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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Nov-01-2018 2:10 pm
Case Number: CSM-12-840214
Filing Date: Nov-01-2018 2:08
Filed by: PAUL FIOL
Image: 06558497
GENERIC CIVIL FILING (NO FEE)
TERRANCE STACKWOOCD DC VS. JOEL BORDAYO
001 06558497
Instructions:
Please place this sheet on top of the document to be scanned.m WwW DM
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George S. Wynns © F
Dba Golden Gate Asset Recovery san Francisco County Superior Bout
60 29" Street, No. 128 . :
San Francisco, CA 94110 NOV 01 2018
415-279-7397 CLERK OF THE COURT
By:
Judgment Creditor by Assignment Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SMALL CLAIMS DIVISION
Loar
Case No.: CSM-13-862T4
JUDGMENT CREDITOR’S
TERRANCE STACK WOOD, D.C. )
)
)
} OPPOSITION TO JUDGMENT
)
)
Plaintiff
vs.
JOEL BORDAYO,
DEBTOR’S MOTION TO VACATE
JUDGMENT; REQUEST FOR
SANCTIONS UNDER. C.C.P. SECTION
128.5 FOR THE FILING OF A
Defendant FRIVOLOUS MOTION TO VACATE.
Hearing: November 13, 2018
Dept. 506; 3:30 PM
~
BACKGROUND
As evidenced by his accompanying Declaration, the assignee of the judgment,
George Wynns, dba Golden Gate Asset Recovery has been attempting to collect upon the
judgment for several years. He has had numerous communications with Mr. Bordayo as
early as January, 2015, by telephone and by mail about the judgment over the past few
lefalse statement in his accompanying letter that he knew nothing about the judgment until
September, 2018. His motion to have the judgment vacated , based upon the false claims
that he was never properly served with the small claim in the first place, and that he knew
nothing about this judgment until 2018, is thus wholly frivolous and merits sanctions.
MEMORANDUM OF POINTS AND AUTHORITIES.
Code of Civil Procedure section 116.740(a) provides that in cases where a
defendant was not properly served with the plaintiffs claim, he or she may seek to have
the judgment vacated within 180 days of discovery of entry of the judgment:
(a) Ifthe defendant was not properly served as required by Section
116.330 or 116.340 and did not appear at the hearing in the small claims
court, the defendant may file a motion to vacate the judgment with the
clerk of the small claims court. The motion shall be accompanied by a
supporting declaration, and shall be filed within 180 days after the
defendant discovers or should have discovered that judgment was entered
against the defendant.
C.C.P. § 116.740
Thus, two requisites must be satisfied in order for a defendant who did not
appear at the small claims trial to have the judgment vacated: First, he or she must not
have been properly served in the first place. Second, he or she must not have actually
known, or had any good reason to know, about the judgment any earlier than 180 days
prior to the motion. Here, the judgment debtor, Joel Bordayo, has not satisfied either
requirement. He was properly served by substituted service by a registered process
server at the established address known to Dr. Stackwood and to the Court, which was
believed to be still his present address.
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It was not a new controversy. Mr. Bordayo had appeared before the Court and
communicated with the Court concerning Dr. Stackwood’s two previous claims that
were dismissed without prejudice in 2011. Even if it is true that he moved from 110
Bush Street, Apartment 35, without informing Dr. Stackwood and the Court that he had
moved, before the claim brought in early 2012, he likely became aware of the claim
afterwards through mail forwarding or communications from the new tenants. The
judgment is now 6 years old. He was certainly aware of the judgment when the
assignee of the judgment discussed the matter with him in early 2015.
A. THE DEFENDANT WAS PROPERLY SERVED BY A REGISTERED
PROCESS SERVER AT HIS ESTABLISHED ADDRESS.
Mr. Bordayo was served by substituted service by registered process server Faheem
Moore on April 12, 2012 at 1011 Bush Street, Apartment 35 in San Francisco, the address
known to Dr. Stackwood and to this Court, where he had previously identified himself as
residing. Pursuant to Evidence Code section 647, the return of a registered process
server is presumed correct. Mr. Bordayo does not dispute that the claim was left at that
address for him and a copy mailed to the same address, as required by C.C.P. section
415.20 for substitute service of the claim.
