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Filed: 7/28/2023 12:35 PM Clerk STATE OF INDIANA Decatur Superior Court ) DECATUR COUNTY SUPERIOR COURT Decatur County, Indiana ) SS: #1 COUNTY OF DECATUR ) ) Case Number: 16D01-2307-CC-000398 MIDLAND CREDIT MANAGEMENT, INC. ) Plaintiff ) ) v. ) ) SANDRA L CREAMER aka SANDRA ) CREAMER ) Defendant WINT Plaintiff, MIDLAND CREDIT MANAGEMENT, INC., by counsel, sues Defendant SANDRA L CREAMER aka SANDRA CREAMER, under Account Stated and in support thereof states: l. Plaintiff is authorized to file this Complaint in this Court. Plaintiff owns portfolios of consumer receivables, which it attempts to collect. Plaintiff strives to treat its consumers, such as Defendant, with respect, compassion and integrity, hoping to provide mutually-beneficial opportunities for consumers to repay their debts and attain financial recovery. 2. Defendant is subject to this Court's jurisdiction. COUNT 1 3. Defendant established an account with CAPITAL ONE, N.A. under redacted account numberXXXXXXXXXXXX-7353. Defendant was provided statements delineating Defendants use of the account and stating the 4.current balance due. 5. Defendant defaulted on the account. 6. A statement of account balance was sent to Defendant and not paid. 7. The amount due under this account is $2,941.91. COUNT 2 8. Defendant established an account with COMENITY CAPITAL BANK under redacted accountnumber XXXXXXXXXXXXX-6288. Defendant was provided statements delineating Defendants use of the account and stating the 9.current balance due. lO. Defendant defaulted on the account. ll. A statement of account balance was sent to Defendant and not paid. 12. The amount due under this account is $1,449.74.GL_0100M File N0.:23-88910 SCP 13. Plaintiff has acquired all right, title and interest to Defendant's accounts, and has attempted to contact Defendant through several means in an effort to resolve the account with Defendant, but has beenunsuccessful. Defendant has not repaid the balance owed on the accounts. Plaintiff remains willing todiscuss various options to resolve the outstanding obligation, although the options may be different thanthey were prior to the initiation of litigation. 14. Defendant owes Plaintiff the combined balance of $4,391 .65. 15. In support of the allegations, Plaintiff incorporates herein by reference the attached Exhibits.The undersigned certifies that this and any attached document complies with the requirements ofTrial Rule 5(G) with regard to information excluded from the public record under AdministrativeRule 9(a). WHEREFORE, Plaintiff requests judgment against the Defendant for $4,391.65 and costs of theaction and post judgment interest at the statu rate. By: I Jo GILLESPIE BarNW0. '1983-49/ JAso .TAYLOR Bar No. 3016022 Attor or Plainti PO. BOXO 70069 V LOUBVILLE. KY 40270-0069 Phone 6) 300 8750 Fax (855)) 488-1523 1 E mail: IL_IN@mcmcg.com PLEASE UNDERSTAND THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.GL_0100M File No.223-88910 SCP AFFIDAVIT OF DEBT Comes now afi'iant, and states: l, Khue Moua, am of adult age and am an employee of Midland Credit Management, inc. ("Plaintifi" or "MCM"), and am fully authorized by i'laintifl' to make the following representations. 1 am familiar with the recordkceping practices of Plaintiff. The following representations are true according to documents kept in the normal course of business and/or my personal knowledge. Ihave access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on MCM's behalf. The electronic records reviewed consist of (i) data and records acquired from the seller or assignor when MCM purchased or was assigned the account, which were incorporated into MGM's business records upon purchase or assignment, and (ii) data and records generated by MCM in connection with servicing the account since the date the account was purchased by or was assigned to MCM. In addition, I reviewed the documents that are attached to this affidavit. I) The Plaintiff has obtained this debt from CAPITAL ONE, NA. and the original creditor of this debt was CAPITAL ONE, N.A.. Evidence of the debt, as required in Rule 9.2(A) (2), is attached as one or more Exhibits to this Affidavit. 2) SANDRA I. CREAhdER, Defendant, had an account balance of $2,941.91 as of 2023Mal2, which is owed to Plaintiff on account XXXXXXXXXXXX7353 (hereinafier "the Account"). 