Clerk Notice: Upper Darby Township v. Nolan

LVNV FUNDING LLC vs Motion to Enforce Settlement by LVNV CVPS2202864 MCINTOSH FUNDING LLC Tentative Ruling: Parties to appear.

MOTION FOR SUMMARY JUDGMENT AMERICAN EXPRESS ON COMPLAINT FOR OTHER CVRI2305315 NATIONAL BANK VS COLLECTIONS (OVER $25,000) OF DREYER AMERICAN EXPRESS NATIONAL BANK Tentative Ruling: The Court grants Plaintiff’s motion for summary judgment. Judgment is entered in favor of Plaintiff and against Defendant for the principal amount of $38,882.09. However, any amount for costs shall be submitted through a Memorandum of Costs, not by this motion. *** This hearing was continued from June 21, 2024, to allow Plaintiff to file an opposition. As of July 22, 2024, no opposition has been filed, and thus, the Court shall consider this motion for summary judgment as unopposed. I. FACTUAL/PROCEDURAL CONTEXT This is a collections case. Plaintiff American Express National Bank (“Plaintiff” or “Amex”) issued two credit cards to Defendant Kris Dreyer (“Defendant”) in March 2020 (“Account 1”) and September 2018 (“Account 2”). Under the terms of each Cardmember Agreement (“Agreement”), Defendant was to make monthly payments. However, Defendant allegedly defaulted on both accounts. Plaintiff alleges that Defendant owes a balance of $2,201.30 for Account 1 and $36,680.30 for Account 2, for a total of $38,882.09. On October 5, 2023, Plaintiff filed it Complaint, asserting three causes of action for Common Counts based on open book accounts and accounts stated. Plaintiff now moves for summary judgment. Plaintiff argues that an account was stated based on the monthly billing statements showing all charges and payments. Plaintiff argues that Defendant accepted the terms of the Agreements by using the card and making partial payment. Plaintiff argues that an electronic book account exists. Defendant has not filed an opposition. II. EVIDENCE SUPPORTING MOTION The Court has reviewed the Declaration of Melanie Dixon, Assistant Custodian of Records for Plaintiff (Part 1 and 2), authenticates Cardmember Agreements and billing statements. III. LEGAL ANALYSIS Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Cal Code Civ Proc § 437c(a).) “A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. Eas bt Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002-1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) Plaintiff does not move for summary adjudication. Therefore, any disputed fact as to any cause of action is grounds to deny summary judgment. Common Counts: The essential elements of a common count are: (1) a statement of indebtedness in a certain sum (2) consideration, and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) An open 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, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner….” (Code Civ. Proc., § 337a.) A book account can be established by a course of dealing between the parties. (Warda v. Schmidt (1956) 146 Cal.App.2d 234, 237.) “A book account may furnish the basis for an action on a common count . . . when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another” Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786.) 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.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) “The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 753.) It is undisputed that in March 2020, Defendant opened a credit card account, which was governed by a Cardmember Agreement, which was sent to Defendant. (UMF No. 1; Dixon Dec. 1, Ex. A.) Defendant used Account 1 to obtain credit and pay for goods and services. (UMF No. 5.) Under the terms of the Agreement, Defendant was required to make monthly payments. (UMF No. 6.) Amex maintained billing records reflecting the charges and payments. (UMF No. 8; Dixon Dec. 1., Ex. C.) Defendant made partial payments and did not dispute any of the charges. (UMF No. 10.) According to the final billing statement, the last payment posted on Account 1 was April 10, 2023. (Dixon Dec. 1, ¶ 13; Ex. B.) The balance due on Account 1 is $2,201.79. (UMF No. 11.) Account 2 was opened in September 2018, which was also governed by a Cardmember Agreement. (UMF No. 12, 13; Dixon Dec. 2; Ex. A.) Defendant used Account 2 to obtain credit and pay for goods and services. (UMF No. 16.) Under the terms of the Agreement, Defendant was required to make monthly payment. (UMF No. 17.) Amex provided Defendant with monthly billing statements. (UMF No. 19; Dixon Dec. 2; Ex. C.) The records reflect that the last payment posted on April 8, 2023. (Dixon Dec. 2; ¶ 13; Ex. B.) The balance on Account 2 is $36,680.30. (UMF No. 22.) Based on this evidence, the Court finds that Plaintiff has established two accounts stated/book accounts with a total balance of $38,882,09. Plaintiff has satisfied its initial burden of showing no triable issues. Defendant has not opposed this Motion; and therefore, has not raised any triable issues. Summary judgment is therefore granted. However, Plaintiff also seeks costs. Costs are to be submitted through a Memorandum of Costs to the Clerk of the Court, not the Court itself.