The address in question where service occurred was the same address known to the
Plaintiff and to the Court. Mr. Bordayo did not inform them that he would be moving.
The address had been properly and successfully used in the two previous cases brought by
Dr. Stackwood in an attempt to collect upon his chiropractic bill: No. CSM-11-867164,
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filed April 12, 2011, and No. CSM-11-838416, filed August 23, 2011. Mr. Bordayo
appeared in one or both of those cases and communicated with the Court concerning
them. It was thus an understood fact among the parties that Mr. Bordayo resided at 1011
Bush Street, Apartment 35, in San Francisco.
In his motion to vacate the judgment, Mr. Bordayo asserts that he was “living
internationally” at the time of the small claims action. He does not provide any particulars
that would give credence to that claim. Notably, he also does not claim that he never
received any of the mail that was addressed to him at the Bush street address after he
claims to have moved from that address. He fails to declare under penalty of perjury that
he received no notice of the claim.
Presumably, if Mr. Bordayo had left the country or moved from his Bush Street
apartment prior to Dr. Stackwood’s claim in 2012, he would still have eventually received
the mail that was addressed to him at 1011 Bush Street, Apartment 35. It would have
been his responsibility to put in a forwarding address at the post office and to check for
mail sent to the Bush Street address. Pursuant to Evidence Code § 641, a letter correctly
addressed and properly mailed is presumed to have been received in the ordinary course :
of mail. If it had been the case that he learned of the claim even after a judgment had
been entered, it would have been his responsibility to follow up on the matter promptly to
see what happened, whether a judgment was entered, or what disposition of the matter
was made.
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On January 13, 2015, Wynns filed an acknowledgement of Assignment of the
judgment with the Court, although the court did not properly docket the assignment at the
time, and the Court Clerk requested that Wynns re-file the assignment when he renewed
the judgment in August, 2018.
When a judgment is assigned to a professional judgment collector, is it reasonable
to suppose that the judgment debtor could remain ignorant of the judgment for years
afterwards, if the whereabouts of the judgment debtor are known or can be ascertained?
Thus, even if Mr. Bordayo’s assertion that he had moved from 1011 Bush Street
prior to Dr. Stackwood’s 2012 claim should be deemed to be truthful, he was nevertheless
“properly served” at the established address last known to Dr. Stackwood and the Court.
This was proper service. The requirement of section 116.740(a) that the defendant was
never properly served with the small claim has not been satisfied.
B. MR. BORDAYO’S DECLARATION THAT HE DID NOT KNOW ABOUT
THE JUDGMENT UNTIL SEPTEMBER, 2018 IS PATENTLY FALSE.
The second prerequisite for vacating a judgment under C.C.P. § 116.740(a) is that
the judgment debtor must not have known, and should not have known, of the entry of
the judgment any earlier than 180 days prior to the filing of the motion to vacate. Mr.
Bordayo certainly cannot show that. The judgment here was entered more than 6 years
ago. There was no excuse for Mr. Bordayo’s not discovering Dr. Stackwood’s claim
within a reasonable time after it was left at 1011 Bush Street, Apartment 35, and a copyBm WN
mailed to him, even if he had moved from that address, and he certainly learned about
entry of the judgment within a few months after it was entered.
On the SC-135 form filed by Mr. Bordayo for his motion to vacate the judgment,
he does not aver “under penalty of perjury” that he did not know about entry of the
judgment any earlier than 6 months prior to his motion, as required by the statute.
Rather, he makes that representation on his accompanying letter, which is not a
declaration, and not made under penalty of perjury, where he states that he was “unaware
of the judgment against me until September, 2018”. Remarks made in a letter, not part
of a declaration, do not satisfy the requirements of section 116.740(a) and cannot be seen
as supporting the motion. Of course, Mr. Bordayo should not make such a statement
under oath because the statement would be patently false.
In Wynns’s January 31, 2015 letter to Joel Bordayo, Wynns wrote, “Thank you
for your call the other day about the judgment. I appreciated hearing from you. I
understand your belief that the judgment was not right and that you did not have a proper
chance to contest it, and you will seek to have the matter reviewed by the court.”
