Related Content
in Delaware County
Case
CITIBANK N A v. SMITH
Jul 18, 2024 |
Civil - Contract - Debt Collection: Credit Card |
CV-2024-006346
Ruling
LVNV FUNDING LLC vs MCINTOSH
Jul 24, 2024 |
CVPS2202864
LVNV FUNDING LLC vs Motion to Enforce Settlement by LVNV
CVPS2202864
MCINTOSH FUNDING LLC
Tentative Ruling: Parties to appear.
Ruling
AMERICAN EXPRESS NATIONAL BANK vs DREYER
Jul 25, 2024 |
CVRI2305315
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.
Ruling
Capital One, N.A. vs. Bavetta
Jul 28, 2024 |
22CVG-00979
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.
Ruling
BANK OF AMERICA, N.A. vs. MELISSA LYNN PLUMMER
Jul 24, 2024 |
24CV13523
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.
Ruling
MIDLAND CREDIT MANAGEMENT, INC. vs. JAY SORENSEN
Jul 24, 2024 |
24CV13522
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.
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
BANK OF AMERICA N.A. vs BERNAL
Jul 28, 2024 |
CVSW2401671
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.
Ruling
Portfolio Recovery Associates, LLC vs. Combest
Jul 24, 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.
Preview
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