Answer Limited 10K and 25KCal. Super. - 6th Dist.March 18, 2021Hunt & Henriques, Attorneys at Law Donald Sherrill, Esq. ¹266038 7017 Realm Dr. San Jose CA 95119 Telephone: (800) 680-2426 Facsimile: (408) 362-2299 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN SUPERIOR COURT - LIMITED CIVIL CASE N lit 19 Zci t P a N Pl O 0D DCO W Z0 o V'2 Plaintiff, 13 vs. 14 CHARLES F FRISCO, 15 Defendant 10 11 Department Stores National Bank, Case No. 21CV379127 STIPULATION AGRKEMKNT JURISDICTION RETAINED UNDFR CODE OF CIVIL PROCEDURE FJ 6i64.6 17 18 IT IS HEREBY STIPULATED by and between the parties hereto; 19 1. Charles F Frisco ("Defendant") stipulates to the entry of judgment in favor of Department 20 Stores National Bank ("Plaintiff') in the principal sum of $ 13,205.10 plus court costs 21 pursuant to a memorandum of costs (which will be limited to Plaintiff"s fee for filing the 22 coniplaint; Plaintiff's fee for service of process; fees (including any reporter fee that thc court 23 may require at the time a motion or application is filed) for any motion, application, and/or 24 order that has been granted, including the motion or application to enforce this Agreement 25 and any order fce required to file the attached proposed order; and Defendant's lirst 26 appearance fee if Plaintiff advances that fee in order to file this Agreement); less credit for 27 payments made in good lunds before the time of default. 28 2. Plaintiff and Defendant (togcthcr, the "Parties") agree that $ 13,205.10 is the accurate Page 1 of 7 Scttlcmcnt Agreement (Code of Civil Procedure ( 664.6) DD0002VJ 'FS/R 1 1/23/202 1 1429455 001 Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/10/2021 2:44 PM Reviewed By: R. Burciaga Case #21CV379127 Envelope: 7842032 21CV379127 Santa Clara - Civil R. Burciaga D (4G D Oa Ct Z0 I liquidated amount owed by Defendant for the account number ending in 8534 (the 2 "Account"). 3 3. Notwithstanding Defendant's agreement to have judgment entered against him/her, Plaintiff 4 will not request that judgment be entered so long as Defendant is not in default with the 5 payment plan set forth herein. 6 4. Defendant agrees to pay to Plaintiff a down payment of $245.10 on or before November 26, 7 2021 followed by a minimum of $240.00 on or before the 26th day of each and every month 8 commencing in December, 2021, until thc Defendant has paid the Judgment Amount. These 9 consecutive monthly installments, totaling $ 13,205.10, timely received, will constitute full 10 satisfaction of the Judgment Amount. Time is of the essence with respect to all payments. If 11 Defendant fails to make full and timely payment of any installment or if any payment is 12 reversed, then the full remaining balance will be dne, and Plaintiff shall be entitled to enter 13 judgment for the Judgment Amount plus court costs pursuant to a memorandum of costs 14 (which will be limited to Plaintiff's fee for liling the complaint; Plaintiff's fec for service of 15 pr'occss; fees (including any reporter fee that the court may require at the time a motion or 16 application is filed) for any motion, application, and/or order that has been granted, including 17 the motion or application to enforce this Agreement and any order fee required to file the I g attached proposed order; and Defendant's first appearance fee if Plaintilf advances that fee in 19 order to file this Agreement); less credit for payments made in good funds before the time of 20 default. 21 5, Acceptance of any one or more late or partial payments by Plaintiff or anyone acting on 22 Plaintiff s behalf shall neither constiiute a waiver of, nor in any way prejudice, Plaintiffs 23 right to demand and receive timely payments thereafter or to declare a default hereunder. 24 Plaintiffs failure to declare a default under this Stipulation when so entitled, shall neither 25 constitute a waiver of, nor in any way prejudice, Plaintiff's right to declare a default 26 thereafter. 