Thus, Mr. Bordayo not only knew about the judgment in January, 2015, but he
had already expressed an intention to get the judgment reviewed by the Court at that
time, although he never did so. Instead, he has now moved to vacate the judgment more
than six years after it was entered, based on the false representation that he never
learned about the judgment until September, 2018. Mr. Bordayo is simply making an
improper effort to get rid of a judgment he should have paid but did not pay and does not
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want to pay. His effort is completely improper and is frivolous at best. It should not be
countenanced by the Court.
C. THE JUDGMENT DEBTOR’S MOTION IS FRIVOLOUS, AND
THE COURT SHOULD IMPOSE SANCTIONS. ,
Section 128.5 of the Code of Civil Procedure provides, in pertinent part, as
follows:
(a) A trial court may order a party, the party's attorney, or both to pay the
reasonable expenses, including attorney's fees, incurred by another party
as a result of bad-faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay. This section also applies to judicial
arbitration proceedings under Chapter 2.5 (commencing with Section
1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) "Actions or tactics" include, but are not limited to, the making or
opposing of motions or the filing and service of a complaint, cross-
complaint, answer, or other responsive pleading. The mere filing of a
complaint without service thereof on an opposing party does not
constitute "actions or tactics" for purposes of this section.
(2) "Frivolous" means totally and completely without merit or for the
sole purpose of harassing an opposing party.
(c) Expenses pursuant to this section shall not be imposed except on
notice contained in a party's moving or responding papers or, on the
court's own motion, after notice and opportunity to be heard. An order
imposing expenses shall be in writing and shall recite in detail the
conduct or circumstances justifying the order.
Here, the judgment debtor’s motion is totally and completely without
merit and could also be deemed to be harassment of the judgment creditor and
Dr. Stackwood. The judgment creditor moves for sanctions to be imposed
against the judgment debtor, to be made payable to the judgmed creditor. The
Tejudgment creditor requests sanctions herein “on notice”, “in [the] party’s
responding papers,” and requests that such sanctions be imposed upon the
judgment debtor in a separate order “after notice and opportunity to be heard”
at the November 13" hearing that the judgment debtor has set for the motion to
vacate, pursuant to section 128.5(c).
Judgment creditor Wynns has had to devote many hours to research and
in preparation and filing of the opposition papers, will have to devote more
hours of time to attending the hearing on November 13". Wynns professionally
engages in judgment collections. Code of Civil Procedure section 685.040
provides that, “The judgment creditor is entitled to the reasonable and
necessary costs of enforcing a judgment.” A professional person’s time in and
expcenses in opposing a frivolous motion by the judgment debgtor must be
deemed to be included in the reasonable and necessary costs of enforcing the
judgment. Under the circumstances here, Where the judgment creditor has
been required to devote many hours of time to opposing a motion that is
completely without merit, an award of sanctions in the amount of $1,000 would
be entirely reasonable.
CONCLUSION
A judgment cannot be vacated under section 116.740(a) if the small
claim was properly served. Dr. Stackwood’s claim was properly served to the
address established in the two previous small claims actions against Mr.oxy Hn oO & WHY
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Bordayo that were brought a few months earlier by Dr. Stackwood, both of
which were dismissed without prejudice. Mr. Bordayo apparently contends that
service was “improper” because he contends he had moved from that address
before the claim for the present action was served, although he does not
contend that he ever notified Dr. Stackwood or the Court that he had moved.
He also does not explain why he would not eventually have received mail
addressed to that address, even if he had moved.
More importantly, the statute also requires that the judgment debtor did
not know and should not have known about the judgment any earlier than 180
days before the motion to vacate the judgment is filed. Mr. Bordayo has stated
in an appending letter that he did know about the judgment until September,
2018. He does not make that averment by sworn declaration, as required by the
statute. On that basis alone, the motion cannot be granted. Judgment creditor
Wynns and Dr. Stackwood aver in their own declarations that Mr. Bordayo
certainly did know about the judgment as early as January, 2015. If such
evidence is accepted as true, the motion cannot be granted.
The present motion is completely without merit and is frivolous. It
should not have been brought because Mr. Bordayo knew of the judgment for
years prior to September, 2018, and he took no action concerning it until the
present motion. The present motion has occasioned a great deal of time, effort
and expense to the judgment creditor, as well as to the Court.
