Request Judicial NoticeCal. Super. - 6th Dist.January 13, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/23/2021 3:52 PM Reviewed By: M. Sorum Case #21CV376236 Envelope: 6709533 21CV376236 Santa Clara - Civil M. Sorum ZWICKER 8c ASSOCIATES, P.C. 1320 WILLOW PAss ROAD, SUHE 730 CONCORD, CALIFORNIA 94520 TELEPHONE: 925.689.7070 FACSIMILE: 925.689.7077 QQUI-hUJNH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JANET L. BROWN (State Bar No. 208602) JESSICA M. GARCIA (State Bar No. 314298) MARTIN HOFFMANN (State Bar No. 248141) ZWICKER & ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 Telephone: (925)689-7070 Facsimile: (925)689-7077 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY 0F SANTA CLARA SAN JOSE JUDICIAL DISTRICT ~ LIMITED CIVIL CASE US BANK NATIONAL ASSOCIATION, No. 21CV376236) ) Plaintiff, 3 REQUEST FOR JUDICIAL NOTICE VS- ) Date: TBA ) Time: TBA ) Dept: TBA BOBBY KAMER AKA BOBBY M ) KAMER, et a1., ) Date Action Filed: 1/1 3/21 ) Trial Date Set: 11/15/21 Defendant. ) ) ) PlaintiffUS BANK NATIONAL ASSOCIATION respectfully requests that this court take judicial notice 0fJN 1 and JN2, inclusive, pursuant t0 Evidence Code § 452, subparts (a), (b), (C), (gland (h)- JNl: 15 USC Section 1666 JN2: 12 CFR Section 202.12. Dated: V/J- 5/9 / ZWIC R & ASSOCIATES, P. C. A La Firm Engaged in Debt Collection By: JANET L. BROWN, Esq. Attorneys for Plaintiff 1 REQUEST FOR JUDICIAL NOTICE EXHIBIT JN-l EXHIBIT JN-l TO PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE TITLE 15. COMMERCE AND TRADE CHAPTER 41. CONSUMER CREDIT PROTECTION CONSUMER CREDIT COST DISCLOSURE CREDIT BILLING 15 USCS § 1666 § 1666. Correction ofbilling errors (a) Written notice by obligor to creditor; time for and contents 0f notice; procedure upon receipt of notice by creditor. If a creditor, Within sixty days afier having transmitted to an obligor a statement 0f the obligor's account in connection with an extension of consumer credit, receives at the address disclosed under section 127(b)(10) f 1 5 USCS S 1637(b)(1 0)] a written notice (other than notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section 127(a)(7)) [15 USCS § 163 7ga[(7)]) from the obligor in Which the obligor-- (1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor, (2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and (3) sets forth the reasons for the obligor's belief (to the extent applicable) that the statement contains a billing error, the creditor shall, unless the obligor has, after giving such written notice and before the expiration 0f the time limits herein specified, agreed that the statement was correct-- (A) not later than thirty days after the receipt of the notice, send a written acknowledgment thereof to the obligor, unless the action required in subparagraph (B) is taken within such thirty-day period, and (B) not later than two complete billing cycles of the creditor (ifi no event later than ninety days) after the receipt of the notice and prior to taking any action to collect the amount, or any part thereof, indicated by the obligor under paragraph (2) either-- (i) make appropriate corrections in the account of the obligor, including the crediting of any finance charges on amounts erroneously billed, and transmit to the obligor a notification of such corrections and the creditor's explanation of any change in the amount indicated by the obligor under paragraph (2) and, if any such change is made and the obligor so requests, copies of documentary evidence of the obligor's indebtedness; or (ii) send a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account 0f the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor‘s indebtedness. In the case of a billing error Where the obligor alleges that the creditor's billing statement reflects goods not delivered to the obligor or his desiglee in accordance with the agreement made at the time of the transaction, a creditor may not construe such amount to be correctly shown unless he determines that such goods were actually delivered, mailed, or otherwise sent to the obligor and provides the obligor with a statement of such determination. After complying With the provisions of this subsection With respect to an alleged billing error, a creditor has no further responsibility under this section if the obligor continues to make substantially the same allegation with respect to such error. (b) Billing error. For the purpose of this section, a "billing error" consists of any of the following: (1) A reflection on a statement of an extension of credit which was not made to the obligor or, if made, was not in the amount reflected on such statement. (2) A reflection on a statement of an extension 0f credit for Which the obligor requests additional clarification including documentary evidence thereof. (3) A reflection on a statement of goods or services not accepted by the obligor 0r his designee or not delivered to the obligor or his designee in accordance With the agreement made at the time of a transaction. (4) The creditor's failure to reflect properly on a statement a payment made by the obligor 0r a credit issued to the obligor. (5) A computation error or similar error of an accounting nature of the creditor on a statement. (6) Failure to transmit the statement required under section 127(b) of this Act [15 USCS § 163 7gb1] to the last address 0f the obligor which has been disclosed to the creditor, unless that address was furnished less than twenty days before the end of the billing cycle for Which the statement is required. (7) Any other error described in regulations of the Board. (c) Action by creditor to collect amount or any part thereof regarded by obligor to be a billing error. For the purposes of this section, "action t0 collect the amount, 0r any part thereof, indicated by an obligor under paragraph (2)" does not include the sending of statements of account, which may include finance charges on amounts in dispute, to the obligor following written notice from the obligor as specified under subsection (a), if-- (1) the obligor's account is not restricted or closed because of the failure of the obligor to pay the amount indicated under paragraph (2) of subsection (a), and (2) the creditor indicates the payment 0f such amount is not required pending the creditor's compliance with this section. Nothing in this section shall be construed to prohibit any action by a creditor t0 collect any amount which has not been