3) MCM's records show that the account was opened on 20l 5-03-23 and the last payment posted to the account on 202i-08~20 in the amount of S l 00.00. MCM's records show that the Defendant defaulted on the account on or afler 202 l l toz and the account was charged oft~ on 2022~04~09. 4) The type of account is: Credit card account (cg. Visa, MasterCard, Department Store). Company issuing credit card: CAPITAL ONE, NA. [:3 Other: 5) The account balance inciudes: MCM's records show that there are no late fees after 2022-05- l 9. ' -. «interest at a rate of 0% beginning on 2022-04-09. 6) The Plaintiff is not seeking attorney's fees. 7) MCM's records do not show that Defendant is a minor or mentally incapacitated person. 8) If the Defendant is an individual, Plaintiff states and declares that pursuant to the attachment, Defendant is not in active duty status of the military. ("Active military service" includes fulltime duty in the military (including the National Guard and reserves) and, for members of the National Guard, service under a call to active service authorized by the President or Secretary of Defense. For further information, see the definition of "military service" in the Servicemembers Civil Relief Act, as amended, 50 U.S.C.A. Appx. §52 I.) AFFIDAVIT OF KliUE MOUA - 1lflillllllilhlllilllllll llll 317105758 AFFRECATTACH lhliflglglleiglglgglllll 9) As set forth tn the records attached hereto, the complete chain of title including CAPITAL ONE, N.A., the original creditor, and all post-charge~ofi' purchasers/assignees of the debt are as follows l. CAPITAL ONE, NA. 2022fl5- l 9 2. Midland Credit Management, Inc. l0) Attached hereto are the foltowing records regarding the Account a) Bill(s) of Sale, Assignment and/or Affidavit(s) of Sale b) Seller data sheet reflecting the individual Account information from the electronic records prowded by the seller or assignor pursuant to the Bill(s) of Sale, Assignment(s) and/or Affidavit(s) of Sale in connection with the sale or assignment of the Account to Plaintiff c) Records regarding the Account and/or payments received i) Contract application, or other document evidencing the consumer's agreement to the debt; and/or 11) Statement(s) and/or Account records reflecting: l) the charge-oh?~ balance and 2) the last purchase transaction, payment, or balance transfer. I l) The documents attached hereto are true and correct copies of the originals, being a reproduction of Plaintiff's records, based upon my review, except to the extent that confidential and prtvuleged information and/or personal identifying information is Omitted or redacted as required by local rules, and applicable state and federal law. I swear or affirm under the penalties of perjury that the foregoing representations are true JUN30m: Date U6 0 ' ' ' bAt37" AFFIDAVIT 0F KHUE MOUA - 2lIIIIIlIlIlIIIlIlIIIIlI lIIllllIlIllIIIIIIlIllIIIllIIlII lIIIIIlIIIIIIIIIIIlI 371 105758 AFFRECATI'ACH 23-88910.DocuSign Envelope ID: O1EFCDA34C8E4045-8F8020E04289558!" Master Account Sale Agreement dated April 23, 2021 Account Sale Addendum dated March 28. 2022 BILL OF SALE Closing Date: May 19,2022 Capital One, N.Ar (Seller), in consideration of a Purchase Price of. and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby sells. assigns. conveys, sets over, and transfers all right, title and interest in the Accounts identified in the Sale File entitled OME_GA. BN0076 SALES. PRODEAST PFRLE202205t6 customer ' ' OMEGA. BNOOTS SALES PRODEAST PFRLE20220516_ BN0076_ datgz BN0076 main. dat gz ' OMEGAIBNOOTG SALES PRODEAST PFRLE20220516_ BN0076.phone datgz (which? may be to eiectronic term) to Midland Credit Management. Inc, a Kansas corporation (Buyer). and including all proceeds thereof of any kind, without recourse or representation except as expressly provided herein or on the teens. and subject to the conditions. set torth in the Agreement (as defined below). This Bill of Sale is delivered pursuant to and in accordance with the lame of that certain Master Account Sale Agreement. dated as of April 23. 