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29D01-2403-CC-003417 Filed: 3/28/2024 12:57 PM
Clerk
Hamilton Superior Court 1 Hamilton County, Indiana
STATE OF INDIANA ) IN THE HAMILTON CIRCUIT/SUPERIOR COURT
) SS:
COUNTY OF HAMILTON ) CAUSE NO.
HS FINANCIAL GROUP, LLC
Plaintiff,
vs.
SHAUNE BROOKS
Defendant(s).
COMPLAINT
COMES NOW the Plaintiff, HS Financial Group, LLC, by counsel, and for its Complaint
against the Defendant(s), Shaune Brooks, would state as follows:
1 The Defendant(s) is/are resident(s) of the State of Indiana and are subject to the
Court’s jurisdiction.
The Defendant(s) previously entered into a Lease-Purchase A greement with
Uown Leasing. A copy of said Consumer Lease- Purchase A greement is marked
as “Exhibit 1”, attached hereto and made a part of this Complaint.
The Plaintiff is the current holder of said account and is entitled to all rights as
owner thereof. A copy of the Assignment and Bill of Sale assigning this account
to the Plaintiffis marked as “Exhibit 2”, attached hereto and made a part of this
Complaint.
The Defendant(s) defaulted on their contractual obligations by failing to make all
of the required payments pursuant to the Lease Purchase A greement and is/are
indebted to the Plaintiff in the amount of $1,686.72.
Pursuant to “Exhibit 1” to this Complaint, the Plaintiff is entitled to recover court
costs and reasonable attorney fees for the need to pursue this cause of action.
6 A copy of the Plaintiff's Affidavit of Debt is marked as “Exhibit 3”, attached
hereto and made a part of this Complaint.
WHEREFORE Plaintiff prays for judgment against the Defendant(s), for the principal
sum of $1,686.72 plus statutory interest of eight percent (8%) per annum from date of judgment,
plus the costs of this action and reasonable attorney fees and for all other just and proper relief in
the premises.
Respectfully submitted,
/s/ Aaron K. Westlake
Attomey for the Plaintiff
Law Offices of Timothy M. Sullivan
18013 Cleveland Parkway, Suite 180
Cleveland, Ohio 44135
Telephone: (216) 762-1700
(SJown
CONSUMER LEASE-PURCHASE AGREEMENT-IN
Agreement Number: HEB935 Account: BBS240 Date: December 28, 2021
LESSOR: LESSEE:
Uown SHAUNE BROOKS
10500 University Center Dr. Suite 140
Tampa, FL 33612 1427 HANDBALL LN
Phone: (877) 357-5474 INDIANAPOLIS, IN 46260
E-Mail: customercare@uownleasing.com Telephone: TT
In this Agreement, “we. me and “our” refer to Mollie, LLC, dba Uown, as Lessor. “You” and “your” refer to the
person(s) signing this Agreement as the Lessee/Lease Customer. “Agreement” refers to this Lease-Purchase Agreement.
“Property” refers to the lease property described below.
1
Model# Description Serial# Condition Cash Price
BRS122821-02 INFLATER; STATE 258917 NEW $ 763.12*
TIRE DISPOSAL FEE:
ALLSTATE ROAD
HAZARD
PROTECTION; TOYO -
EXTENSA HP II -
196050; TIRE
PRESSURE
MONITORING
SENSOR; TOYO -
EXTENSA HP II -
196050; STATE TIRE
DISPOSAL FEE:
ALLSTATE ROAD
HAZARD
PROTECTION; TIRE
PRESSURE
MONITORING
SENSOR; INFLATER:
(*) Includes a $0.00 delivery fee.
2. (EEE REN eMeais Your initial Lease payment due on 12/31/2021 and includes the following charges:
Initial Lease Payment $ 60.23
Application Fee $ 40.00
Liability Damage Waiver (LDW) Fee (OPTIONAL) $N/A
Tax $4.22
Total $ 104.45
3. ESE Peake Your initial term is two weeks. It begins on the date the product is delivered to you and
expires two weeks after deliver After that, you have three options: (1) you can continue using the Property by making a
lease renewal payment in advanci (2) you can purchase the Property (see items 4 and 4a below); or (3) you can return the
Property to us with no further obligation, except for any past due payments due. Your Regular lease rate $60.23 plus
tax. There are no refunds
LEY PV oe OR Or eRe) ECUH During the first 90 days of this Agreement, you can buy the Property by paying
the Cash Price, above, less all rental payments you have made on time (not including any taxes or fees), plus tax.
Any late payments will void this option. This option expires on 03/28/2022. You have other purchase options
described below.
SB
Customer Initials -1- Agreement Number: E3935 Account: M5240
4a. WEEN ae ee iaeies You do not own the property. However, if you choose, you may purchase the property
at any time. If you are current, you may elect your early purchase option (EPO) at any time. Your EPO price is the total
amount of remaining lease payments for ownership (not including any taxes or fees) less a 30% discount, plus tax. The
purchase price does not include other charges such as late fees, which are explained below. You do not obtain any
ownership rights until you have paid for the Property in full. If you make 28 bi-weekly period payments of $60.23
(plus tax) in a row, you will have paid a total of $1,844.88 (including tax) (including the application fee), “Total
Cost,” and you will own the Property.
5. SSO IE wey eaae You are fully responsible for loss of or damage to the Property from all causes.
You agree to pay us the fair market value of the Property due to its loss or destruction from all causes, including, but not
limited to, theft, vandalism, malicious mischief, Act of God, or mysterious disappearance. If the Property is damaged, you
must pay us immediately for all repairs, not to exceed fair market value. We do not carry insurance on this Property, and
you are responsible for its safety until it is returned to us. You can cover some of your liability by choosing the optional
LDW below.
6. CURXSS
(a) Bank- or Card-Declined Charge: If your payment is denied for any reason, you must pay us a $15.00
charge to cover our costs in processing your payment in addition to your lease payment.
