Document OtherCal. Super. - 6th Dist.August 11, 2020Hunt 6? Henriques, Attorneys at Law Michael S. Hunt, Esq. 499804 151 Bernal Road Suite 8 San Josd CA 95119-1306 Telephone: (800) 680-2426 Facshnite: (408) 362-2299 Attorneys for Plaintiff 10 SUPERIOR COURT OF CALIFORNIA& COUNTY OF SANTA CLARA DOWNTOWN SUPERIOR COURT - LIMITED CIVIL CASE gpss 5 11 CITIBANK, N.A., 12- Vs. Plaintiff, CECILIA M ALVARADO, Defendant Case No. 20CV369345 STIPULATION AGREEMENT JURISDICTION RETAINED UNDER CODE OF CIVIL PROCEDURE b 664.6 17 18 IT IS HEREBY STIPULATED by and between the parties hereto: 19 1. Cecilia M Alvarado ("Defendant") stipulates to the entry of judgment in favor of 20 21 22 24 25 26 CITIBANK N.A. ("Plaintiff') in the principal sum of $6,866.29 plus court costs pursuant to I a memorandum of costs (which will be limited to Plaintiffs fee for filing the complaint; Plaintiff's fee for service of process; fees (including «ny reporter fee that the couit may require at the time a motion or application is filed) for any motion, application, and/or order that has beau granted, including the motion or application to enforce this Agreement and any order fee required to file the attached proposed order; and Defendant's first appearance fee if Plaiutilf advances that fee in order to file this Agreement); less credit for payments made in good funds before the time of default. 28 2. Plaintiff and Defendant (together, the "Parties") agree that $6,866.29 is the accurate Page I of 7 Senlement Agremnent (Code of Civil ptocedure tj 664,6)DD00O2VX I 3FL 1423759.001 Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/13/2021 11:50 AM Reviewed By: L. Nguyen Case #20CV369345 Envelope: 6229623 20CV369345 Santa Clara - Civil L. Nguyen 1 liquidated amount owed by Defendant for the account number ending in 9233 (the 2 "Account"). 3 3. Notwithstanding Defendant's agreement to have judgment enteied against him/her, piaintiiff 4 will not request that judgment be entered so long as Defendaut is not in default with the 5 payment plan set forth herein. 6 4. Defendant agrees to pay to Plaintiff a down payment'f $274.00 on or before August 27, 7 2020 followed by a minimum of$268 00 on or before the 27th day of each and every month 8 commencing in September, 2020 followed by a final payment of $ 160.29 on or before 9 September 27, 2022, until the Defendant has paid the Judtpnent Atnount. These consecutive 10 monthly installments, totaling $6,866.29, timely received, will constitute full satisfaction of i the Judgment Ainount. If Defendant timely makes 18 of the 26 installment payments when 12 due, totaling $4,830.00, Defendant may deduct the remaining payments, totaling $2,036.29, 13 fiom the remaining balance then due. Time is of the essence with respect to all paynients, If 14 Defendant fails to make full and timely payment of any installment or if any payment is 15 reversed, then Defendant will not be entitled to any deduction, the full remaining balance will 16 be due, and plaintiff shall be entitled to enter judgment for the Judgment Amount plus court 17 costs pursuant to a memorandum of costs (which will be limited to PlaintifFs fee for filing 18 the complaint; Plainti(Fs fee for service of process; fees (including any reporter fee that the 19 court may require at the time a motion or application is filed) for any motion, application, 20 and/or order that has been granted, including the motion or application to enforce this 21 Agreement and auy order fee requimd to file the attached pmposed order; and Defendant*s 22 first appearance fee ifPlaintiff advances that fee in order to Gle this Agreement); less cmdit 23 for payments made in good fuuds before the time ofdefault. 24 5. Acceptance of any one or more late or partial payments by-Plaintiff or anyone acting-on 25 plaintifFs behalf shall neither constitute a waiver of, nor in any way prejudice, plaintiffs 26 right to demand and receive timely payments thereafter or to declare a default hereunder. 27 Plaintiffs failure to declare a default under this Stipulation when so entitled, shall neither 28 constitute a waiver of, nor in any way prejudice, Piaintiff'age 2 of 7 Settlement Agreemeni (Code of Civil Procedui oriooozvK I ipi. I thereaiter. 2 6. Payments due as stipulated above shall be made payable to CITIBANK, N.A., notated witli 3 Defendant's account number and sent to tlie following payment address: Hunt dpi Hcnriqucs 5 151 Bcrnal Road Suite 8 San Josd CA 95119-13066 7 7. The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure 8 tj 664.6. The Parties further request that this court vacate all future hearings and stay all 9 further action on this case pending completion of the Pmties'espective obligations under 10 this Stipulation. If and only if local mles so require, the Parties, by their signatures below, / 11 authorize the court to dismiss this case without prejudice. To the extent that the court 12 c $ 8~OA, 13ng~ )$ g fa)Re 17 dismisses the case without prejudice and pursuant to Code of Civil Procedure tj 664.6, the couit shall retain jurisdiction. The parties fuidhcr agree that in the event of a default in payments and at the mquest of PlaintifF, the court shall reopen the case without notice to Defendant, vacate any dismissal, and enter judgment, For the Judgment Amount plus any motion and/or order fee(s) mquired by the court, less credit for payments made. The Parties further agree that this Stipulation may at Plaintiff's option be enforced by independent action. 