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Donna Aguirre, Esq., CSB 243510
Maria Bradish, Esq., CSB 288384 u
Adam Brumage, Esq., CSB 283180
Jeremy Kimmelman, Esq., CSB 322958
Ryota Isozaki, Esq., CSB 321040
Don Phan-Huy, Esq., CSB 309853 Y
Antonio Mario Shahine, Esq., CSB 321281
The Moore Law Group, APC
3710 S. Susan Street, Suite 210
Santa Ana, CA 92704
P.O. Box 25145, Santa Ana, CA 92799
Phone: (800) 506-2652
Attorneys for Plaintiff
Capital One Bank (USA), N.A.
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA — COUNTY OF SANTA CLARA
12 DOWNTOWN SUPERIOR COURT — LIMITED CIVIL JURISDICTION
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14 Capital One Bank (USA), N.A:, Case No.: 17CV318391
15 NOTICE OF MOTION AND MOTION TO
Plaintiff, SET ASIDE: DEFAULT AND VACATE
16 DEFAULT JUDGMENT AND DISMISS
vs. ACTION WITHOUT PREJUDICE;
17 MEMORANDUM OF POINTS AND
Robin Talbott, AUTHORITIES; AND DECLARATION OF|
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COUNSEL. FOR PLAINTIFF IN SUPPORT
Defendant. THEREOF; [PROPOSED] ORDER
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20 DATE:
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TIME:
21 DEPT:
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23 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
24 PLEASE TAKE NOTICE that on at , or as soon thereafter as the
25 matter may be heard in Department of the above-entitled court, located at 191 North First
26 Street, San Jose CA 95113, Plaintiff Capital One Bank (USA), N:A. will move for an order to set
27 aside Default filed and entered on 03/22/2018 and vacate the Default Judgment filed and entered on
28 07/02/2018 and dismiss this action without prejudice.
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MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE
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This Motion is made pursuant to CCP §473(d) and is based on the grounds that Plaintiff
discovered a valid fraud subsequent to an investigation after judgment was entered in this case. This
Motion is made pursuant to this Notice, the accompanying Memorandum of Points and Authorities
and Declaration of Counsel for Plaintiff, the papers filed in this action, and upon such further
evidence and arguments as may be presented to the Court’s at or prior to the hearing of this Motion.
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NOV 47 2020 The Moore baw Group, APC
DATED:
10 By:
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O Donna M. Aguirre | Ci Maria Bradish|
11 CG Karel Raba | yota Isozaki
O Jeremy Kimmelman | () Adam Brumage | 0 Don Phan-Huy
12 O Antonio Mario Shahine
13 Attorney for Plaintiff
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MOTION TO VACATE DEFAULT JUDGMENT AND'TO DISMISS CASE
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MEMORANDUM OF POINTS AND AUTHORITIES
I. Argument
This is a simple credit card collection case involving a ered card issued by Plaintiff with
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account number ending xxxxxxxxxxxx7704 (“Account”) (Declaration of Counsel for Plaintiff, 2).
On 10/30/2017, Plaintiff's Counsel filed the Summons and Complaint with the above referenced
Court. On 11/15/2017, Plaintiff's Counsel served the Summons and Complaint on Defendant
(Declaration of Counsel for Plaintiff, 3). No responsivePleading was thereafter filed by
Defendant (Declaration of Counsel for Plaintiff, { 4). On 07/02/2018, after Plaintiff's Request for
10 Entry of Default Judgment was filed, the Court entered Judgment for Plaintiff (Declaration of
11 Counsel for Plaintiff, § 5).
12 California Code of Civil Procedure §473(d) provides in relevant part that the court may,
upon Motion of the injured party, or its own Motion, correct clerical mistakes in its judgment or
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orders as entered, so as to conform to the judgment or order directed, and may, on Motion of either
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party after notice to the other party, set aside any void Judgment or Order.
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After judgment was entered in this case, Plaintiff discoveréd a valid fraud subsequent to an
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investigation (Declaration of Counsel for Plaintiff, 6). i
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Accordingly, Plaintiff brings this motion requesting the Court vacate and set aside
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Plaintiff's Default Judgment entered on 07/02/2018. Furthermore, Plaintiff respectfully requests that
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the Court dismiss this case without prejudice as to the entireaction (Declaration of Counsel for
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Plaintiff, { 7).
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MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE
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II. Conclusion
Plaintiff accordingly seeks an order setting aside the Default entered on 03/22/2018 and vacating
the Default Judgment filed and entered on 07/02/2018, and dismiss this action without prejudice.