202t, by and between Setter and Buyer (as amended, restated or otherwise modified from time to time, the 'Agreement'). All capitalized terms used. but not defined. in this Bit of Sale shall have the meanings asflgned to such terms in the Agreement, This Bill of Sale does not amend the terms of the Agreement in any respect. The representations. warranties, covenants. agreements and indemnities contained in the Agreement shat! not be superseded hereby but shall remain in lull force and effect as and to the extent provlded in the Agreement. The Cutoff Date for the Sale File was May 16. 2022. The aggregate Sale Balance of the Accounts as of the Cutoff Date was tN WlTNtESS WHEREOF, Seller, by its duly authorized representative, has executed and delivered this Bill of Sale as of the date first above written' WWW- CAPITAL ONE, ASSOClATlON" MtDLAND CREDIT MANAGEMENT. tNC. By: t2tCWAL By: Name: Timothy Horan Name; Danielle Wohlhhrt Title: Vlce President Title: VP at statues: DevelopmentDomSign Emaiope ID: 01EFCDA3-4CBE404MF8020ED428955BF Master Account Sate Agreement dated April 23. 2021 Account Sate Addendum dated March 28. 2022 AFFIDAVIT OF SALE OF ACCOUNT BY CREDITOR Trmothy Horan being duty sworn. deposes and says: i am over 18 and not a party to this action. t am the Vice President of Capitai One, MA. In that position I am aware of the process of the sate and assignment of ebctronicatty stored business records. On or about May 16, 2022 Capital One. NA. sold a poet of chargedoff accounts (the Accounts) by a Master Account Sate Agreement and a Biii of Santa to Midland Credit Management. Inc.. a Kansas corporation. As part of the sate ot the Accounts. etectronic records and other records were transferred on individuai Accounts to the debt buyer. These records were kept in the ordinanv course of business of Capitat One. NA. I am not aware at any errors in these accounts. The above statements are true to the best oi my knowiedge. Sigmd this 28 .202} dflfime Timothy Horan Vice President SUBSCRIBED and sworn to before me. the undersigned Notary Pubiic in the iun'sdtction aioresaid, by Timottty hom*o, who is personaity known to me and who acknowiedged before me his signature to the foregoing Affidavit. Commonweaith of Virginia County of' Fat? CW The forgoing instrument was acknowtedged before me this 1'3 day of Tune . 201;. Notary Signature Mecca 0% Fwoé Rebecca Ann Frantz Rebeca Ann Frantz 0! Virginia No Pubflc 4%,. Common No. 7879494 :' My Comm Expins 0551:2024DowSIgn Envelope ID: 01EFCDASACBE40454F302060428955BF Master Account Sale Agreement dated April 23, 2021 Account Sate Addendum dated March 28, 2022 CERTIFICATE OF CONFORMITY CERTIFICATE OF CONFORMITY MADE PURSUANT ro CFLR 2309(c) and RPL 29941 I, an attomey-atIaw admitted to practice in the Commonweatttr of Virginia, do hereby certify that Rebecca Ann Frantz, is a notary public in and for the Commonweatth of Wgrnia, in the jurisdtction aforementioned and the acknowtedgment upon arfidavits for Capital One, NA are taken in the manner prescribed by the laws of the Commonweatth of Virginia and contorrns to the laws thereof in all respects. J we 28. 2022 IN WITNESS WHEREOF. I have hereunto set my signature, on . L1" ndsay Barnes Printed Name W 5W by: Signed Name Attorney at Law, Commonweatth of Virginia Field Field Dag Account Number Seiier Account it) _7ass _ First Name SANDRA Middle Name L Last Name CREAMER SSN -.-6990Date of BirthAddress 1 II- 11989 8 COUNTY ROAD 1050 W City WESTPORT State INZip 47283Home PhoneOpen Date 03/23/201 5Last Purchase Date 08/28/2021Last Purchase Amount $48.13Last Payment Date 08/20/2021Last Payment Amount $100.00Sate Amount $2,941 .91Charge Off Date 04/09/2022Charge off Batance $2,941 .91Post Charge Off Interest $0.00Post Charge off Fee $0.00Post Charge off Payments $0.00Post Charge off Payments and Credits $0.00Post Charge off Credits $0.00Affinity MENARDS BtG CARDAccount information provided by Capitai One, Nationai Association pursuant to the Bill ofSate/Assignment of Accounts transferred on or about 05/19/2022 in connection with the sale ofaccounts from Capitai One, Nationai Association to Midland Credit Management, inc.OMEGABNOO76.SALES.PRDD»EAST.PFRLE20220516~BN0076wcustomer.dat.gzOMEGA.BNOO76.SALES.PROD-EAST.PFRLE20220516_BN0076_main.dat.gzOMEGA.BN0076.SALES.PROD-EAST.PFRLE20220516_BN0076_phone,dat.gzPFRLE20220516 Page 1 of2 Capital /One Menardsm BIG Card® ending In 7353 Mar 10. 2022 Apr08. 