IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARK HOFFMAN,

Respondent,

v. 

ALLFI, INC., 

Appellant,

and

FRANK SHREYBERG, and

JOHN DOES 1-10,

Defendants.

†

No. 85254-0-I

DIVISION ONE

UNPUBLISHED OPINION

DÍAZ, J. — Mark Hoffman obtained a default judgment against AllFi, Inc. after it

failed to appear or respond to his lawsuit. A commissioner denied AllFi’s request to 

vacate the default judgment. AllFi now appeals the superior court’s order denying its 

motion to revise the commissioner’s order. AllFi argues that Hoffman did not properly 

serve it and that excusable neglect, among other equitable factors, entitle it to relief from 

judgment. We disagree and affirm. 

 † Frank Shreyberg, as an individual, and John Does 1-10 are not participating in this 

appeal.
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I. BACKGROUND

On June 24, 2021, Mark Hoffman filed a complaint against AllFi and its sole 

corporate officer Frank Shreyberg, claiming violations of the Telephone Consumer 

Protection Act (TCPA), 47 U.S.C. § 227 et seq. Hoffman alleged that Shreyberg caused 

illegal telemarketing calls to be made to his cellular phone in April and May 2017. 

Prior to filing his lawsuit, Hoffman determined that Shreyberg was the registered 

agent for AllFi and that its registered office was located in Brooklyn, New York (hereinafter 

the “Brooklyn address”). On March 29, 2021, a registered process server left the 

summons and complaint at the Brooklyn address with an individual who identified himself 

as “Jason D” and allegedly said he was authorized to accept service. 

Shreyberg and AllFi did not appear or answer Hoffman’s complaint. On July 1, 

2021, a superior court commissioner entered an order of default judgment against AllFi 

and Shreyberg. In December 2022, Hoffman obtained writs of garnishment against 

Shreyberg and AllFi and caused the documents to be mailed to AllFi at the Brooklyn 

address. The garnishment documents were returned undelivered to Hoffman’s

representative. 

On January 23, 2023, AllFi and Shreyberg moved to vacate the default judgment 

on the ground that they were never properly served. Shreyberg asserted that he learned 

of Hoffman’s lawsuit for the first time on January 13, 2023, when he discovered that his 

bank account was frozen to satisfy the writ of garnishment. He further asserted that AllFi 

had moved from the Brooklyn address on March 7, 2021, several weeks before Hoffman 

attempted service. 
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A superior court commissioner considered the matter at an evidentiary hearing on

February 23, 2023. The process server testified that the person who answered the door 

at the Brooklyn address identified himself as “Jason D,” stated that he and Shreyberg 

resided there, and asserted that he was authorized to accept service for AllFi. Shreyberg

testified that it was only an office and nobody ever resided there. He denied that anyone 

named Jason ever worked there or was authorized to accept service on behalf of AllFi. 

And although Shreyberg was uncertain as to when AllFi vacated the premises, he thought 

it was sometime in February or March 2021. 

Upon cross examination, Hoffman pointed out that “as of today ... the State of New 

York still shows that your statutory address [as the Brooklyn address].” When asked why 

he had not changed it, Shreyberg responded: “It was an oversight on my part. I should 

have, but didn’t. You know, this was at the time there was -- COVID was, you know, it 

was -- it was just at the outbreak, and I should have gone in but neglected to, so, yes.” 

Shreyberg then stated that AllFi’s current registered address was in Florida and 

acknowledged that the Brooklyn address “should have been corrected, it should have 

been changed.” 

The commissioner found that Hoffman met the requirements for service of process 

as to AllFi but not as to Shreyberg. In oral remarks, the commissioner described AllFi’s 

failure to change its registered agent listing for the State of New York as “outrageous” 

and declined to vacate the judgment based on excusable neglect. The commissioner 

ultimately found that no equitable basis existed to vacate the default judgment. 

Accordingly, the commissioner granted the motion to vacate default judgment as to 

Shreyberg but denied it as to AllFi. 
No. 85254-0-I/4

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AllFi filed a motion in superior court to revise the commissioner’s order to the extent 

it denied AllFi’s motion to vacate the default judgment1. In support of its motion, AllFi 

submitted additional evidence that was not before the commissioner. On April 20, 2023,

the superior court declined to consider the additional evidence and denied revision. The 

order stated that the court “agrees with the commissioner's ultimate conclusion that AllFi 

has not demonstrated entitlement to its requested relief to vacate the default and 

judgment against it because it failed to demonstrate excusable neglect. To that extent, 

the Court adopts the commissioner’s legal reasoning and factual findings as its own.” The 

order specified that the court had not considered materials not presented to the 

commissioner. 

