Bank Of America NA vs Daniel B Sperling

Case Number

19CV05206

Case Type

Hearing Date / Time

Mon, 10/21/2024 - 10:00

Nature of Proceedings

Motion: Set Aside and Vacating Its Prior Order of Dismissal and for Entry of Judgment Pursuant to Stipulation of the Parties

Tentative Ruling

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

Case No. 19CV05206          

Hearing Date: October 21, 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 Fanny Wan

For Defendant Daniel B. Sperling: No Appearance

TENTATIVE RULING:

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

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.)

“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 judgment amount is paid in full.” (Wan 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.” (Wan 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. (Wan Dec., ¶ 5 & Exh. 1.)

Defendant last made payment on March 29, 2022, and is in default of the agreement. (Wan 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, minus prior payments of $3,650.00, plus previous court costs of $463.50, $82.62 service fee, e-filing fees of $46.42, a $435.00 first appearance fee, a $60.00 motion fee for the filing of this motion, less $6,900.00 for payments made to date, for a total judgment of $19,005.91.

On December 21, 2023, the stipulated agreement, signed by BofA on November 30, 2023, and by Sperling on July 10, 2020, was filed with the court.

BofA filed a proof of personal service of the summons and complaint, showing that Sperling was served on March 28, 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.)

“A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Ibid.) “In order for acceptance of a proposal to result in the formation of a contract, the proposal “ ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ ” [Citation.] A proposal “ ‘cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [¶] The terms of a contract are reasonably certain if they provide a basis for determining . . . the existence of a breach and for giving an appropriate remedy.’ ” [Citation.] If, by contrast, a supposed “ ‘contract’ ” does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. (See, e.g., 1 Williston on Contracts (4th ed. 1990, Lord) § 4:18, p. 414 [“It is a necessary requirement that an agreement, in order to be binding, must be sufficiently definite to enable the courts to give it an exact meaning.”]; see also Civ. Code § 3390, subd. 5 [a contract is not specifically enforceable unless the terms are “ ‘sufficiently certain to make the precise act which is to be done clearly ascertainable.’ ”] )” (Id. at pp. 811-812.)

The parties entered into a valid and enforceable contract, with reasonably certain terms, and have agreed that the court retains jurisdiction to enforce the terms of the settlement agreement pursuant to Code of Civil Procedure section 664.6.

As noted above, the parties executed and filed a Stipulation Agreement that recognizes the jurisdiction of the court. “A written stipulation between attorneys recognizing jurisdiction of the court over the parties constitutes a General appearance by defendant.” (General Ins. Co. v. Superior Court (1975) 15 Cal.3d 449, 453.)

The motion will be granted. The court has reviewed the proposed order, as well as the proposed judgment, submitted by plaintiff and will sign them as drafted.