Cheryl Kelmar vs EdFinancial Services LLC

Case Number

24CV04095

Case Type

Hearing Date / Time

Mon, 08/18/2025 - 10:00

Nature of Proceedings

CMC; Motion to Discharge Student Loa; Motion to Discharge Student Loan, etc.; Motion to Compel

Tentative Ruling

Cheryl Kelmar v. Edfinancial Services LLC                    

Case No. 24CV04095

           

Hearing Date: August 18, 2025                                                          

HEARING:              (1) Motion And Order To Compel Discovery

                                    (2) Motion To Discharge Student Loan For Unconscionability Due To A Government Defamation

                                    (3) Motion To Discharge Student Loan – No Student Loan Contract

ATTORNEYS:        For Plaintiff Cheryl Kelmar: Self Represented

                             For Defendant Edfinancial Services, LLC: No appearance

TENTATIVE RULING:

The  motions of plaintiff for an order to compel discovery, to discharge student loan for unconscionability due to a government defamation, and to discharge student loan-no student loan contract, are each ordered off-calendar.

Background:

On July 17, 2024, plaintiff Cheryl Kelmar (Kelmar), who has been declared a vexatious litigant, filed with the court’s approval a complaint against defendant Edfinancial Services, LLC (EFS), alleging two causes of action: (1) breach of contract; and (2) common counts. The complaint is prepared on a form approved for use by the Judicial Council of California. As alleged or effectively alleged in the complaint:

EFS charges Kelmar 20 percent of Kelmar’s income as a monthly payment under a student loan contract (the student loan) which Kelmar signed in 2008. (Compl., ¶¶ BC-1(a) & BC-2.) Interest on the student loan has soared causing the initial $10,000 of debt to increase to over $50,000. (Id. at ¶¶ BC-4 & CC-1(b)(6).) Though Kelmar cannot afford a payment of $600 per month, EFS has not provided Kelmar with an alternative monthly payment or allowed Kelmar a more affordable option. (Id. at ¶ BC-4 & CC-1(b)(6).) Though Kelmar has sent to EFS three certified letters requesting that it produce a copy of the student loan, EFS has ignored Kelmar’s request. (Id. at ¶ BC-1(a).) Kelmar prays for damages in the amount of $25,000 inclusive of interest, and a reasonable monthly payment of $150. (Id. at ¶ 10.)

On July 30, 2024, Kelmar filed a motion (the July 30 Motion) for an order to compel discovery of the original student loan between Kelmar and Navient LLC (Navient), (July 30 Motion, ¶¶ 1, 3, 5 & 7.) The July 30 Motion was set for hearing on November 1, 2024. On October 11, 2024, Kelmar failed a motion for an order (the Motion to Continue) continuing the July 30 Motion.

On November 4, 2024, the court continued the July 30 Motion and the Motion to Continue to January 13, 2025. (See Nov. 4, 2024, Order & Notice of Case Re-Assignment & Dec. 2, 2024, Minute Order.)

On December 11, 2024, the default of EFS was entered as requested by Kelmar.

Kelmar also filed on December 11, 2024, a motion for an order (the December 11 Motion) compelling EFS to produce records described in a civil subpoena duces tecum (the December 11 Subpoena), which was prepared and issued on a form adopted for mandatory use by the Judicial Council of California.

On January 10, 2025, EFS filed a motion for an order (the Set Aside Motion) setting aside or vacating the default of EFS entered on December 11, 2024, on the grounds that the default is void based on Kelmar’s failure to comply with statutory procedures for service of the summons and complaint on EFS. The Set Aside Motion was set for hearing on April 7, 2025. Kelmar opposed the Set Aside Motion.

On January 13, 2025, the Court entered a Minute Order holding the July 30 Motion, the Motion to Continue, and the December 11 Motion in abeyance, and continuing these motions to April 7, 2025, to be heard concurrently with the Set Aside Motion.

On March 20, 2025, Kelmar filed a document titled as a “motion in support of entry of default” (the Default Motion), and separately filed a motion (the Application) for an order removing Kelmar’s name from the statewide vexatious litigant list.

On April 7, 2025, the court entered a Minute Order (the Minute Order) adopting its tentative ruling on the Motion to Continue, the Set Aside Motion, the July 30 Motion, the December 11 Motion, and the Application. Pursuant to the Minute Order, the court ordered the Motion to Continue off-calendar, and denied the Application. As to the Set Aside Motion, the court adopted the following tentative ruling:

INSERT PART FOR SET ASIDE MOTION ONLY

The court further determined, for reasons discussed in the Minute Order, that the July 30 Motion and the December 11 Motion were premature based on Kelmar’s failure to demonstrate valid or effective service of process sufficient for the court to acquire jurisdiction over EFS. For this reason, and based on procedural and substantive deficiencies appearing in these motions as further discussed in the Minute Order, the court denied the July 30 Motion and the December 11 Motion. (See Minute Order.)

On May 9, 2025, Kelmar filed a motion to discharge the student loan on the grounds of unconscionability due to a government defamation, and separately filed a motion to discharge the student loan on the grounds that the student loan must not exist because EFS has refused to produce a copy of that loan despite Kelmar’s demands. The court will refer to these motions, collectively, as the “discharge motions”.