27 6. Payments due as stipulated above shall bc made payable to Department Stores National 2g Bank, notated with Defendant's account number and sent to the following payment address: Page 2 of 7 Settlement Agreement (Code of Civil Proccdurc Ij Gi64.6) DD0002VJ AL'S/R I 1/23/2021 1429435.001 0 CC Zciz z ~~ g4 c 0 8 'u~z w N Pl O 0O U I Hunt dk Henriques 2 7017 Realm Dr. 3 San Jose CA 95119 4 7. The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure 5 (3 664.6. The Parties further request that this court vacate all future hearings and stay all 6 further action on this case pending completion of the Parties'espective obligations under 7 this Stipulation. If and only if local rules so require, the Parties, by their signatures below, 8 authorize the court to dismiss this case without prejudice. To the extent that the court 9 dismisses the case without prejudice and pursuant to Code of Civil Procedure ij 664.6, the 10 court shall retain jurisdiction. 'I'he Parties further agree that in the event of a default in 11 payments and upon Plaintiffs motion served and filed in accordance with Code of Civil 12 Procedure tj 1005(b), ihe court shall reopen the case, vacate any dismissal, and enter 13 judgment for the Judgment Amount plus any motion and/or order fee(s) required by the 14 court, less credit for payments made. Notice does not give Defendant a right to cure; notice 15 only gives Defendant a right to appear and offer evidence that Defendant did not default on 16 the payment plan. The Parties also agree to, and do, voluntarily waive all statutes of 17 limitation and any other legal impediment or bar to this court fi'om continuing or resuming 18 jurisdiction of this case including, but not limited to, waiver of rights and provisions of 19 California Code of Civil Proceilure (Ij 583.160, 583.210, 583.310, 583,360, 583.410, 20 583.420, and all other provisions of California law regarding dismissal of actions for failure 21 to prosecute or to bring an action to trial within any time limit, 22 8. If Defendant satisfies his/her payment obligations hereunder, then Plaintiff shall dismiss this case with prejudice after the final payment has been determined to be in good funds, If the 24 court has already dismissed the case without prejudice, then it will be sufficient for Plaintiff 25 to let the dismissal stand. Fxcept as otherwise provided herein, each of the Parties agree to 26 bear the expense of its own attorney fees and court costs in connection with the matters 27 addressed herein. Further, if the case is dismissed with prejudice, then Defendant will not be 28 considered a prevailing party. Page 3 of 7 Settlement Agreement (Code of Civil Procedure ) 664.6) DD0002VJ AL'8/R I I/23/202 I 1429455.00 I N A c/~ & K 0Z~~0 4 wU g g Oo &O iv w' 0 A. U o 1 9. The Parties agree that a commissioner of the court may hear any proceeding arising lrom this 2 Stipulation. 3 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's 4 behalf and on behalf of all of Defendant's agents, assigns, heirs, successors, servants, and 5 representatives, including attorneys, releases and discharges Plaintiff and all of its affiliates, 6 parents, and/or subsidiary corporations, account servicers and sub-servicers, its 7 representatives, managing partners, officers, directors, shareholders, employees, agents, 8 assigns, predecessors, successors, servants, insurers, licensees, and representatives including 9 attorneys (the "Releasees") from any and all known or unknown claims, demands and causes 10 of action and claims of any kind (including any claims for damages, interest, fees, and/or 11 attorney fees) that Defendant may have with respect to the Account, including without 12 limitation all claims that were asserted or could have been asserted in the above-captioned 13 matter (the "Matters Released"). This release by Defendant docs not extend to any other 14 accounts, agreements, debts, loans, promissory notes, mortgages, liabilities, or other financial 15 obligations that Defendant may have with any Releasee. 16 11, Except as otherwise set forth herein, Defendant agrees that Defendant will not file any 17 claims, complaints, affidavits, arbitrations, or proceedings with respect to the Matters lg Released against any of the Releasees, and that any such claims, complaints, affidavits, 19 arbitrations, or proceedings filed prior to the execution of this Stipulation shall promptly be 20 dismissed or withdrawn with prejudice. This Stipulation is intended to resolve forever the 21 entire disagreement between Defendant and Plaintiff. 