StipulationCal. Super. - 6th Dist.May 4, 2021Hunt 6I Henriques, Attorneys at Law Donald Sherrill, Esq. /I266038 7017 Realm Dr. San Jose CA 95119 Telephone: (800) 680-2426 Facsimile: (408) 362-2299 Attorneys for Plaintiff 8 10 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN SUPERIOR COURT - LIMITED CIVII CASE 12 Plaintiff, 11 BANK OF AMERICA, N.A., Case No. 21CV381512 STIPULATION AGREEMENT c 8 t6 ~ P. S ;'gl 13 B co I 4 CO Ci 15 17 vs. FRIC.IOHN SLOVAK, Defendant JURISDICTION RETAINED IINDER CODE OF CIVIL, PROCEDURE (i 664.6 18 IT IS HEREBY STIPULATED by and between the parties hereto: 19 1. ERIC JOHN SLOVAK ("Defendant") stipulates to the entiy of judgtnein in favor of Bank of 20 21 22 23 America, N.A. ("Plaintiff") in the principal sum of $ 14,083.02 and court costs of $ 807.00 for a total judgment in the amount of $ 14,890.02 (the "Judgment Amount") and agrees to pay any first appearance fee that may be required as a result of the filing of this Stipulaition Agreement (the "Stipulation"). 24 2. Plaintiff and Defendant (together, the "Parties") agree that $ 14,083.02 is the accurate 25 26 27 28 liquidated amount owed by Defendant for the account number ending in 5158 (Ihe "Account"). 3. Notwithstanding Defendant's agreement to have judgment entered against him/her, plaintilT will not request that judgment be entered so long as Defendant is not in default with thc Page 1 of 7 Settlement Agreement (Code of Civil Procedure ss 664.6) DD0002TE i LI3IJ 1454S01.001 Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/3/2021 4:18 PM Reviewed By: A. Nakamoto Case #21CV381512 Envelope: 7206051 21CV381512 Santa Clara - Civil A. Nakamoto 2 4. 10 payment plan set forth herein. Defendant agrees to pay to Plaintiff a down payment of $ 258.02 on or before August 25. 2021 followed by a minimum of $248.00 on or before the 25th day of each and every month commencing in September, 2021, until the Defendant has paid thc Judgtnent Amount. These consecutive monthly installments, totaling $ 14,890.02, 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 PlaintilT shall be entitled to enter judgment for the Judgnaent Amount plus any motion and/or order fees required by the court, less credit for payments made. 11 5. Acceptance of any one or more late or partial payments by Plaintiff'r anyone acting on ~ &s~Q 12 13 14 15 16 Plaintiff's behalf shall neither constitute a waiver of, nor in any way prejudice, Plaintifl s 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, Plaintiffs right to declare a default thereafter. 17 6. Payments due as stipulated above shall be made payable to Bank of America, N.A., notatcd 18 with Defendant's account number and sent to the following payment address: 19 20 21 23 24 25 26 27 Hunt A Henriques 7017 Realm Dr. San Jose CA 95119 7, The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure Ij 664.6. The Patties 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„ tire court shall retain jurisdiction. The patties further agree that in the event of a default in DD0002TE i I.BU Page 2 of 7 Settlement Agreement (Code of Civil Procedure I'I 664.6) I 454591.00 I 3 10 12 payments and upon Plaintiffs motion served and tiled in accordance with Code of Civil Procedure Ij 1005(b), the court shall reopen the case, vacate any dismissal, and enter judgment for the Judgment Amount plus any motion and/or order fee(s) required by the court, less credit for payments made. Notice does not give Defendant a right to cure; notice only gives Defendant a right to appear and offer evidence that Defendant did not default on the payment plan. 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 IIII 583.160, 583.210, 583.310, 583.360, 583.410, 583.420, and all other provisions of California law regarding dismissal of'ctions for failure to prosecute or to bring an action to trial within any time limit. 13 8. If Defendant satislies his/her payment obligations hereunder; i3 eo Q z „&P 15 16 17 18 19 20 21 22 23 24 25 26 27 a. Plaintiff shall dismiss this 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 Plaintif1 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. b, Plaintiff agrees to make a written request to each ol the credit reporting agencies to which it reports (Experian, Fquifax, TransUnion, and Innovisi (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 Bureaus. Defendant acknowledges that the Credit Bureaus are separate entities from Plaintiff, and that any action, inaction, omission and/or error by the Credit Bureaus is not and shall not be attributable 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 DD0002TE l i BU Page 3 of 7 Settlement Agreemcnt (Code of Civil Procedure ) 664.6i l454591.001 or any other type of claim can or will be stated against Plaintiff in the event that any Credit Bureau fails to update Defendant's credit report or otherwisc fails to comply with a request made by Plaintiff. 9. fhe Parties agree that a commissioner of the court may hear any proceeding arising from this 5 Stipulation. 6 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's 7 behalf and on behalf of all of Defendant*s agents, assigns, heirs, successors, servants, and 8 representatives, including attorneys, releases and discharges Plaintiff and all of its affiliates, 9 parents, and/or subsidiary corporations, account servicers and sub-servicers, its 10 12 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 n ~~a O NBA QgQ T&g gr UPSno y 14 15 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 16 matter (the "Matters Released*'). This release by Defendant does not extend to any other 13 of action and claims of any kind (including any claims for damages, interest, fees, and/or 17 accounts, agreements, debts, loans, promissory notes, mortgages, liabilities, or other financial 18 obligations that Defendant may have with any Releasee. 