Stipulation

Cal. Super. - 6th Dist.April 9, 2021

Hunt ¹r. 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 10 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN SUPERIOR COURT - LIMITED CIVIL CASII gQf 8 r. v a~5 n yq CO Po Q 0 ~ k4 12 Plaintiff, 13 vs. 14 RONALD 1AYLOR, 15 16 17 Defendant 11 BANK OF AMF RICA, N.A., Case No. 2 I CV380262 STIPUI.ATION AGREEMENT JURISDICTION RETAINED UNDER CODE OF CIVIL PROCEDIJRE I) 664.6 18 IT IS HEREBY STIPULATED by and between the parties hereto: 19 1. RONALD '1'AYLOR ("Defendant") stipulates to the entry of judgment in favor of Bank of 20 21 22 23 25 26 27 America, N.A. ("Plaintiff") in thc principal sum of $6,141.42 and court costs of $ 517.00 for a total judgment in the amount of $6,658.42 (the ".ludgment Amount') and agrees to pay any first appearance fcc that may bc required as a result of'he tiling ol this Stipulation Agreement (the "Stipulation"). Plaintiff and Defendant (together, thc "Parties") agree that $6,141.42 is the accurate liquidated amount owed by Defendant for the account number ending in 7126 (the 'Account"). 3. Notwithstanding Defendant's agreement to have judgment entered against him/her, Plaintiff not request that judgment be entered so long as Defend ust is not in delault with the Page 1 of 7 Settlement Agreement (Code of Civil I'rocedurc ss 664.6)c I JFL 1452S37.00l Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/20/2021 2:35 PM Reviewed By: R. Aragon Case #21CV380262 Envelope: 6886818 21CV380262 Santa Clara - Civil R. Aragon payment plan set forth herein. 2 4. Defendant agrccs to pay to Plaintiff a down payment of $78.42 on or before May 27, 2021 n I gac 5a 10 12 16 17 18 D N 15 I3 f4 followed by a minimum of $50.00 on or before the 27th day of each and every month beginning June, 2021; followed by a minimum of $200.00 on or before the 27th day of each and every month beginning October, 2021 followed by a tmal payment ol $ 180.00 on or before May 27, 2024, until the Defendant has paid the Judgment Amount. These consecutive monthly installments, totaling $6,658.42, timely received, will constitute full satisfaction of the Judgment Amount. Time is of the essence with respect to all payments. If Defendant fails to make full and timely payment of any installment or if any payment is reversed, then the full remaining balance will be due, and Plaintiff shall be entitled to enter judgment for the, Judgment Amount plus any motion and/or order fees required by the court, less credit for payments made. 5. Acceptance of any one or more late or partial payments by I'laintiff or anyone acting on Plaintiff's behalf shall neither constitute a waiver of, nor in any way prejudice, Plaintiff's right to demand and receive timely payments thereafter or to declare a default hereunder. Plaintiffs failure to declare a default under this Stipulation when so entitled, shall neither constitute a waiver of, nor in any way prejudice, Plaintiffs right to declare a delault thereafter. 19 6. Payments due as stipulated above shall be made payable to Bank of America, N.A., notated 20 21 22 23 with Defendant's account number and sent to the following payment address: Hunt & Henriques 7017 Realm Dr. San Jose CA 95119 24 7. 'I'he Parties jointly request that this court retain jurisdiction under Code of Civil Procedure 25 27 28 ss 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 signatures below, authorize the court to dismiss this case without prejudice. To the extent that the court DD0002TC j JFI, Page 2 of 7 Settlement Agreement (Code of Civil Procedure ss 664.6) 1452537.00I n Ha 10 12 'D a Rq 13 14 "-8 z™ 15 17 20 21 22 23 24 25 26 27 28 dismisses the case without prejudice and pursuant to Code of Civil Procedure (I 664.6, thc court shall retain jurisdiction. The Parties further agree that in the event of a default in payments and at the request of Plaintiff, the court 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 Plaintifl's option be enforced by indcpcndcnt 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 Calil'ornia Code of Civil Procedure Ijtj 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. 8. If Defendant satisfies his/her payment obligations hereunder: a. Plaintiff shall dismiss this case with prejudice al'ter 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 lct the dismissal stand. Except as otherwise provided herein, each of the Parties agree to bear the expense of its own attorney fees and court costs in connection with the matters addressed herein. Further, if thc case is dismissed with prejudice, then Del'endant will not be considered a prevailing party. b. Plaintiff agrees to make a written request to each ol'he credit reporting agencies to which it reports (Experian, Equifax, Transllnion, and Innovis) (the "Credit Bureaus") to report the Account as paid in full. Plaintiff s only duty under this paragraph is to make the aforementioned request to the Credit 13ureaus. Defendant acknowledges that the Credit Bureaus are separate entities friun Plaintiff, and that any action, inaction, omission and/or error by the Credit Bureaus is not and shall not bc attributablc to Plaintiff in any way, and shall not constitute a breach of this Stipulation or a violation of any statute. Defendant agrees that no cause of action Page 3 of 7 Settlemcnt Agreemcnt (Code of Civil Procedure tj 664.6) 002TC JPL 1452537.001 or any other type ot'laim can or will be stated against Plaintiff in the event that any Credit Bureau fails to update Defendant's credit report or otherwise fails to comply with a request made by Plaintiff. 9. The Parties agree that a commissioner of the court may hear any proceeding arising from this Stipulation. 