Declaration In SupportCal. Super. - 6th Dist.May 31, 2019Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/14/2020 9:15 AM Reviewed By: S. Alvarez Case #19CV349275 Envelope: 4250928 10 11 12 13 14 15 16 17 18 l9 John P. Kenosian, Bar #80261 Law Offices of Kenosian & Miele, LLP 8581 Santa Monica B1Vd., #17 Los Angeles, CA 90069 (888) 566-7644 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAN JOSE LIMITED CIVIL WHITE & WHITLEY GROUP, LLC , Case No.2 19CV349275 A Limited Liability Company PLAINTIFF, vs. ORIGINAL CREDITOR’S DECLARATION IN SUPPORT OF ENTRY OF DEFAULT KAHEALANI MAPUANA TANNER JUDGMENT and DOES 1 to 5, inclusive, CIVIL CODE §1788.58 Defendant(s) ORIGINAL CREDITOR’S DECLARATION IN SUPPORT OF ENTRY OF DEFAULT JUDGMENT Page l of4 10 11 12 13 14 15 16 17 18 19 I, BRANDON WARDEN, declare: 1. I am the Assistant Manager - Servicing - Collections for CASHCALL, INC (hereinafter ”CASHCALL"). I am involved in the day t0 day operations 0fCASHCALL . Part 0fmy responsibilities includes overseeing the creation, management, control, custody and preservation 0f CASHCALL records. It is the practice and procedure 0fCASHCALL employees 0r CASHCALL agents With personal knowledge of an act, event 0r transaction t0 transmit information and make an entry or note thereof t0 be included in the record 0f the account t0 which such act, event 0r transaction relates. The transmittal, entry 0r notation 0f such information is done at 0r near the time such act, event or transaction actually occurs. This function can be performed manually or by automated means. These records are made and compiled in the regular course of CASHCALL’S business. I am familiar with how CASHCALL’S business records are prepared, maintained, accessed and retrieved and am required t0 rely upon and deal with the information contained in the records. I have found the records and information t0 be trustw‘o‘rthy and reliable. Each record attached t0 this declaration is an exact copy 0f the original record, stored in computer storage, copied, 0r duplicated onto microfiche 0r microfilm. I have possession and/or access to CASHCALL records including the records 0fKAHEALANI MAPUANA TANNER (hereinafter “Defendant”). Based upon my personal knowledge and/or from my examination of the re-cords and information 0fCASHCALL relating t0 the Defendant, I have personal kndwledge of the facts set forth herein. If called as a witness I would, under oath, competently testify as t0 the facts stated herein. Based upon the foregoing and my review 0f the records relating t0 the Defendant in this matter, l am informed and believe and thereupon represent the following: ORIGINAL CREDITOR’S DECLARATION IN SUPPORT OF ENTRY OF DEFAULT JUDGMENT Page 2 0f 4 10 11 13 14 16 17 18 19 20 21 2. The CASHCALL Promissory Note and Disclosure Statement, which constitute the underlying loan agreement with the Borrower, is executed by a Borrower pursuant t0 and in conformity with the Electronic Signatures in Global and National Commerce Act (commonly known as the “ESign Act”). The Promissory Note and Disclosure Statement is transmitted t0 the Borrower at the origination 0f the obligation and provides for all terms and conditions 0f the loan, including payment amounts, rates 0f interest, default terms, attorney fees and costs in the event 0f default and other provisions. 3. The Defendant entered into a written loan agreement with CASHCALL pursuant t0 the Defendant’s execution 0f the Promissory Note and Disclosure Statement. Accordingly, CASHCALL loaned to the Defendant a sum ofmoney in accordance with the terms 0f the agreement under loan account now bearing number ending XXXXX086. Defendant promised t0 pay back all sums loaned with interest, costs and fees. A true and correct copy 0f the Promissory Note and Disclosure Statement 0f the Defendant is attached hereto as Exhibit A and incorporated herein by reference. 4. Subsequently, the Defendant failed t6 £11ake payments due on the loan prior t0 the sale and transfer of the account to Plaintiff. Defendant left due and owing the charge-off sum 0f $2600.00 with n0 post charge-off fees. CASHCALL’S récords reflect that the date 0f defauli was 0n 07-01-15. 5. The name and an address 0f the‘charge-off creditor‘ at the time 0f Charge-off Was CASHCALL, INC. ONE CITY BLVD. WEST, STE. 102 ORANGE, CA. 92868. 6. The name and last known address 0f the Defendant as appearing in the charge-off creditor’s records prior to the sale 0f the debt was KAHEALANI MAPUANA TANNER, 3301 MONROE ST APT 3 SANTA CLARA CA 95051. // ORIGINAL CREDITOR’S DECLARATION IN SUPPORT OF ENTRY OF DEFAULT JUDGMENT Page 3 of 4 10 11 13 14 16 17 18 19 20 21 7. There is n0 record 0f Defendant obj ecting t0 the balance shown and as a result 0f the Defendant’s breach of the agreement and pursuant to the terms 0f the Promissory Note and Disclosure Statement the indebtedness was accelerated and the entire unpaid balance 0n the account became immediately due and payable. 