AllFi appeals. 

II. ANALYSIS

A. Standard of Review 

All commissioner decisions are subject to revision by the superior court. WASH. 

CONST., art. IV, § 23. “Such revision shall be upon the records of the case, and the 

findings of fact and conclusions of law entered by the court commissioner ....” RCW 

2.24.050. On a motion to revise, the superior court reviews the commissioner’s findings 

of fact and conclusions of law de novo based on the evidence and issues presented to 

the commissioner. In re Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 829, 460 

P.3d 667 (2020). The superior court “is not required to defer to the fact finding discretion 

of the commissioner” but “is authorized to determine its own facts based on the record 

 1 AllFi claims it moved for reconsideration of the commissioner’s order and assigned 

error to that denial. But AllFi moved for revision, not reconsideration, so we interpret its 

challenge as such. 
No. 85254-0-I/5

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before the commissioner.” In re Marriage of Dodd, 120 Wn. App. 638, 644-45, 86 P.3d 

801 (2004). On appeal, we review the superior court’s decision, not the commissioner’s. 

Boeing Emps. Credit Union v. Burns, 167 Wn. App. 265, 270, 272 P.3d 908 (2012). 

Default judgments are not favored in the law. Gage v. Boeing Co., 55 Wn. App. 

157, 159, 776 P.2d 991 (1989). Because a default order deprives the parties of a trial on 

the merits, a proceeding to set aside a default judgment is equitable in character and the 

relief afforded “is to be administered in accordance with equitable principles and terms.” 

White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968). 

The party seeking relief under CR 60(b) bears the burden of showing relief is 

warranted. Fowler v. Johnson, 167 Wn. App 596, 605, 273 P.3d 1042 (2012). “Appeal 

from denial of a CR 60(b) motion is generally limited to the propriety of the denial.” State 

v. Santos, 104 Wn.2d 142, 145, 702 P.2d 1179 (1985) (appeal from denial of a motion to 

vacate an order of paternity). 

We generally review a trial court’s decision on a motion for default judgment for 

abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007). A court 

abuses its discretion only when its decision is manifestly unreasonable or based on 

untenable grounds. Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). 

However, a default judgment entered upon defective service of process is void and can 

be vacated at any time. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323-24, 877 P.2d 

724 (1994). “Because courts have a mandatory, nondiscretionary duty to vacate void 

judgments, a trial court’s decision to grant or deny a CR 60(b)(5) motion to vacate a 

default judgment for want of jurisdiction is reviewed de novo.” Ahten v. Barnes, 158 Wn. 

App. 343, 350, 242 P.3d 35 (2010).
No. 85254-0-I/6

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B. CR 60(b)(5)2

AllFi argues that the default judgment should be vacated as void because Hoffman 

did not comply with the legal requirements for service of process on a corporation. “A 

default judgment against a party is void if the court did not have personal jurisdiction over 

that party.” Delex Inc. v. Sukhoi Civil Aircraft Co., 193 Wn. App. 464, 468, 372 P.3d 797

(2016). “A court does not have personal jurisdiction over a party if service of the summons 

and complaint was improper.” Id. “CR 60(b)(5) mandates the court vacate a void 

judgment upon motion of a party, irrespective of the lapse of time.” Persinger v. 

Persinger, 188 Wn. App. 606, 609, 355 P.3d 291 (2015).

“Service of process must comply with constitutional, statutory, and court rule 

requirements.” Walker v. Orkin, LLC, 10 Wn. App. 2d 565, 568, 448 P.3d 815 (2019). A 

plaintiff bears the initial burden to prove a prima facie case of sufficient service. Scanlan 

v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014). A plaintiff can establish a 

prima facie case by providing a declaration of a process server, regular in form and 

substance. State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 65, 7 P.3d 818 (2000). 

Further, RCW 4.28.080(10) permits service on a foreign corporation to be made by 

serving “any agent, cashier or secretary thereof.”

The burden then shifts to the party challenging the sufficiency of service to 

demonstrate by clear and convincing evidence that the service was improper. Scanlan, 

181 Wn.2d at 847. “When a default judgment has been entered based upon an affidavit 

of service, the judgment should be set aside only upon convincing evidence that the return 

 2 Although the trial court’s order does not address service of process, as we will discuss 

below, the record supports an implicit finding that the default judgment was not void on 

this basis. 
No. 85254-0-I/7

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of service was incorrect.” Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991). 