indicated by the obligor to contain a billing error. (d) Restricting or closing by creditor of account regarded by obligor as containing a billing error. Pursuant to regulations of the Board, a creditor operating an open end consumer credit plan may not, prior to the sending of the written explanation or clarification required under paragraph (B)(ii), restrict 0r close an account With respect t0 Which the obligor has indicated pursuant t0 subsection (a) that he believes such account t0 contain a billing error solely because of the obligor's failure to pay the amount indicated to be in error. Nothing in this subsection shall be deemed to prohibit a creditor from applying against the credit limit on the obligor's account the amount indicated to be in error. (e) Effect of noncompliance With requirements by creditor. Any creditor Who fails to comply with the requirements of this section or section 162 [15 USCS § 1666a] forfeits any right to collect from the obligor the amount indicated by the obligor under paragraph (2) of subsection (a) of this section, and any finance charges thereon, except that the amount required to be forfeited under this subsection may not exceed $ 50. EXHIBIT JN-2 EXHIBIT JN¥2 TO PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE TITLE 12 -,- BANKS AND BANKING CHAPTER II -- FEDERAL RESERVE SYSTEM SUBCHAPTER A -- BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM PART 202 -- EQUAL CREDIT OPPORTUNITY ACT (REGULATION B) REGULATION B (EQUAL CREDIT OPPORTUNITY) 12 CFR 202. 1 2 § 202.12 Record retention. (a) Retention ofprohibited infomation. A creditor may retain in its files information that is prohibited by the Act or this regulation for use in evaluating applications, without violating the Act or this regulation, if the information was obtained: (1) From any source prior to March 23, 1977; (2) From consumer reporting agencies, an applicant, 0r others Without the specific request of the creditor; or (3) As required to monitor compliance With the Act and this regulation or other federal 0r state statutes or regulations. (b) Preservation of records -- (1) Applications. For 25 months (12 months for business credit, except as provided in paragraph (b)(S) of this section) after the date that a creditor notifies an applicant of action taken on an application or of incompleteness, the creditor shall retain in original form or a copy thereof: (i) Any application that it receives, any information required to be obtained concerning characteristics 0f the applicant to monitor compliance with the Act and this regulation or other similar law, and any other wn'tten or recorded information used in evaluating the application and not returned to the applicant at the applicant's request; (ii) A copy of the following documents if furnished to the applicant in written form (or, if furnished orally, any notation or memorandum made by the creditor): (A) The notification of action taken; and (B) The statement 0f specific reasons for adverse action; and (iii) Any written statement submitted by the applicant alleging a Violation of the Act 0r this regulation. (2) Existing accounts. For 25 months (12 months for business credit, except as provided in paragraph (b)(S) of this section) after the date that a creditor notifies an applicant of adverse action regarding an existing account, the creditor shall retain as to that account, in original form or a copy thereof: (i) Any written or recorded information concerning the adverse action; and (ii) Any written statement submitted by the applicant alleging a violation of the Act or this regulation. (3) Other applications. For 25 months (12 months for business credit, except as provided in paragraph (b)(5) of this section) after the date that a creditor receives an application for Which the creditor is not required to comply with the notification requirements of § 202.9, the creditor shall retain all written or recorded information in its possession concerning the applicant, including any notation of action taken. (4) Enforcement proceedings and investigations. A creditor shall retain the information beyond 25 months (12 months for business credit, except as provided in paragraph (b)(5) of this section) if the creditor has actual notice that it is under investigation or is subj ect to an enforcement proceeding for an alleged Violation of the Act or this regulation, by the Attorney General of the United States or by an enforcement agency charged With monitoring that creditor's compliance with the Act and this regulation, or if it has been served With notice of an action filed pursuant to section 706 0f the Act and § 202.17 0f this regulation. The creditor shall retain the information until final disposition of the matter, unless an earlier time is allowed by order of the agency or court. (5) Special rule for certain business credit applications. With regard to a business that had gross revenues in excess 0f $ 1 million in its preceding fiscal year, 0r an extension of trade credit, credit incident to a factoring agreement, or other similar types ofbusiness credit, the creditor shall retain records for at least 6O days after notifying the applicant of the action taken. If within that time period the applicant requests in writing the reasons for adverse action or that records be retained, the creditor shall retain records for 12 months. (6) Self-tests. For 25 months after a self-test (as defined in § 202.15) has been completed, the creditor shall retain all written or recorded information about the self-test. A creditor shall retain information beyond 25 months if it has actual notice that it is under investigation or is subject to an enforcement proceeding for an alleged Violation, or if it has been served with notice 0f a civil action. In such cases, the creditor shall retain the information until final disposition of the matter, unless an earlier time is allowed by the appropriate agency or court order. (7) Prescreened solicitations. For 25 months after the date on Which an offer 0f credit is made to potential customers (12 months for business credit, except as provided in paragraph (b)(5) of this section), the creditor shall retain in original form 01' a copy thereof: (i) The text 0f any prescreened solicitation; (ii) The list of criteria the creditor used t0 select potential recipients of the solicitation; and (iii) Any correspondence related t0 complaints (formal or infonnal) about the solicitation.
