Orlando Bellomo
226 Burgan Ave.
Clovis, CA 93611
559-903-9447
SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO
Midland Funding llc,Plaintiff,
vs.
Orlando Bellomo,
Defendant / Case No.: 11CLCL01219
notice of motion and motion to set aside default and default judgment
07/07/2014
9:00am
B.F. Sisk Courthouse
NOTICE OF MOTION TO VACATE DEFAULT JUDGMENT
To plaintiff Midland Funding, LLC and David B. Snyder, Attorney of Record, NOTICE HEREBY GIVEN that, a motion will be heard on the following date, time, and place: ______
The motion will be heard in the following courthouse and division/department:
SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO Civil Department, Central Division
1130 “O” Street, Fresno, CA 93724
Defendant will, and hereby does, move to vacate and set aside default judgment entered against defendant on 04/24/2012.
The motion will be made on the ground(s) that the default judgment was taken against defendant through his mistake or inadvertence or surprise or excusable neglect or all or any combination of these.
The motion will be based on this notice of motion, the accompanying declaration(s) of the defendant, and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.
Dated: 07/07/14Respectfully Submitted,
By: Orlando Bellomo
Dated this 7th of July,2014.
DECLARATION IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT
I, Orlando Bellomo, declare: I am the defendant in the above entitled case.
On 04/24/2012 a default judgment was entered in the amount of $6,299.32 awarded to Midland Funding, LLC. The Defendent was not, in any way, neither by the Plaintiff, nor by the court, made aware of the ACTUAL DATE, TIME, and LOCATION of the hearing to determine the right of Midland Funding, LLC to collect on the allegedly legally purchased debt.
Had the Defendant been notified of ACTUAL DATE, TIME, and LOCATION of the hearing, Defendant would have appeared. Further, Defendant would have challenged Plaintiff’s legal right to collect. This challenge would have included requesting that Midland Funding, LLC provide proper Validation of Debt as defined by the Fair Debt Collection Practices Act. In preparation for filing the Motion to Vacate Default Judgment, the original case file was reviewed at the Superior Court of California County of Fresno archive location at 1963 “E” Street, Fresno, CA 93706. In so doing, Defendant discovered that Plaintiff failed to present an itemized account of alleged debt and all transactionspertaining thereto including original amount, interest, and late fees held by original creditor. As well, Plaintiff failed to present an agreement with a first party creditor validated with Defendant’s signature, which would include specific rights for collection, including collection of interest, which Plantiff is claiming at a rate of 10.00%per annum since 05/06/2010.
Defendant asserts that at NO TIME was an agreement entered into with Midland Funding, LLC to provide products and/or services for which Defendant failed to compensate Midland Funding, LLC. Therefore, Defendant does not legally owe a debt to Plaintiff.
As well, Plaintiff’s actions to attempt to collect this default judgment are as follows. The timeline will show that Midland Funding exercised incompetence and disregard for the hardship brought to Defendant through Plaintiff’s actions. On 10/22/13 an Earnings Witholding Order was entered with the court and served to Defendant’s employer. Defendant PROMPTLY filed Claim of Exemption paperwork. Plaintiff denied the Claim of Exemption and set a court date for 12/18/13 at 11:00am to be heard at the Clovis Branch-Civil Division at 1011 Fifth Street, Clovis, CA 93612. Defendant arrived at 10:30am for the hearing to learn that the Clovis Branch-Civil Division building was closed and had been closed for some time. Defendant hurried to the 1130 “O” Street, Fresno, CA 93721 with hope that the case would not again be determined without Defendant’s presence.
Upon arrival, it was learned that Midland Funding had failed to file appropriately with the court and that indeed there was no case on the docket. Defendant lost a day of work and suffered emotional stress due to Plaintiff’s negligence. Defendant alerted Plaintiff of the error and requested that the Earnings Witholding Order be lifted until such time as Plaintiff would appropriately file with the court. Midland Funding, LLC refused. This resulted in continuing garnishment of Defendant’swages for two additional months for a total amount of $3,136.56.
