Bank Of American, N.A. vs. Jon Hampton McKean

Case Number

21CV01527

Case Type

Hearing Date / Time

Wed, 09/27/2023 - 10:00

Nature of Proceedings

Plaintiff’s Motion For Entry Of Judgment Pursuant To Stipulation

Tentative Ruling

For Plaintiff Bank of America, N.A.: Robert Scott Kennard, Gloria Zarco, Nelson & Kennard               

For Defendant Jon Hampton McKean: No appearance

RULING

For all reasons discussed herein, the hearing on plaintiff’s motion for entry of judgment pursuant to stipulation is continued to October 25, 2016. On or before October 16, 2023, plaintiff shall either file a new proof of service demonstrating sufficient and effective service of the motion on defendant or shall file and serve sufficient additional papers demonstrating, with reasoned factual and legal argument, why mail service of the present motion on defendant is effective.

Background

As alleged in the complaint filed on April 14, 2021, by plaintiff Bank of America, N.A. (BOA), this matter concerns an account that was established on March 15, 2015 (the account). Within the last four years, defendant Jon Hampton McKean became indebted to FIA Card Services, N.A., who is the predecessor in interest to BOA, on an open book account and an account stated in writing. The last payment received on the account was on October 29, 2019. The account was charged off on April 30, 2020. The reasonable value due and unpaid from defendant is $3,025.77. The complaint alleges one cause of action for common counts.

BOA has filed a motion for entry of judgment against defendant on the grounds that BOA and defendant entered into a stipulation pursuant to Code of Civil Procedure section 664.6 whereby BOA agreed it would not seek entry of judgment provided defendant timely made installment payments. BOA contends that defendant has defaulted under the terms of the parties’ stipulation by failing to make payments as agreed. Defendant has not appeared in the action and has not filed an opposition to the motion.

Analysis

“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.” (Code Civ. Proc., § 664.6, subd. (a).) “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.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)

There exist procedural problems with the motion. Court records reflect that on April 16, 2021, BOA filed in this matter a proof of service (the POS) of the summons and complaint on defendant by personal delivery of the documents on April 15, 2021, at the following address: 2027 Castillo St. #B, Santa Barbara, CA 93105-4203. (POS, ¶ 4.) The proof of service attached to the notice of the present motion identifies a different address at which defendant was served with the moving papers by mail.

Notwithstanding that it is questionable whether mail service as opposed to personal service of the notice and motion on defendant is appropriate, there is no information in the moving papers or in the Court’s records to demonstrate that the address stated in the proof of service attached to the notice of the present motion is an effective or proper address for service of the moving papers on defendant. Therefore, it appears that service by mail of the notice and motion on defendant at an address different from the address on the POS was insufficient and ineffective.

For these reasons, the Court will continue the hearing on the present motion to October 25, 2023. On or before October 16, 2023, BOA shall either file a new proof of service showing sufficient and effective service of the notice and motion on defendant or file and serve sufficient additional papers demonstrating, with reasoned factual and legal argument, why mail service of the present motion on defendant is proper and effective.