(b) Late Fee: If you do not make a timely lease renewal payment within 3 days after the renewal date, you must
pay us a Late Fee of $5.
(c) In-Home Collection Fee: $ 10.00. If we send someone to your house to pick up a payment, you must pay us
this fee for that service.
(d) LDW Fee (Optional): $N/A. If you choose this option by paying the fee, and you are not in default of this
Agreement, you will not be liable for loss of or damage to the Property from fire, wind, flood, or other Act of God.
You will still be liable for loss or damage caused by unexplained disappearance, abandonment of the Property,
theft, or any other damage intentionally caused by you and that results from your or your family’s willful or
wanton misconduct. The LDW is void if payments are past due. The LDW Fee is the $ N/A per TWO WEEKS.
(e). Application Fee: This is the fee for setting up your lease purchase file with us.
(f). Delivery Fee: This is the fee for delivering the Property to your residence.
(g). ACH Account Changes: $5.00 You must pay this fee if you change bank accounts or payment information
on your ACH account with us.
7. (ESET. If you fail to make a timely lease renewal payment, this Agreement expires. You can reinstate it
without losing any rights or options previously acquired by making all payments due or returning the Property
within 16 days after the renewal date. If you return the Property during this time, then you will have 60 days
from the date of return to reinstate by making all payments due. If you reinstate, we will furnish you with the
same Property or property of comparable quality and condition.
8. ETHIE Se We DeLA We will maintain the Property in good working condition during the lease
term. We will not be responsible for the costs or the results of any repairs or damage caused by improper use. You must
notify us immediately if the Property breaks. If any part ofa manufacturer’s warranty covers the Property at the time
you acquire ownership, the warranty will be transferred to you, if allowed by the terms of the warranty. To the extent
permitted by law, we do not provide any Warranty of Merchantability or Fitness for a Particular Purpose, either Express
or Implied, on the Property. You are lease the Property, “as is” and “with all faults.”
9. EEE eT
(a) You may terminate this Agreement at any time by returning the Property to us or by making arrangements with us
for its return. We may terminate this Agreement if you fail to keep any of your agreements. We may notify you of
termination in writing, or by e-mail, or by telling you. You agree to pay us the fair market value of the Property if you fail
to return it to us when this agreement terminates or make prompt arrangement with us for its return. You remain liable for
lease payments until the Property is returned to us. When making arrangements to return our Property, you must send us
a picture or pictures of the Property via email to MR@Uownonline.com or other means. This will help verify the
condition of the Property prior to pick-up and insure that we recover the correct leased Property.
Once you have contacted us requesting the return of our property, one of our recovery team members will make
arrangements to do so. You must reply to the recovery team member within 5 business days to schedule a date and time
for recovery. If you do not, your lease payments will continue until pickup agreements are made and agreed to.
(b) Return of Property upon Termination. If this Agreement is terminated for any reason, you agree to provide for
the immediate return of this property to us in good condition.
$B
Customer Initials -2- Agreement Number: E3935 Account: M5240
10. GES mees If you do not keep this Agreement, in addition to other charges you may owe us, you
understand that you will have to pay us for all reasonable costs we incur in getting our Property back. These costs may
include attorney’s fees and court costs if they are incurred and permitted by state law.
11. You agree to keep this Property at the address shown above. If you remove
this Property without our written permission, we have the right to terminate this Agreement immediately.
12. You have no right to sell, transfer, assign, pawn, pledge, sub-lease or encumber the Property or this
Agreement in any way. We may sell, transfer, or assign this Agreement.
13. DEWVETOR Oe eey aaa You understand that we will not be responsible for any loss or damage to any property
arising out of your use of the Property.
$B
Customer Initials -3- Agreement Number: E3935 Account: M5240
LNG Be: Ue Le La
Name of Institution: Type of Account: PC-Personal Checkin;
ank Routing Number: HES997 Bank Account #: SS 192
X SB You agree to allow us to debit one payment of $104.45 or the selected Initial Payment below,
which includes your Application and Delivery fee where applicable, from your checking
Initial account or credit card on or after 12/31/2021.
X SB You also agree to allow us to debit additional payments of $64.45 or the selected Remaining
Payments each from your checking account or credit card on the same day of each bi-weekly
ial period until this Lease Purchase Agreement has been paid out or terminated.
Uown Traditional 13 Month Lease Purchase Plan*
*with a same as cash option
Early Buyout Option Available Off Unpaid Balance
Initial Number of Payment Amount Payment Total Cost
payments Frequency
56 $32.23 * Weekly $ 1,844.88 **
SB 28 $64.45 * Bi-Weekly $ 1,844.88 **
26 $69.41 * Semi-Monthly $ 1,844.88 **
N/A 13 $138.81* Monthly $ 1,844.88 **
* These amounts include sales tax. Changes in the tax rate during the agreement may change these amounts.
** Total Cost includes sales tax, application fee and delivery fee.
USI Gd BCS 080) KS)
This Agreement has a 13-month term for ownership. However, you can buy the Property sooner if you choose:
1, Same As Cash Option. Purchase the Property by 03/28/2022 and pay only $816.54, including tax.
+ You must call us at (877) 357-5474 to exercise this option.
Price for this option is the Cash Price plus delivery fee if not previously added to Cash Price less all
payments made (not including any taxes or fees), plus tax.
+ Late or missed payments or payment extensions will void this option.
+No exceptions due to delivery schedule.
*Only available on the Uown Traditional Lease Purchase Plan.
2. Early Buyout Option. Beginning 03/29/2022, you can buy the Property at any time by paying the EPO
price. Please refer to the Lease Purchase Ownership section in the lease. You must call us at (877) 357-5474
to get the Early Buyout amount.