On 01/30/14, Defendant appeared in court. Plaintiff, Midland Funding, LLC failed to appear. Defendant won a judgment for a Claim of Exemption to be Granted in Full. As well, it was ordered that Monies Held by Levying Officer be Returned. And, that FURTHER GARNISHMENT IS TERMINATED. In late February of 2014, $3,136.56 of Garnished Monies were returned to Defendant, a full 4 months from the initial wage garnishment. This action by Midland Funding caused severe hardship for Defendant, who is the sole provider for a wife and 3 children under the age of 12.
On 06/18/14, less than 4 months from the time that $3,136.56 of Defendant’s garnished wages were returned, less than 5 months from the date of a hearing on the matter of Defendant’s Claim of Exemption at which Plaintiff, Midland Funding, LLC failed to appear and for which Defendant was granted, in full, the Claim of Exemption, with stipulation that Further Garnishment is Terminated, Plaintiff presented again, now a 2nd time with Defendant’s employer an Earnings Withholding Order. Defendant once again promptly filed the Claim of Exemption.
Defendant stipulates that Midland Funding, LLC is acting with disregard for the hardship created by the aggressive and seemingly malicious pursuit of the results of the Default Judgment. Further, Defendant and Defendant’s family, have suffered due to Plaintiff’s negligent and seemingly malicious actions. As well, Plaintiff’s contacting Defendant’s employer a 2nd time regarding Wage Garnishment may have a negative impact on Defendant’s employment which is at this time yet to be seen.
Defendant is to expect that Plaintiff will continue to harass Defendant, Defendant’s employer, and Levying Officer, Madera County Sheriff, unless the Court grants the Motion to Vacate Default Judgment. Defendant stipulates that Plaintiff did not prove under the FDCPA the legal right to collect a debt from Defendant and that Plaintiff did not act in a responsible and fair manner in failing to alert Defendant of ACTUAL DATE, TIME, and LOCATION of the hearing to determine the right of Midland Funding, LLC to collect on the allegedly legally purchased debt.
Therefore, Defendant respectfully requests the assistance of the Court in granting a hearing on the submitted Motion to Vacate Default Judgment.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on 07/07/14 at Superior Court of California County of Fresno, 1130 “O” Street, Fresno, CA 93721
Dated: 07/07/14Respectfully Submitted,
By: Orlando Bellomo
Defendant in Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
VACATE DEFAULT JUDGMENT
THE COURT SHOULD GRANT THE MOTION TO SET ASIDE THE DEFAULT AND
DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE SECTION 473(b)
BECAUSE THE DEFAULT JUDGMENT WAS TAKEN AGAINST DEFENDANT
THROUGH HIS/HER MISTAKE and/or INADVERTENCE and/or SURPRISE and/or
EXCUSABLE NEGLECT, AND JUSTICE REQUIRES DETERMINATION OF THE
ISSUES AFTER A HEARING ON THE MERITS OF THE CASE.
A. Grounds for Relief From Judgment, Order, or Other Proceeding. On application, the court may, on 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 (Code Civ. Proc. § 473(b)).
B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard and disposed of on their merits ( Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 694-703, 84 Cal. Rptr. 3d 351 ; Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).
C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473 ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).
D. Liberal Construction of Statute. Code of Civil Procedure Section 473(b) is a remedial measure to be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 910, 95 Cal. Rptr. 417 ).
Dated: 07/07/14Respectfully Submitted, By: Orlando Bellomo
Defendant in Pro Per
Orlando Bellomo
226 Burgan Ave.
Clovis, CA 93611
SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO
MIDLAND FUNDING, LLC)Case No.: 11CLCL01219
)
Plaintiff,)
)
Vs.)
)ORDER:
)
Orlando Bellomo)Notice of Motion and
)Motion to Set Aside Default
)and Default Judgment
)
Defendant)
)
______)
ORDER OF COURT
The motion of the Defendant for an order setting aside and vacating the default (and default judgment) heretofore entered came on for hearing by the court on ______[date].
Plaintiff appeared by counsel or in pro per ______[name]; Defendant appeared in pro per.
IT IS HEREBY ORDERED that the default Judgment heretofore entered in this action against the defendant, Orlando Bellomo, this judgment having been entered on ______[date] in Volume ______, Page ______, of the Judgment Book be hereby set aside and vacated
Dated: ______
Judge of Superior Court
Motion to vacate default judgement and supporting documents