18 The Parties also agree to, and do, voluntarily waive all statutes of Ii&rdtation and any other 19 legal impediment or bar to tins court from continuing or resuming juiisdiction of this case 20 including, but not limited to, waiver of'rights and provisions of California Code of Civil 21 Procedure tjtj 583.160, 583.210, 583.310, 583.360, 583 410, 583A20, and all other provisions 22 of California law regarding dismissal of actions for failure to prosecute or to bring an action 23 to trial within any time limit. 24 8. If Defendant satis6es his/her payment obligations hereundei, then Plaintiff shall dismiss this 25 case with prejudice after the final payment has been determined to be in good funds. If the 26 court has already dismissed the case without prejudice, then it will be sufficient for plaintiff 27 to let the dismissal stand. Except as otherwise provided herein, each of the Parties agree to 28 bear the expense of its own attorney fees and court costs in connection with the matters Page 3 of 7 Settlement Agreement (Code of Civil Procedure 5 664.6)DD0002VK ) Jt'L i423759.001 addressed herein. Fiu ther, if the case is diiunissed with prejudice, then Defendant will not be considered a prevailing party. 3 9. The Pattjes agree that a commissioner of the cutup may hear any proceeding arising fi'om this Stipulation. 10. Effective as of the date Defendant executes this Stipulation, Defendant„on Defmidani's behalf and on behalf of all of Defendant's agents, assigns, heirs, successors, servants, and 7 representatives, including attorneys, releases and discharges Plaintiff and all of its affiliates, pments, «nd/or subsidiary coiporations, account set3 icers and sub-servicers, its representatives, managing partners, officers, directors, shareholdem, employees, agents, 10 12 a/SII ugy 16 17 18 19 20 21 22 23 24 26 27 28 assigns, predecessors, successors, servants, insurers, licensees, and representatives including attorneys (the "Releasees") from any and all known or imknown claims, deniands and causes of action and claims of any kind (including any claims for damages; interest, 1'ees, and/or attorney fees) that Defendant may have with respect to the Account, including without limitation all claims that were asserted or could have been asserted in the above-captioned matter (the "Matters Released*')., This release by Defendant does not extend to any other accounts, agreements, debts, loans, promissoiy notes, mortgages, liabilities, or other tinancial obligations that Defendant may have with any Releasee. 11. Except as otherwise set forth herein, Defendant agrees that Defendant will not file any claims, complaints, affidavits, arbitrations, or proceedings with respect to the Matters Released against any of the Releasecs, and that any such claims, complaints, afiidaviis, arbiirations, or proceedings filed prior to the execution of this Stipulation shall promptly be dismissed or withdrawn with prejudice. This Stipulation is intended to resolve forever the entire disagreement between Defendant and Plaintiff. 12. Upon timely receipt and full negotiation of the payments as-stated above, Plaintitf-releases and discharges Defendant in connection with any claims it may have relating to the Account. This release by Plaiutiff does not extend to any other accounts, agreements, debts, loans, pmmissoiy notes, mortgages, liabilities, or other financial obligations that Defendant may have with any Releasee. DD0002VK i JFL Page 4 of7 Settlement Agreement (Code of Civil Procedure 5 664.6) 1423759.001 1 13. Defendant knowingly waives Defendant's rights under Section 20-7-11 of South Dakota Codified Laws, if applicable, which would otherwise bar relinquishment of claims that a creditor does not know or suspect to exist. 14. Effective as of the date Defendant executes this Stipulation„Defendant expressly waives and relinquishes all rights and benefits that he/she has or may have under California Civil Code Section 1542. That section states: "A general release does not extend to claims that the l creditor or releasing patty does not laiow or suspect to exisi. in his or her favor at the time of I executing the release and that, ifknown by him or her, would Itave materially affected his or 10 12 6 $ 1 3 17 19 20 21 25 26 27 28 her settlement with the debtor or mleased party." Defendant acknowledges that the significance and consequence of this waiver is that even ifhe or she should eventually suffer additional damages arising out of the Account, or the above-referenced matter, he or she will not be permitted to make any claim- for those damages. Furthermore, Defendant acknowledges that he or she intends that consequence even as to clauns for damages that may exist as of the date tins Stipulation is executed, but which he or she does not know exist, and which, if known, would materially affect his or her decision to execute this Stipulation, regardless ofwhether his or her lack ofknowledge is the result of ignorance, oversight, error, negligence, or any other cause. Said waiver is specific to the Account and the above- captioned matter and does not extend to any other accounts or other financial obligations that Defendant may have with any Releasee. 