StipulationCal. Super. - 6th Dist.April 28, 2021Hunt & Henriques, Attorneys at Law Donald Sherrill, Fsq. 11266038 2 7017 Rcalni Dr. San Jose CA 95119 3 Tclcphone: (800) 680-2426 Facsimile: (408) 362-2299 4 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN SUPERIOR COURT - LIMITFD CIVIL CASE gciplg 8c uz~~ racy 12 Plaintiff, 13 vs. 14 MELVINA P REED, 15 16 17 Defendant 10 11 TD BANK USA, N.A., Case No. 21CV381107 STIPUI,ATION AC'REEMENT JURISDICTION RETAINED UNDFR CODE OF CIVIL PROCEDURE tJ 664.6 18 I I'S HEREBY STIPULATFD by and between the parties hereto: 19 1. MELVINA P REED ("Defendant") stipulates to the entry ol judgment in favor of TD BANK 20 USA, N.A. ("Plaintifl") in the principal sum ol $2,093.61 plus court costs pursuant to ii 21 memorandum of costs (which will be limited to Plaintiffs fee for filing the complaint; 22 Plaintifl s fee for service of process; I'ees (including any reporte fce that the court niay 23 require at the time a motion or application is filed) for any motion, application, and(or order 24 that has been granted, including the motion or application to enforce this Agreement and any 25 order fee required to lile the attached proposed order; and Defendant's first appearance fee if 26 Plaintiff advances that fee in order to file this Agrecmcnt)„ less credit I'r payments made in 27 good funds before the time of default. 28 2. Plaintiff and Defendant (together, the "Parties" ) agree that $2,093.61 is the accurate Page I ol 7 Settlement Agreement (Code of Civil Procedure ss 664.6) 1443808.001DD0002VX JFL Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/20/2021 3:32 PM Reviewed By: R. Aragon Case #21CV381107 Envelope: 6887858 21CV381107 Santa Clara - Civil R. Aragon liquidated amount owed by Defendant for the account number ending in 6558 (the "Account"). 3 3. Notwithstanding Defendant's agreement to have judgment entered against him/hcr, Plaintiff will not request that judgment be entered so long as Defendant is not in default with the payment plan set forth herein. 6 4. Defendant agrees to pay to Plaintiff a down payment ol'179.61 on or before July 2, 2021 n g ci z c n Q co W Z 0 0 10 12 13 14 15 16 17 18 19 20 followed by a minimum of $ 174.00 on or before the 2nd day of each and every month commencing in August, 2021, until the Defendant has paid the Judgment Amount. These consecutive monthly installments, totaling $2,093.61, timely received, will constitute full satisfaction of the Judgment Amount. 'I'imc 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 bc entitled to enter judgment for thc 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 enforce this Agreement and any order fee required to file thc attached proposed order; and Defendant's first appearance fee if Plaintifl'advances that fcc in order to lile this Agreement); less credit for payments made in good I'unds before the time of default. 21 5. Acceptance of any one or more late or partial payments by Plaintiff or anyone acting on 22 23 24 25 26 Plaintiff's behalf shall neither constitute a waiver of, nor in any way prejudice. Plaintiffs right to demand and receive timely payments thereafter or to declare a default hereunder. Plaintiff's failure to declare a default under this Stipulation when so entitled, shall neither constitute a waiver of, nor in any way prejudice, Plaintiff"'s right to declare a del'ault thereafter. 27 6. Payments due as stipulated above shall be made payable to TD BANK USA, N.A., notated 28 with Del'endant's account number and sent to the following payment address: DD0002VX .IFL Page 2 of 7 Settlement Agreement (Code of Civil Procedure Ij 664.6) 1443808.001 Hunt A Henriques 7017 Realm Dr. San Jose CA 95119 4 7. The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure n fU 8 10 12 13 14 15 16 17 18 19 20 tj 664.6. 'I'hc 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 dismisses the case without prejudice and pursuant to Code of Civil Procedure Ij 664.6, the court shall retain jurisdiction. The Parties further agree that in the event of a del'ault in payments and at the request of Plaintiff, thc 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) required by thc court, less credit for payments made. 'I'hc Parties further agree that this Stipulation may at Plaintiff's option be enl'orced 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 g 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. 21 8. If Defendant satisfies his/hcr payment obligations hereunder, then Plaintiff shall dismiss this 22 23 24 25 26 27 28 case with prejudice after thc 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 attorney fees and court costs in connection with the matters addressed herein. Further, if the case is dismissed with prejudice, then Defendant will not be considered a prevailing party. 9. 'I'he Parties agree that a commissioner of the court may hear any proceeding arising from this DD0002VXI JFI. Page 3 of 7 Settlement Agreement (Code of Civil Procedure tj 664.6) 1443808.001 n ~~a0 18 '/ A gwU'r J a ™~& 1 Stipulation. 2 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's 3 behalf and on behalf of all of Defendant's agents, assigns, heirs, successors, servants, and 4 representatives, including attorneys, releases and discharges Plaintiff and all of its affiliates, 5 parents, and/or subsidiary corporations, account serviccrs and sub-servicers, its 6 reprcscntatives, managing partners, officers, directors, shareholders, employees, agents, 10 12 13 14 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 ol'ny kind (including any claims for damages, intcrcst, 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 thc above-captioned matter (the "Matters Released" ). This rclcasc by Dcfcndant docs not extend to any other accounts, agreements, debts, loans, promissoiy notes, moitgages, liabilities, or other financial obligations that Defendant may have with any Releasee. 