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As a separate matter, the Court should impose sanctions against the
moving party to be made payable to the judgment creditor, George S. Wynns,
dba Golden Gate Asset Recovery, in the amount of $1,000, or in such amount
as may seem appropriate to the Court.
Dated: November 1, 2018
Respectfully submitted,
eorge 8:Wynns,
Judgment Creditor by Assignment.
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MM SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Nov-01-2018 2:10 pm Case Number: CSM-12-840214 Filing Date: Nov-01-2018 2:08 Filed by: PAUL FIOL Image: 06558497 GENERIC CIVIL FILING (NO FEE) TERRANCE STACKWOOCD DC VS. JOEL BORDAYO 001 06558497 Instructions: Please place this sheet on top of the document to be scanned.m WwW DM © OD a aA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 George S. Wynns © F Dba Golden Gate Asset Recovery san Francisco County Superior Bout 60 29" Street, No. 128 . : San Francisco, CA 94110 NOV 01 2018 415-279-7397 CLERK OF THE COURT By: Judgment Creditor by Assignment Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO SMALL CLAIMS DIVISION Loar Case No.: CSM-13-862T4 JUDGMENT CREDITOR’S TERRANCE STACK WOOD, D.C. ) ) ) } OPPOSITION TO JUDGMENT ) ) Plaintiff vs. JOEL BORDAYO, DEBTOR’S MOTION TO VACATE JUDGMENT; REQUEST FOR SANCTIONS UNDER. C.C.P. SECTION 128.5 FOR THE FILING OF A Defendant FRIVOLOUS MOTION TO VACATE. Hearing: November 13, 2018 Dept. 506; 3:30 PM ~ BACKGROUND As evidenced by his accompanying Declaration, the assignee of the judgment, George Wynns, dba Golden Gate Asset Recovery has been attempting to collect upon the judgment for several years. He has had numerous communications with Mr. Bordayo as early as January, 2015, by telephone and by mail about the judgment over the past few lefalse statement in his accompanying letter that he knew nothing about the judgment until September, 2018. His motion to have the judgment vacated , based upon the false claims that he was never properly served with the small claim in the first place, and that he knew nothing about this judgment until 2018, is thus wholly frivolous and merits sanctions. MEMORANDUM OF POINTS AND AUTHORITIES. Code of Civil Procedure section 116.740(a) provides that in cases where a defendant was not properly served with the plaintiffs claim, he or she may seek to have the judgment vacated within 180 days of discovery of entry of the judgment: (a) Ifthe defendant was not properly served as required by Section 116.330 or 116.340 and did not appear at the hearing in the small claims court, the defendant may file a motion to vacate the judgment with the clerk of the small claims court. The motion shall be accompanied by a supporting declaration, and shall be filed within 180 days after the defendant discovers or should have discovered that judgment was entered against the defendant. C.C.P. § 116.740 Thus, two requisites must be satisfied in order for a defendant who did not appear at the small claims trial to have the judgment vacated: First, he or she must not have been properly served in the first place. Second, he or she must not have actually known, or had any good reason to know, about the judgment any earlier than 180 days prior to the motion. Here, the judgment debtor, Joel Bordayo, has not satisfied either requirement. He was properly served by substituted service by a registered process server at the established address known to Dr. Stackwood and to the Court, which was believed to be still his present address. 2eoO 1 oO UV s&s WOW NY FE NN NY NY NY NY NY NN BF BB BP BE BP BP BH BoB oO WD oO FP WD NY FP ODO Ob BOB HT KD HO FSF W NH FPF DBD wo It was not a new controversy. Mr. Bordayo had appeared before the Court and communicated with the Court concerning Dr. Stackwood’s two previous claims that were dismissed without prejudice in 2011. Even if it is true that he moved from 110 Bush Street, Apartment 35, without informing Dr. Stackwood and the Court that he had moved, before the claim brought in early 2012, he likely became aware of the claim afterwards through mail forwarding or communications from the new tenants. The judgment is now 6 years old. He was certainly aware of the judgment when the assignee of the judgment discussed the matter with him in early 2015. A. THE DEFENDANT WAS PROPERLY SERVED BY A REGISTERED PROCESS SERVER AT HIS ESTABLISHED ADDRESS. Mr. Bordayo was served by substituted service by registered process server Faheem Moore on April 12, 2012 at 1011 Bush Street, Apartment 35 in San Francisco, the address known to Dr. Stackwood and to this Court, where he had previously identified himself as residing. Pursuant to Evidence Code section 647, the return of a registered process server is presumed correct. Mr. Bordayo does not dispute that the claim was left at that address for him and a copy mailed to the same