15, Plaintiff expressly waivcs and relinquishes all rights and benefits that it ives or inay have under California Civil Code Section 1542 That section states: "A general release does not extend to claims that the creditor or releasing patty does not know or suspect to exist in his oi. her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with t¹ debtor or released party." Plaintiff acknowledges that the significance and consequence of this waivn is that even if it should eventually suffer additional damages arising out of the Account, or the above-referenced matter, it will not be permitted to make any claim for those damages. Furthermore, Plaintiff ~acknowledges that it intends that consequence even as to claims for damages that may exist Page 5 of 7 Settlement Agreement (Code of Civil Procedure ) 664.6)DD0002VK l 3FL I423759.00I 1 as of the date this Stipulation is executed, but which it does not know exists, and which, if 2 known, would materially affect its decision to execute this Stipulation, regardless of whether 3 its lack of Ioiowledge is the result of ignorance, oversight, error, negligence, or any other 4 cause. Said waiver is specific to the Account and the above-captioned matter and does not extend to any other accounts or other financial obligations that Defendant inay have wi'th any 6 Releasee. Plaintiff's waiver is not effective until all payments owed by Defendant under this 7 Stipulation have been paid; 8 16. The negotiations leading to the terms of this Stipulation and any and all facts related to the 9 Matters Released are confidentiaL The Patties agree not to disclose tlie above to any person 10 except as may be necessary for the preparation of financial statements or tax returns, or as 11 may be required by law, or by valid Order ofCourt. If any Party or person acting on behalf of 12 a Party hereto receives an-iuquhy about this Stipulation, such Party will respond only that 13 "the matter has been resolved." Nothing in this Stipulation shall, however, be deemed to 14 interfere with each Party's obligation to report transactions with appropriate governmental, 16 . taxing, and/or registering agmicies or to comply with the law or a valid Court Order. In 16 addition, nothing in this Stipulation prohibits or limits the Parties or their counsel fiom 17 18 initiating communications directly with, responding to any inquiry from, vohmteering ) information to, or providing testimony before, the Office of the Comptroller of the Currency, 19 Bureau of Consumer Financial Protection, Securities aud Exchange Commission, 20 Department of Justice, any other self-regulatory organization or any other governmental, law 21 enforcement, or regulatory authority, regarding this Stipulation and its underlying facts and 22 circumstances, or any reporting of, investigation into, or proceeding regarding suspected 23 violations of law, and that the Parties are not required to advise or seek peiinission before 24 engaging in any suclr activity. Furthermore, Defendant understands that.this Stipulation may 25 be filed with the court. 26 17. The Parties represent and warrant that they have not sold, transferred, conveyed, assigned, or 27 otherwise disposed of any right, title, or interest in any of the Matters Released or this 28 Stipulation to any person or entity,'nd that the Parties are not aware of any other person or Page 6 of 7 Settlement Agreement (Code of Civil Procedure ) 664.6)DD0002VK l JFL I lL73759 00 I entity who may have or who has asserted or can assert a right, dtle, or interest in any of the Matters Released or this Stipulation. The Pm ties further represent and warrant that they are duly authorized and fully capable of executing this Stipulation and understand its contents. 4 18.Defendant aclcnowledges that Defendant has not sought, received or relied on Plaintiff, Plaintiff's counsel or any agent of Plaintiff for any tax advice of any kind with respect to the effects of this Stipulation, the Matters Released, or the degve&y or payment of any consideration identified herein and Plaintiff may be required to file certain 1099 or other ~ 10 information reports with the United States Internal Revenue Service. Defendant has been advised to consult with tax counsel of Defendant*s own choice to seek legal and tax advice regarding the taxability or non-taxability of consideration provided herein. 11 19. Defendant aoknowledges having had the opportunity to consult with legal counsel of his/her 12- )&)Inc 14 choice concerning Defendant's legal rights with respect to the form and content ol'his Stipulation and the advisability of executing it. Defendant has read this Stipulation and is executing it voluntarily and not under duress of any kind. 20. This Stipulation may be signed in countetparts, and the counterparts together shall constitute one document. Counterparts including faxed, scanned, or photocopied signatures shall be as valid as an original. 18 2!. This Stipulation contains the entire agreement of the Parties. There are no oral or written 19 agreements or understandings not contained herein. - 24 25 20 21 Dated: 22 11/17/2020 Dated: Lum 44ra.n M CECILIA M ALVARADO Citibank, N,A. Legal Representative Name: William Peck 27 28 Page 7 of 7 Settlement Agreement (Code of Civil Procedure ti 664.6)
