Bank of America NA vs John Lewis

Case Number

22CV00972

Case Type

Hearing Date / Time

Wed, 12/04/2024 - 10:00

Nature of Proceedings

Plaintiff Bank of America, N.A.’s Motion to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement (Code Civ. Proc., § 664.6.)

Tentative Ruling

For Plaintiff Bank of America, N.A.: Donald Sherrill, Alexander Balzar Carr, Hunt & Henriques, LLP

For Defendant John E. Lewis: Self-Represented

RULING

For all reasons discussed herein, Plaintiff Bank of America, N.A.’s motion to vacate dismissal and enter judgment under terms of stipulated settlement is granted. The court will sign the proposed order submitted by Plaintiff.

Background

This action commenced on March 11, 2022, by the filing of the complaint for common counts by Plaintiff Bank of America, N.A. (“BofA”) against Defendant John E. Lewis (“Lewis”).

As alleged in the complaint: Lewis applied for a credit card, which was owned and administered by BofA, which Lewis used, or authorized the use of, to pay for goods, services, balance transfers, or cash advances. Lewis breached the agreement by failing to make periodic payments as required. The balance due, at the time of the filing of the complaint, was $11,771.63.

Lewis made a general appearance, by the filing of his answer, on April 6, 2022.

On February 16, 2023, the parties filed a Stipulation Agreement (“agreement”) which provides that the court retain jurisdiction pursuant to Code of Civil Procedure section 664.6.

Pursuant to the agreement, Lewis was to pay BofA a down payment of $256.38 on or before January 13, 2023, followed by a minimum payment of $256.25 on or before the 13th day of each and every month beginning in February 2023, followed by a final payment of $186.25 on or before December 13, 2026, until the judgment, totaling $12,230.13 is paid in full. Payments were to be made to payable to BofA and sent to BofA’s counsel Hunt & Henriques, LLP. As a result of the agreement, BofA filed a dismissal, without prejudice, on March 2, 2023.

Arguing that Lewis is in breach of the agreement, BofA now moves to set aside the dismissal, entered on March 2, 2023, and enter judgment pursuant to the agreement.

The motion was served on Lewis October 2, 2024, via mail. No opposition or other responsive document has been filed by Lewis.

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.

BofA’s counsel declares that Lewis has defaulted by failing to make the agreed upon payments, with the balance now due of $7,934.38 in unpaid principal, plus court costs of $618.50, for a total judgment of $8,552.88. (Carr Decl., ¶ 8.)

The motion will be granted. The court has reviewed the proposed order submitted by Plaintiff and will sign it as drafted.