Discover Bank v. Plascencia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DISCOVER BANK, Plaintiff/Appellee,

v.

ANGELINA PLASCENCIA, Defendant/Appellant.

No. 1 CA-CV 25-0807
FILED 05-14-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-009015
The Honorable Richard F. Albrecht, Commissioner

AFFIRMED

COUNSEL

Angelina Plascencia, Tolleson
Defendant/Appellant
DISCOVER BANK v. PLASCENCIA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Jennifer M. Perkins joined.

C A T L E T T, Judge:

¶1 Angelina Plascencia (“Plascencia”) appeals the superior
court’s denial of her motion to vacate a default judgment. Because
Plascencia was properly served and did not respond, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On March 12, 2025, Discover Bank filed a complaint alleging
Plascencia failed to repay over ten thousand dollars owed on a credit card
account. On April 2, 2025, a process server attested to serving documents
on a “co-resident” who gave the name “Lucy” but “didn’t want to provide
her last name.”

¶3 Plascencia did not appear in the lawsuit. On June 17, 2025,
after attesting to mailing an application for entry of default to Plascencia,
Discover Bank requested a default judgment without a hearing. After
finding Discover Bank properly served Plascencia, who then did not
appear, the court entered default judgment for Discover Bank.

¶4 Nearly a month later, Plascencia moved to vacate the
judgment. Plascencia argued she was not properly served because her job
sends her “out of town very often.” She stated that her stepbrother cares
for her dog when she is away. She speculated that the process server may
have served her stepbrother’s female visitor, but that the “paperwork” was
not “given to [Plascencia].” But Plascencia admitted she found the
“paperwork wedged in between [her] dog’s kennel weeks after it was
delivered.” Plascencia provided her address in the caption, header, and
signature line of her motion, which matched the address Discover Bank
listed in the summons and application for default.

¶5 Plascencia also explained why she struggled to pay her credit
card bill. She explained she made an unsuccessful attempt to settle. She
included details about various hardships including reduced hours at work,
difficulty paying for rent, and a negative relationship. The court denied
Plascencia’s motion based on “[n]o good cause[.]”

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DISCOVER BANK v. PLASCENCIA
Decision of the Court

¶6 Plascencia timely appealed; we have jurisdiction. See A.R.S.
§ 12-2101(2).

DISCUSSION

¶7 Plascencia argues the court erred by denying her motion to
vacate because Discover Bank did not properly serve the complaint and
summons. She also contends the court abused its discretion by not
considering her hardship arguments and denied her due process.

¶8 Discover Bank did not file an answering brief. When an
appeal raises a debatable question, we “will assume that the failure to file
an answering brief is a confession of reversible error on the part of the
appellee.” Tiller v. Tiller, 98 Ariz. 156, 157 (1965). Although our courts have
yet to establish a test to determine what constitutes a “debatable question,”
they have found a debatable question exists when: (1) the opening brief
claimed error with supporting authority, and it would “require much
industry and independent research to refute” the appellant’s position,
Merrill v. Wheeler, 17 Ariz. 348, 350 (1915); (2) there is “at least grave doubt”
about the superior court’s order, Adkins v. Adkins, 39 Ariz. 530, 532 (1932);
or (3) when an appeal raises novel legal questions, Luna v. Peinado, 2024 WL
2207309, at *3 ¶ 17 (Ariz. App. May 16, 2024) (mem. decision) (collecting
cases). Conversely, no debatable question exists “when the record ‘clearly’
resolves the question[.]” Id. Here, the record clearly resolves the questions
presented, so Discover Bank’s failure to file an answering brief is not a
confession of error.

¶9 We review the superior court’s denial of a motion to vacate a
default judgment for an abuse of discretion. Blair v. Burgener, 226 Ariz. 213,
216 ¶ 7 (App. 2010). We defer to the superior court’s factual findings unless
they are clearly erroneous, but whether a party has been properly served
“is a legal question of personal jurisdiction which we review de novo.”
Ruffino v. Lokosky, 245 Ariz. 165, 168 ¶ 9 (App. 2018).

¶10 To serve an individual located in Arizona, a party must: (1)
deliver a copy of the summons and the pleading to the individual
personally; (2) leave a copy at the individual’s dwelling with another
resident of suitable age; or (3) deliver a copy to an authorized agent. Ariz.
R. Civ. P. 4.1(d). And a party later seeking a default judgment must first
“mail a copy of the application for entry of default to the last-known
mailing address for the party claimed to be in default.” Ariz. R. Civ. P.
55(a)(3)(A). “The court may set aside an entry of default for good cause[.]”

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DISCOVER BANK v. PLASCENCIA
Decision of the Court

Ariz. R. Civ. P. 55(c). Proof of service “can be impeached only by clear and
convincing evidence.” Eldridge v. Jagger, 83 Ariz. 150, 152 (1957).

¶11 Plascencia argues she was not served. Plascencia informed
the superior court that she is “often” out of town because of work, her
stepbrother watches her dog, and her brother’s female visitor may have
been served. But Discover Bank submitted reasonable evidence that it
properly served Plascencia. A process server attested to serving documents
on a “co-resident” who gave the name “Lucy,” but “didn’t want to provide
her last name.” The residential address at which the process server
delivered the summons matched the address Plascencia listed in her motion
to vacate the default judgment.

¶12 Plascencia admitted finding the documents “weeks” after
they were sent. Initial service was on April 2, but the court did not enter
default judgment until July 9. Plascencia did not specify when she found
the documents. She potentially had months to respond between finding the
documents and the court entering default judgment. But even if she had
less time, the date she obtained the summons is “within [her] knowledge
and control . . . [and] the burden is placed on [her] to demonstrate that
actual notice was not received in sufficient time to make a timely answer.”
Marks v. LaBerge, 146 Ariz. 12, 15 (App. 1985).

¶13 Along with personal service, Discover Bank attested to
mailing default paperwork to Plascencia’s residence, consistent with Rule
55. See Ariz. R. Civ. P. 55(a)(3)(A). This mailing requirement gives
individuals like Plascencia a “second chance” to respond to a complaint,
but “if that party fails to take advantage of the opportunity . . . it is only
logical that the party will have a greater burden in establishing a basis for
setting aside the default[.]” Gen. Elec. Cap. Corp. v. Osterkamp, 172 Ariz. 185,
189 (App. 1992). Because Plascencia admitted she received the documents
but failed to meet her burden to show she did so with insufficient time to
answer, the superior court did not err.

¶14 Plascencia also blames the superior court for not addressing
her hardship arguments. But the only issue before the court was whether
Discover Bank properly served Plascencia. And the Rules allow a party to
request default judgment without a hearing “against a defendant who has
been defaulted for failure to plead[.]” Ariz. R. Civ. P. 55(b)(1)(A). If
Plascencia wanted the court to consider hardship, she needed to answer
Discover Bank’s complaint and raise affirmative defenses.

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DISCOVER BANK v. PLASCENCIA
Decision of the Court

¶15 Finally, Plascencia maintains the court violated her due
process rights by entering default judgment. “Due process entitles a party
to notice and an opportunity to be heard at a meaningful time and in a
meaningful manner.” See Cook v. Losnegard, 228 Ariz. 202, 206 ¶ 18 (App.
2011) (citation omitted). Because Plascencia received the complaint, she
had proper notice. And when she then failed to respond timely, she waived
any opportunity to be heard on the merits. Due process does not prohibit
a court from entering default judgment after finding a party was properly
served yet failed to respond.

CONCLUSION

¶16 We affirm the judgment.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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