In addition, on August 6, 2025, Kelmar filed a motion to compel discovery (the motion to compel) in regard to a subpoena ostensibly issued on March 6, 2025, which Kelmar contends requires EFS to produce the original student loan. (See Kelmar Affidavit ISO Motion, Exh. A [civil subpoena].)

The court’s records reflect that EFS has not filed an opposition to the discharge motions or the motion to compel.

Analysis:

“An application for an order is a motion.” (Code Civ. Proc., § 1003.) Code of Civil Procedure section 1005 describes motions that require written notice, which include “[a]ny other proceeding under this code in which notice is required, and no other time or method is prescribed by law or by court or judge.” (Code Civ. Proc., § 1005, subd. (a)(13).

“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].)

“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.) “As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)

The discharge motions effectively request that the court enter an order that the student loan is discharged on the grounds advanced in those motions. The motion to compel effectively requests an order compelling EFS to respond to inspection demands contained in attachment 1 to the civil subpoena described in that motion and attached to Kelmar’s affidavit. Under circumstances where a party fails to provide a response to an inspection demand, Code of Civil Procedure sections 2031.300 permits a party making the inspection demand to “move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).

For all reasons discussed above, the discharge motions and the motion to compel require written notice. Neither the discharge motions nor the motion to compel include a written notice which complies with statutory requirements further described above.

In addition, and subject to exceptions, Code of Civil Procedure section 1005 requires that “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) The present record reflects that the motion to compel was filed by Kelmar on August 6, 2025, which the court’s calculations reflect is 8 court days before the August 18, 2025, hearing on that motion. For this reason, the record reflects that Kelmar failed to file the motion to compel at least 16 court days before the hearing as required under subdivision (b) of section 1005.

Moreover, in determining the Set Aside Motion the court found that there was no information or evidence in the record showing the summons and complaint were delivered to EFS in a manner sufficient to effect valid service of process on EFS. For this and all reasons further discussed above and in the Minute Order, the court determined that Kelmar failed to show that the court acquired jurisdiction over EFS by “service of process in strict compliance with the requirements of our service statutes.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.)

Furthermore, the Set Aside Motion, similar to a motion to quash, constitutes “a challenge to jurisdiction made without waiving the right to defend on the merits, and ... ‘ “[was] strictly limited to the point of no jurisdiction over the person of the moving party,” ’ so that an order vacating service puts an end to the litigation ‘ “without a judicial investigation of the merits” ’ of the action.” (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1132.) Though EFS did not formally request in the Set Aside Motion an order quashing service of the summons and complaint by Kelmar (see Notice of Set Aside Motion at p. 2, ll. 3-6), the issue before the court in the Set Aside Motion was “ ‘strictly limited to the point of no jurisdiction over [EFS].’ [Citation].” (Nelson v. Horvath (1970) 4 Cal.App.3d 1, 4 (Nelson).)

As further discussed in the Minute Order, EFS argued in the Set Aside Motion that the default entered on December 11, 2024, was void. (Notice of Set Aside Motion at p. 2, ll. 15-16 & Memo. at pp. 5-6.) The effect of the Minute Order adopting the court’s ruling granting the Set Aside Motion was “ ‘ “to declare the service void....On the [summons] being quashed, the case stands as if no [summons] had been issued.” ’ ” (Nelson, supra, 4 Cal.App.3d at p. 4, citations omitted.)

As the court’s ruling on the Set Aside Motion effectively, and for all reasons further discussed above, declared service of the summons and complaint on EFS void, the present action remained as if no summons had been issued. Because the Minute Order does not operate to dismiss the complaint, nothing in the court’s ruling set forth in that order prevented Kelmar from correcting the defective service of process on EFS. (See, e.g., Nelson, supra, 4 Cal.App.3d at p. 4 [general discussion]; Code Civ. Proc., § 413.10 et seq.)

The court’s review of the records of this action show that Kelmar has not filed a proof of service demonstrating statutorily compliant or effective service of the summons and complaint on EFS. (See also Cal. Rules of Court, rule 3.110(b) [prescribing time to file proof of service of complaint on defendants].)

As further discussed in the Minute Order, “[i]n the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439; see also Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832 [“Service of summons in conformance with the mode prescribed by statute is deemed jurisdictional”].) As the present record reflects that Kelmar has not effected valid service of process on EFS, consistent with the Minute Order or in a manner that is sufficient for the Court to acquire jurisdiction over EFS, the discharge motions and motion to compel are premature.

Considering that there exists no evidence or information in the present record to show that the court has acquired jurisdiction over EFS based on effective and compliant service of the summons and complaint as further discussed above, or that EFS has waived its right to defend itself on the merits, there is nothing presently for the court to decide with respect to the discharge motions and the motion to compel. For these and all reasons further discussed above, the court will order the discharge motions and the motion to compel off calendar. The court’s ruling herein is without prejudice to the re-filing of these motions by Kelmar in the future upon a showing of valid, compliant, and effective service of the summons and complaint on EFS.