DATED: NOV 4 7 2020 The Moore Taw ‘coup, APC
By:
O Donna M. Aguj | it) Maria Bradish |
U Karel Raba | #% Ry ozaki
O Jeremy Kimmelman jo Adam Brumage | 0 Don Phan-Huy
10 U Antonio Mario Shahine
Attorney for Plaintiff
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MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE
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DECLARATION OF COUNSEL FOR PLAINTIF! F
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I, the undersigned, declare:
1 I am an attorney at law, duly licensed to practice before this Court. I am an associate
attorney of The Moore Law Group, APC, attorneys for Piaintiff Capital One Bank (USA),
N.A. (“Plaintiff”). To the extent the facts are not withinmy personal knowledge, they are
based on information and belief, and my review of the bogks and records of The Moore Law
Group. I am the attorney at The Moore Law Group responsible for handling the above .
captioned matter and, if called as a witness, could and would competently testify to the
following:
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This is a simple credit card collection case involving a credit card issued by Plaintiff with
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account number ending XXxxXxxxxxxx7704 (“Account”).
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On 10/30/2017, Plaintiff's Counsel filed the Summons and Complaint with the above
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referenced Court. On 11/15/2017, Plaintiff's Counsel served the Summons and Complaint
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on Defendant. 1
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No responsive Pleading was thereafter filed by Defendani?'
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On 07/02/2018, after Plaintiff's Request for Entry ofDefault Judgment was filed, the Court
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entered Judgment for Plaintiff.
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After judgment was entered in this case, Plaintiff discovered a valid fraud subsequent to an
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investigation.
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MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE
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7. Accordingly, Plaintiff brings this motion requesting the Court vacate and set aside Plaintiff's
Default Judgment entered on 07/02/2018. Furthermore,Plaintiff respectfully requests that
the Court dismiss this case without prejudice as to the entire action.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on NC WV 17 220 , at Santa Ana, CA.
0 Donna M. Aguirre divtaia
| Bradish |
0 Karel Raba | % Ryota'Isozaki
G Jeremy Kimmelman |] Adam Brumage| 0 Don Phan-Huy
10 O Antonio Mario Shahine
Attorney for Plaintiff
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MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE
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Donna Aguirre, Esq., CSB 243510 Maria Bradish, Esq., CSB 288384 u Adam Brumage, Esq., CSB 283180 Jeremy Kimmelman, Esq., CSB 322958 Ryota Isozaki, Esq., CSB 321040 Don Phan-Huy, Esq., CSB 309853 Y Antonio Mario Shahine, Esq., CSB 321281 The Moore Law Group, APC 3710 S. Susan Street, Suite 210 Santa Ana, CA 92704 P.O. Box 25145, Santa Ana, CA 92799 Phone: (800) 506-2652 Attorneys for Plaintiff Capital One Bank (USA), N.A. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA — COUNTY OF SANTA CLARA 12 DOWNTOWN SUPERIOR COURT — LIMITED CIVIL JURISDICTION 13 v 14 Capital One Bank (USA), N.A:, Case No.: 17CV318391 15 NOTICE OF MOTION AND MOTION TO Plaintiff, SET ASIDE: DEFAULT AND VACATE 16 DEFAULT JUDGMENT AND DISMISS vs. ACTION WITHOUT PREJUDICE; 17 MEMORANDUM OF POINTS AND Robin Talbott, AUTHORITIES; AND DECLARATION OF| 18 COUNSEL. FOR PLAINTIFF IN SUPPORT Defendant. THEREOF; [PROPOSED] ORDER 19 20 DATE: 4 TIME: 21 DEPT: 22 23 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 24 PLEASE TAKE NOTICE that on at , or as soon thereafter as the 25 matter may be heard in Department of the above-entitled court, located at 191 North First 26 Street, San Jose CA 95113, Plaintiff Capital One Bank (USA), N:A. will move for an order to set 27 aside Default filed and entered on 03/22/2018 and vacate the Default Judgment filed and entered on 28 07/02/2018 and dismiss this action without prejudice. -1- 1 MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE Wd Wl This Motion is made pursuant to CCP §473(d) and is based on the grounds that Plaintiff discovered a valid fraud subsequent to an investigation after judgment was entered in this case. This Motion is made pursuant to this Notice, the accompanying Memorandum of Points and Authorities and Declaration