2022 r 30 days m aming Cycle Payment Due Date For amine and phone payments. the P revlous Balance $2,882.12 deadline is Bpm ET. PAST DUE Payments $0.00 New Bavance Minimum Payment Due Other Credits $0.00 $2,941.91 $2,941.91 Transactions + $0.00 IMPORTANT; Your account has charged off and is now serviced by the Fees Charged + $0.00 Recoveries department at 1600-2588319. Year hm batance is due. Any payment m make will reduce your balance and help pay off your debt Interest Charged + $59.79 faster. The amount you we may difier i! yoa've entered into a separate payment agreement. New Balance .-.- $2,941.91 Available Credil (as of Apr 08, 2022) N/A Account Notifications ® immnt updates about your account. Wetcome to your account notificatéons. Check back here each month [orPay 0! manage your account at W Customer Service. 1 800-871- 2800 See reverse for tmportant Information . . SANDRA L CREAMER 11989 8 COUNTY ROAD 1050 W WESTPORT. IN 472839247 1'""Illit'lnmh'l'b-dl'":l'lwt-'u'mll'l'tdnht'hl Payment Due Date: Past Due Account ending in 7353 New Balance Minimum Payment Due Amount Enclosed gagitggoggag $2,941.91 $2.941.9 1 $ . . X Carat Stream IL 60197-4069 Pleaseuudusthtsponionoiyomnatmntandmtyomcnecxtammneyuw)mnbhtohwlaim to ensure your payment is mam mmotty. mm at least seven business days in «Even. lm'll"Ill"':"-""l'tlM"II'M!"Hl'thl'l""""fl'" 17353 08 2961910100000000007 002BumMW MA WW not charge you interest on new MummymmmkeammmauMambmtemmmofimflwmlmmmwmvmwmhmfiwwdm Amammmmwmdwmmmrmmmuwurmmmmemm.mwmwmmmmsw.mmmwm m.mmmmmmwmmmmmm account Wnwuymfieadmummmflmwmxeammmm nuwmmwmmmmmamvmmummmmmommmmumwmtmwpm Mummy" WMWnlWemymmsflulmmm.FMImummmwmmmmummmmwwmmw Mmmammumummdwmmmwmmmmmwwmmmmmmmmm.WMWWWMM1)"»NMMW. 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Credits and AdjustmentsTrans Date Post Date Description AmountSANDRA L CREAMER #7353: TransactionsTrans Date Post Oat. Dtscrlptton Amount FeesTrans Date Post Date Description AmountTotal Fees for This Petiod $0.00 interest ChargedInterest Charge on Purchases $59.79Intuest Charge on Other Batancos $0.00Totat Interest to: this Period $59.79 Totals Year-to-DateTout Fees charged $0.00Total tntevest charged $23 I .97 Your Annual Percentage Rate (APR) ls the annual inlaresl rate on your account.Type of Balance Annual Penman Rate (APR) 33W Subiect to Interest Rate interest BlamedPurchases 24.99% 0 $2,910.91 $59.79W lf you have a letter code displayed next to any of the above APRs. this means they are variable APRs. They may increase or decrease basedon one of the following indices (wooded in The Wall Street Journal) as described below. Code next to your How do we calculate your APR")? When your APRts) wlll change APRlsl P Prime Rate 4» margin The first day of the Billing Cycles that begin ln Jam. April, July, and Oct. D Prime Rate + margin The flat day oi each Billing Cycle which begins in (his null month Page 1 of 3 Menardsai BIG Card® ending m 7353 capi'a/lone Aug :0 2021 $epO8 202} l 30 daysin Billing Cycle Pagmenl Due Date For online and phone payments. the Previous Balance $2,172.39 deadline is 8pm ET. Oct 03, 2021 Payments ' $100.00 New Balance Minimum Paymnt Due Other Credits $0.00 $2,439.79 $72.00 Transactions + $320.71 LATE PAYHENT WARNING: it we do not receive your minimum payment Fees Charged + $0.00 by your due flats. you may have to pay a late fee of up lo $40.00: lntevest Charged + $46.69 mumum PAYMENT WARNING:11 you make only the minimum paymenl each petiod. you will pay more in lateral and it will take you New Bahnce 2 $2,439.79 longer to pay off ypur balance; For example: i Credit Limit $2. 500.00 sa 153 3' off: 1! emfix ~a: lanai Vi??? «I Avaulable Cf€d!t (as of Sep 08' 2021) $60 21 "534 wire th'Kfcetd and (36'; {Hlsvl . iténléfnt 113L313" '0 5n abougi7- '1 Minimum Payment 12 Veils $6.117 ' $97 3 Years $3.492 Eslamatea savings if balarlce ls name" in about 3 years: 32,625 If m would in Winn that: credit mummy minus; M [4883264055. Account NotificationsQ) Welcome to your acmunt notifications. Check back here each month ior important updates about your account.Pay 0: manage your accouni at W Customer Service: 1-800-871-2800 See reverse for important information W: IE! 3; a. -m. Saveffimel'gtayinformed; Discover new feamreswi'tiv -the*i€ap'ita¥0neuob6§eapa, SANDRA L CREAMER ta 11989 5 COUNTY ROAD 1050 W WESTPORT. IN 472833247 Wsmméaméérwfim'smmmmcm ""Iiibli'vii'i'hlilldlH'u'[lili'hi'I-"l'l'iwi'"-l'm WGWOMWW F'ayment Due Date: Oct 03. 