Bank of America NA vs Danielle A Lopez
Bank of America NA vs Danielle A Lopez
Case Number
19CV06436
Case Type
Hearing Date / Time
Mon, 09/15/2025 - 10:00
Nature of Proceedings
Motion: Set Aside Set-Aside Dismissal to Enforce Judgment
Tentative Ruling
Bank of America, N.A. v. Danielle A. Lopez
Case No. 19CV06436
Hearing Date: September 15, 2025
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.: Flint C. Zide, Scott & Associates
For Defendant Danielle A. Lopez: Jennifer N. Harris
TENTATIVE RULING:
The motion of plaintiff Bank of America, N.A. for order setting aside dismissal and for entry of judgment pursuant to Code of Civil Procedure section 664.6 is denied without prejudice.
Background:
This action commenced on December 6, 2019, by the filing of the complaint by plaintiff Bank of America, N.A. (BofA) against defendant Danielle A. Lopez (Lopez), for Common Counts.
By way of the complaint, BofA alleges that Lopez owes BofA $19,582.20 for money lent to Lopez by BofA.
On January 6, 2020, Lopez, through her attorney of record, filed her answer to the complaint with a general denial and 21 affirmative defenses.
BofA and Lopez signed a stipulation on May 27, 2020, to resolve this matter. (Zide Decl., ¶ 3 & Exh. 1.) The stipulation provided that Lopez pay BofA the sum of $19,582.20 plus costs in the amount of $444.45. (Zide Decl., ¶ 4 & Exh. 1, ¶ 1.)
Lopez agreed to pay this amount in installments of: (1) $417.31 on or before June 30, 2020; (2) a minimum of $414.17 on or before the end of each month commencing on July 2020, through May 2024; and (3) a final payment of $143.35 on or before June 20, 2024. (Zide Decl., ¶ 5 & Exh. 1, ¶ 4.) The stipulation provides that the court retains jurisdiction pursuant to Code of Civil Procedure section 664.6. (Exh. 1, ¶ 7.)
On May 27, 2020, BofA filed a notice of conditional settlement of entire case. On June 2, 2020, BofA dismissed the action, without prejudice, specifying that the court would retain jurisdiction to enforce the settlement pursuant to Code of Civil Procedure section 664.6.
BofA’s attorney declares that Lopez did not make payments as agreed and is in default. (Zide Decl., ¶ 6.)
On June 3, 2025, BofA filed the present motion to set aside the dismissal and enter judgment. BofA served Lopez with the motion, but not Lopez’s attorney of record, on May 31, 2025.
Lopez has not filed opposition or any other responsive document 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, as well as the stipulation that the court retain jurisdiction pending defendants’ full performance of the 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 Lopez to BofA.
However, as noted above, the motion was not served on Lopez’s attorney of record.
“Whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented.” (Cal. Rules of Court, rule 1.21(a).) This is true for post-judgment documents unless the attorney of record has been discharged or substituted out of the case. (see Reynolds v. Reynolds (1943) 21 Cal.2d 580.) According to court records, Lopez is still represented by counsel.
Because service of the motion was defective, the motion must be denied.
Also, the lack of Lopez’s attorney’s signature on the settlement agreement causes the court concern that BofA may have been directly negotiating with Lopez while she was represented by counsel. The agreement does state, at paragraph 18, that Lopez “had the opportunity to consult with legal counsel,” but it does not indicate whether or not her attorney of record was in any way involved in Lopez executing the agreement. Should BofA refile the motion, and properly serve it, BofA will be expected to explain the circumstances that resulted in the signing of the agreement.