X SB
Initial
14. FROPR EMS §=You authorize the electronic debit or debits to your account as outlined. You understand and agree
that the electronic debit will continue until the total amount due plus any return fees are collected or until you revoke this
authorization. This authorization is also applicable to any new account information, payment amounts, or payment dates
you provide in the future. You also authorize us to initiate debit entries against any account from which you may make
future payments, whether or not such account is from the financial institution listed above. The total amount due will
remain the same except in cases where the sales tax rate changes.
CHANGE OF INFORMATION: You agree to notify us verbally at (877) 357-5474, by fax at (877) 353-8706 or in
writing at the above address fifteen (15) or more days prior to any change to the account or closing of the account shown
above or any change or situation that may affect debiting the payment. You further agree to pay and authorize a $5.00
debit if you change bank account or payment information.
$B
Customer Initials -4- Agreement Number: E3935 Account: M5240
RETURNS: You authorize the state authorized fee or returned item fee in the amount of $25.00 to be debited from your
account if a debit is returned unless the returned item was the result of an error by the processor. You authorize returned
transactions to be resubmitted up to 3 (three) times without further notice to you.
x_SB CANCELLATION: Upon payment in full, you understand that you may cancel the electronic debit
authorization by providing written notice to us at the address above fifteen (15) or more days prior to the last payment due
date.
15. ESTEE You and we agree that any claim or dispute arising from or in any way related to the Agreement must
be resolved by binding arbitration instead ofa lawsuit. This agreement to arbitrate will be governed by the federal
Arbitration Act, 9 U.S.C. Sections 1-16 and the substantive law of your state.
Arbitration is a process for resolving disputes outside of the court system. An independent third-party arbitrator will take
evidence from both parties and then rule on the issue(s). The arbitrator has the ability to award all remedies available by
statute, at law or in equity. The arbitrator’s decision will be final and binding on both parties.
$B
Customer Initials -5- Agreement Number: E3935 Account: M5240
You and we agree to use one of the two national arbitration organizations and their rules for conducting arbitrations. You
can contact those organizations and get copies of their rules here:
American Arbitration Association JAMS, the Resolution Experts
335 Madison Avenue, Floor 10 1920 Main Street, Suite 300
New York, NY 10017-4605 Irvine, CA 92614
www.adr.org. www.jamsadr.com
(800)-778-7879 (800)-352-5267 or (949)-224-1810
If a dispute arises, you or we can file a claim with either organization. If you file a claim against us, we will pay the
initial filing fee. Each party must pay its own attorneys’ fees and other costs of the arbitration. However, the arbitrator
can award reasonable attorneys’ fees and costs to the party who wins the arbitration.
If we file a claim against you and select an organization that is unacceptable to you, you have the right to choose the other
organization if you notify us of your decision within 30 days after you receive notice of our arbitration choice.
You and we agree that any arbitration will be conducted in the county where you live.
Nothing in this arbitration agreement is intended to prevent either of us from filing a lawsuit in an appropriate small
claims court for an amount that does not exceed the court’s jurisdictional limits. All other disputes must be arbitrated.
This arbitration agreement will survive termination of the Agreement and will continue to be in effect to resolve any
disputes that arise between you and us.
BY AGREEING TO ARBITRATE DISPUTES, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY.
YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT RESOLVE YOUR DISPUTE. YOU ARE
WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT. YOU ARE WAIVING YOUR
RIGHT TO CERTAIN DISCOVERY RULES THAT APPLY IN A LAWSUIT. YOU AND WE AGREE THAT
THE ARBITRATOR HAS NO AUTHORITY TO CONDUCT CLASS-WIDE ARBITRATION AND CAN ONLY
DECIDE THE DISPUTE BETWEEN YOU AND US. IF ANY PART OF THE ARBITRATION AGREEMENT
IS RULED TO BE INVALID, THEN THE UNDERLYING DISPUTE MUST BE RESOLVED BY A JUDGE,
SITTING WITHOUT A JURY, IN A COURT OF COMPETENT JURISDICTION, AND NOT AS A CLASS
ACTION LAWSUIT.
Your Right to Opt Out: If you decide that you do not want to arbitrate any dispute(s) with us, you must notify us in
writing at our address in the Agreement no later than 10 days after the date you sign the Agreement. Your decision to opt
out of this arbitration agreement will not affect your Agreement with us.
16. MUTSIET EI eeoweies You understand that time is of the essence in this Agreement. You understand that no
changes may be made to this Agreement except by us in writing.
Lessor: Mollie, LLC dba Uown Lessee:
By: —_ By: Shaune Brooks
Signature Signature
D. Klein SHAUNE BROOKS
Leasing Representative
Store Representative: Co-Lessee:
By: By:
Signature Signature
Today’s Date: Dec 28, 2021 Date: Dec 28, 2021
If you would like to speak to a Spanish representative regarding this contract, please contact us at (877) 357-5474
Si usted desea hablar con un representante Espafiol sobre este contrato, por favor contactenos al (877) 357-5474.
-6- Agreement Number: E3935 Account: M5240
__
EXHIBIT D
ASSIGN MEN T AND BILL OF SALE
ed into a Charged-Off Receivables Purchase
Mollie LLC, DBA: Uown Leasing (“Seller”) has enter of to
Agreement dated 3/15/2023 ("Agreement") for the
sale of Accounts described in Exhibit A there
set forth in thatAgre emen t.
National Debt Holdings LLC (“Purchaser”) upon the
terms and conditions
ble and liquid funds, Seller hereby sells, assigns
NOW, THEREFORE, upon receipt of immediately availa
Seller's rights, title, and interest in each and
and transfers to Purchaser, its successors and assigns, all of
ent.
every one of the Uown Leasing Accounts described in the Agreem
tial address is in
“Accounts” means AEEwhere last known state of the residen
National file with a face value 0S
in "Exhibit B", the Closing Statement
Purchaser and Seller agree that the Purchase Price shall be as stated
of the Agreement.