address, as required by C.C.P. section 415.20 for substitute service of the claim. The address in question where service occurred was the same address known to the Plaintiff and to the Court. Mr. Bordayo did not inform them that he would be moving. The address had been properly and successfully used in the two previous cases brought by Dr. Stackwood in an attempt to collect upon his chiropractic bill: No. CSM-11-867164, BeOB Nn F OD © BY A HO &® WM PB o filed April 12, 2011, and No. CSM-11-838416, filed August 23, 2011. Mr. Bordayo appeared in one or both of those cases and communicated with the Court concerning them. It was thus an understood fact among the parties that Mr. Bordayo resided at 1011 Bush Street, Apartment 35, in San Francisco. In his motion to vacate the judgment, Mr. Bordayo asserts that he was “living internationally” at the time of the small claims action. He does not provide any particulars that would give credence to that claim. Notably, he also does not claim that he never received any of the mail that was addressed to him at the Bush street address after he claims to have moved from that address. He fails to declare under penalty of perjury that he received no notice of the claim. Presumably, if Mr. Bordayo had left the country or moved from his Bush Street apartment prior to Dr. Stackwood’s claim in 2012, he would still have eventually received the mail that was addressed to him at 1011 Bush Street, Apartment 35. It would have been his responsibility to put in a forwarding address at the post office and to check for mail sent to the Bush Street address. Pursuant to Evidence Code § 641, a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course : of mail. If it had been the case that he learned of the claim even after a judgment had been entered, it would have been his responsibility to follow up on the matter promptly to see what happened, whether a judgment was entered, or what disposition of the matter was made. 4sao oOo ®F WN On January 13, 2015, Wynns filed an acknowledgement of Assignment of the judgment with the Court, although the court did not properly docket the assignment at the time, and the Court Clerk requested that Wynns re-file the assignment when he renewed the judgment in August, 2018. When a judgment is assigned to a professional judgment collector, is it reasonable to suppose that the judgment debtor could remain ignorant of the judgment for years afterwards, if the whereabouts of the judgment debtor are known or can be ascertained? Thus, even if Mr. Bordayo’s assertion that he had moved from 1011 Bush Street prior to Dr. Stackwood’s 2012 claim should be deemed to be truthful, he was nevertheless “properly served” at the established address last known to Dr. Stackwood and the Court. This was proper service. The requirement of section 116.740(a) that the defendant was never properly served with the small claim has not been satisfied. B. MR. BORDAYO’S DECLARATION THAT HE DID NOT KNOW ABOUT THE JUDGMENT UNTIL SEPTEMBER, 2018 IS PATENTLY FALSE. The second prerequisite for vacating a judgment under C.C.P. § 116.740(a) is that the judgment debtor must not have known, and should not have known, of the entry of the judgment any earlier than 180 days prior to the filing of the motion to vacate. Mr. Bordayo certainly cannot show that. The judgment here was entered more than 6 years ago. There was no excuse for Mr. Bordayo’s not discovering Dr. Stackwood’s claim within a reasonable time after it was left at 1011 Bush Street, Apartment 35, and a copyBm WN mailed to him, even if he had moved from that address, and he certainly learned about entry of the judgment within a few months after it was entered. On the SC-135 form filed by Mr. Bordayo for his motion to vacate the judgment, he does not aver “under penalty of perjury” that he did not know about entry of the judgment any earlier than 6 months prior to his motion, as required by the statute. Rather, he makes that representation on his accompanying letter, which is not a declaration, and not made under penalty of perjury, where he states that he was “unaware of the judgment against me until September, 2018”. Remarks made in a letter, not part of a declaration, do not satisfy the requirements of section 116.740(a) and cannot be seen as supporting the motion. Of course, Mr. Bordayo should not make such a statement under oath because the statement would be patently false. In Wynns’s January 31, 2015 letter to Joel Bordayo, Wynns wrote, “Thank you for your call the other day about the judgment. I appreciated hearing from you. I understand your belief that the judgment was not right and that you did not have a proper chance to contest it, and you will seek to have the matter reviewed by the court.” Thus, Mr. Bordayo not only knew about the judgment in January, 2015, but he had already expressed an intention to get the judgment