2021 Account ending in 7353 New Balance Minimum Payment Due Amount Enclosed 01:06 9 (5:386:32, $2t43979 $7200 $ Carol Siream it. 601914069 Hem and us this Mind ("your "element and Mancini (oi unmoved emblem Capiial 0M llil'l"'iumi'hhhl'Ilhlhil.""I"m!lilt'iu'm'fli'" in ensmyoiu pawn! ix processed motiy. 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Sep 08. 2021 30 days in Billing Cycle I a a 0 Visit to see detailed transactions. SANDRA L CREAMER 87353: Payments. Credits and AdjustmentsTrans Date Post Dale Description AmountAug 20 Aug 20 Mailed Payment. Thank You! . $100.00SANDRA L CREAMER #7353: TransactionsTrans Date Post Date Description AmountAug 25 Aug 26 MENARDS IBlBOCOLUMBUSiN $154.75Aug 26 Aug 27 MENARDS #3ISOCOLUMBUSIN $21.57Aug 28 Aug 30 MENARDS #3180COLUMBUSIN $48.13Aug 28 Aug 30 MENARDS 63180COLUMBUSiN $48.13Aug28 Aug 30 MENARDS RBISOCOLUMBUSlN $48.13SANDRA L CREAMER #7353: Total Tranuctions $320.71Total Transactions lot This Period $320.71 FeesTrans Dill: Post Date Description AmountTotal Fees for This Period $0.00 interest ChargedInterest Charge on Purchases $46.69interest Charge on Other Balances $0.00Total interest for This Period $46.69 Totals Year-to-DateTotai Fees charged
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ACON LABORATORIES INC. VS REVIVAL HEALTH MEDICAL SUPPLY, INC., A DELAWARE CORPORATION, ET AL.
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Case Number: 23TRCV01227 Hearing Date: August 21, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Wednesday, August 21, 2024 Department M Calendar No. 11 PROCEEDINGS Acon Laboratories, Inc. v. Revival Health Medical Supply, Inc., et al. 23TRCV01227 1. Acon Laboratories, Inc.s Motion to Set Aside Default and Vacate Default Judgment TENTATIVE RULING Acon Laboratories, Inc.s Motion to Set Aside Default and Vacate Default Judgment is granted. Background Plaintiff filed the Complaint on April 20, 2023. Plaintiff alleges the following facts. Plaintiff alleges that Defendant owes Plaintiff $200,000.00 for goods and services rendered. Default was entered on July 18, 2023. Default judgment was entered on August 15, 2023. Motion to Set Aside Default CCP § 473(b) states, in relevant part: The court may, upon 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . . CCP § 473.5(a) states, in relevant part: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. CCP § 473.5(b) states: A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. The phrase actual notice means genuine knowledge of the party litigant and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077. 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Aug 26, 2024 |20VECV01001
Case Number: 20VECV01001 Hearing Date: August 26, 2024 Dept: O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTHWEST DISTRICT FIRST DATA MERCHANT SERVICES LLC, a limited liability company, Plaintiff, vs. GENIE GATEWAY, a Corporation dba GenieCard, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 20VECV01001 ORDER GRANTING PLAINTIFFS MOTION TO ENFORCE SETTLEMENT I IBACKGROUND This case arises out of an alleged breach of a contract between Plaintiff First Data Merchant Services, LLC (Plaintiff) and Defendant Genie Gateway dba GenieCard (Defendant). (See Complaint.) Plaintiff and Defendant entered into a stipulated settlement agreement on October 3, 2023. (See Conditional Settlement and Dismissal filed October 9, 2023 (Settlement and Stipulation).) As stipulated, this Court dismissed the action without prejudice on October 16, 2023. (See Order for Conditional Settlement and Dismissal signed October 16, 2023 (Order).) Plaintiff now seeks to enforce the settlement agreement and enter judgment against Defendant pursuant to Code of Civil Procedure § 664.6. II. PROCEDURAL HISTORY On September 8, 2020, Plaintiff filed its Complaint, alleging (1) Breach of Contract. On January 19, 2021, Defendant filed its Answer. On October 9, 2023, the parties filed their Settlement and Stipulation. On October 16, 2023, this Court dismissed the case without prejudice pursuant to the Settlement and Stipulation. On July 25, 2024, Plaintiff filed the instant Motion to Enforce the Settlement Agreement and Enter Default Judgment Against Defendant Pursuant to Code of Civil Procedure § 