8. CASHCALL’S records reflect that CASHCALL loan account ending in number XXXXX086 belonging t0 KAHEALANI MAPUANA TANNER with a Social Security ending with 9062 was sold, assigned and transferred t0 SUNLAN Corporation. I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n 0% 0b 2021') at Orange, California. ‘%77/ Brandon Warden the A Cnt Manager- Servicing - Collections for CASHCALL ORIGINAL CREDITOR’S DECLARATION IN SUPPORT OF ENTRY OF DEFAULT JUDGMENT Page 4 of4 EXHIBIT A CASHCALL, INC. PROMISSORY NOTE AND DISCLOSURE STATEMENT Loan No.: 086 Date of Note: June 01, 2015 Expected Funding Date: June 02, 2015 Lender: CashCalI, Inc. Borrower: KAHEALANI TANNER Address: One City Boulevard West Suite Address: 3301 MONROSE ST APT 102 3 Orange, CA 92868 SANTA CLARA, CA 95051 In this Promissory Note and Disclosure Statement ("Note"), the words "you" and "your" mean the person signing as a borrower. "We," "us,", and "our," mean CashCaII, Inc. and any subsequent holder of this Note. TRUTH IN LENDING ACT DISCLOSURE STATEMENT ANNUAL pERcRilgAG _ grfggg __ £33335: T°TAF.°F"A.Y",E'T'T.S, The dollar amount The amount of The amount you wi/l have the credit will cost credit provided to paid after all payments are you 5 I you made as scheduled 139.12 % $11,597.37 j ‘ $2,525.00 ‘ $14,122.37 The cost of your credit as a yearly rate PAYMENT SCHEDULE One payment of $282.75 on July 01, 2015. 47 monthly payments of $294.46 beginning oh AugList 01, 2015.‘ Late Charge: If a payment is‘ more thlan'15’diazys late, you will be charged $15.00. Prepayment: If you pay off this loan early, you will not have to pay any pénalty. i I .‘x, ,4 1, "l4 v.-l"‘ . Please see the remainder of this'docu‘méfit‘for additio'h'ali'ifif'orm'ation about nonpaym'ent, ‘ default and any required repayment in full beforejthe scheduled date. ITEMIZ‘ATION 0F AMOUNT FINANCED’ Amount Financed: $2,525.00 M'; E, J Amount Paid to Borrower Directly: $2,525.00 Prepaid Finance Charge/Origination Fee: $75.00 FOR VALUE RECEIVED, you promise to pay to the order of CashCalI, Inc., or any subsequent holder of this Note the sum of $2,600.00, together with interest calculated at 135.00 °/o and any outstanding charges or late fees, until the full amount of this Note is paid. Your payments will be applied first to any outstanding charges or late fees, then to earned interest and finally to principal. The payment schedule described above is only an estimate and may change in the event you do not make all payments as scheduled. Interest is calculated on a 360/360 simple interest basis. This means that interest is calculated by dividing the annual Interest Rate by 360, multiplying that number by the outstanding principal balance, and multiplying that number by the number of days the principal balance is outstanding, assuming that each full month is comprised of 30 days. You may prepay all or any part of the principal at any time without penalty. You will be subject to a fee not to exceed the legally permitted amount if any payment you make is returned for non-sufficient funds. If you fail to make any payment due hereunder, we' shall have the right, after a 30-day grace period, to declare this Note to be immediately due and payable. If you file for an assignment for the benefit of creditors, bankruptcy, or for relief under any provisions of the United States Bankruptcy Code, we shall have the right to declare this Note to be immediately due and payable. In the event that we are required to employ an attorney at law to‘collect any amounts duef'under this Note, you will be required to pay the reasonable fees ofsuch attorney to protect our interest or to take any other action required to collect the amounts due hereunder. You agree that all payments not made within fifteén (15') days of the due date shall be subject t'o a late fee of $15.00. The origination fee included in the prepaid finance charge/origination fee disclosed above is fully earned upon loan origination, is not subject to rebate upon prepayment or acceleration of this Note and is not considered interest. We may delay or forgo enforcing any of its rights or remedies under this Note without losing them. You hereby, to the extent allowed by law, waive anylapplicablestatute of limitations, presentment, demand for payment, or protest and notice of dishonor. Upon any change in the terms of this Note and unless otherwise expressly stated in writing, no partywho s,igns.this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. I This Note shall take effect as a sealed instrument and shall be construed, governed and enforced in accordance with the laws of the State of California. This Note is in original format an electronic document fully compliant with the Electronic Signatures in Global and National Commerce Act (E-SIGN) and other applicable laws and regulations, and that the one, true original Note is retained electronically by us. All other versions hereof, whether electronic or in tangible format, constitute facsimiles or reproductionsonly. You understand that you have previously consented to receive all communications from us, including but not limited to, all required disclosures via electronic mail. You understand and agree that we may obtain credit reports on you an ongoing basis as long as this loan remains in effect. You also authorize us to report information concerning your account to credit bureaus and anyone else it believes in good faith has a legitimate need for such information. You understand that, from time to time, we may monitor or record telephone calls between you and us for quality assurance purposes. You expressly consent to have your calls monitored or recorded. You agree that in the event we need to contact you to discuss your account or the repayment of your loan, we may telephone you at any number, including any cell phone number provided, and that we may leave an autodialed or prerecorded message or use other technology to make that contact or to communicate to you the status of your account. A married or registered domestic partner applicant may apply for a separate account. As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. If we take any adverse action as defined by Section 1785.3 of the California Civil Code and the adverse action is based, in whole or in part, on any information contained in a consumer credit report, you have the right to obtain within 6O days a free copy of your consumer credit report from the consumer reporting agency who furnished us your consumer credit report and from any other consumer credit reporting agency which compiles and maintains files on consumers on a nationwide basis. You have the right as described by Section 1785. 16 of the California Civil Code to dispute the accuracy or completeness of any information in a consumer credit report furnished by the consumer credit reporting agency. - This Agreement encompasses the entire agreement of the parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. Any modifications to this Agreement must be made in writing and signed by both parties. ARBITRATION PROVISION GOVERNING LAW. This Note will be governed by the léws of the State of Californiaexcept to the extent governed by federal law. This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16 ("FAA"). WAIVER OF JURY TRIAL AND ARBITRATION PROVISION. Arbitration is a process in which persons with a dispute: (a) waive their rights to filefa lawsuit and proceed in court and to have a jury trial to resolve their disputes; and (b) agree, instead, to submit their disputes to a neutral third person (an "arbitrat_0r") for a decision. Each party to the dispute has an‘opportunity to present some evidence to the arbitrator. Pre-arbitration discovery may be limited. Arbitration proceedings are private and less formal than court trials. The arbitrator will issue a final and binding decision resolving the dispute, which may be enforced as av court judgment. A court rarely overturns an arbitrator's decision. We have a policy ofarbitrating all disputes with customers which cannot be resolved in a small claims tribunal, including the scope and validity of this Arbitration Provision and any right you may have to participate in an alleged class action. THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS: For purposes of this Waiver of Jury Trial and Arbitration Provision, the words "dispute" and "disputes" are given the broadest possible meaning and include, without limitation (a) a|| claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision and any claim or attempt to set aside this Arbitration Provision; (b) all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Loan Agreement, the information you gave us before entering into this Agreement, including the customer information application, and/or any past agreement or agreements between you and us; (c) all counterclaims, cross-claims and third- party claims; (d) all common law claims, based upon contract, tort, fraud, or other intentional torts; (e) all claims based upon a violation of any state or federal constitution, statute or regulation; (f) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (g) all claims asserted by you individually against us and/or any of our employees, agents, directors, officers, shareholders, governors, managers, members, parent company or affiliated entities (hereinafter collectively referred to as "related third parties"), including claims for money damages and/or equitable or injunctive relief; (h) all claims asserted on your behalf by another person; (i) all claims asserted by you as a private attorney general, as a representative and member of a class of persons, or in any other representative capacity, against us and/or related third parties (hereinafter referred to as "Representative Claims"); and/or (j) all claims arising from or relating directly or indirectly to the disclosure by us or related third parties of any non-public personal information about you. 1. You acknowledge and agree that by entering into this Arbitration Provision: (a) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; (b) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and (c) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED ‘ AGAINST US AND/OR RELATED THIRD PARTIES. 2. Except as provided in Paragraph 5 below, all disputes including any Representative Claims against us and/or related third parties shall be resolved by binding arbitration only on an individual basis with you. THEREFORE, THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION. 3. Any party to a dispute, including related third parties, may send the other party written notice by certified mail return receipt requested of their intent to arbitrate and setting forth the subject of the dispute along with the relief requested, even if a lawsuit has been filed. Regardless of who demands arbitration, you shall have the right to select any 0f the following arbitration organizations to administer the arbitration: the American Arbitration Association (1-800-778-7879) http://www.adr.org or JAMS (1-800-352-5267) http://www.jamsadr.com. The parties may also agree to select an arbitrator who resides within your federal judicial district who is an attorney, retired judge, 0r arbitrator registered and in good standing with an arbitration association, and arbitrate in accordance with such arbitrator's rules. The party receiving notice of arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. If you demand arbitration, you must inform us in your demand of the arbitration organization you have selected or whether you desire to select a local arbitrator. If related third parties or we demand arbitration, you must notify us within twenty (20) days in writing by certified mail return receipt requested of your decision to select an arbitration organization. If you fail to notify us, then we have the right to select an arbitration organization. The parties to such dispute will be governed by the rules and procedures of such arbitration organization applicable to consumer disputes, to the extent those rules and procedures do not contradict the express terms of this Arbitration Provision, including the limitations on the arbitrator below. You may obtain a copy of the rules and procedures by contacting the arbitration organization listed above. 4. Regardless of who demands arbitration, at your request we will pay your portion of the arbitration expenses, including the filing, administrative, hearing and arbitrator's fees ("Arbitration Fees"). Throughout the arbitration, each party shall bear his or her own attorneys' fees and expenses, such as witness and expert witness fees. The arbitrator shall apply applicable substantive law consistent with the FAA, and applicable statutes of limitation, and shall honor claims of privilege recognized at law. The arbitration hearing will be conducted in the county of your residence. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. In conducting the arbitration proceeding, the arbitrator shall not apply any federal or state rules of civil procedure or evidence. If allowed by statute or applicable law, the arbitrator may award statutory damages and/or reasonable attorneys' fees and expenses. If the arbitrator renders a decision or an award in your favor resolving the dispute, we will reimburse you for any Arbitration Fees you have previously paid. At the timely request of any party, the arbitrator shall provide a written explanation for the award. The arbitrator's award may be filed with any court having jurisdiction. 5. All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal's jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration. 6. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA. If a final non-appealable judgment of a court having jurisdiction over this transaction finds, for any reason, that the FAA does not apply to this transaction, then our agreement to arbitrate shall be governed by the arbitration law of the State of California. 