22 12. Upon timely receipt and full negotiation of the payments as stated above, Plaintiff releases 23 and discharges Defendant in connection with any claims it may have relating to the Account. 24 This release by Plaintiff does not extend to any other accounts, agreements, debts, loans, 25 promissory notes, mortgages, liabilities, or other financial obligations that Defendant may 26 have with any Releasee. 27 13. Defendant knowingly waives Defendant's rights under Section 20-7-11 of Souih Dakota 28 Codified Laws, if applicable, which would otherwise bar relinquishment of claims that a Page 4 of 7 Settlement Agrcemcnt (Code of Civil Procedure (I 664.6) DD0002VJ j Atra/R 11/23/2021 1429455.001 tV Q I 8 ) C0 AO O + irC a O 3 U G Qau oc ~™ 16 17 captioned matter and does not extend to any other accounts or other financial obligations that Defendant may have with any Releasee. 1 creditor does not know or suspect to exist. 2 14. Effective as of the date Defendant executes this Stipulation, Defendant expressly waives and 3 relinquishes all rights and benefits that he/she has or may have under California Civil Code 4 Section 1542. That section states: "A general release does not extend to claims that the 5 creditor or releasing party does not know or suspect to exist in his or her favor at the time of 6 executing the release and that, if known by him or her, would have materially affected his or 7 her settlement with the debtor or released party." Defendant acknowledges that the 8 significance and consequence of this waiver is that even if he or she should eventually suffer 9 additional damages arising out of the Account, or the above-referenced matter, he or she will 10 not be permitted to make any claim for those damages. Furthermore, Def'endant 11 acknowledges that he or she intends that consequence even as to claims for damages that 12 may exist as of the date this Stipulation is executed, but which he or she does not know exist, 13 and which, if known, would materially affect his or her decision to execute this Stipulation, 14 regardless of whether his or her lack of knowledge is the result of ignorance, oversight, error, 15 negligence, or any other cause. Said waiver is specific to the Account and the above- 18 15. Plaintiff expressly waives and relinquishes all rights and benefits that it has or may have 19 under California Civil Code Section 1542. That section states: "A general release does not 20 extend to claims that the creditor or releasing party does not know or suspect to exist in his or 21 her favor at the time of executing thc release and that, if known by him or her, would have 22 materially affected his or her settlement wiih the debtor or released party." Plaintiff 23 acknowlcdgcs that the signit1cance and consequence of this waiver is that even if it should 24 eventually suffer additional damages arising out of the Account, or the above-referenced 25 matter, it will not be permitted to make any claim for those damages. Iiurtherinore, Plaintiff 26 acknowledges that it intends that consequence even as to claims for damages that may exist 27 as of the date this Stipulation is executed, but which it does not know exists, and which, if 28 known, would materially affect its decision to execute this Stipulation, regardless of whether Page 5 of 7 Settlement Agreement (Code of Civil Procedure FJ 664.6) DD0002VJ i AFS/R 1 1/23/2021 1429453.001 0 CI p1 J 4 wUY 0'/ 0 0 o Z0 I its lack of knowledge is the result of ignorance, oversight, error, negligence, or any other 2 cause. Said waiver is specilic to the Account and the above-captioned matter and does not 3 extend to any other accounts or other financial obligations that Defendant may have with any 4 Releasee. Plaintiff's waiver is not effective until all payments owed by Defendant under this 5 Stipulation have been paid. 6 16. The negotiations leading to the terms of this Stipulation and any and all facts related to the 7 Matters Released are confidential. The