IN WITNESS WHEREOF,
Seller has signed and delivered this instrument on the 15* Day of March 2023
Daniel Ket
Print: Daniel Klein
TITLE: ceo
QI National Debt Holdings, LLC
EXHIBIT
— 2
EXHIBIT B
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT (the “Assignment”) is entered into as of,
March 15, 2023, by National Debt Holdings, LLC (the “Assignor”) to BCG Equities, LLC (the
“ “Assignee”’),
RECITALS
A. The Assignor is the owner and holder of charged off accounts receivable arising from and
related to loans made by the Original Creditor (as such term is defined in the Financial
Asset Sale Agreement, as defined below), and all right, title and interest therein (the
“Financial Assets”), which Financial Assets were sold to Assignor or the Assignor’s
predecessors in interest by Original Creditor and which Financial Assets are more
particularly described on Exhibit A attached hereto and made a part hereof.;
The Assignee has reviewed and evaluated, or has been given the opportunity to review and
evaluate but has declined to review and evaluate, the Financial Assets and Account Data
to its full satisfaction;
The Assignor and the Assignee have entered into that certain Financial Asset Sale
Agreement dated as of March 15, 2023 (the “Agreement’”), with respect to the purchase
and sale of the Financial Assets and the Account Data and certain other loans and the
promissory notes, the loan agreements and the other documents, records or files governing,
evidencing, securing or relating to same available to Seller and requested by Buyer in
accordance with the Agreement; and
Pursuant to the Agreement, the Assignor desires to assign to the Assignee, and the Assignee
desires to acquire from the Assignor, the right, title and interest of the Assignor in and to
the Financial Assets and related Account Data.
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1 Assigned Financial Assets. The Financial Assets covered by this Assignment are
described on Exhibit A hereto.
Assignment. For good and valuable consideration paid to the Assignor, the receipt
and sufficiency of which are hereby acknowledged, the Assignor has
TRANSFERRED and ASSIGNED and by these presents does TRANSFER and
ASSIGN unto the Assignee, all of the Assignor’s right, title and interest in and to
the Financial Assets and related Account Data , as well as all sums due or to become
due thereon, together with interest thereon at the rate or rates provided for therein,
and together with all right, title and interest and all privileges and powers of the
Assignor in,
Or with respect to the Financial Assets, TO HAVE AND TO HOLD the same
untothe Assignee, its successors and assigns, forever.
Status of Financial Assets. All representations, warranties and covenants set forth
in the Agreement, are incorporated herein by reference and are made an integral
part of this Assignment.
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed
this Assignment as of the Date March 15, 2023.
ASSIGNOR:
National Debt Holdings, LLC
By:
Name: Jeremy Poehler
Title: CEO
ASSIGNEE:
BCG Equities, LLC
dam Dobberstein
ry’ J Adam Dobberstein (Mar 15, 2023 10:55 CDT)
Name: J Adam Dobberstein
Title: Managing Member
EXHIBIT B
BILL OF SALE AND ASSIGNMENT.
THIS BILL OF SALE AND ASSIGNMENT (the “Assignment”) is entered into as of,
September 18, 2023 by BCG Equities, LLC (the “Assignor”) to HS Financial Group, LLC (the
“
‘Assignee”).
RECITALS
The Assignor is the owner and holder of charged off accounts receivable arising from and
related to loans made by the Original Creditor (as such term is defined in the Financial
Asset Sale Agreement, as defined below), and all right, title and interest therein (the
“Financial Assets”), which Financial Assets were sold to Assignor or the Assignor’s
predecessors in interest by Original Creditor and which Financial Assets are more
particularly described on Exhibit A attached hereto and made a part hereof.;
‘The Assignee has reviewed and evaluated, or has been given the opportunity to review and
evaluate but has declined to review and evaluate, the Financial Assets and Account Data
to its full satisfaction;
The Assignor and the Assignee have entered into that certain Financial Asset Sale
Agreement dated as of September 18, 2023 (the “Agreement”), with respect to the
purchase and sale of the Financial Assets and the Account Data and certain other loans and
the promissory notes, the loan agreements and the other documents, records or files
governing, evidencing, securing or relating to same available to Seller and requested by
Buyer in accordance with the Agreement; and
Pursuant to the Agreement, the Assignor desires to assign to the Assignee, and the Assignee
desires to acquire from the Assignor, the right, title and interest of the Assignor in and to
the Financial Assets and related Account Data.
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1 Assigned Financial Assets. The Financial Assets covered by this Assignment are
described on Exhibit A hereto.
Assignment, For good and valuable consideration paid to the Assignor, the receipt
and sufficiency of which are hereby acknowledged, the Assignor has
TRANSFERRED and ASSIGNED and by these presents does TRANSFER and
ASSIGN unto the Assignee, all of the Assignor’s right, title and interest in and to
the Financial Assets and related Account Data , as well as all sums due or to become
due thereon, together with interest thereon at the rate or rates provided for therein,
and together with all right, title and interest and all privileges and powers of the
Assignor in,
Or with respect to the Financial Assets, TO HAVE AND TO HOLD the same unto
the Assignee, its successors and assigns, forever.
Status of Financial Assets. All representations, warranties and covenants set forth
in the Agreement, are incorporated herein by reference and are made an integral
part of this Assignment.
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this
Assignment as of the Date September 19, 2023.
ASSIGNOR:
Title: Manager
ASSIGNEE:
HS Fina Sroup, LLC
Bye A
Name: Lauren Summers
Title: Sr. Vice President
List of Accounts Included:
Y
STATE OF INDIANA IN THE HAMILTON CIRCUIT/SUPERIOR COURT
) SS
COUNTY OF HAMILTON CAUSE NO.