19 11. Except as otherwise set lorth herein, Defendant agrees that Defendant will not file any 20 claims, complaints, affidavits, arbitrations, or proceedings with respect to the Matters 21 Released against any of the Releasees, and that any such claims, complaints, affidavits, 22 arbitrations, or proceedings filed prior to the execution of this Stipulati&m shall promptly be 23 dismissed or withdrawn with prejudice. This Stipulation is intended to resolve forever the 24, entire disagreement between Defendant and Plaintiff. 25 12. Upon timely receipt and full negotiation of the payments as stated above, Plaintiff releases 26 27 28 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 r, i t.ot/ Page 4 of 7 Settlement Agreement (Code of Civil Procedure II 664.6) I 45459 j,oo i n ~~a a 'iA I3 co Q ~B + zo 15 16 regardless of whether his or her lack of knowledge is thc resuh of ignorance, oversight, error, negligence, or any other cause. Said waiver is specitic to the Account and the above- captioncd matter and does not extend to any other accounts or other financial obligations that 1 have with any Releasee. 2 13. 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 Section 1542. That section states: "A general release does not extend to claims that the 5 creditor or releasing party docs not know or suspect to exist in his or her favor at the time ol' executing the release and that, if known by him or her, would have materially affected his or 7 her settlemcnt 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 'dditional 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, Defendant 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, 17 Defendant may have with any Releasee. lg 14, 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 patty does noi know or suspect to exist in his or 21 i her favor at the time of executing the release and that, if known by him or her, would have 22 materially affected his or her settlement with the debtor or released party." 1'lainiiff 23 24 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 25 matter, it will not be permitted to make any claim for those damages. Furthermore, Plaintiff 26 acknowledges that it intends that consequence even as to claims 1'or 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 Agreemeni. (Code of Civil Procedure II 664.6) DD0002 TB I I.BV I 45459 (.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 gI~A 8c c5z~ 10 12 13 14 15 17 Stipulation have been paid. 15, The negotiations leading to the terms of this Stipulation and any and all facts related to thc Matters Released are confidential. The Parties agree not to disclose ihe 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 Patty 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 fiom initiating communications directly with, responding to any inquiry from, volunteering information to, or providing testimony before, the Office of the Comptroller of the Currency, Bureau of Consumer Financial Protection, Securities and Exchange Commission, 18 19 20 21 22 23 24 25 27 28 16 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 info, 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. The Parties represent and warrant that they have not sold, transferred, conveyed, assigned, or 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 entity who may have or who Itas asserted or can assert a right, title, or interest in any of thc Matters Released or this Stipulation. The Parties further represent and warrant that they arc DD0002TE l LBU Page 6 of 7 Settlement Agreemcnt (Code of Civil Procedure tJ 664.6) 1454591.001 duly authorized and fully capable of executing this Stipulation and undeistand its contents. 17. Defendant acknowledges that Defendant has not sought, received or relied on I laintiff. Plaintiff" s counsel or any agent of Plaintiff for any tax advice ol any kind with respect to thc effects of this Stipulation, thc Matters Released, or the delivery or payment of any consideration identilted herein and Plaintiff may bc required to file certain 1099 or other information reports with the IJnited States Internal Revenue Service. Defendant has been advised to consult with tax counsel of Defendant's own choice to seek legal and tax aidvicc 10 regarding ihe taxability or non-taxability of consideration provided herein. 18. Defendant acknowledges having had the opportunity to consult with legal counsel of'is/hcr choice concerning Defendant's legal rights with respect to the form clAd content of'his Stipulation and the advisability of executing it. Defendant has read this Stipulation and is c Q lz 2 g 8r ]2 D 14 g 15 16 executing it voluntarily and not under duress of'any kind. 19. This Stipulation ntay be signed in counterparts, and ihe counterparts together shall constitute one document. Counterparts including faxcd, scanned, or photocopicd signatures shall be as valid as an original. 20. This Stipulation contains the entire agreement ol thc Parties. 'I'herc are no oral or written 17 agreemenis or understandings not contained herein. 2]. Any attorney who signs I'r a pasty, represents by that signature that thc attorney is expressly authorized by the patty to sign this Agreement. 21 Dated: j FRIC .IOPIN SI.OVAK Defendant (or Attorney, as expressly authorized by I':RIC JOI IN SI,OVAK) 26 26 27 K OF AMERICA, N.A. Authorized Oflicer (or Attorney as expressly authorized by BANK Ol'MERICA, N.A.) Anihony IIipicrn 'n.'I, nii'SName: DD0002'I'L' LISU Page 7 of 7 Settlement Agreement (('odc of Civil Procedure Ii 664,6) ISSts9I 00I
