Opinion
No. 1 CA-CV 18-0188
02-05-2019
UNIFUND C.C.R. PARTNERS, Plaintiff/Appellee, v. SAMUEL O. JAMES, Defendant/Appellant.
COUNSEL Bursey & Associates PC, Tucson By Jennifer E. Wiedle Counsel for Plaintiff/Appellee Samuel O. James, Mesa Defendant/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. P1300CV20041094
The Honorable Don C. Stevens II, Judge Pro Tempore
AFFIRMED
COUNSEL
Bursey & Associates PC, Tucson
By Jennifer E. Wiedle
Counsel for Plaintiff/Appellee
Samuel O. James, Mesa
Defendant/Appellant
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.
MORSE, Judge:
¶1 Appellant Samuel James challenges the superior court's refusal to set aside a default judgment entered against him in 2006. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Unifund sued Samuel and his then-wife, Valerie James, in 2004 seeking to collect on a credit card debt. Unifund served the complaint and certificate of compulsory arbitration on Valerie in Prescott. Neither Samuel nor Valerie answered the complaint, and the court entered default judgment against them in 2006.
¶3 On November 3, 2017, following an attempt to garnish his bank account, Samuel filed a one-page motion to set aside the default judgment, contending:
1. No notice was ever given to me;
2. No proof or validation of debt was ever given to me or the Court;
3. No proof of authority to collect a debt was ever given to me or the Court;
4. No accounting of the debt was ever provided; and
5. No account has ever existed between myself and Unifund . . . as they claim—therefore it was never proven to the Court.
The superior court denied Samuel's motion. Samuel timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(2).
DISCUSSION
I. The Trial Court Did Not Err in Declining to Set Aside the Default Judgment as Void.
¶4 Samuel first contends Unifund did not "contact [him] or provide any kind of service or notification . . . that they were attempting to obtain a judgment[.]" He thus contends the judgment is void for lack of service under Arizona Rule of Civil Procedure ("Rule") 60(b)(4). See
Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 218, ¶ 8 (App. 2000) ("If a defendant is not properly served with process, any resulting judgment is void and must be vacated upon request."). We review the denial of a Rule 60(b)(4) motion de novo. Ezell v. Quon, 224 Ariz. 532, 536, ¶ 15 (App. 2010).
¶5 Rule 4.1(d)(2) authorizes service by "leaving a copy of [the summons and pleading] at that individual's dwelling or usual place of abode with someone of suitable age and discretion." Unifund filed a proof of service stating that its process server served two copies of the summons, complaint, and certificate of compulsory arbitration on Valerie at Samuel and Valerie's "usual place of abode" in Prescott.
¶6 Proof of service can only be impeached by clear and convincing evidence. Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 194 (App. 1992). Samuel testified he lived in Casa Grande at the time of service but acknowledged that Unifund "left paperwork with [Valerie] . . . in Prescott[.]" He also did not dispute that he was married to Valerie and that she was of suitable age and discretion when she was served. He contends Unifund knew he and Valerie were separated but presented no evidence to support that contention. The superior court thus did not err in denying relief under Rule 60(b)(4). See Blair v. Burgener, 226 Ariz. 213, 216, ¶ 7 (App. 2010) ("Even where a judgment is challenged on voidness grounds, '[t]he movant generally bears the burden of demonstrating his entitlement to have a default judgment set aside.'") (alteration in original) (quoting Miller v. Nat'l Franchise Servs., Inc., 167 Ariz. 403, 406 (App. 1991)).
II. The Trial Court Did Not Abuse Its Discretion in Declining to Set Aside the Default Judgment for Fraud, Misrepresentation, or Other Misconduct.
¶7 Samuel also contends Unifund "at no point notified me, as required by them, that a default judgment had been acquired" or that the judgment had been renewed. We construe this as a contention that Unifund obtained the judgment through fraud, misrepresentation, or other misconduct. Ariz. R. Civ. P. 60(b)(3). A motion to set aside a default judgment on these grounds must be brought within six months of the entry of judgment or date of the proceeding, whichever is later. Ariz. R. Civ. P. 60(c)(1). Thus, Samuel's motion was untimely.
¶8 In any event, under Rule 5(a)(3), service is not required on a party who is in default for failing to appear except as provided in Rule 55, which only requires mailing the application for entry of default to the party against whom default is sought if his whereabouts are known. Ariz. R. Civ.
P. 55(a)(3)(A). Unifund stated that it mailed a copy of the application for entry of default to the Prescott address where Valerie was served. Samuel does not contest that statement on appeal. Moreover, Arizona law does not require judgment creditors to serve affidavits of renewal on judgment debtors. A.R.S. §§ 12-1612, -1613.
¶9 Samuel also contends Unifund did not present "any evidence showing any computation of the amounts they allege are [owed]," "any accounting of how these amounts were arrived at," or "any evidence of their legal right to collect [the] debt." These are not valid bases for setting aside a default judgment. See Kline v. Kline, 221 Ariz. 564, 571, ¶ 25 (App. 2009) (party against whom default judgment is entered "may not . . . challenge the sufficiency of the evidence offered in support of the judgment" on appeal).
III. Samuel's Venue Objections Were Untimely.
¶10 Finally, Samuel contends Unifund improperly filed suit in Yavapai County because he was living in Casa Grande when Valerie was served. Objections to improper venue must be filed "before expiration of the time allowed to answer." A.R.S. § 12-404(A). Samuel did not file a timely objection to venue and did not object to venue in his motion to set aside the default judgment. He therefore waived the argument. See Yuma County v. Keddie, 132 Ariz. 552, 554 (1982) ("[A] change of venue, even if mandatory when timely requested, can be waived if not asserted in a timely fashion.").
IV. Attorney Fees on Appeal
¶11 Unifund requests its attorney fees incurred on appeal pursuant to A.R.S. § 12-341.01(A). Unifund's claim arose out of contract. We therefore will award it reasonable attorney fees and costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶12 We affirm the denial of Samuel's motion to set aside the default judgment.