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in San Diego County
Ruling
CITIBANK, N.A. vs CERVANTES
Jul 27, 2024 |
Frank Anthony Moschetti |
CVCO2302079
MOTION TO BE RELIEVED AS COUNSEL
CVCO2302079 CITIBANK VS CERVANTES
FOR CAROL T CERVANTES
Tentative Ruling: No tentative ruling will be issued.
Ruling
JPMorgan Chase Bank N.A. vs. Tucker, Deram K
Aug 05, 2024 |
S-CV-0051944
S-CV-0051944 JPMorgan Chase Bank N.A. vs. Tucker, Deram K
** NOTE: telephonic appearances are strongly encouraged
Appearance required. Complaint is not at issue - Need responsive pleading,
default or dismissal as to Defendant(s): Tucker, Deram K
Additionally, no proof of service has been filed as to Defendant(s): Tucker,
Deram K
Ruling
Sierra Central Credit Union vs. Goodwin
Jul 23, 2024 |
23CVG-00253
SIERRA CENTRAL CREDIT UNION VS. GOODWIN
Case Number: 23CVG-00253
This matter is on calendar for review regarding status of bankruptcy. Plaintiff filed a Case Management Statement
informing the Court that the stay is still in effect. The matter is continued to Tuesday, January 23, 2025 at 9:00
a.m. in Department 63 for status of bankruptcy. No appearance is necessary on today’s calendar.
Ruling
PMIG FINANCIAL, LLC VS. CHRISTINA RANGEL ET AL
Jul 23, 2024 |
CGC17559532
Matter on the Law & Motion calendar for Tuesday, July 23, 2024, Line 1. PLAINTIFF PMIG FINANCIAL, LLC's HEARING ON CLAIM OF EXEMPTION. Continued to August 6, 2024 on the court's motion. =(302/CK)
Ruling
Portfolio Recovery Associates, LLC vs. Combest
Jul 23, 2024 |
23CVG-01320
PORTFOLIO RECOVERY ASSOCIATES, LLC VS. COMBEST
Case Number: 23CVG-01320
Tentative Ruling on Motion for Judgment on the Pleadings: The present motion is unopposed.
This collection case was filed on December 18, 2023. Plaintiff is a debt buyer and sole assignee
of an agreement entered into by Defendant on a credit card account with Plaintiff’s predecessor
Synchrony Bank. The Complaint alleged causes of action for Account Stated and Open Book
Account, with a prayer for $2,523.69 against Defendant Jennifer Combest. Defendant filed her
Answer on January 26, 2024. On April 11, 2024, Plaintiff filed a motion to deem matters admitted.
Defendant did not oppose the motion to deem matters admitted, and the Court granted the motion
on May 13, 2024.
Meet and Confer: “The moving party shall file and serve with the motion for judgment on the
pleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). The
Declaration of Gregory Parks provides sufficient evidence of Plaintiff’s meet and confer efforts.
Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the
Court’s May 13, 2024 Order that Matters in Request for Admission be Admitted, pursuant to Evid.
Code § 452(d) and 453.
Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on the
pleadings if the complaint states sufficient facts to constitute a cause of action and the answer does
not state facts sufficient to constitute a defense to the complaint. The grounds for the motion shall
appear on the face of the challenged pleading or from any other matter of which the court may take
judicial notice. CCP § 438(d). The Court may take judicial notice of responses to discovery
records pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan,
Inc. (2010) 181 Cal.App.4th 471, 485.
The essential elements of an account stated are: (1) previous transactions between the parties
establishing the relationship of debtor and creditor; (2) an agreement between the parties, express
or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express
or implied, to pay the amount due. Leighton v. Forster (2017) 8 Cal. App. 5th 467, 491. “A ‘book
account’ is ‘a detailed statement which constitutes the principal record of one or more transactions
between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the
debits and credits in connection therewith ....’ ” [Citations.] The creditor must keep these records
in the regular course of its business and “in a reasonably permanent form,” such as a book or card
file. (Code Civ. Proc., § 337a.) “A book account is ‘open’ where a balance remains due on the
account.” [Citation.] Pro. Collection Consultants v. Lujan (2018) 23 Cal. App. 5th 685, 690–91.
This Court’s Order, entered May 13, 2024, deemed admitted Plaintiff’s requested admissions 1-9.
