Case 3:96-cv-00825-MAG Document 8 Filed 06/28/16 Page 1 of 4

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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USA,

Case No. 96-cv-00825-MAG (EDL)

Plaintiff,

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STEVEN WEINKAUF,

Re: Dkt. No. 5

Defendant.

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United States District Court
Northern District of California

ORDER DENYING APPLICATION FOR

RENEWAL OF JUDGMENT LIEN

v.

Before the Court is an Application for Renewal of Judgment Lien filed by Plaintiff United

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States (Plaintiff) against Defendant Steven Weinkauf (Defendant). Plaintiffs Application

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asks the Court to renew for an additional twenty-year period a judgment lien on a default judgment

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entered against Defendant in 1996. Because Plaintiff did not establish that it properly served

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Defendant prior to obtaining the original default judgment, Plaintiffs Application for Renewal of

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Judgment Lien is DENIED WITHOUT PREJUDICE.

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I.

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BACKGROUND
Defendant obtained student loans guaranteed by Plaintiff approximately forty years ago.

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(Dkt. 1.) Defendant defaulted on his loans on March 24, 1980, and the debt was subsequently

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assigned to Plaintiff for collection. (Id.) On March 5, 1996, nearly sixteen years after Defendants

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default, Plaintiff filed a complaint against Defendant to recover the outstanding loan balance. (Id.)

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On April 26, 1996, Plaintiff filed a partially completed Proof of Service reflecting a single

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attempt to serve Defendant at 235 Pine Street, Suite 1300 in San Francisco. (Dkt. 2.) The form

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contains a marked checkbox stating, I have executed as shown in Remarks[.] (Id.) In the

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Remarks field, the process server wrote, [Defendant] was not in the office. No clerk or secty

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[sic]. Receptionist stated she would leave it in his mail box. Should mail him another copy.

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(Id.) The process server left blank the other checkboxes, which he could have checked to declare

United States District Court

Northern District of California

Case 3:96-cv-00825-MAG Document 8 Filed 06/28/16 Page 2 of 4

I have personally served or I have legal evidence of service[.] (Id.) The space for the name of

the individual served is also blank, as is the checkbox that would certify that the individual served

was of suitable age and resided in the Defendants usual place of abode. (Id.)

Defendant never appeared or filed any responsive pleadings.

On June 5, 1996, Plaintiff filed a Declaration, signed by an Assistant United States

Attorney (AUSA), that contradicted the Proof of Service: Although the Proof of Service

indicated that the service address was an office building, the AUSA nevertheless declared that the

defendant STEVEN WEINKAUF resides at 235 Pine Street, Suite 1300, San Francisco, CA

94104[.] (Dkt. 3, at 3 (emphasis added).) The AUSA also declared that Defendant had been

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duly served[.] (Id. at 5.) The clerk of the court then entered default judgment against Defendant

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in the amount of $12,640.74 plus post-judgment interest at a rate of 5.60%.1 (Dkt. 4.)
On June 1, 2016, shortly before the original twenty-year judgment was set to expire,

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Plaintiff moved to renew its judgment against Defendant for an additional twenty-year period,

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pursuant to the Federal Debt Collection Procedure Act, codified at 28 U.S.C. 3201(c).2 (Dkt. 5.)

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II.

LEGAL STANDARD

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Rule 60(b) authorizes courts to vacate judgments sua sponte whenever the court discovers

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that a judgment is void, so long as the party that obtained the judgment is first given notice and an

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opportunity to be heard. See Cason v. Cal. Check Cashing Stores, Case No. 14-00630, 2014 WL

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1351042, at *2 (N.D. Cal. April 4, 2014) (citing Kingvision PayPerView Ltd. v. Lake Alice

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Bar, 168 F.3d 347, 352 (9th Cir. 1999)); Vaile v. Natl Credit Works, Inc., Case No. CV-11-674-

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PHX-LOA, 2011 WL 4947523, at *1 (D. Ariz. Oct. 18, 2011) (vacating default where, upon its

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review of the file, court discovered invalid service). Judgments, including default judgments,

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The clerks entry of default judgment at this stage of the proceedings was improper; entry of
default judgment should have been preceded by an entry of default. See Eitel v. McCool, 782
F.2d 1470, 1471 (9th Cir. 1986).
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Pursuant to the Federal Debt Collection Procedure Act, a judgment in a civil action
(accompanied by a certified copy of the abstract judgment) creates a lien on the defendants
property in the amount necessary to satisfy the judgment, including costs and interest. 28 U.S.C.
3201(a). Such liens are effective for twenty years, at which point they may be renewed, with court
approval, for one additional period of twenty years. Id. 3201(c).
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are void where the plaintiff fails to establish by a preponderance of the evidence that the defendant

has been properly served. See Craigslist, Inc. v. Hubert, 278 F.R.D. 510, 51213 (N.D. Cal.

2011); Penpower Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 1088 (N.D. Cal. 2008)

(requiring courts to assess the adequacy of service of process prior to entering default

judgment).

III.

United States District Court

Northern District of California

DISCUSSION
The June 5, 1996 default judgment entered against Defendant is void for insufficient

evidence of proper service. See, e.g., Johnson v. Salas, No. 2:11cv02153 MCE KJN, 2012 WL

1158856, at *4 (E.D. Cal. Apr. 6, 2012). At the time Plaintiff attempted service, federal law

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allowed non-personal service at a defendants residence only by (i) leaving the summons with

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someone of suitable age residing therein, or (ii) leaving the summons at the residence and then

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mailing a copy to the same address. See Bonita Packing Co. v. OSullivan, 165 F.R.D. 610, 613

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(C.D. Cal. 1995) (describing then-operative federal rules for service of process).

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The record here shows that Plaintiff failed to meet its burden of establishing that service

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was properly effected. See Craigslist, 278 F.R.D. at 513. Assuming, arguendo, that Defendant

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resided at 235 Pine Streetwhich seems unlikely (compare Dkt. 3 (defendant . . . resides at 235

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Pine Street) with Dkt. 2 (describing 235 Pine Street as an office))service did not comply

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with the requirements for non-personal service at Defendants residence, as described in Bonita:

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Plaintiff presented no evidence that the process server left the summons with someone of suitable

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age who resided at the service address, nor did Plaintiff show that it mailed a copy of the

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summons. (See Dkt. 2 (checkboxes on the Proof of Service to this effect were left blank).)

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Plaintiffs failure to establish valid service is grounds for voiding the default judgment.

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See, e.g., Johnson, 2012 WL 1158856, at *4. In Johnson, just like here, plaintiffs declaration that

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it had properly served defendants contradicted its proof of service. Id. at *5 (finding material

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discrepancies in plaintiffs filings concerning service of process). The court ultimately refused to

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enter default judgment against defendants because plaintiff could not show that they had been

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properly served. Id. at *5 (Plaintiff provid[ed] no factual or legal basis on which the court may

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conclude that service of process was properly effectuated.).

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Given that default judgments are ordinarily disfavored, and that proper service upon a non-

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appearing defendant is a strict prerequisite to the entry of a default judgment, the Court DENIES

Plaintiffs application WITHOUT PREJUDICE.

IV.

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiffs Application for Renewal of Judgment Lien (Dkt. 5) is denied without prejudice.

2. The Clerks Entry of Default Judgment (Dkt. 4) is vacated without prejudice to Plaintiff

seeking default and renewing its motion based on information sufficient to establish that

service of process was properly effectuated.

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United States District Court
Northern District of California

CONCLUSION

IT IS SO ORDERED.
Dated: June 28, 2016

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ELIZABETH D. LAPORTE
United States Magistrate Judge

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