Bank Of America NA vs Daniel B Sperling

Case Number

19CV05206

Case Type

Hearing Date / Time

Mon, 03/25/2024 - 10:00

Nature of Proceedings

Motion: Set Aside and Vacate Prior Order of Dismissal and for Entry of Judgment

Tentative Ruling

Bank of America, N.A. v. Daniel B. Sperling                    

Case No. 19CV05206          

Hearing Date: March 25, 2024                                                

HEARING:              Plaintiff’s Motion For Order Setting Aside Dismissal and for Entry Of Judgment Under Terms Of Signed Settlement Agreement (CCP § 664.6.)

                                                           

ATTORNEYS:        For Plaintiff Bank of America, N.A.: Robert S. Kennard and Daniel Soo

For Defendant Daniel B. Sperling: No Appearance

TENTATIVE RULING:

Plaintiff Bank of America N.A.’s motion for order setting aside dismissal and for entry of judgment pursuant to Code of Civil Procedure section 664.6 is denied.

Background:

This action commenced on September 27, 2019, by the filing of the complaint by plaintiff Bank of America, N.A. (“BofA”) against defendant Daniel B. Sperling (“defendant”). The complaint contains a single cause of action for Common Counts.

As alleged in the complaint:

Defendant became indebted to FIA Card Services, N.A., which is the predecessor in interest to BofA, in the amount of $28,468.37. (Complaint, ¶¶ CC-1, CC-2.) “The account was established on 4/19/04. The account charged off on 9/29/18. The last payment received on the account was on 05/28/19.” (Complaint, ¶ CC-4.)

The court has no record of defendant making an appearance in this action or of being served with summons.

“On June 26, 2020, the parties entered into a verbal settlement agreement. The agreement was thereafter reduced to writing and signed by the parties. The settlement agreement provided, among other things, that judgment in the sum of $25,281.87 would not be entered against Defendant. Judgment would not be entered against Defendant so long as Defendant pays to Plaintiff a minimum of $300.00 on or before the 22nd day of each and every month commencing on July 22, 2020 through and including December 22, 2022, followed by a minimum of $700.00 on or before the 22nd day of each and every month commencing on January 22, 2021, through and including September, 2023 and then a final payment of $381.87 on or before October 22, 2023 until the Defendant has paid the Judgment Amount.” (Soo Dec., ¶ 3 & Exh. 1.)

“Time was agreed to be of the essence with respect to all payments. If Defendant failed to make full and timely payment of any installment or if any payment was reversed, then the Defendant would be deemed in default and the full balance of Plaintiff’s claim became immediately due and owing.” (Soo Dec., ¶ 4.)

In the event of default, the parties agreed that the court was authorized to enter judgment in favor of plaintiff and against defendant in the amount of $25,281.87, less payments received, and court costs, pursuant to Code of Civil Procedure section 664.6. (Soo Dec., ¶ 5 & Exh. 1.)

Defendant last made payment on February 7, 2022, and is in default of the agreement. (Soo Dec., ¶ 6 & Exh. 2.)

BofA now moves for entry of judgment, pursuant to Code of Civil Procedure section 664.6, in the principal sum of $28,468.37, plus previous court costs of $463.50, e-filing fees of $46.42, a $435.00 “Order fee,” a $60.00 motion fee for the filing of this motion, less $10,550.00 for payments made to date, for a total judgment of $18,923.29.

The motion was served, via mail, to defendant at 1470 East Valley Rd., Ste. H50815, Santa Barbara, on January 29, 2024.

Defendant has filed no opposition or other response to the motion.

Analysis:

Code of Civil Procedure section 664.6 provides:

“(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of 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.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer's behalf.

(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party's express authorization shall, absent good cause, be subject to professional discipline.”

“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement.” (Hines v. Lukes (2008) Cal.App.4th 1174, 1182.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Id.)

A court hearing a motion brought under section 664.6 may “receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment”, but may not “create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)

The court has reviewed the settlement agreement. The agreement is in a writing signed by all parties and sets forth all applicable terms. A valid settlement agreement appears to have been entered into for money owed by defendant to BofA.

“Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., § 410.50, subd. (a).)

Code of Civil Procedure section 1014 provides, in pertinent part: “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”

Here, as noted, the court has no record of defendant being served with summons, making an appearance, or otherwise waiving any jurisdictional requirements.

“ ‘When a court lacks jurisdiction in a fundamental sense, such as lack of authority over the subject matter or the parties, an ensuing judgment is void.  [Citation.] To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process. [Citation.] . . .’ ” (Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961.)

“The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.” (Zenith Corp. v. Hazeltine (1969) 395 U.S. 100, 110.)

Here, because no proof of service of summons was filed, and because defendant has never made an appearance or filed any documents in the case, the court has no personal jurisdiction and cannot enter judgment. As such, the motion will be denied.

As an additional note, it is unclear whether defendant received notice of the present motion. It was served, via mail, at an address that did not appear to be his address when the order of dismissal was filed on December 27, 2023. Even though the agreement states, at paragraph 7, that plaintiff can reopen the case without notice to defendant, notice and an opportunity to be heard is a fundamental constitutional right that cannot be waived in such a manner.

This ruling does not prevent BofA from utilizing other proper legal procedures to enforce the settlement agreement.