The admissions establish that: 1) Defendant had a credit account ending in 8363, 2) the credit
account was issued by Synchrony Bank, 3) Defendant received periodic statements regarding the
account, 4) as of December 18, 2023, the balance owed on the account was $2,523.69, 5)
Defendant has not made any payments on the account since December 18, 2023, 6) Defendant
submitted a payment toward the outstanding debt on the account within 4 years immediately prior
to December 18, 2023, 7) Plaintiff was assigned the debt, 8) Plaintiff is the current owner of the
debt, and 9) Defendant received through the US mail a pre-legal notification from Plaintiff
regarding the account.
Defendant’s admissions establish the required elements of each cause of action. Plaintiff’s Motion
for Judgment on the pleadings is GRANTED. The admissions establish that a principal sum of
$2,523.69 is due and owing. That sum is awarded. Plaintiffs have also submitted a memorandum
of costs for $369.50, comprising the filing and service of this motion. The amount appears
reasonable and is awarded. A proposed order and judgment have been lodged with the Court and
will be executed.
Ruling
Creditors Adjustment Bureau, Inc., vs. Castro
Jul 28, 2024 |
23CVG-00362
CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO
Case Number: 23CVG-00362
Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves
for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the
amount of $1,572.75 for each motion.
Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and
set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before
the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service
by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by
counting backwards from the hearing date but excluding the hearing date. CCP § 12c.
Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday
of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no
later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served
on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is
denied.
Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted.
Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be
imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification
has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or
issue sanctions. Without additional evidence, terminating sanctions would be premature.
The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the
denial.
Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this
matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is
necessary on today’s calendar to discuss available trial dates.
Ruling
Synchrony Bank vs Dianna Rodriguez
Jul 24, 2024 |
23CV-03604
23CV-03604 Synchrony Bank v. Dianna Rodriguez
Motion for Order that Requests for Admission be deemed admitted
Appearance required. Parties who wish to appear remotely must contact the clerk of the
court at (209) 725-4111 to seek permission and arrange for a remote appearance.
Ruling
WELLS FARGO BANK, NA VS AMEER M EFRAN
Jul 29, 2024 |
23PSCV02035
Case Number:
23PSCV02035
Hearing Date:
July 29, 2024
Dept:
G
Plaintiff Wells Fargo Bank, N.A.s Application for Default Judgment
Respondent: NO OPPOSITION
TENTATIVE RULING
Plaintiff Wells Fargo Bank, N.A.s Application for Default Judgment is CONTINUED to a date to be determined in Department G (Pomona). Plaintiff Wells Fargo Bank, N.A. is also ordered to file an updated proof of service that reflects proper service on Defendant Ameer M. Erfan.
BACKGROUND
This is a collections action arising from a credit card agreement. Defendant Ameer M. Erfan opened a credit card account with Plaintiff Wells Fargo Bank, N.A. (Wells Fargo). Subsequently within the last four years, Erfan allegedly had an unpaid balance of $30,080.84 and breached the credit card agreement.
On July 7, 2023, Wells Fargo filed a complaint against Erfan, alleging the following causes of action: (1) breach of agreement, (2) account stated, (3) open book, (4) money lent, and (5) indebtedness.
On April 15, 2024, the Court entered default against Erfan. On June 26, 2024, Wells Fargo submitted the present application for default judgment.
An OSC Re: Default Judgment is set for July 29, 2024.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.)
ANALYSIS
Wells Fargo seeks default judgment against Erfan in the total amount of $30,585,84, including $30,075.84 in damages and $510.00 in costs. However, the Court notes Wells Fargos proof of service of summons and the complaint on Erfan is defective. While the proof of service filed October 23, 2023, states Wells Fargos process server served Ameer M Efran with substitute service in Diamond Bar, the court notes that the defendants actual name is Ameer M. Erfan as alleged in the Complaint and stated in the summons. The Court also notes Wells Fargo seeks default judgment against Erfan, not Efran.
Because it is unclear if Wells Fargo served the correct defendant, the court will grant a continuance for Wells Fargo to provide an updated proof of service that establishes service was properly effected on the defendant in this action.
CONCLUSION
Based on the foregoing, Wells Fargos application for default judgment is
CONTINUED to a date to be determined in Department G (Pomona).
Wells Fargo is also ordered to file an updated proof of service that reflects proper service on Erfan.
Document
LVNV Funding LLC vs Nazifa Obaidi
Jul 23, 2024 |
Collections Rule 3.740 Limited (09) - under 10,000 |
Collections Rule 3.740 Limited (09) - under 10,000 |
24CV443683