Clear and convincing evidence exists when the ultimate facts are shown to be “highly 

probable.” Dependency of G.M.W., 24 Wn. App. 2d 96, 118, 519 P.3d 272 (2022)

(quoting In Re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).

AllFi asserts the evidence establishes it was never properly served with the 

summons and complaint. AllFi points to Shreyberg’s declaration and testimony stating

that AllFi was no longer located at the Brooklyn address when service was attempted 

there and no one named Jason worked at AllFi or was authorized to accept service. 

Here, the affidavit of the process server indicates that they served AllFi at the

address on record for its agent for service of process on March 29, 2021 by leaving the 

summons and complaint with “Jason D,” an individual who claimed he was “authorized to 

accept service for corp.” The affidavit also states that the summons and complaint were 

mailed to the same address on April 2, 2021. This affidavit established prima facie 

evidence of proper service on AllFi. 

But the commissioner was presented with additional evidence. The process server 

testified on the record at the hearing to facts to the same effect, thereby corroborating 

that affidavit. And, for his part, Shreyberg was unable to recall under oath exactly when 

AllFi vacated the premises. Thus, his testimony left some doubt as to whether there were

people at the office at that time, who made the representations the process server claimed 

they made. Regardless, Shreyberg’s testimony, without more, does not establish that 

service was incorrect by clear and convincing evidence or otherwise make it “highly 
No. 85254-0-I/8

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probable” service was not adequately completed.3 Dependency of G.M.W., 24 Wn. App. 

2d at 118. In turn, the default judgment was not void due to improper service. 

C. CR 60(b)(1)

AllFi argues that the equities weigh in favor of vacating the default judgment based 

on CR 60(b)(1), which allows a court to grant relief for “[m]istakes, inadvertence, surprise, 

excusable neglect or irregularity in obtaining a judgment or order.” We review such 

motions for an abuse of discretion. Morin, 160 Wn.2d at 753

A motion to vacate under CR 60(b)(1) must be filed within a reasonable time and 

not more than one year from the judgment. CR 60(b)(1); Ha v. Signal Elec., Inc., 182 Wn. 

App. 436, 454, 332 P.3d 991 (2014). Here, the court entered the default judgment on

July 1, 2021. AllFi moved to vacate on January 25, 2023. Because AllFi moved to vacate 

more than a year after the court entered the judgment, relief is not available on this basis.

See Gates v. Homesite Ins. Co., 28 Wn. App. 2d 271, 284, 537 P.3d 1081 (2023) (trial 

court cannot grant CR 60(b)(1) motion to vacate filed more than a year after judgment 

entered); Suburban Janitorial Services v. Clarke American, 72 Wn. App. 302, 307, 863 

P.2d 1377 (1993) (noting that “CR 6 specifically excludes CR 60(b)’s time provisions from 

enlargement by the court.”). 

Even if AllFi’s motion to vacate was timely, relief is not warranted on this basis. A 

party moving to vacate a default judgment must demonstrate “(1) that there is substantial 

evidence supporting a prima facie defense; (2) that the failure to timely appear and 

 3 In its motion for revision, AllFi sought to bolster Shreyberg’s testimony with additional 

evidence that was not before the commissioner. The trial court properly refused to 

consider this additional evidence. See RCW 2.24.050 (limiting the superior court's review 

on revision to the evidence before the commissioner). 
No. 85254-0-I/9

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answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the 

defendant acted with due diligence after notice of the default judgment; and (4) that the 

plaintiff will not suffer a substantial hardship if the default judgment is vacated.” Little v. 

King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007). The first two factors are primary and 

the other two are secondary. TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal 

Supplies, Inc., 140 Wn. App. 191, 200-01, 165 P.3d 1271 (2007). “Whether or not a 

default judgment should be set aside is a matter of equity.” Ha, 182 Wn. App. at 449. 

As to the first factor, AllFi argues that Hoffman’s TCPA claims are barred by the 

applicable four-year statute of limitations. See Giovanniello v. ALM Media, LLC, 726 F.3d 

106, 107 (2d Cir. 2013) (applying generic federal statute of limitations in 28 U.S.C. § 1658 

to claims brought under the TCPA). AllFi is incorrect. Under CR 3(a), an action is 

commenced when a complaint is filed or a summons served. Either of these acts will toll 

the statute of limitations as long as the other is completed within 90 days. RCW 4.16.170. 