reviewed by the Court at that time, although he never did so. Instead, he has now moved to vacate the judgment more than six years after it was entered, based on the false representation that he never learned about the judgment until September, 2018. Mr. Bordayo is simply making an improper effort to get rid of a judgment he should have paid but did not pay and does not 66oY OD Oo RW NY NM MY MY NY HY NY NY KH BPP PP BP EP BP RR oD FD UO eS WS BP Ow’ OD HY DB Oo B® WH FEF DO wo want to pay. His effort is completely improper and is frivolous at best. It should not be countenanced by the Court. C. THE JUDGMENT DEBTOR’S MOTION IS FRIVOLOUS, AND THE COURT SHOULD IMPOSE SANCTIONS. , Section 128.5 of the Code of Civil Procedure provides, in pertinent part, as follows: (a) A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. (b) For purposes of this section: (1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross- complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section. (2) "Frivolous" means totally and completely without merit or for the sole purpose of harassing an opposing party. (c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers or, on the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order. Here, the judgment debtor’s motion is totally and completely without merit and could also be deemed to be harassment of the judgment creditor and Dr. Stackwood. The judgment creditor moves for sanctions to be imposed against the judgment debtor, to be made payable to the judgmed creditor. The Tejudgment creditor requests sanctions herein “on notice”, “in [the] party’s responding papers,” and requests that such sanctions be imposed upon the judgment debtor in a separate order “after notice and opportunity to be heard” at the November 13" hearing that the judgment debtor has set for the motion to vacate, pursuant to section 128.5(c). Judgment creditor Wynns has had to devote many hours to research and in preparation and filing of the opposition papers, will have to devote more hours of time to attending the hearing on November 13". Wynns professionally engages in judgment collections. Code of Civil Procedure section 685.040 provides that, “The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” A professional person’s time in and expcenses in opposing a frivolous motion by the judgment debgtor must be deemed to be included in the reasonable and necessary costs of enforcing the judgment. Under the circumstances here, Where the judgment creditor has been required to devote many hours of time to opposing a motion that is completely without merit, an award of sanctions in the amount of $1,000 would be entirely reasonable. CONCLUSION A judgment cannot be vacated under section 116.740(a) if the small claim was properly served. Dr. Stackwood’s claim was properly served to the address established in the two previous small claims actions against Mr.oxy Hn oO & WHY mw oN NNN NN NN FE PP BP Pe Poe oI Am es WN EF OO DID OT &® WKH PO wo Bordayo that were brought a few months earlier by Dr. Stackwood, both of which were dismissed without prejudice. Mr. Bordayo apparently contends that service was “improper” because he contends he had moved from that address before the claim for the present action was served, although he does not contend that he ever notified Dr. Stackwood or the Court that he had moved. He also does not explain why he would not eventually have received mail addressed to that address, even if he had moved. More importantly, the statute also requires that the judgment debtor did not know and should not have known about the judgment any earlier than 180 days before the motion to vacate the judgment is filed. Mr. Bordayo has stated in an appending letter that he did know about the judgment until September, 2018. He does not make that averment by sworn declaration, as required by the statute. On that basis alone, the motion cannot be granted. Judgment creditor Wynns and Dr. Stackwood aver in their own declarations that Mr. Bordayo certainly did know about the judgment as early as January, 2015. If such evidence is accepted as true, the motion cannot be granted. The present motion is completely without merit and is frivolous. It should not have been brought because Mr. Bordayo knew of the judgment for years prior to September, 2018, and he took no action concerning it until the present motion. The present motion has occasioned a great deal of time, effort and expense to the judgment creditor, as well as to the Court. 9eFPF OY OD HW DH TO BF WN As a separate matter, the Court should impose sanctions against the moving party to be made payable to the judgment creditor, George S. Wynns, dba Golden Gate Asset Recovery, in the amount of $1,000, or in such amount as may seem appropriate to the Court. Dated: November 1, 2018 Respectfully submitted, eorge 8:Wynns, Judgment Creditor by Assignment. 10e