StipulationCal. Super. - 6th Dist.August 11, 2020Hunt 0 IIenriques, Attorneys at Law Michael S. Hunt, Esq. //99804 151 Bernal Road Suite 8 San Jos6 CA 95119-1306 Telephone: (800) 680-2426 Facsimile: (408) 362-2299 Attorneys for Plaintiff 7 I 8 10 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN SUPKRIOR COURT - LIIVIITEiD CIVIL CASEi 12 nH i3~Q 8 "u($ 15 17 vs. Plaintiff, SAMANTHA ELLIS, Defendant 11 CITIBANK, N.A., Case No. 20CV369346 STIPULATION AGREiKMKNT JURISDICTION REi TAINEiD UNDEiR CODE OF CIVIL PROCKDURK ti 664,(i 18 IT IS HEREBY STIPULATED by and between the, parties hereto: 1. Samantha Ellis ("Defendant") stipulates to the entty of judgment in favor of CITIBANK, 20 21 22 23 24 25 26 27 N.A. ("Plaintiff') in the principal sum of $3,456.32 plus court costs pursuant to a memorandum of costs (which will be limited to Plaintiff's fee for filing the complaint; Plaintiffs fee for service of process; fees (including any reporter fee that the court may require at tile tlnlc a lriotion or applicatloii is filed) for any motion, application, and/or order that has been 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. Plaintiff 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 $3,456.3? is the accurate Page1of7 Settlement Agreement (Code of'Civil procedure ~s 664.6) laaAvs7 co I Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/13/2021 11:13 AM Reviewed By: R. Burciaga Case #20CV369346 Envelope: 6229046 20CV369346 Santa Clara - Civil R. Burciaga 10 12 s)56j 15 35~g g f I~ 16 17 18 20 21 22 23 26 27 28 liquidated amount owed by Defendant for the accoiuit number ending in 0221 (the Accoiilit ). 3. Notwithstanding Defendant's agreement to have judgment entered against him/her, Plaintiff will not request that judgment be entered so long as Defendant is not in default with the payment plan set forth herein. 4. Defendant agrees to pay to Plaintiff a down payment of $385.00 on or before September 25, 2020 followed by a minimum of $ 185.00 on or before the 25th day of each and every month conunencing in October, 2020 followed by a, final payment of $ 111.32 on or before Pebruiuy 25, 2022, until the Defendant has paid the Judgment Amount. These consecutive monthly installments totaling $3456.32 timely received, will constitute full satisfaction of the7 Judgment Amount. If Defendant timely makes 12 of the 18 installment payments when due, totaling $2,420.00, Defendant may deduct the remaining paymeuts, totaling $ 1,036.32, fiom the remaining balance then due. Time is of the essence with respect to all payments. If Defendant fails to maire full and timely payment of any installment or if any payment is reversed, then Defendant will not be entitled to any deduction, the full remaining balance will be due, and Plaintiff shall be entitled to enter judgment for the Judgment Amount plus court costs pursuant to a memorandum of costs (which will be limited to Plaintiff's fce for filing the complaint; Plaintiff's fee for service of process; fees (including any reporter fee that the court may require at the time a motion or application is filed) for any motion, application, and/or order that has been granted, including the motion or application to enl'orce this Agreement and any order fee required to file the attached proposed ordei; and Defendant's first appearance fee if Plaintiff advances that lee in order to file this Agreement); less credit for payments made in good funds before the time of default. 5. Acceptance of any one or more late or partial payments by Plaintiff or anyone acting on Plaintiips behalf shall neither constitute a waiver of, nor in any way prejudice, PlaintifTs right to demand and receive timely payments thereafter or to declare a default hereunden PIaintifPs failure to declare a default under this Stipulation when so eniitled, shall neither constitute a waiver of, nor in any way prejudice, Plaintiff's right to declare a default ooosvic i &pi. Page 2 of 7 Seillcment Agreen'ient (Code of Civil Procr dure ij 664.6) l 4242s /. Oo I thereafter. 6. Payments due as stipulated above shall be made payable to CITIBANK, N.A., notated with Defendant's account number and sent to the following payment address: Hunt A Henriques 151 Bernai Road Suite 8 San Jose CA 95119-1306 10 12 8 &gg(13 8I&ijÃj 15 8@( u~i„q~b,& 16 17 18 19 20 21 22 23 7. The Parties jointly request that this court retain jurisdiction undm Code of Civil Procedure I'1 664.6. The Parties further request that this court vacate all future hearings and stay all further action on this case pending completion of the Parties'espective obligations under this Stipulation. If and only if local rules so require, the Parties, by their signaiures below, authorize the court to dismiss this case without prejudice. To the extent that the court dismisses the case without prejudice aud pursuant to Code of Civil Procedure ( 664,6, the court shall retain jurisdiction. The Parties further agree that in the event of a default in payments and at the request of Plaintiff, the couit shall reopen the case without notice to Defendant, vacate any dismissal, and enter judgment for the Iudgment Amount plus any motion and/or order fee(s) required 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. The Parties also agree to, and do, voluntarily waive all statutes of limitation and any other legal impediment or bar to this court from continuing or resuming jurisdiction of this case including, but not limited to, waiver of rights and provisions of California Code of Civil Procedure )II 583,160, 583.210, 583.310, 583.360, 583.410, 583,420, and all other provisions of California law regarding dismissal of actions for failure to prosecute or to bring an action to trial within any time limit. 24 8. If Defendant satisfies his/her payinent obligations hereunder, then Plaintiff shall dismiss this 27 28 case with prejudice after the final payment has been determined to be in good funds. If the court has already dismissed the case without prejudice, then it will be sufficient for Plaintiff to let the dismissal stand. Except as otherwise provided herein, each of the Parties agree to bear the expense of its own attortiey fees and court costs in connection with the matters e 5 664.6) 1424257.00 I 10 12 ~uis y$ &~ 16 17 18 19 25 26 27 addressed herein. Further, if the case is dismissed with prejudice, then Defendant will not be considered a prevailing party. 9. The Patties agree that a commissioner of the court may hear any proceeding arising fiom this Stipulation. 