Case Number: KC069245 Hearing Date: March 15, 2018 Dept: J

Re: American Express Bank, FSB v. Wei Li, etc., et al. (KC069245)

MOTION FOR ORDER VACATING DISMISSAL AND ENTERING JUDGMENT PURSUANT TO CCP § 664.6

Moving Party: Plaintiff American Express Bank, FSB

Respondents: No timely opposition filed

POS: Moving OK

This is a credit card collections matter. The complaint, filed 4/19/17, asserts causes of action for:

Common Counts: Book Account, Account Stated
Quantum Meruit—Reasonable Value

On 7/14/17, the parties filed a “Stipulation for Conditional Entry of Judgment;” that day, the “Order for Entry of Stipulation for Conditional Entry of Judgment and Dismissal Without Prejudice Pursuant to CCP § 664.6” was filed.

Plaintiff American Express Bank, FSB moves this court, per CCP § 664.6, for an order vacating the dismissal in this case and entering judgment against Defendants Wei Li aka Wei L Li aka Wei L Jacky and Dynasty Auto Design, Inc. dba Dynasty Auto (“defendants”) pursuant to CCP § 664.6, on the basis that defendants have breached the terms of the parties’ “Stipulation for Conditional Entry of Judgment.”

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” CCP § 664.6.

On 7/14/17, the parties filed a “Stipulation for Conditional Entry of Judgment” (“Stipulation”); that day, the “Order for Entry of Stipulation for Conditional Entry of Judgment and Dismissal Without Prejudice Pursuant to CCP § 664.6” was filed, wherein the court dismissed this matter without prejudice, but retained jurisdiction pursuant to CCP § 664.6 over the parties to enforce the Stipulation until performance in full of the terms.

The Stipulation provides for defendants to adhere to a payment schedule set forth in ¶ 1; more specifically, defendants to make monthly payments of $4,000.00 commencing 5/29/17 and up through 1/29/18, with a final lump sum payment of $3,808.01 due 1/28/19. Paragraph 2 therein provides that “[f]ailing to make any payment on time or should any payment be refused or returned by the bank upon which it is drawn, Defendants shall be in default under the terms of this Stipulation. Defendant shall be notified of such default in writing by email sent to ALEE9966@GMAIL.COM, and is permitted to cure the default within seven (7) days of the date of the notice. If Defendants fail to cure the default, Plaintiff may then obtain a judgment pursuant to Code of Civil Procedure § 664.6 for the entire balance owed by Defendants in the amount of $39,223.01, plus court costs expended, less any payments made to date and may execute on the judgment immediately after entry, upon application.”

Plaintiff’s counsel Lisa D. Dubowski (“Dubowski”) represents that defendants have only made payments in the amount of $4,871.00 toward the settlement amount agreed; more specifically, they made a payment of $871.00 on 6/22/17 and a payment of $4,000.00 on 6/26/17. (Dubowski Decl., ¶¶ 7 and 9). On 8/16/17, plaintiff’s counsel’s office sent defendants an e-mail, in accordance with ¶ 2 of the Stipulation, wherein they were advised of their right to cure their default within 7 days of the date of the e-mail. (Id., ¶ 8, Exhibit “C”).

Inasmuch as plaintiff has complied with the cure provision of the parties’ Stipulation, it is entitled to judgment pursuant to Code of Civil Procedure § 664.6 for the entire balance owed by defendants in the amount of $34,352.01, plus court costs of $627.50.