HS FINANCIAL GROUP, LLC
Plaintiff(s)
VS. AFFIDAVIT OF DEBT
SHAUNE BROOKS
Defendant(s)
Comes now affiant, and states:
I essica Neal am oPlaintiff OR pg a designated full-time employee of HS Financial Group, LLC
(Name of A ffiant) (Name of Plaintiff)
I am of adult age and am fully authorized by Plaintiff to make the following representations are true according to documents kept in the
normal course of Plaintiff's business and/or personal knowledge:
Plaintiff:
C is the original owner of this debt. OR
& has obtained this debt from BCG Equities, LLC and the original owner of this debt was Uown Leasing.
Shaune Brooks, Defendant, has an unpaid balance of $1,686.72 on account 5240.
That amount is due and owing to Plaintiff. This account was opened on 12/28/2021
The type of account is:
O Credit Card account (i.e. Visa, Mastercard, Department Store, etc.)
+ List the name of the Company/Store issuing credit card:
O Account for utilities (i.e. telephone, electric, sewer, etc.)
O Medical bill account (i.e. doctor, dentist, hospital, etc.)
O Account for services (i.e. attomey fees, mechanic fees, etc.)
O Judgment issued by a court (a copy of the judgment is required to be attached)
Other: (Please explain): Lease-Purchase Agreement
This account balance includes:
OC Late fees in the amount of $. as of (Month, Day, Y ear)
O71 Other (Explain
C1 Interest at a rate of % beginning on (Month, Day, Y ear)
Plaintiff:
& is seeking attorney’s fees and additional evidence will be presented to the court prior to entry of judgment on attorney’s fees. OR
C is not seeking attorney’s fees.
Plaintiff believes defendant is not a minor or an incompetent individual. If the defendant is an individual, plaintiff states and declares that:
c Plaintiff is unable to determine whether or not Defendant is not on active military service. OR
Defendant is not on active military service. Plaintiff's statement that Defendant is not on active military service is based upon
the following facts: Searched, Department of Defense Computer Records
(“Active military service” includes fulltime duty in the military (including the National Guard and reserves) and, for members of the National
Guard, service under a call to active service authorized by the President or Secretary of Defense. For further information, see the definition of
military service” in the Service members Civil Relief Act, as amended, 50 U.S.C.A Appx. § 521.)
I swear or affirm under the penalties of perjury that the foregoing representations are true.
Dated: March 21, 2024 Signature of A ffiant:
Printed name & title:
EXHIBIT
— 4
Related Content
in Hamilton County
Ruling
JPMORGAN CHASE BANK, N.A. VS SUNSET ART LLC, ET AL.
Jul 12, 2024 |
11/28/2022 |
23SMCV01369
Case Number:
23SMCV01369
Hearing Date:
July 12, 2024
Dept:
N TENTATIVE RULING
Plaintiff JPMorgan Chase Bank, N.A.s Motion for Summary Judgment or, Alternatively, for Summary Adjudication of Claims is GRANTED in the amount of $248,672.71.
Plaintiff JPMorgan Chase Bank, N.A. shall prepare, serve, and submit a proposed judgment as per statute. Costs shall be determined by statute. Attorney fees shall be determined pursuant to a noticed motion.
Plaintiff JPMorgan Chase Bank, N.A. to give notice.
REASONING
Plaintiff JPMorgan Chase Bank, N.A. (Chase) moves the Court for an order granting summary judgment or adjudication in its favor and against Defendants Sunset Art LLC (Sunset Art), Jared Najjar, and Paul C Valmorbida. No defendant has filed an opposition to Chases motion. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a partys failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
Legal Standard The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)
On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)
Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) [T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
Analysis Chase alleges that on March 12, 2015, Sunset Art entered into a borrowing relationship with Chase by executing a Line of Credit Note and Credit Agreement in the amount of $250,000.00. (Compl. ¶ 7, Ex. A.) On the same date, Najjar executed a Continuing Guaranty (the Najjar guaranty), guaranteeing repayment of the contract (Compl. ¶ 8, Ex. B), and Valmorbida also executed a Continuing Guaranty (the Valmorbida guaranty), guaranteeing repayment of the contract (Compl. ¶ 9, Ex. C). Plaintiff alleges Sunset Art has defaulted under the terms of the contract such that there is now due and owing to Chase $247,778.91, plus late fees and costs, and Defendants Najjar and Valmorbida have failed to cure Sunset Arts default pursuant to their guarantees such that they are also in default under the guarantees. (Compl. ¶¶ 10-11.) Chase alleges causes of action for breach of express contract, money lent, and account stated. It voluntarily dismissed its money lent and account stated claims on December 15, 2023.
To establish a cause of action for breach of contract, Chase must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Chase provides evidence that on March 13, 2015, Sunset Art entered into a borrowing relationship with Chase by executing a Line of Credit Note and Credit Agreement in the amount of $250,000.00. (Chases UMF No. 1.) On the same date, Najjar executed the Najjar guaranty, and Valmorbida executed the Valmorbida guaranty. (Chases UMF Nos. 2-3.) Sunset Art has failed to pay under the terms of the contract, has defaulted, and there is now due and owing to Chase $247,778.91, plus late fees and costs of $893.80 for a total of $248,672.71. (Chases UMF No. 5.) Defendants Najjar and Valmorbida have failed to cure Sunset Arts default pursuant to their guarantees such that they are also in default under the guarantees. (Chases UMF Nos. 6-7.)
This evidence allows Chase to meet its burden of establishing that there is no triable issue of material fact as to its claims for breach of express contract. While the date of the contracts is different than that alleged in the complaint, the documents attached to the complaint showed an execution date of March 13, 2015, and it is axiomatic that exhibits control when there is a conflict between a complaints allegations and exhibits attached to the complaint. (Panterra GP, Inc. v. Superior Court (2022) 74 Cal.App.5th 697, 712, fn. 13.) No defendant has opposed the present motion, thereby failing to establish that a triable issue of material fact exists as to Chases claims. Accordingly, Plaintiff JPMorgan Chase Bank, N.A.s Motion for Summary Judgment or, Alternatively, for Summary Adjudication of Claims is GRANTED in the amount of $248,672.71. Plaintiff JPMorgan Chase Bank, N.A. shall prepare, serve, and submit a proposed judgment as per statute. Costs shall be determined by statute. Attorney fees shall be determined pursuant to a noticed motion.
