Bank Of America NA vs Adam W Deshaies

Case Number

22CV00507

Case Type

Hearing Date / Time

Mon, 06/10/2024 - 10:00

Nature of Proceedings

Motion: Set Aside

Tentative Ruling

Bank of America, N.A. v. Adam W. Deshaies

Case No. 22CV00507         

Hearing Date: June 10, 2023                                                  

MATTER:                Motion For Order Setting Aside Dismissal Of The Case

ATTORNEYS:        For Plaintiff Bank of America, N.A.: Robert Scott Kennard, Kristen Dean, Nelson & Kennard

                             For Defendant Adam W. Deshaies: No appearance

TENTATIVE RULING:

For all reasons discussed herein, the motion of plaintiff for an order setting aside the dismissal of the case is denied without prejudice.

Background:

On February 8, 2022, plaintiff Bank of America, N.A. (BOA) filed a complaint in this matter against defendant Adam W. Deshaies (defendant), concerning an account established on April 22, 2015, and charged off on March 31, 2021. (Compl., ¶ CC-4.) As alleged in the complaint, defendant became indebted to BOA within the last four years in the sum of $14,768.95. (Id. at ¶ CC-1(b)(3).) The last payment received on the account at issue was made on March 13, 2020. (Id. at ¶ ¶ CC-4.) In the complaint, BOA asserts a sole cause of action for common counts against defendant. (Id. at ¶ ¶ CC-1(a)(1) & (2).)

Court records reflect that on February 15, 2022, BOA filed a declaration of non-service (the service declaration) signed by Kelly Clark (Clark), who is identified as a registered California process server. In the service declaration, Clark states that service on defendant of the summons and complaint filed in this action together with other supporting documents was attempted on February 10 and 12, 2022. (Feb. 15, 2022, Decl.) Clark was unable to effect service of the summons and complaint on defendant. (Ibid.)

Court records further reflect that on November 22, 2023, BOA filed a Stipulation Agreement ostensibly signed by defendant on March 7, 2022. The Stipulation Agreement provides that the amount owed by defendant to BOA under the account at issue is $14,768.95. (Nov. 22, 2023, Stip. Agreement, ¶ 2.) The Stipulation Agreement provides that defendant will make installment payments to BOA pursuant to a payment plan. (Id. at ¶ 4.) The Stipulation Agreement further provides that if defendant fails to make full and timely payment of any installment described therein, BOA would be entitled to entry of judgment. (Ibid.) Further, the parties request that the Court retain jurisdiction pursuant to Code of Civil Procedure section 664.6, and authorize the Court to dismiss this action without prejudice. (Id. at ¶ 7.)

On November 27, 2023, the Court entered an Order of Dismissal (the Order) based on the Stipulation Agreement, dismissing this action without prejudice and retaining jurisdiction to enforce the terms of the Stipulation Agreement under Code of Civil Procedure section 664.6. (Nov. 27, 2023, Order Of Dismissal Without Prejudice.)

On January 16, 2024, BOA filed a motion for an order setting aside and vacating the dismissal under the Order and for entry of judgment pursuant to the Stipulation Agreement. The January 16, 2024, motion of BOA was denied by the Court on February 26, 2024, because BOA had not filed a proof of service of the summons and complaint on defendant and defendant had not made an appearance in this action. (See Feb. 26, 2024, Minute Order.)

On April 9, 2024, BOA filed the present motion for an order setting aside the dismissal of this action. In support of the motion, BOA submits the declaration of its counsel, Kristen Dean (Dean), who states that she spoke with defendant’s debt settlement representatives on February 25, 2022, and that the parties reached an agreement resolving the claims in this matter. (Dean Decl., ¶ 4.) The parties thereafter executed the Stipulation Agreement. (Id. at ¶¶ 4-5 & Exh. 1.) Because defendant defaulted on the terms of the settlement by failing to make payments due and owing, BOA requests that the Court return this action to active status. (Id. at ¶¶ 6 & 9.)

Court records reflect that defendant has not filed an opposition to the motion.

Analysis:

A motion is an application for an order. (Code Civ. Proc., § 1003.) The notice of a motion must state the grounds for issuance of the requested order including the basis for the motion and the relief sought therein. (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rules 3.1110(a) & 3.1112(d)(3).) Code of Civil Procedure section 1005, subdivision (a), sets forth the motions that require written notice. (See Code Civ. Proc., § 1005, subd. (a)(1)-(13).) “A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion….” (Code Civ. Proc., § 1005.5.)

“The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Accordingly, a court is not required to consider alternative grounds for relief not raised by the moving party in the notice or motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)

In addition, a memorandum filed in support of a motion must include “a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) “In a motion proceeding, the moving party usually has the burden of proving every fact essential to the relief requested.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200; see also Evid. Code, § 500.) The moving party “must carry the initial burden of informing its opponent and the court of the specific basis for its motion.” (People v. Williams (1999) 20 Cal.4th 119, 129.) A court may construe the absence of a proper memorandum as an admission that the motion is not meritorious and deny the motion on that basis. (Cal. Rules of Court, rule 3.1113(a).)

There exist procedural problems that prevent the Court from granting the relief sought in the present motion. For example, and as further discussed above, available information reflects that BOA was unable to serve defendant with the summons and complaint filed in this action at the address stated in the service declaration because defendant does not reside there. Further, court records reflect that defendant has not made a general appearance in this matter. However, the proof of service attached to the present motion demonstrates that the motion was served on defendant at the same address identified on the service declaration. For this reason, it is unclear whether defendant has received notice of the present motion. In addition, wholly absent from the notice and the memorandum filed in support of the motion is any factual or legal argument demonstrating any appropriate or proper grounds for the relief requested by BOA.

Considering the procedural problems further described above, the Court will deny the motion without prejudice to any future filing by BOA of a procedurally and substantively appropriate motion requesting the relief sought in the present motion. The Court declines to issue an advisory opinion regarding the manner in which BOA may cure the procedural defects further discussed herein.