Settlement Agreement

Cal. Super. - 3rd Dist.June 10, 2021

5 Hunt & Henriques, Attorneys at Law Donald Shcrrill, Esq. ¹266038 7017 Realm Dr. San Jose CA 95119 Telephone: (800) 680-2426 Facsimile: (408) 362-2299 Attorneys for Plaintiff 7 I SUPERIOR COURT OF CALIFORNIA, COUNTV OF PLACER BILL SANTUCCI JUSTICE CENTER COURTHOUSE - LIMITED CIVIL CASE gopSg V 10 12 13 14 15 16 17 18 Capital One Bank (1)SA), N.A., Plainti ff, vs. GERARDO B MAR11NEZ, Case No. M-CV-0079314 I STIPULATION AGREEMENT JURISDICTION RETAINED UNDER CODE OF CIVIL PROCEDURE Il 664.6 he parties hereto: 19 20 21 22 23 24 25 26 27 stipulates to the entry of judgment in favor of Capital One Bank (USA), N.A. ("Plaintiff') in the principal sum of $3,814.68 plus court costs pursuant to a memorandum of costs (which will be limited to Plaintiff's fee for tiling the complaint; Plaintift 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 Plaintiff advances that fee in order to file this Agreement); less credit for payments made in good funds before the time of default. endant (together, the "Parties") agree that $3,814.68 is the accurate Page 1 of 7 ttlement Agreement (Code of Civil Procedure lt 664.6) 1455869.00 1 liquidated amount owed by Defendant for thc account number ending in 4878 (the "Account"). 3 3. Notwithstanding Defendant's agreement to have judgment entered against him/her, 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 of $318.68 on or before Junc 26, 2021 ga~ 8c ci N 0 Bp 0 10 12 14 16 18 19 20 followed by a minimum of $318.00 on or before the 26th day of each and eveiy month commencing in July, 2021 followed by a linal payment of $316.00 on or before May 26, 2022, until the Defendant has paid the Judgment Amount. These consecutive monthly installments, totaling $3,814.68, 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 court costs pursuant to a memorandum of costs (which will be limited to Plaintiffs fee for filing the complaint; Plaintiff's fee for service of process; fees (including any reporter fec 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 the attached proposed order; and Defendant's first appearance fee if Plaintiff advances that I'ee in order to file this Agreemcnt); less credit for payments made in good funds 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 Plaintiffs 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. 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. 27 6. Payments due as stipulated above shall be made payable to Capital One Bank (USA), N.A., 28 ccount number and sent to the following payment address: Page 2 of 7 Agreement (Code of Civil Procedure Ij 664.6) 1455869.001 Hunt & Henriques 7017 Realm Dr. San Jose CA 95119 4 7. The Parties jointly request that this court retain jurisdiction under Code of Civil Procedure 10 12 agag5g 8~Qz5 150 yit bK- 17 18 19 20 22 23 i 24 25 26 27 28 tj 664.6. The Parties further request that this court vacate all future hearings and stay all further action on this case pending completion of thc 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. 'I'o the extent that the court dismisses the case without prejudice and pursuant to Code of Civil Procedure tj 664.6, the court shall retain jurisdiction. The Parties further agree that in the event of a default in payments and at thc request of Plaintiff, the 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 the court, less credit for payments made. 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 ljIj 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, then Plaintiff shall dismiss this case with prejudice after the fmal 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. Fxcept 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. I urther, if the case is dismissed with prejudice, then Defendant will not be considered a prevailing party. agree that a commissioner of the court may hear any proceeding arising from this Page 3 of 7 Settlement Agreement (Code of Civil Procedure ) 664.6) 1466869.00 I Stipulation. 2 10. Effective as of the date Defendant executes this Stipulation, Defendant, on Defendant's 10 12 Og 14 zj 15Q 18 19 20 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 servicers 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 Releasee. 11. Except as otherwise set forth herein, Defendant agrees 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 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, I'laintiff 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 Releasec. 26 13. Effective as of the date Defendant executes this Stipulation, Defendant expressly waivcs and 27 relinquishes all rights and benefits that he/she has or may have under California Civil Code 542. That section states: "A general release does not extend to claims that thc Page 4 of 7 Settlement Agreement (Code of Civil Procedure Ij 664.6) I 456869.001 na Ill VOx 0 8 c U'M gRI ~ a ~A D 8~ o $ 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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-referenced matter, he or shc will not be permitted to make any claim for those damages. I'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 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. 14. Plaintiff expressly waives and relinquishes all rights and benefits that it has or may have under California 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 hcr, would have materially affected his or her settlement with the debtor or released party." Plaintiff acknowledges that the significance and consequence of this waiver is that even if it should ntually suffer additional damages arising out of the Account, or the above-referenced ter, it will not be permitted to make any claim for those damages. Furthermore, Plaintilf iowledges that it intends that consequence even as to claims for damages that may exist of the date this Stipulation is executed, but which it does not know exists, and which, if wn, would materially affect its decision to execute this Stipulation, regardless of whether ack of knowledge is the result of ignorance, oversight, error, negligencc, or any other se. Said waiver is specific to the Account and the above-captioned matter and does not end to any other accounts or other financial obligations that Defendant may have with any easee. Plaintiff s waiver is not effective until all payments owed by Defendant under this Page 5 of 7 Settlement Agreement (Code of Civil Procedure ( 664.6) 1455869.001 XI LB1 n V g~B ~6 gwU W~R6 $) 10 12 v 13 I 4 15 17 18 19 Stipulation have been paid. 15. The negotiations leading to the terms of this Stipulation and any and all facts related to the Matters Released are conlidential. 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 fiom 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 Bxchange Commission, Department of Justice, any other self-regulatory organization or any other governmental, Iaw 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. 20 16. The Parties represent and warrant that they have not sold, transferred, conveyed, assigned, or 21 22 23 24 25 26 27 28 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 has asserted or can assert a right, title, or interest in any of the Matters Released or this Stipulation. The Parties further represent and warrant that they arc duly authorized and fully capable of executing this Stipulation and understand its contents. 17. Defendant acknowledges that Defendant has not sought, received or relied on Plaintiff, Plaintiff's counsel or any agent of Plaintiff for any tax advice of any kind with respect to the ion, the Matters Released, or the delivtny or payment of any Page 6 of 7 ent Agreement (Code of Civil Procedure tI 664,6) 1455869.001 consideration identified herein and Plaintiff may be required to file certain 1099 or other information reports with the United States Internal Revenue Service. Del'endant 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/her choice concerning Defendant'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. 10 19. This Stipulation may be signed in counterparts, and the counterparts together shall constitute one document. Counterparts including faxcd, scanned, or photocopied signatures shall be as valid as an original. 12 20. This Stipulation contains the entire agreement of the Parties. There are no oral or written gy9 8 w PJ p qg 148p zj 15 agreements or understandings not contained herein. 21. Any attorney who signs for a party, represents by that signature that the attorney is expressly authorized by the party to sign this Agreement. 17 18 19 Dated: i5 l&~) WB ) GERAP~~O B lViARTINBZ Defendant (or Attorney, as expressly authorized 20 21 22 23 24 Dated: dpi lCPMJ Capital )ne Bank (USA), N.A. Legal Representative (or Attorney as expressly authorized by Capital One Bank (USA), N.A.) seri L. salet SBN 318913 Name: 25 26 27 Page 7 of 7 tlement Agreement (Code of Civil Procedure lj 664.6) 1455869 OOI