CAPITAL ONE, N.A. VS. BAVETTA Case Number: 22CVG-00979 Tentative Ruling on Motion to Vacate Dismissal and Enter Judgment Per CCP § 664.6: Plaintiff Capital One, N.A. seeks to vacate the dismissal entered on March 2, 2023 and enforcement of the Settlement Agreement filed on March 1, 2023. Although the Motion was timely noticed, Defendant Amberly Bavetta did not file an Opposition. Request for Judicial Notice. Plaintiff requests the Court take judicial notice of the Stipulation Agreement filed with the Court on March 1, 2023. This request is granted pursuant to Evid. Code §§ 452(d) and 453. Merits. CCP § 664.6 provides the Court with authority, upon motion, to enter judgment pursuant to the terms of a settlement agreement entered into in writing, or orally before the Court. If requested by the parties, the Court also retains jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Id. The parties entered into a stipulation on February 14, 2023. The terms of the agreement are straightforward and set forth that Defendant is to pay Plaintiff the sum of $7,961.70 in monthly installments of $443 from February 20, 2023 to June 20, 2024 with a final payment of $430.70 due by July 20, 2024; that failure to make timely payments will result in Defendant’s default; and that in the event of a default, Plaintiff may obtain judgment pursuant to CCP § 664.6 for $7,961.70 plus court costs pursuant to a Memorandum of Costs, less any payments made to date, and may execute judgment immediately. The agreement also includes a CCP § 1542 (general release) waiver. The agreement does not provide for attorney’s fees. The declaration of attorney Brian Langedyk establishes that Defendant has paid $3,494.70 towards the agreed settlement amount and has failed to make a payment since March 25, 2024. Plaintiff has presented sufficient evidence that Defendant is in default of the Stipulation Agreement. Plaintiff filed a Memorandum of Costs that provides for costs in the amount of $598.50. The motion is GRANTED. The Court having retained jurisdiction pursuant to CCP § 664.6, the dismissal is set aside. Judgment will be entered in the amount of $4,012.00 ($7,961.70 principal minus $3,494.70 in payments made) plus $598.50 in costs for a total of $4,610.50. Plaintiff provided a proposed Order and proposed Judgment that will be executed by the Court.

Parties, or counsel if represented, are ordered to appear personally or remotely to discuss the status of the case and to set trial dates in Dept. 2. You must notify the court and all other parties that you intend to appear remotely using form RA-010. In addition to providing notice, a Zoom link must be requested no later than one (1) court day before the hearing and shall be submitted to the Court through the Court’s website at https://www.amadorcourt.org/gi-zoomRequestForm.aspx.

No appearances necessary. This is a collections case, as defined in Rule 3.740 of the California Rules of Court, filed January 12, 2024. A proof of service is filed. Plaintiff must obtain default judgment within 360 days of filing the complaint. (Cal. Rules of Court, Rule 3.740(f).) This matter is continued for further CMC to November 6, 2024 at 1:30 p.m. in Dept 3.

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)

BANK OF AMERICA N.A. VS MOTION FOR ORDER TO DEEM RFA’S CVSW2401671 BERNAL ADMITTED BY BANK OF AMERICA N.A. Tentative Ruling: Motion is unopposed. Motion is GRANTED. Requests for Admission propounded on April 12, 2024 are deemed admitted. Court to sign proposed order.

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.