6 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's 10 12 1 4 0 z" 15 17 18 19 20 21 22 23 24 behalf and on behalf of all of Defendant's agents, assigns, heirs, successors, servants, and representatives, including attorneys, releases and discharges Plaintiff and all of its affiliates, parents, and/or subsidiary corporations, account scrvicers 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 Releasec. 11. Except as otherwise set forth herein, Defendant agrccs 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 bc dismissed or withdrawn with prejudice. This Stipulation is intended to resolve forever the entire disagreement between Defendant and Plaintiff. 25 26 27 28 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. This release by Plaintiff does not extend to any other accounts, agreemcnts, debts, loans, ssory notes, mortgages, liabilities, or other financial obligations that Defendant may Page 4 of7 Settlement Agreement (Code of Civil Procedure ) 664.6)iiFL 1452537 OOI have with any Releasee. 2 13. Effective as of the date Defendant executes this Stipulation, Defendant expressly waives and n g 8c D'4 QaRQ& W 10 12 0 13 14 15 17 relinquishes all rights and benefits that hc/she has or may have under Calilornia Civil Code Section 1542. That section states: "A general release does not extend to claims that thc 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 party." Defendant acknowledges that thc 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. 1'urthermore, 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 specilic to the Account and the above- captioned matter and does not extend to any other accounts or other financial obligations that Dcfcndant may have with any Releascc. 18 14. Plaintiff expressly waives and relinquishes all rights and bcnelits that it has or may have 19 20 21 22 23 24 25 26 27 under California Civil Code Section 1542. That section states: "A general release docs 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 hcr 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. 1'urthermore, Plaintiff acknowledges that it intends that consequence even as to claims for damages that may exist as of the date this Stipulation is executed, but which it docs not know exists, and which, if known, would materially affect its decision to execute this Stipulation, regardless ol'whether DD00023 C I JI'L Page 5 of 7 Settlement Agreement (Code of Civil Procedure II 664.6) I452537 00 I 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. Plaintiff's waiver is not effective until all payments owed by Defendant under this Stipulation have been paid. 6 15. The negotiations leading to the terms of this Stipulation and any and all facts related to the n t p w 0 'W 10 12 D A k- 148 co Q 'z ~ 15 0 17 19 20 21 22 23 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. If any Party or person acting on behalf of a Party hereto receives an inquiry about this Stipulation, such Party 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 governmental, 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 from initiating communications directly with, responding to any inquiry fi.om, volunteering information to, or providing testimony before, the Office of the Comptroller of the Currency, Bureau of Consumer Financial Protection, Securities and Exchange Commission, Department of .Iustice, any other selt-regulatory organization or any other governmental, 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 not required to advise or seek permission before engaging in any such activity. Furthermore, Defendant understands that this Stipulation may be filed with the court. 24 16. The Parties represent and warrant that they have not sold, transferred, conveyed, assigned, or 25 26 otherwise disposed of any right, title, or interest in any of the Matters Released or this Stipulation to any person or entity, and that the Parties are not aware of any other person or 27 28 entity who may have or who has asserted or can assert a right, title, or interest in any of thc eased or this Stipulation. The Parties further represent and warrant that they are Page 6 of 7 Settlement Agreement (Code of Civil Procedure I'I 664.6) I 4525 3 7.00 I n ~na 0I 'v gi ( N 8wU z0 C& I duly authorized and fully capable of executing this Stipulation and understand its contents. 2 17. Defendant aclu3owledges that Defendant has not sought, received or relied on Plaintiff, 3 Plaintiff's counsel or any agent of Plaintiff lor any tax advice of any kind with respect to the 4 effects of this Stipulation, the Matters Released, or the delivery or payment of any 5 consideration identified herein and Plaintiff may bc required to 1)le certain 109') 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 18. Defendant acknowledges having had thc opportunity to consult with legal counsel of his/her 10 choice concerning Defendant's legal rights with respect to the I'orm and content of this 11 Stipulation and the advisability of executing it. Dcfcndant has read this Stipulation and is 12 executing it voluntarily and not under duress of any kind. 13 19. This Stipulation may be signed in counterparts, and thc counterparts together shall constitute 14 one document. Counterparts including faxcd, scanned, or photocopied signatures shall bc as 15 valid as an original. 16 20. This Stipulation contains the entire agreement of the Parties. 'I here are no oral or written 17 agreemcnts or understandings not contained herein. 18 21. Any attorney who signs for a party, represents by that signature that the attorney is expressly 19 authorized by the party to sign this Agrccment. 20 21 Dated: 6& -1 j+kz~3-0 ~( 22 23 AU|II 04 203 Dated 25 26 27 RONALD TAYLOR Defendant (or Attorney, as expressly authorized by RONAI D TAYLOR) BANK OF AML'RICA, N.A. Authorized Officer (or Attorney as expressly authorized by BANK OI'MERICA, N.A.) Kea L. Salea SON 318913 Name; 28 Page 7 of 7 Settlement Agreement (Code of Civil Procedure rt 664.6)02TC i JFL 1452537.001