Ruling
DIMERCO EXPRESS USA CORP. VS CONCORD DISPLAYS, LLC, A LIMITED LIABILITY COMPANY
Jul 12, 2024 |
22AHCV00898
Case Number:
22AHCV00898
Hearing Date:
July 12, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
DIMERCO EXPRESS USA CORP.
,
Plaintiff(s),
vs.
CONCORD DISPLAYS, LLC, et al.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
22AHCV00898
[TENTATIVE] ORDER RE:
APPLICATION FOR DEFAULT JUDGMENT
Dept. 3
8:30 a.m.
July 12
, 2024
)
Plaintiff Dimerco Express USA Corp. (Plaintiff) requests a default judgment against defendant Concord Displays, LLC (Defendant) in the amount of $24,630.97. On May 23, 2042, Plaintiff filed a declaration of counsel attaching a settlement agreement which provides for the entry of a stipulated judgment pursuant to Code of Civil Procedure section 664.6. In light of this agreement, Plaintiffs attempt to secure a default judgment is procedurally incorrect. Plaintiff should be moving for entry of a judgment pursuant to stipulation and submit a proposed judgment that reflects its stipulated nature. Accordingly, the hearing on the default prove-up is vacated and the Court sets an OSC re: Dismissal for _____________ in order to allow Plaintiff time to file a noticed motion.
Dated this
12th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
VANESA O'HANLON VS. TONY GARNICKI ET AL
Jul 10, 2024 |
CGC23610527
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 15. PLAINTIFF VANESA O'HANLON's Application And Hearing For Right To Attach Order And Writ Of Attachment. Continued to July 11, 2024, on the court's motion. =(302/RBU)
Ruling
ODK CAPITAL, LLC, A UTAH LIMITED LIABILITY COMPANY VS ULTIMATE HOME MORTGAGE CORP., A CORPORATION, ET AL.
Jul 12, 2024 |
22VECV01711
Case Number:
22VECV01711
Hearing Date:
July 12, 2024
Dept:
T
22VECV01711 ODK v Ultimate Home
Motion to withdraw as counsel for Ultimate Home Mortgage Corp is DENIED WITHOUT PREJUDICE. On May 29, 2024, the court continued this motion and ordered moving party to give notice to Ultimate Home Mortgage that its attorney is seeking to withdraw from the case, the court is continuing the hearing on the motion to withdraw to 7/12/2024 at 8:30 a.m. in Dept. T and that if Ultimate Home Mortgage does not have a new attorney by that date, then the court will allow counsel to withdraw and will strike its answer and enter default against Ultimate Home Mortgage for being a corporation with an attorney.
Moving party failed to do so.
The court is not going to continue the matter any further. The motion is denied without prejudice.
Ruling
VANESA O'HANLON VS. TONY GARNICKI ET AL
Jul 11, 2024 |
CGC23610527
Matter on the Law & Motion calendar for Thursday, July 11, 2024, Line 16. PLAINTIFF VANESA O'HANLON's Application And Hearing For Right To Attach Order And Writ Of Attachment. "Plaintiff's application for right to attach order and order for issuance of writ of attachment" is denied. This action regards a series of oral loans - several involving credit cards - that plaintiff allegedly made to defendant and he did not fully re-pay. The motion is denied for two principal reasons. First, the amount of plaintiff's claims is not "fixed or readily ascertainable." (CCP 483.010(a).) For example, plaintiff concedes she is "unable to locate my credit card statements to correctly charge" defendant. (O'Hanlon Dec. 3:1-3.) Second, plaintiff has not "established the probable validity" of her claims. (CCP 484.090(a)(2).) For example, plaintiff concedes the loans - all oral - began "in April 2017," raising serious statute-of-limitations issues. (O'Hanlon Dec. 1:25; CCP 339.) The court does not rely on defendant's untimely opposition for the above, but rather plaintiff's own declaration. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript msay be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ACE FUNDING SOURCE LLC VS AZIZI IMPORTS INC. D/B/A AZIZI IMPORTS, ET AL.
Jul 11, 2024 |
23STCP04480
Case Number:
23STCP04480
Hearing Date:
July 11, 2024
Dept:
51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE:
July 11, 2024
CASE NAME:
Ace Funding Source LLC v. Azizi Imports Inc. d/b/a Azizi Imports, et al.
CASE NO
.:
23STCP04480
MOTION TO AMEND SISTER STATE JUDGMENT DUE TO CLERICAL ERROR UNDER CODE OF CIVIL PROCEDURE § 473(d)
MOVING PARTY
:
Plaintiff Ace Funding Source LLC
RESPONDING PARTY(S):
None as of July 8, 2024
REQUESTED RELIEF:
1.
An Order amending the sister state judgment entered against Azizi Imports Inc. d/b/a Azizi
Imports; Flyby Auto Transport LLC d/b/a Flyby Auto Transport; Oversight, LLC d/b/a Oversight; Flyby Auto Transport LLC; and Jonathan Azizi.
TENTATIVE RULING:
1.
Motion to Amend Sister-State Judgment due to Clerical Error is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 5, 2023, Plaintiff Ace Funding Source LLC (Plaintiff) filed an Application for Entry of Judgment on Sister-State Judgment (Application) against Defendants Azizi Imports Inc. d/b/a Azizi Imports; Flyby Auto Transport LLC d/b/a Flyby Auto Transport; Overight, LLC d/b/a Oversight; and Jonathan Azizi (Defendants).