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's behalf and on behalf of all of Defendant's agents, assigns, heirs, successors, servants, and representatives, including attorneys, releases and discharges Plaintiff and al! of its affiliates, parents, and/or subsidiary corporations, account servicers and sub-servicers, its representatives, managing partners, officers, directors, shareholders, employees, agents, assigns, predecessors, successors, servants, insurers, licensees, and representatives including attorneys (the "Releasees") from any and all known or unknown claims, demands and causes of action and claims of any kind (including any claims for damages, interest, fees, 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, promissory notes, mortgages, liabilities, or other financial 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 Releasees, and that any such claims, complaints, affidavits, arbitrations, 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 Plair.tiff. 12. Upon timely receipt and full negotiation of the payments as stated above, Plaintiff releases and discharges Defendant in connection with any claims it may have relating to the Account, y other accounts, agreements, debts, loans, r financial obligations that Defendant may Clvll 1 locedul c (1 664.6) i 424257.00 i 13. Defendant knowingly waives Defendant's rights under Section 20-7-11 of South Dakota 2 Codified Laws, if applicable, which would otherwise bar relinquishment of claims that a 3 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 I Section 1542. That section states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or 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 the debtor or released pasty." Defendant acknowledges that the )Rg~Q ~S 9 10 12 13 14 15 16 17 significance and consequence of this waiver is that even if he 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. Turthermore, Defendant acknowledges that he or she intends that consequence even as to claims for damages that may exist as of the date this 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 of'whether his or her lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause, Said waiver is specific to the Account and the above- 18 captioned matter and does not extend to any other accounts or other fmancial obligations that 19 Defendant may have with any Releasee. 20 15. Plaintiff expressly waives and relinquishes all rights and benefits that it has or may have 21 under California Civil Code Section 1542. That section states: "A general release does not 22 extend to claims that the creditor or releasing party does not know or suspect to exist in his or 24 25 27 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 the debtor or released party." Plaintiff acknowledges that the significance and consequence of this waiver 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. I"urtherniore, Plaintiff acknowledges that it intends that consequence even as to claims for damages that may exist Page 5 of'7 Seri lcment Agreement (Code vl Civil Procedure li 664.6) 12 ckg~f 15 17 18 20 21 22 24 28 as of the date this Stipulation is executed, but which it does not lcnow exists, and which, if Icnown, would materially affect its decision to execute this Stipulation, regardless of whether its lack of knowledge 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. Plaintiffs waiver is not effective until all payments owed by Defendant undei this ! Stipulation have been paid. 16. The negotiations leading to the terms of this Stipulation and any and all facts related to the Matters Released are confidential. The Parties agree not to disclose the above to any person except as may be necessary for the preparation of financial statements or tax returns, or as ~may be required by law, or by valid Order of Court. Ifany Party or person acting on behalfof a Party hereto receives an inquiry about this Stipulation, such Paly will respond only that "the matter has been resolved." Nothing in this Stipulation shall, however, be deemed to interfere with each Party's obligation to report transactions with appropriate govenimental, taxing, and/or registering agencies or to comply with the law or a valid Court Order. In addition, nothing in this Stipulation prohibits or limits the Parties or their counsel fiom initiating communications directly with, responding to any inquiiy fi'om, volunteering information to, or providing testimony before, the Office of the Comptroller of the Currency, Bureau of Consumer Financial Protection, Secmities and Exchange Commission, Department of Justice, any other self-regulatory organization or any other governnrentak law enforcement, or regulatory authority, regarding this Stipulation and its underlying facts and circumstances, or any reporting of, investigation into, or proceeding regarding suspected violations of law, and that the Parties are r ot required to advise or seek permission before engaging in any such activity. Fmthermore, Defendant understands that this Stipulation may be filed with the court. ant that tliey have not sold, transferred, conveyed, assigned, or. t, title, or interest in any of'be Matters Released or this ty, and thai the Patties are not aware oF any other person or Page 6 of 7 ment (Code of Civil Procedure ('64.61 I 424257.00 I ~ I 10 12 1)Pg(13 17 entity who may have or who has asselted or can assert a right, title, or interest in any of the Matters Released or this Stipulation. The Parties further represent and warrant that they are duly authorized and fully capable of executing this Stipulation and understand its contents. 18. Defendant acknowledges that Defendant has not sought, received or relied on Plaintiff, PlaintiQ'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 delivery or payment of any consideration identified herein and Plaintiff may be required to file certain 1099 or other 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 ofconsideration provided herein. 19. Defendant acknowledges having had the opportunity to consult with legal counsel of kds/her choice concerning Defendant's legal rights with respect to the form and coptent of this Sti ulation and the advisability of executing it. Defendant has read this Stipulation and islp executing it voluntarily and not under duress of any kind. 20. This Stipulation may be signed in counterparts, and the counterparts together shall constitute one document. Counterparts including faxed, scanned, or photocopied signatures shall be as valid as an original. 18 21. This Stipulation contains the entire agreement of the Parties. There are no oral or written 19 20 agreements ol'nderstandings not contained herein. 23 24 Dated: 0 = i (/';-.'(, Q( 26 21 f Dated: Jll 1 j lool D 22 F~&00/4~ SAMANTHA ELLIS~ Defendant "/It rt:(&/iI~ / C'tb lkNA' ve N THOMAS 27 j~ 664.6) I 424257.00 I