15 11. Except as otherwise set forth herein, Defendant agrees that Defendant will not file any 16 17 19 20 claims, cotnplaints, affidavits, arbitrations, or proceedings with respect to the Matters Released against any of the Releasees, and that any such claims, complaints, aflidavits, 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 Plaintiff. 21 12. Upon timely receipt and full negotiation of the payments as stated above, Plaintiff releases 22 23 24 25 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, agreements, debts, loans, promissory notes, mortgages, liabilities, or other financial obligations that Defendant may have with any Releasee. 26 13. Effective as ol the date Defendant executes this Stipulation, Defendant expressly waives and 27 28 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 DD0002VX~ JFI. Page 4 of 7 Settlement Agreement (Code of Civil Procedure $ 664.6) 1443808.001 g08 tl g a CV g CO f ao 6 $ he 10 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 creditor or releasing party docs 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 hcr, would have materially af1'ected his or her settlcmcnt with the debtor or released party." Defendant acknowledges that the significance and consequence of this waiver is that even if hc or she should eventually suffer additional damages arising out of the Account, or the above-rcfcrcnccd matter, he or she will not be permitted to make any claim for those damages. 1'uithermore, 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 hc or she does not know exist, and which, if known, would materially affect his or her decision to exccutc this Stipulation, regardless of whether his or her lack of knowledge is the result of ignorance, oversight, error, ncgligencc, or any other cause. Said waiver is specific to the Account and thc above- captioned matter and docs not extend to any other accounts or other financial obligations that Defendant may have with any Releasee. 14. Plaintiff expressly waives and relinquishes all rights and benelits that it has or may have under California Civil Code 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 party." Plaintilf acknowledges that thc significance and consequence of this waiver is that even if it should eventually suffer additional damages arising out ol'he Account, or thc 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 as of the date this Stipulation is executed, but which it does not know exists, and which, if known, 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. Plaintiff's waiver is not effective until all payments owed by Defendant under this Page 5 of 7 Settlement Agreement (Code of Civil Procedure II 664.6) 1443 808.00 IDD0002VXI JFL Stipulation have been paid. 2 15. The negotiations leading to the terms of this Stipulation and any and all facts related to the g =:O gc Uz0 KR6Eh 10 12 17 18 19 Matters Released are confidential. The Parties agree not to disclose the above to any person except as may be necessary for the preparation of linancial 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 from, volunteering information to, or providing testimony before, the Oflice of the Comptroller of the Currency, Bureau of Consumer Financial Protection, Securities and Fxchange Commission, Department of Justice, any other self-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 procccding regarding suspected violations of law, and that thc 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. 20 16. The Parties represent and warrant that they have not sold, transl'erred, conveyed, assigned, or 21 22 23 24 25 otherwisc disposed of any right, title, or interest in any of the Matters Rclcased or this Stipulation to any person or entity, and that the Parties are not aware of any other person or entity who may have or who has asserted or can assert a right, title, or interest in any of the Matters Released or this Stipulation. 'I'he Parties further represent and warrant that they are duly authorized and fully capable ol'cxccuting this Stipulation and understand its contents. 26 17. Defendant acknowledges that Defendant has not sought, received or relied on Plaintiff, 27 28 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 delivery or payment of any DD0002VXi JFL Page 6 of'7 Settlement Agreement (Code ol'Civil Procedure II 664.6) 1443808.001 consideration identified herein and Plaintiff may bc rcquircd 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 of consideration provided herein. 5 18. Defendant acknowledges having had the opportunity to consult with legal counsel of his/hcr choice concerning Dcfcndant's legal rights with respect to the form and content of this Stipulation and the advisability of executing it. Defendant has read this Stipulation and is executing it voluntarily and not under duress of any kind. 9 19. This Stipulation may be signed in counterparts, and the counterparts together shall constitute 10 one document. Counterparts including faxed, scanned, or photocopied signatures shall be as valid as an original. 8 r 8 Ul 8 ] 3 15 16 agreements or understandings not contained herein. 21. Any attorney who signs for a party, rcprcscnts by that signature that the attorney is expressly authorized by the party to sign this Agreement. 17 18 Dated: (tz ~~ fz ~~) JJP~tz. Po~ P ELVINA P REED 12 20. This Stipulation contains the entire agreement of the Parties. There are no oral or written 19 Defendant (or Attorney, as expressly authorized 20 21 22 Dated: 23 24 ~II)5g TD BANK USA, N.A I,egal Representative (or Attorney as expressly authorized by 'I'D BANK USA, N.A.) Adam Kidd SBN 328520Name 25 26 27 DD0002VXI JFL Page 7 of 7 Settlement Agreement (Code of Civil Procedure It 664.6) i443808.001