On December 12, 2023, the Clerk entered judgment.
On April 22, 2024, Plaintiff filed notice of motion to amend the Sister-State Judgment.
On May 13, 2024, the court continued the hearing on Plaintiffs motion to amend.
On June 7, 2024, Plaintiff filed a memorandum of points and authorities and a declaration in support of its motion to amend the Sister-State Judgment.
LEGAL STANDARD:
Courts have inherent powers to correct judgments by a nunc pro tunc order where there has been a clerical error by clerk or by the judge himself, or where some provision of, or omission from, order or judgment was due to inadvertence, or mistake of court. (
Lane v. Superior Court of Siskiyou County
(1950) 98 Cal App 2d 165, 219; Code Civ. Proc., § 473, subd. (d).) This includes clerical errors when made by an attorney who drafts the judgment. (
See In re Marriage of Kaufman
(1980) 101 Cal.App.3d 147, 151.) However, while a trial court may correct clerical errors and misprisions in a judgment, it cannot amend a judgment once entered, if the error to be corrected is a judicial one, for instance if it embodies an intentional action of the court even though legally erroneous. (
Kamper v. Mark Hopkins, Inc.
(1947) 78 Cal App 2d 885.)
ANALYSIS
:
Plaintiff contends that Defendants Flyby Auto Transport LLC d/b/a Flyby Auto Transport, Oversight, LLC d/b/a Oversight, and Flyby Auto Transport LLC were not added to the courts docket due to a clerical error. Plaintiff further contends that these Defendants were listed in the Sister-State Judgment packet documents. Plaintiff seeks to have these Defendants added to the docket.
Here, the court agrees there is a clerical error. The Judgment and Notice of Entry of Judgment entered on December 12, 2023 identify all Defendants. However, the courts docket only includes Defendants Azizi Imports Inc. d/b/a Azizi Imports and Jonathan Azizi. While Plaintiff does not seek revision of the documents themselves, Plaintiffs request is still proper because it is clearly a clerical error that the docket does not accurately reflect the entered Judgment. (Code Civ. Proc. § 183(3).)
Accordingly, the court GRANTS Plaintiffs motion to amend.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1.
Motion to Amend Sister-State Judgment due to Clerical Error is GRANTED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated:
July 11, 2024
__________________________________
Upinder S. Kalra
Judge of the Superior Court
Ruling
Truist Bank vs. Stock, et al.
Jul 14, 2024 |
23CV-0203124
TRUIST BANK VS. STOCK, ET AL.
Case Number: 23CV-0203124
Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued on
May 28, 2024 to Plaintiff Truist Bank and counsel, Gurstel Law Firm, P.C., for failure to timely serve pleadings
on Defendant Chris Stock pursuant to California Rules of Court, Rule 3.110(b) and Local Rule of Court 3.03 and
failure to timely seek default on Defendant Bright Nichols Stock pursuant to California Rules of Court, Rule
3.110(g). “The complaint must be served on all named defendants and proofs of service on those defendants must
be filed with the court within 60 days after the filing of the complaint.” CRC 3.110(b). Local Rule 3.03 mandates
that Plaintiff serve Defendant with Local Form LF-CIV-100 and file a proof of service within the same timeframe.
The Complaint in this matter was filed on September 1, 2023 and no proof of service has been filed for defendant
Chris Stock. Plaintiff did not address defendant Chris Stock in the written response to the Order to Show Cause.
CRC 3.110(g) requires Plaintiff to file a request for entry of default within 10 days after the time for service of
the responsive pleading has elapsed. Defendant Bright Nichols Stock was served on October 7, 2023. The time
for filing a responsive pleading expired November 6, 2023. No extension was requested or granted. No default
was requested.
On July 2, 2024, Plaintiff’s counsel filed a Declaration that asserts that a default packet “is pending to be drafted.”
No explanation is given for the noncompliance with CRC 3.110. No default judgment has been requested.
With no sufficient excuse for the delay, sanctions are imposed in the amount of $250.00 against Plaintiff and
Plaintiff’s Counsel. The clerk is instructed to prepare a separate Order of Sanctions. The Court will issue an
Order to Show Cause Re: Dismissal pursuant to Gov’t Code Section 68608(b) for Plaintiff’s failure to timely
serve the complaint and LF-CIV-100, failure to timely seek default judgment, and failure to timely prosecute.
The hearing on the Order to Show Cause Re: Dismissal is set for Monday, September 9, 2024, at 8:30 a.m. in
Department 63. The clerk is instructed to prepare a separate Order to Show Cause Re: Dismissal. This matter
is also calendared on Monday, September 9, 2024, at 9:00 a.m. in Department 63 for review regarding status
of service.
******************************************************************************************
9:00 a.m. – Review Hearings
******************************************************************************************
Ruling
PEARL BETA FUNDING, LLC VS LONEWOLF INSURANCE SERVICES INC.
Jul 15, 2024 |
23STCP00079
Case Number:
23STCP00079
Hearing Date:
July 15, 2024
Dept:
51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE:
July 15, 2024
CASE NAME:
Pearl Beta Funding, LLC v. Lonewolf Insurance Services, et al.
CASE NO
.:
23STCP00079
MOTION TO SET ASIDE/VACATE JUDGMENT
MOVING PARTY
:
Judgment Debtors Three Zero Four Zero Two Holding, LLC and Tatanisha Leer
[1]
RESPONDING PARTY(S):
Plaintiff Pearl Beta Funding, LLC
REQUESTED RELIEF:
1.
An Order setting aside the amended judgment.
TENTATIVE RULING:
1.
Motion for Order Setting Aside/Vacating Judgment is CONTINUED to September 3, 2024. The parties shall submit additional briefing consistent with the requirements of CCP § 1005(b).