Hoffman served AllFi on March 29, 2021, less than four years after the first allegedly 

improper call took place on April 5, 2017. He filed the summons and complaint less than 

90 days later, so this is not a meritorious defense. 

AllFi also argues that it established a prima facie defense because Shreyberg 

denied that AllFi called Hoffman without consent. But AllFi cites no other evidence in 

support of this claim.4 To establish a prima facie defense, affidavits supporting motions 

to vacate default judgments must set out the facts constituting a defense and cannot

 4 AllFi cites Clerk’s Papers (CP) at 173 in support of its claim that “Shreyberg declared 

that AllFi did not use autodialing technology or otherwise commit the violations 

Respondent alleges” and “Shreyberg declared AllFi, Inc. does not engage in 

telemarketing.” No such evidence can be found in the CPs at 173. 
No. 85254-0-I/10

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merely state allegations and conclusions. Shepard Ambulance, Inc. v. Helsell, Fetterman, 

Martin, Todd & Hokanson, 95 Wn. App. 231, 239, 974 P.2d 1275 (1999). The defendant 

must present “concrete facts” that support a defense. Ha, 182 Wn. App. at 449. AllFi did 

not meet this standard. 

As to the second factor, AllFi argues that it did not willfully ignore the lawsuit, but 

was unable to appear because the COVID-19 pandemic and resulting widespread 

business disruptions forced it to cease business operations at the Brooklyn address in 

early 2021. But Shreyberg did not update AllFi’s corporate address until after the 

February 2023 evidentiary hearing. AllFi also argues that Shreyberg reasonably believed 

that updating AllFi's business registration in Florida was sufficient. But Shreyberg 

candidly admitted that he should have updated AllFi’s Brooklyn address. This oversight 

was not excusable. And as previously noted, the trial court properly refused to consider 

additional evidence regarding Shreyberg’s efforts to update AllFi’s corporate registration 

that was not presented to the commissioner. 

As to the third and fourth factors, AllFi argues that it acted promptly to vacate the 

default judgment within days of discovering it and that vacating it will not prejudice 

Hoffman. These secondary factors do not tip the balance in AllFi’s favor. AllFi has not 

shown mistake or excusable neglect entitling it to have the default judgment vacated. 

D. CR 60(b)(11)

Finally, AllFi argues that extraordinary circumstances justify vacating the default 

judgment. Under CR 60(b)(11), a court may grant a party relief for “[a]ny other reason 

justifying relief from the operation of the judgment.” “CR 60(b)(11) applications should be

reserved for situations involving extraordinary circumstances not covered by any other 
No. 85254-0-I/11

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section of CR 60(b).” Topliff v. Chicago Ins. Co., 130 Wn. App. 301, 305, 122 P.3d 922 

(2005). Moreover, those circumstances must relate to “irregularities extraneous to the 

action of the court or questions concerning the regularity of the court’s proceedings.” In 

re Marriage of Furrow, 115 Wn. App. 661, 674, 63 P.3d 821 (2003) (quoting In re Marriage 

of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985)).

AllFi argues that the COVID-19 pandemic and resulting widespread business 

disruptions qualify as extraordinary circumstances under CR 60(b)(11). It contends that 

confusion surrounding AllFi’s sudden unplanned move from New York to Florida in early 

2021 reasonably explains Shreyberg’s failure to update AllFi’s corporate registration and 

respond to Hoffman’s allegedly improper service. But Shreyberg admitted that he should 

have updated AllFi’s Brooklyn address. Further, excusable neglect is a factor to be 

considered under a CR 60(b)(1) analysis. And AllFi cannot use CR 60(b)(11) to 

circumvent the one-year time limit under CR 60(b)(1). Freibe v. Supancheck, 98 Wn .App. 

260, 267, 992 P.2d 1014 (1999). 

E. Attorney Fees 

Hoffman requests an award of attorney fees on appeal. Hoffman has appeared 

pro se in this appeal. Attorney fees are not available on appeal to a nonlawyer, pro se 

litigant. In re Marriage of Brown, 159 Wn. App. 931, 938, 247 P.3d 466 (2011). Moreover, 

Hoffman did not “devote a section of [his] opening brief to the request for the fees or 

expenses” as RAP 18.1(d) requires. Although Hoffman is the prevailing party on appeal, 

his request for fees must be denied. 
No. 85254-0-I/12

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III. CONCLUSION

Affirmed.

WE CONCUR: