no later than five days before the September 4, 2020 OSC hearing, Plaintiff’s Counsel is to file a declaration explaining the failure to obtain default judgments as to defendant ETS and explaining any and all efforts undertaken to seek a default judgment against defendant ETS. Failure of Plaintiff to appear at the next hearing will be deemed by the court to be Plaintiff’s consent to dismiss the entire case.

Court Clerk is to provide notice of this order to all parties.

DATED: July 17, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] On July 12, 2018, the Court granted defendant Ocwen Mortgage Servicing, Inc.’s judgment on the pleading, dismissing Ocwen Mortgage Servicing, Inc. as a party to this action. (Order 7/12/18.)

[2] Default was entered as to defendant ETS Services, LLC on August 27, 2019.

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