664.6 (Motion). Defendant did not file an Opposition. III. LEGAL STANDARD Code of Civil Procedure § 664.6[1] provides, as follows: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. On a motion to enforce, the court must determine whether the settlement agreement is valid and binding. The court assesses whether the material terms of the settlement were reasonably well-defined and certain, and whether the parties expressly acknowledged that they understood and agreed to be bound by those terms. It may interpret the settlement terms and conditions, but it cannot impose terms to which the parties did not agree. (Estate of Jones (2022) 82 Cal.App.5th 948, 952 (cleaned up).) IV. ANALYSIS A. Retention of Jurisdiction [V]oluntary dismissal of an action or special proceeding terminates the courts jurisdiction over the matter. If requested by the parties, however, the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement. Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement. (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917 (cleaned up).) A request for the trial court to retain jurisdiction under section 664.6 must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court. The request must be express, not implied from other language, and it must be clear and unambiguous. (Id. (cleaned up).) Here, the parties signed a Settlement and Stipulation containing the parties agreement for this Court to dismiss the action without prejudice but reserving this Courts power to set aside the dismissal and order entry of judgment up a showing of default. (See Settlement and Stipulation.) On October 16, 2023, this Court dismissed the action without prejudice in accordance with the Settlement and Stipulation and noted its retention of jurisdiction in the event of default. (See Order.) Accordingly, the Court finds it has retained jurisdiction to enter judgment. /// /// B. Entry of Judgment Per the Settlement and Stipulation, Plaintiff shall, after Defendants default and 7 days written notice to Defendant, be entitled to have judgment entered in its favor full amount prayed in the Complaint including the principal sum of $48,181.58, plus court costs and attorney fees incurred less payments made pursuant to the settlement herein. (Declaration of Alison Schlick filed July 25, 2024 (Schlick Decl.), ¶ 4, Ex. 1; see also Settlement and Stipulation.) Plaintiffs counsel declares Defendants last payment was on November 15, 2023, was returned due to insufficient funds. (See Schlick Decl., ¶ 7.) To date, Plaintiffs counsel declares Defendant has only paid $1,750.00 of the settlement amount. (See id. at ¶ 6.) Plaintiffs counsel further declares her office provided several written notices regarding the default to Defendants counsel via email on January 26, 2024, and via letter on June 27, 2024, per the terms of the Settlement and Stipulation, and that Defendant has failed to remedy the default. (See id. at ¶¶ 8-9, Exs. 2-3.) The Court finds the Settlement Agreement valid and enforceable under Code of Civil Procedure § 664.6. Here, Plaintiffs counsel declares the Defendant has failed to continue making payments under the Settlement and Stipulation and failed to cure the default after Plaintiff sent notice. Therefore, since a valid and signed settlement agreement between the parties has been breached, and the Court retains jurisdiction to enter judgment, the Motion satisfies the requirements under Code of Civil Procedure § 664.6. Accordingly, Plaintiffs Motion is GRANTED. The dismissal entered on October 16, 2023, is vacated. Judgment is entered for Plaintiff and against Defendant in the amount of $48,734.97 for the following: the principal amount of $48,181.58 less $1,750.00 in payments made by Defendant, $520.45 in costs, and $1,782.94 in attorneys fees. /// /// V. CONCLUSION Based on the foregoing, the Court GRANTS Plaintiffs Motion to Enforce the Settlement Agreement and Enter Default Judgment Against Defendant Pursuant to Code of Civil Procedure § 664.6 in the amount of $48,734.97. The Court will sign the Proposed Judgment submitted with this Motion. IT IS SO ORDERED. DATED: August 26, 2024 Hon. Michael R. Amerian Judge, Superior Court [1] All statutory references are to California codes unless stated otherwise.
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