ACCOUNTS RETRIEVABLE SYSTEM, INC., Respondent, v. KELLY J. FOLEY ET AL., Appellants.

No. 56841-8-I.The Court of Appeals of Washington, Division One.
July 24, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 99-2-01022-1, Dean Scott Lum, J., entered August 5, 2005.

Affirmed by unpublished per curiam opinion.

Counsel for Appellant(s), Fax Andrew Duncan, Attorney at Law, 1416 E Thomas St, Seattle, WA 98112-5148.

Counsel for Respondent(s), Stephen D. Cramer, Attorney at Law, 202 S 348th St, PO Box 3767, Federal Way, WA 98063-3767.

PER CURIAM.

The superior court entered a default judgment against Kelly Foley in March 2000. More than five years later, the court denied Foley’s motion to vacate the judgment. Foley contends the court erred in denying the motion to vacate. We affirm.

FACTS

Foley owed Seafirst National Bank (Seafirst) approximately $8,500 in credit card debt. Seafirst assigned the debt to Accounts Retrievable System, Inc. (ARS). In compliance with the Fair Debt Collection Practices Act (FDCPA), ARS sent Foley a 30-day debt validation letter at his last known address. When Foley did not respond, ARS filed a lawsuit against him to collect the debt.

ARS hired ABC Legal Messengers, Inc. to personally serve Foley with the summons and complaint. The gardener verified that Foley lived at the address where ABC attempted service, but despite numerous attempts, the process server was unable to successfully effect personal service on Foley. In the Declaration of Service, the process server described the many attempts to serve Foley.

I attempted service seven times between September 30, 1999 and October 12, 1999. There was never an answer at the door mornings, evenings, and weekends.

I attempted service as early as 8:00 a.m. on October 4, 1999, and as late as 8:00 p.m. on October 5, 1999. Several times there were either one or two cars (license plate numbers [sic] parked at the residence. On October 12, as soon as I knocked on the door someone turned off all the lights inside and would not answer the door. Whomever [sic] is here is avoiding.

In January 2000, the superior court entered an order granting ARS permission under the civil rules to serve Foley by mail. One copy of the summons and complaint was sent by regular mail and another copy was sent by certified mail. Foley did not respond. On March 28, 2000, the court entered a default judgment against Foley for $8,561.63 plus interest to the date of judgment, and for attorney fees, costs, and interest on the principal judgment amount at 12 percent per year.

In June 2005, more than five years after entry of the default judgment, Foley filed a motion to vacate. In his declaration in support of the motion, Foley claimed he only recently became aware of the judgment, never received copies of the summons and complaint, was frequently away from home in 1999, and had no specific recollection of a debt owed to Seafirst. The superior court denied Foley’s motion to vacate the default judgment. The court also denied his motion for reconsideration. Foley appeals.

ANALYSIS

Foley contends the trial court erred in denying his motion to vacate the default judgment. Foley claims he is entitled to vacation of the judgment under CR 60(b)(5) and (11). CR 60(b) provides:

(b) Mistakes; inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
. . .
(5) The judgment is void;
. . .
(11) Any other reason justifying relief from the operation of the judgment.

Under CR 60(b)(5) and (11), a motion to vacate must be brought within a reasonable time. CR 60 (b) provides:

The motion shall be made within a reasonable time and for reasons (1), (2) or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken.

The superior court’s decision on a motion to vacate a default judgment under CR 60(b) will not be overturned absent an abuse of discretion. Hardesty v. Stenchever, 82 Wn. App. 2 53, 262, 917 P.2d 577 (1996). In deciding whether to grant a motion to vacate a default judgment, the court must determine whether: (1) there is substantial evidence to support, at least prima facie, a defense to the opposing party’s claim; (2) the moving party’s failure to timely appear in the action and answer the complaint was due to mistake, inadvertence, surprise, or excusable neglect; (3) the moving party acted with due diligence after notice of the default judgment; and (4) the opposing party will suffer substantial hardship if the default judgment is vacated. Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd, Hokanson, 95 Wn. App. 231, 238, 974 P.2d 1275 (1999). The moving party has the burden to demonstrate that the four factors are satisfied. Luckett v. Boeing Co., 98 Wn. App. 307, 314, 989 P.2d 1144 (1999). The first two factors are more significant than the second two. However, if the moving party cannot show a strong defense, the reasons for the moving party’s failure to timely appear in the action, as well as the timeliness of the motion to vacate and the potential hardship on the opposing party, will be scrutinized more carefully. Shepard, 95 Wn. App. at 239.

To establish a prima facie defense, the moving party must submit an affidavit in support of the motion to vacate that precisely sets out the facts or errors constituting a defense. The moving party cannot rely upon mere allegations and conclusions. Shepard, 95 Wn. App. at 239. Evidence to support a defense is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Shepard, 95 Wn. App. at 242.

Foley’s argument that the court erred when it denied his motion to vacate fails. First, his declaration is inadequate to establish a defense, because it impermissibly relies only on allegations and conclusions, not facts.

It appears from the Complaint that this is a lawsuit having to do with an obligation I supposedly owed to Seafirst Bank. At this time, I have been unable to locate any records relating to that debt. I also note that there is nothing in the court file which I can use as a basis to determine whether or not I owed that debt. There appears not to be any information from Seafirst Bank or from the Plaintiff, Accounts Retrievable System, Inc., which verifies any amount due. I believe I once had an account with Seafirst Bank but that would have been twelve or thirteen years ago. The judgment summary on the Judgment by Default states that interest accrued from 1/26/93 to 3/3/2000. I believe that any account which I could have had with Seafirst Bank was, therefore, more than six years old on February 9, 1999, when this lawsuit was filed with the court. I do not believe that I owe this debt, based upon all information available to me.

