Bank of America NA vs Jon Hampton McKean

Case Number

21CV01527

Case Type

Hearing Date / Time

Wed, 10/25/2023 - 10:00

Nature of Proceedings

Judgment

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff Bank of America, N.A., for entry of judgment pursuant to stipulation is denied without prejudice.

Background

As alleged in the complaint filed on April 14, 2021, by plaintiff Bank of America, N.A. (BOA), this action relates to and 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 the account. 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.

On May 19, 2023, BOA filed a motion for entry of judgment against defendant McKean 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 did not file an opposition to the motion.

On September 27, 2023, the Court issued a Minute Order (the Minute Order) continuing the motion of BOA to October 25, 2023, due to procedural problems concerning service of the present motion on defendant as further discussed in the Minute Order. The Court ordered BOA to, on or before October 16, 2023, either file a new proof of service demonstrating sufficient and effective service of the 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 effective.

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.)

As further discussed in the Minute Order, the proof of service attached to the notice of the present motion identifies a different address than the address at which defendant was served with the summons and complaint in this matter. Though it is questionable whether mail service as opposed to personal service of the present 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 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 a different address was insufficient and ineffective.

Court records reflect that BOA lodged with the Court a proposed order and proposed judgment. However, BOA has not filed either a new proof of service or additional papers in accordance with the Minute Order. Therefore, for all reasons discussed herein and in the Minute Order, the Court will deny the present motion of BOA, without prejudice to a future procedurally appropriate motion demonstrating either sufficient or effective service of any future motion on defendant or a sufficient showing demonstrating why service of any future motion on defendant by mail or at an address different from the address at which defendant was served with the summons and complaint is proper.