of Counsel for Plaintiff, the papers filed in this action, and upon such further evidence and arguments as may be presented to the Court’s at or prior to the hearing of this Motion. ¥ NOV 47 2020 The Moore baw Group, APC DATED: 10 By: sh O Donna M. Aguirre | Ci Maria Bradish| 11 CG Karel Raba | yota Isozaki O Jeremy Kimmelman | () Adam Brumage | 0 Don Phan-Huy 12 O Antonio Mario Shahine 13 Attorney for Plaintiff 14 15 16 17 18 19 20 21 22 i} 23 24 25 26 27 28 -2- MOTION TO VACATE DEFAULT JUDGMENT AND'TO DISMISS CASE t te MEMORANDUM OF POINTS AND AUTHORITIES I. Argument This is a simple credit card collection case involving a ered card issued by Plaintiff with } account number ending xxxxxxxxxxxx7704 (“Account”) (Declaration of Counsel for Plaintiff, 2). On 10/30/2017, Plaintiff's Counsel filed the Summons and Complaint with the above referenced Court. On 11/15/2017, Plaintiff's Counsel served the Summons and Complaint on Defendant (Declaration of Counsel for Plaintiff, 3). No responsivePleading was thereafter filed by Defendant (Declaration of Counsel for Plaintiff, { 4). On 07/02/2018, after Plaintiff's Request for 10 Entry of Default Judgment was filed, the Court entered Judgment for Plaintiff (Declaration of 11 Counsel for Plaintiff, § 5). 12 California Code of Civil Procedure §473(d) provides in relevant part that the court may, upon Motion of the injured party, or its own Motion, correct clerical mistakes in its judgment or 13 orders as entered, so as to conform to the judgment or order directed, and may, on Motion of either 14 party after notice to the other party, set aside any void Judgment or Order. 15 After judgment was entered in this case, Plaintiff discoveréd a valid fraud subsequent to an 16 investigation (Declaration of Counsel for Plaintiff, 6). i 17 Accordingly, Plaintiff brings this motion requesting the Court vacate and set aside 18 Plaintiff's Default Judgment entered on 07/02/2018. Furthermore, Plaintiff respectfully requests that 19 the Court dismiss this case without prejudice as to the entireaction (Declaration of Counsel for 20 Plaintiff, { 7). te 21 Mt 22 Mt 23 Ml 24 25 26 27 28 -3- MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE i II. Conclusion Plaintiff accordingly seeks an order setting aside the Default entered on 03/22/2018 and vacating the Default Judgment filed and entered on 07/02/2018, and dismiss this action without prejudice. DATED: NOV 4 7 2020 The Moore Taw ‘coup, APC By: O Donna M. Aguj | it) Maria Bradish | U Karel Raba | #% Ry ozaki O Jeremy Kimmelman jo Adam Brumage | 0 Don Phan-Huy 10 U Antonio Mario Shahine Attorney for Plaintiff il wi 12 : 13 14 15 16 17 18 19 20 21 22 it 23 P 24 25 26 t H 27 28 -4- MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE } «! ee DECLARATION OF COUNSEL FOR PLAINTIF! F u Al, I, the undersigned, declare: 1 I am an attorney at law, duly licensed to practice before this Court. I am an associate attorney of The Moore Law Group, APC, attorneys for Piaintiff Capital One Bank (USA), N.A. (“Plaintiff”). To the extent the facts are not withinmy personal knowledge, they are based on information and belief, and my review of the bogks and records of The Moore Law Group. I am the attorney at The Moore Law Group responsible for handling the above . captioned matter and, if called as a witness, could and would competently testify to the following: 10 This is a simple credit card collection case involving a credit card issued by Plaintiff with 11 account number ending XXxxXxxxxxxx7704 (“Account”). 12 On 10/30/2017, Plaintiff's Counsel filed the Summons and Complaint with the above 13 referenced Court. On 11/15/2017, Plaintiff's Counsel served the Summons and Complaint 14 on Defendant. 1 15 No responsive Pleading was thereafter filed by Defendani?' 16 On 07/02/2018, after Plaintiff's Request for Entry ofDefault Judgment was filed, the Court 17 entered Judgment for Plaintiff. 18 After judgment was entered in this case, Plaintiff discovered a valid fraud subsequent to an 19 investigation. 20 Ml 21 Ml 22 Ml 23 24 25 26 27 28 | 1 ~5- 5 MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE vo 7. Accordingly, Plaintiff brings this motion requesting the Court vacate and set aside Plaintiff's Default Judgment entered on 07/02/2018. Furthermore,Plaintiff respectfully requests that the Court dismiss this case without prejudice as to the entire action. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on NC WV 17 220 , at Santa Ana, CA. 0 Donna M. Aguirre divtaia | Bradish | 0 Karel Raba | % Ryota'Isozaki G Jeremy Kimmelman |] Adam Brumage| 0 Don Phan-Huy 10 O Antonio Mario Shahine Attorney for Plaintiff 11 4 1 12 1 13 i 14 15 16 17 nv 18 19 nh Bei 20 21 M: 22 di 23 te 24 ef 25 26 27 tt 28 -6- MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS CASE