Second, Foley’s explanation about why he did not timely appear and respond to the summons and complaint is not supported by the record. Foley claims he was never served with a summons and complaint, either personally or by mail, and he was frequently away from home during the time that service was attempted. But he offers no evidence to support his assertions, and they are inconsistent with the record. Foley does not deny that he lived at the address where the legal messengers attempted personal service and the summons and complaint was mailed. The gardener also told the process server Foley lived at that address. In addition, the process server noted cars in the driveway and other evidence indicating someone was home when service was attempted. It is also undisputed that the documents sent both by regular and certified mail were not returned.

Third, Foley does not establish that he acted with due diligence after learning about the default judgment. Without explanation, Foley says only that he `recently discovered’ the judgment against him.

Fourth, ARS would suffer substantial hardship if the default judgment were vacated. Foley filed his motion to vacate more than five years after entry of the default judgment. Neither ARS, nor the attorney representing ARS, retained the documents related to the debt. Thus, five years later, ARS cannot establish Foley’s debt and recover the amount owed.

But even if he cannot establish a prima facie defense, Foley contends the default judgment is void. Courts have a nondiscretionary duty to vacate a void judgment under CR 60(B)(5). Leen v. Demopolis, 62 Wn. App. 473, 477-78, 815 P.2d 269 (1991). A motion to vacate under CR 60(b)(5) is not subject to the one year or `reasonable time’ requirement. Allstate Ins. V. Khani, 75 Wn. App. 317, 323-24, 877 P.2d 724 (1994).

Foley asserts the default judgment is void for several reasons: ARS did not have authority to transact business in Washington; the declaration of mailing was inadequate to establish service of process; the default judgment was entered prematurely; there is no proof that Seafirst Bank assigned its claim to ARS; the court file lacks proof of the debt; and the statute of limitations expired before the lawsuit commenced. But none of the reasons Foley asserts deprive the court of personal and subject matter jurisdiction. A judgment is void only if it is entered by a court without personal or subject matter jurisdiction. Marley v. Department of Labor Indus., 125 Wn.2d 533, 539, 866 P.2d 189 (1994). And, here, the court had personal and subject matter jurisdiction.

For example, Foley contends that the declaration of mailing was inadequate to establish service of process because it did not state when or where it was executed or that it was certified under the laws of Washington.[1] Under CR 4(g)(4), service by mail is proved by `the affidavit of the serving party stating that copies of the summons and other process were sent by mail in accordance with the rule and directions by the court, and stating to whom, and when, the envelopes were mailed.’ RCW 9A.72.085 allows an unsworn written declaration to have the same force and effect as a sworn affidavit if the unsworn declaration states, among other things, `the date and place of its execution’ and that it is `declared under the laws of the state of Washington.’ But it is the fact of service, not the return of service that confers jurisdiction. Jones v. Stebbins, 122 Wn.2d 471, 482, 860 P.2d 1009 (1993).

Foley also contends the default judgment was void because it was entered before expiration of the 90 days to answer. When service is by mail, the summons must allow `the defendant to appear and answer the complaint within 90 days from the date of mailing.’ CR 4(d)(4). The default judgment in this case was entered only 77 days after ARS mailed the summons and complaint.

While a default judgment entered before the expiration of the 90 days to answer may be erroneous, it is not void. Jane Doe v. Fife Mun. Court, 74 Wn. App. 444, 450, 874 P.2d 182 (1994), quoting Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352 (1943):

[A] void judgment should be clearly distinguished from one which is merely erroneous or voidable. There are many rights belonging to litigants — rights which a court may not properly deny, and yet if denied, they do not render the judgment void. Indeed, it is a general principle that where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgment void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith.

And in Marley the Washington Supreme Court stated, `[a] court or agency does not lack subject matter jurisdiction solely because it may lack authority to enter a given order. . . . A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.’ Marley, 125 Wn.2d at 539. Here, because the court had personal and subject matter jurisdiction, the default judgment was voidable, not void.[2]

Because the default judgment is not void, Foley had to file a motion to vacate within a reasonable time. What constitutes a reasonable time depends on the facts and circumstances of each case. Luckett, 98 Wn. App. at 312. Major considerations are the prejudice to the nonmoving party due to the delay and whether the moving party has a good reason for failing to act sooner. Luckett, 98 Wn. App. at 312-13. Because ARS destroyed its records to establish the debt, vacating the judgment would prejudice ARS. And Foley does not provide a good reason why he failed to bring a motion to vacate sooner.

We conclude the trial court did not abuse its discretion when it denied Foley’s motion to vacate the judgment entered five years earlier and affirm.

SCHINDLER, ELLINGTON and GROSSE, JJ.

[1] The declaration states as follows:

I, Angelina M. Blanco, hereby certify under penalty of perjury that on the 10th day of January, 2000, caused to be deposited in the mails of the United States of America two properly stamped and addressed envelopes, one being sent by Certified Mail No. Z 549 866 632, Return Receipt Requested, each containing a true and correct copy of (1) SUMMONS; (2) COMPLAINT FOR DAMAGES; and (3) ORDER SETTING CIVIL CASE SCHEDULE, in the above captioned matter directed to the following person:
Kelly J. Foley and John/Jane Doe Foley 9000 N.E. 116th Place Kirkland, WA 98034

[2] Foley’s remaining arguments for vacating the default judgment also fail because they do not establish that the judgment was void.