Capital One Bank USA NA vs Jorge H Munoz

Case Number

23CV03231

Case Type

Hearing Date / Time

Fri, 07/26/2024 - 10:00

Nature of Proceedings

Motion: Set Aside

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff for an order setting aside and vacating a prior order of dismissal and for entry of judgment is denied without prejudice.

Background:

This is a debt collection action. On April 2, 2021, plaintiff Capital One Bank (USA), N.A. (Capital One), filed a complaint against defendant Jorge H. Munoz (Munoz) alleging one cause of action for common counts. As alleged in the complaint, the action concerns an account established on July 7, 2016. The last payment received on the subject account was received on July 12, 2019, and the account was charged off on January 3, 2020. The amount due and unpaid from Munoz is $2,717.80.

Court records reflect that on August 22, 2022, Capital One filed a Stipulation For Entry Of Judgment (the Stipulation). On August 23, 2022, having considered the Stipulation, the Court signed an order (the Order) that this matter be dismissed without prejudice with the Court to retain jurisdiction to enforce the terms of the Stipulation in the event of a default by either party, pursuant to Code of Civil Procedure section 664.6. The Order was filed on August 25, 2022.

On April 17, 2024, Capital One filed a motion to set aside the Order as to the dismissal of this action and for entry of judgment against Munoz pursuant to the Stipulation. In support of the motion, Capital One submits the declaration of its counsel, Kristen Dean (Dean), who states that she personally reviewed records pertaining to the account at issue which, according to Dean, were created “at or near the time of events described [in the records] … either by an individual with personal knowledge of the events described, or electronically to a system of record regularly maintained by [Capital One’s] counsel.” (Dean Decl., ¶ 2.) As further stated in the Dean declaration:

On April 28, 2021, the parties entered into a verbal settlement agreement which was reduced to a writing (the settlement agreement) and signed by the parties. (Dean Decl., ¶ 3.) The settlement agreement provided that judgment in the sum of $3,031.70 would not be entered against Munoz as long as Munoz paid to Capital One a minimum of $200.00 commencing on May 15, 2021, and continuing thereafter on or before the fifteenth day of each month until the “Judgement Amount” was paid in full. (Ibid.) Further, if Munoz failed to make full and timely payment of any installment, then Munoz would be deemed in default and the full balance of Capital One’s claim would become immediately due and owing. (Id. at ¶ 4.)

The parties also agreed that, in the event of a default by Munoz, the Court would be authorized to enter judgment in favor of Capital One and against Munoz in the amount of $3,031.70, less payments received, together with court costs including Capital One’s first appearance fees and motion filing fees incurred in moving for entry of judgment. (Dean Decl., ¶ 4.) Dean attaches to her declaration a copy of the Stipulation as Exhibit 1. (Ibid.)

Dean further declares that Munoz defaulted under the terms of the settlement agreement by failing to make required payment pursuant to its terms. (Dean Decl., ¶ 6.) The last payment made by Munoz was on May 15, 2021. (Ibid.) Dean attaches a copy of Munoz’s payment history which, according to Dean, details payments, costs, credits, and other adjustments made on the account. (Id. at ¶ 6 & Exh. 2.)

Analysis:

Though not specifically stated in the Dean declaration, it is the Court’s understanding that the settlement agreement referenced by Dean is the Stipulation. Under the version of Code of Civil Procedure section 664.6 in effect from January 1, 2021, through December 31, 2023, “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6, subd. (a).) “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)

For purposes of section 664.6, a “writing … for settlement of the case” is signed “by a party” if it is signed by the party or an attorney representing the party. (Code Civ. Proc., § 664.6, subd. (b)(1) & (2).) Available information and evidence indicates that the Stipulation was ostensibly signed by Munoz on May 11, 2021. (Dean Decl., Exh. 1.) The stipulation was also ostensibly signed by Jaime Allison Forbes (Forbes), who is identified in the Stipulation as the attorney for Capital One. (Ibid.) Forbes signed the Stipulation under a notation indicating that Forbes approved that document as to form. (Ibid.)

Though the Stipulation was signed by Munoz and by counsel for Capital One, the notation “approved as to form” appearing above the signature of Forbes affirms only that counsel for Capital One read the Stipulation and approved it for Capital One’s signature. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 792.) However, this does not mean that Capital One intended to be bound by the terms of the Stipulation. (Id. at pp. 789-790, 792 [also noting that a settlement agreement is a “contract” requiring mutual consent].) Moreover, Capital One offers no information or evidence to demonstrate that Forbes is its authorized representative. (See Canaan Taiwanese Christian Church v. All World Mission Ministries (2012) 211 Cal.App.4th 1115, 1125-1126].)

For all reasons discussed above, because Forbes signed the Stipulation only as to form and not as a representative or other authorized person on behalf of Capital One, Capital One has failed to show the existence of a writing signed by the parties and has failed to demonstrate its consent to the Stipulation. (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1256-1257 [trial court lacks authority to enforce settlement under section 664.6 absent a showing that all parties gave their personal consent].) Therefore, Capital One has failed to strictly comply with the requirements of Code of Civil Procedure section 664.6. For this reason, the Court will deny the motion without prejudice to any future procedurally and substantively appropriate motion to enforce the Stipulation that may be filed and served by Capital One.