Parties agree not to disclose the above to any person 8 except as may be necessary for the preparation of financial statements or tax returns, or as 9 may bc required by law, or by valid Order of Court. If any Party or person acting on behalf of 10 a Party hereto receives an inquiry about this Stipulation, such Party will respond only that 11 "the matter has been resolved." Nothing in this Stipulation shall, however, be deemed to 12 interfere with each Party's obligation to report transactions with appropriate governmental, 13 taxing, and/or registering agencies or to comply with the law or a valid Court Order. In 14 addition, nothing in this Stipulation prohibits or limits the Parties or their counsel from 15 initiating communications directly with, responding to any inquiry from, volunteering 16 information to, or providing testimony before, the Office of the Comptroller of the Currency, 17 Bureau of Consumer I'inancial Protection, Securities and Exchange Commission, 18 Department of Justice, any other self-regulatory organization or any other governmental, law 19 enforcement, or regulatory authority, regarding this Stipulation and its underlying facts and 20 circumstances, or any reporting of, investigation into, or proceeding regarding suspected 21 violations of law, and that the Parties are not required to advise or seek permission before 22 engaging in any such activity. Furthermore, Defendant understands that this Stipulation may 23 be filed with the court. 24 17. The Parties represent and warrant that they have not sold, transferred, conveyed, assigned, or 25 otherwise disposed of any right, title, or interest in any of the Matters Released or this 26 Stipulation to any person or entity, and that thc Parties are not aware of any other person or 27 entity who may have or who has asserted or can assert a right, title, or interest in any of the 28 Matters Released or this Stipulation. The Parties further represent and warrant that they are Page 6 of 7 Settlcmcnt Agreement (Code of Civil Procedure II 664.6) DD0002VJ i AES/R 11/23/2021 14294 5 5. 001 c/z ~a Zci N ~ A 0 Oo ~D Ul Z 0 P V 1 duly authorized and fully capable of executing this Stipulation and understand its contents. 2 18. Defendant acknowledges that Defendant has not sought, received or relied on Plaintiff, 3 Plaintiff" s counsel or any agent of Plaintiff for any tax advice of any kind with respect to thc 4 effects of this Stipulation, the Matters Released, or the delivery or payment of any 5 consideration identified herein and Plaintiff may be required to file certain 1099 or other 6 information reports with the United States Internal Revenue Service. Defendant has been 7 advised to consult with tax counsel of Defendant's own choice to seek legal and tax advice 8 regarding the taxability or non-taxability of consideration provided herein. 9 19. Defendant acknowledges having had the opportunity to consult with legal counsel of his/her 10 choice concerning Dcfcndant's legal rights with respect to the form and content of this 11 Stipulation and the advisability of executing it. Defendant has read this Stipulation and is 12 cxccuting it voluntarily and not under duress of any kind. 13 20. This Stipulation may be signed in counteiparts, and the counterparts together shall constitute 14 one document. Counterparts including faxed, scaimcd, or photocopicd signatures shall be as 15 valid as an original. ]6 21. This Stipulation contains the entire agreement of the Parties. There are no oral or written 17 agreements or understandings not contained herein. 18 22. Any attorney who signs for a party, represents by that signature that the attorney is expressly 19 authorized by the party to sign this Agreemcnt. 20 21 Dated: l 2(d-'- / -32- 22 23 9,,d, ~W.,,,a CHARLES I FRISCO Defendant (or Attorney, as expressly authorized by CHARLES F FRISCO) 24 I(-.' 2 i:4-l Dated: 25 26 Department Store National Bank By: Citibank, N.A. Legal Representative (or Attorney, as expressly authorized by Citibank, N.A.) 28 Name'onald Sherrill 513M 266038 Page 7 of 7 Settlemcnt Agrccmcnt (Code of Civil Procedure ss 664.6) DD0002VJ i AES/R 11/23/2021 14294 5 5. 00 1