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On January 4, 2023, Plaintiff Pearl Beta Funding, LLC (Judgment Creditor) filed an Application for Entry of Judgment on Sister-State Judgment naming Judgment Debtors Lonewolf Insurance Services, Inc., El Dorado Hills Insurance Solutions Inc., Golden Foothill Insurance Services LLC, The Genesis LS Fund LLC, Life Shares LLC, KTL Holdings Inc., and Stefan Joseph Leer (Judgment Debtors).
On January 12, 2023, Judgment on Sister-State Judgment was entered by the clerk.
On July 14, 2023, Judgment Creditor filed an Application for Issuance of Writ of Execution, Possession or Sale for property located at 30402 Marbella Vista, San Juan Capistrano, CA 92675 owned by Judgment Debtor Stefan Joseph Leer.
On July 14, 2023, Judgment Creditor obtained a Writ of Execution (Money Judgment) against all Judgment Debtors and filed a Memorandum of Costs after Judgment.
On September 26, 2023, Judgment Creditor filed an Application and Order for Appearance and Examination of Judgment Debtor Stefan Joseph Leer.
On September 27, 2023, Judgment Creditor filed an Application and Order for Appearance and Examination of Third Person Tatanish L. Leer which was granted.
On January 17, 2024, Judgment Creditor filed a Return to Court Writ of Execution.
On February 13, 2024, Judgment Creditor filed a instant Motion to Amend Judgment pursuant to CCP § 187 which the court GRANTED as to Three Zero Four Zero Two Holding, LLC and DENIED as to Tatanisha Leer.
On March 26, 2024, Plaintiff filed notice of entry of the courts order on the Motion to Amend Judgment.
On May 21, 2024, Judgment Debtor Three Zero Four Zero Two Holding, LLC and Non-Party Tatanisha Leer (Moving Parties) filed the instant Motion to Set Aside/Vacate Judgment. On July 1, 2024, Plaintiff filed an opposition. As of July 9, 2024, Moving Parties did not file a reply.
LEGAL STANDARD:
Set Aside CCP
§¿473
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect&¿ [The application]¿shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.¿ (CCP¿§¿473(b).) Courts must grant relief when the attorneys inexcusable neglect results in the dismissal. (
Ibid.
) Otherwise, relief under this section is discretionary. (
Ibid.
)
Code of Civil Procedure section 473, subdivision (d), provides that the Court may, on motion of either party after notice set aside any void judgment or order.
Request for Judicial Notice
The court grants Judgment Creditors request for judicial notice as to Exhibits A through J. (Evid. Code § 452(c), (h); See
Kalnoki v. First American Trustee Servicing Solutions, LLC
(2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to the existence, content and authenticity of public records and other specified documents; it does not take judicial notice of the truth of the factual matters asserted in those documents. (
Dominguez v. Bonta
(2022) 87 Cal. App. 5th 389, 400.)¿¿
ANALYSIS
:
Moving Parties contend the judgment should be set aside because the amount fails to credit amounts of the judgment already paid and the motion to amend the judgment was not properly served. Plaintiff argues Moving Parties have not demonstrated, or even suggested, prejudice.
As a threshold matter, CCP
§¿473 does not afford the relief Moving Parties seek. (
Conseco Marketing, LLC v. IFA & Ins. Services, Inc.
(2013) 221 Cal.App.4th 831, 844 [noting that a CCP § 473.5 motion is a procedural remedy to set aside a default or default judgment, not a sister state judgment.])
The more applicable statute is CCP § 1710.40 which provides, in pertinent part:
(
a) A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered pursuant to this chapter is incorrect.
(b) Not later than 30 days after service of notice of entry of judgment pursuant to¿
Section 1710.30
, proof of which has been made in the manner provided by Article 5 (commencing with¿
Section 417.10
) of Chapter 4 of Title 5 of Part 2, the judgment debtor, on written notice to the judgment creditor, may make a motion to vacate the judgment under this section.
Service, not actual notice, triggers the 30-day limit for the judgment debtor to make a motion to vacate the judgment so long as the judgment debtor was effectively served with process in the sister state action. (
Conseco Marketing, LLC, supra,
at p. 838.) However, service of the notice of entry of judgment must be done in the manner provided for service of summons and shall . . . inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate the judgment. (
Ibid.
)
Here, Plaintiff did not adequately serve notice of entry of the amended judgment on the Wyoming LLC.
[2]
First, Plaintiff effected service via U.S. Mail only. (Notice of Entry of Amended Judgment, Proof of Service.) This is not one of the proscribed methods for service of summons. (CCP §
415.10(a) [personal delivery],
§
415.20 [substitute service], or
§
415.30
(a) [service by mail with a notice and acknowledgment of receipt].) Second, the notice does not inform the judgment debtor that they have 30 days within which to make the instant motion. (
Conseco Marketing, LLC, supra,
at p. 838.)
Accordingly, the court CONTINUES the instant motion to allow the parties the opportunity to provide further briefing.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1.
Motion for Order Setting Aside/Vacating Judgment is CONTINUED to September 3, 2024. The parties shall submit additional briefing consistent with the requirements of CCP § 1005(b).
Moving party is to give notice.
IT IS SO ORDERED.
Dated:
July 15, 2024
__________________________________
Upinder S. Kalra
Judge of the Superior Court
[1]
Contrary to Moving Parties assertion, Tatanisha Leer is not a judgment debtor. (Order Granting in Part and Denying in Party Motion to Amend Sister-State Judgment.)
[2]
As such, that Moving Parties filed this motion 56-days after service of the notice of entry of judgment is inconsequential. It is also questionable whether Plaintiff properly served the remaining named Defendants. While they were personally served with the original judgment on February 24, 2023, the proof of service for the notice of amended judgment is also via U.S. Mail only. Conversely, the court also notes that Moving Parties proof of service for the instant motion may be defective, too, since it is not served on the remaining Defendants.