2019-00259523-CU-EN

DMF NYC, LLC vs. Christian Giguiere

Nature of Proceeding: Motion to Set Aside Judgment

Filed By: Giguiere, Christian Robert

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Self-represented defendant Christian Giguiere’s (“Defendant”) motion to set aside sister state judgment is UNOPPOSED and GRANTED.

On March 28, 2019, Judgment was entered against Defendant in the Supreme Court of the State of New York, County of Kings, as Defendant had executed an Affidavit of Confession of Judgment. The Confession of Judgment was signed by one person, Christian Robert Giguiere, on behalf of “Christian Robert Giguiere” and “Christian Giguiere.” It appears “Christian Robert Giguiere” and “Christian Giguiere” are both akas for Defendant.

Judgment was then entered against Christian Giguiere and Christian Robert Giguiere in the total amount of $25,089.20. (See ROA 1.)

The sister state judgment was entered by this Court pursuant to CCP § 1710.25 on June 26, 2019, in the amount of $25,524.20 ($25,089.20 plus the $435 filing fee).

Defendant now moves to set aside/vacate the sister state judgment on the grounds that at the time of signing the Confession of Judgment, nobody explained the Confession of Judgment to him, explained his due process rights, or explained what rights he was giving up by signing. (Memorandum at 1:19-24.) Defendant also contends the judgment entered appears to be against Christian Giguiere and Christian Robert Giguiere as an individual and as a corporation, but the only signatory to the Confession of Judgment is himself, as an individual. Defendant also contends he was not given proper credits for the payments actually made on the obligation and unwarranted charges have been added to the judgment. While Defendant contends the amount of the judgment is incorrect, he does provide any evidence as to how this is so.

A sister state judgment entered pursuant to the Sister State and Foreign Money-Judgments Act, Code Civ. Proc., § 1710.10 et seq., may be vacated on any ground which would be a defense to an action in California on the sister state judgment. (CCP § 1710.40, subd. (a).) Common defenses to enforcement of a sister state judgment include the following: (1) the judgment is not final and unconditional; (2) the judgment was obtained by extrinsic fraud; (3) the judgment was rendered in excess of jurisdiction; (4) the judgment is not enforceable in the state of rendition; (5) the plaintiff is guilty of misconduct; (6) the judgment has already been paid; and (7) suit on the judgment is barred by the statute of limitations in the state where enforcement is sought. (Canseco Marketing, LLC v. IFA & Insurance Services, Inc. (2013) 221 Cal.App.4th 831, 839.) Judgment Debtors bear the burden of proof to show by a

preponderance of the evidence why they are entitled to relief on this motion. (Canseco, supra, 841.)

In support of his motion, Defendant presents only his declaration, which declares as follows:

1. He is the Defendant in this action.

2. “[He] dealt with Synergy, who was allegedly representing Flash Advance with whom the agreement was allegedly made. At no time did [he] ever have any conversations with flash advance or Plaintiff in this action.”

3. “An individual at Synergy contacted [him] via internet and telephone soliciting financing.”

4. Synergy then sent [him] paperwork via internet to be filled out including the “confession of judgment.” It was done at the initial internet/telephone solicitation.”

5. [He] was unsure of the “confession of judgment” in that [he] was unfamiliar
with that document. [He] was told by Synergy this is the way we always do it.
Nothing else was explained to [him] regarding that document except that [he] had to sign it.” (emphasis added.)
6. “The most [he] understood was that as with any collection matter, upon default [he] would have to pay the unpaid principal, interest and attorney’s fees. Beyond those amounts, [he] would not be responsible for anything else.

However on or about July 18, 2019 when [he] received the application and notice of entry of judgment on sister state judgment, [he] learned for the first time that the amounts set forth in the principal were incorrect in that additional fees and costs were added to that amount. Furthermore [he] learned after the fact that [he] apparently had no right to challenge the amounts set forth in the “confession of judgment.”

The Court finds the foregoing is sufficient to establish the sister state judgment violated Defendant’s due process rights. Defendants presented evidence, by way of his declaration, that he was unfamiliar with the Confession of Judgment and that all he was told was that he “had” to sign it. Further, Plaintiff has not presented any evidence in opposition. There is no evidence Defendant was a sophisticated actor or represented by, and consulted with, counsel regarding the entry, enforceability, and form of the Confession of Judgment. (cf. Capital Trust, Inc. v. Tri-National Develop. Corp. (2002) 103 Cal.App.4th 824, 830-831 (New York confession of judgment entered in California could not be vacated on the ground that it violated due process because the case involved sophisticated parties negotiating a complex loan and the confession of judgment included affidavits indicating the debtor was represented by, and consulted with, counsel regarding the entry, enforceability, and form of the confession of judgment.) Defendant has established he did not knowingly and voluntarily waive his due process rights to notice and hearing. An out of state judgment entered without a knowing and voluntary waiver of due process rights should be vacated as in excess of jurisdiction. (Commercial Nat. Bank of Peoria v. Kermeen (1990) 225 Cal.App.3d 396, 402; see also Arizona Department of Revenue v. Yuen, (2009) 179 Cal App 4th 169.)

“The striking feature of the confession of judgment at common law lies in the authorization for entry of final judgment against a debtor without notice, hearing, or opportunity to defend.” (Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 66.) “[A] confession of judgment…puts at the disposal of the creditor the most drastic of

enforcement proceedings. [It] forecloses the presentation of any possible defense or controversy for judicial resolution; to the contrary it is a personal admission of a debt obligation upon which the court places its primatur.” (Hulland v. State Bar (1972) 8 Cal.3d 440, 449.) As noted by the California Supreme Court, the New York Court of Appeals has described confessed judgments as “the loosest way of binding a man’s property that ever was devised in any civilized country.” (Isbell, supra, 21 Cal.3d at 66 [citing Atlas Credit Corp. v. Erzine (1969) 25 N.Y.2d 219, 225].) “Consequently, all courts agree that a judgment entered pursuant to such a confession is constitutional only if the confession constitutes a valid waiver of the debtor’s due process rights.” (Id. at 68 [emphasis in original].) “In resolving that issue, we are guided by well-established constitutional principles: that waiver of constitutional rights is not presumed [citations omitted]; on the contrary, ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.’” (Id. at 68-69.)

Based on the record before it, the sister state judgment entered on June 26, 2019, is hereby set aside and vacated.

Defendant shall submit a formal order for the Court’s signature pursuant to CRC Rule 3.1312.