7. This Arbitration Provision is binding upon and benefits you, your respective heirs, successors and assigns. This Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. This Arbitration Provision continues in full force and effect, even if your obligations have been paid or discharged through bankruptcy. This Arbitration Provision survives any cancellation, termination, amendment, expiration or performance of any transaction between you and us and continues in full force and effect unless you and we otherwise agree in writing. If any of this Arbitration Provision is held invalid, the remainder shall remain in effect. OPT-OUT PROCESS You may choose to opt out of the Arbitration Provision, but only by following the process set-forth below. If you do not wish to be subject to this Arbitration Provision, then you must notify us in writing within sixty (60) calendar days of the date of this Note at the following address: Arbitration Opt-Out, CashCall, Inc., One City Boulevard West, Suite 102, Orange, CA 92868. Your written notice must include your name, address, account number or social security number and a statement that you wish to opt out of this Arbitration Provision. {:7 YOU CERTIFY THAT YO'U HAVE READ AND UNDERSTAND THIS ARBITRATION PROVISION AND 3W: AGREE TO BE BOUND TO ITS TERMS. Payments. You have previously authorized and requested us to initiate an automated clearinghouse or other electronic funds transfer ("EFI'") from the bank account identified on your Application (the "Bank Account") to make each payment required hereunder on the day it is due. You also authorize us to initiate an EFF to or from the Bank Account to correct any erroneous payment and, in the event any EFT is unsuccessful, to attempt such payment up to two additional times. You understand that unsuccessful EFI's may result in charges by your bank, and you agree that we are not liable for such charges. We will notify you 10 days prior to any given transfer if the amount to be transferred varies by more than $50 from your regular payment amount. You also authorize us to withdraw funds from your account on additional days throughout the month in the event you are delinquent on your loan payments. Your request and authorization for us to initiate EFTs is entirely voluntary, and you may terminate this authorization by notifying us in writing via fax (888-775-6067) or email (customer.service@cashca|l.com) soon enough to allow us a reasonable opportunity to act on your termination (generally at least three business days in advance) By signing this promissory note, you also authorize us to obtain payments from your Bank Account by creating and processing paper checks (each a "Check") in place of initiating any or all of the EFTs described above. Each Check will be in the amount of the payment that would have been initiated as an EFI', and each Check will be deposited by us for processing on or after the same day that the payment would have been initiated as an EFT. We will type your name in the signature line of each Check, and you agree that your typed name constitutes your authorized signature. You acknowledge that an electronic image of each Check may be created and processed as a substitute check pursuant to the Check 21 Act. If you terminate your EFT authorization as described above, this authorization to create Checks will also terminate. You may also cancel by notifying your financial institution orally or in writing at least three business days before the scheduled date of any transfer. THIS LOAN CARRIES A VERY HIGH INTEREST RATE. YOU MAY BE ABLE TO OBTAIN CREDIT UNDER MORE FAVORABLE TERMS ELSEWHERE. EVEN THOUGH THE TERM OF THE LOAN IS 48 MONTHS, WE STRONGLY ENCOURAGE YOU TO PAY OFF THE LOAN AS SOON AS POSSIBLE. YOU HAVE THE RIGHT TO PAY OFF ALL OR ANY PORTION OF THE LOAN AT ANY TIME WITHOUT INCURRING ANY PENALTY. YOUWILL, HOWEVER, BE REQUIRED TO PAY ANY AND ALL INTEREST THAT HAS ACCRUED FROM THE FUNDING DATE UNTIL THE PAYOFF DATE. w YOU CERTIFY THAT NO PERSON HAS PERFORMED ANY ACT AS A BROKER IN CONNECTIONW WITH THE MAKING OF THIS LOAN. . YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE AMORTIZATION SCHEDULE ON ‘ “' THIS LOAN. Click Egg to view. YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS PROMISSORY NOTE 5m; AND DISCLOSURE STATEMENT AND AGREE TO BE BOUND BY ITS TERMS. YOU """" " UNDERSTAND AND AGREE THAT YOUR EXECUTION OF THIS NOTE SHALL HAVE THE SAME LEGAL FORCE AND EFFECT AS A PAPER CONTRACT. This Loan Is Made Pursuant To The California Finance Lender Law, Division 9 (commencing with Section 22000) of the Financial Code. FOR INFORMATION, CONTACT THE DEPARTMENT OF BUSINESS OVERSIGHT, STATE OF CALIFORNIA, LICENSE NO. 603-8780. '
