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Questions about "Stipulation for Judgment"


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Hey everyone,

I'm new to posting, but this board has been amazing, captivating my interest for a while now. I've read a lot of really great tips and insight into how this whole process works, and now that I have to deal with it myself, I hope it wouldn't be too much trouble to ask for some of that insight.

My question is regarding a "Stipulation for Judgment" that I received about a week ago. The people I've been dealing with are a law firm representing Capital One out of the Los Angeles area. Here's how I got it: I received a complaint/summons that was actually given to a relative of mine while I was out of town (they signed for it because they had no idea what it was). It reached my hands with about 3 days before the answer deadline. I filed an answer with a general denial of claims because they didn't provide any information about it, and I was just hoping they would be willing to talk about settling.

After I filed my response, the law firm called and asked if I could work out an agreement. We talked about payments and finally settled on a payment plan, and they told me I have 10 days to sign the documents they send to make it happen. In the meantime, I also received a notice from the court about my CMC date, as well as an ADR packet. I was about ready to sign the Stipulation for judgment, but after reading some posts on here, it just seems fishy, and I wanted to run it by someone who knows what they are talking about (currently I cannot afford an attorney or court fees).

Here is the summary of the content:

Capital One Bank vs. Myself

STIPULATION FOR ENTRY OF JUDGMENT

It is hereby stipulated, by and between the Plaintiff (Cap One) and defendant (Me) as follows:

1. This matter has been settled and compromised pursuant to the terms of this stipulation which contains the entire agreement of the parties. There are no oral or written agreements or understandings not contained herein.

2. Defendant shall pay plaintiff a) a down payment of 100.00 to be received on or before March 23, 2011, plus B) a minimum of no less than $100.00 to be received on or before the 23rd of each and every month thereafter through August 23, 2011. The total amount defendant will pay plaintiff will be as follows: $2600 principal, $800 accrued interested, interest at the rate of 10% per annum from March 23, 2011 to the completion of payments, plus c) $600 attorneys' fees and costs of suit in the amount of $330, plus d) a first appearance fee, if one has not already been paid to the court, of $225 by separate check, made payable to LAW FIRM to be utilized in the filing of this stipulation. For purposes of this stipulation, payments shall be applied first to BLAH BLAH BLAH then BLAH BLAH, etc. Interested shall continue to accrue pending performance of this stipulation. It is hereby agreed that after August 23, 2011, the parties will try to negotiate a higher payment level with payments to continue at the negotiated rate on the negotiated schedule until the total judgment plus interest at the legal rate of 10% per anuum is paid in full. In the even that the parties do not agree to a new payment amount, the total balance remaining on the judgment plus interest will be all due and payable on or before September 23, 2011.

3. All payments pursuant to this stipulation shall be made payable to Capital One, and mailed to plaintiff's attorneys.

4. Defendant shall have a 10 day grace period on all payments with the exception of the initial down payment and any appearance fees.

5. Defendant agrees that plaintiff may give notice of conditional settlement pursuant to rule 225 of the California Rules of Court and/or may dismiss this action with a reservation of jurisdiction pursuant to Code of Civil Procedure Section 664.6 as appropriate and in plaintiff's discretion. Defendant understand and agrees that there will be no dismissal before filing and approval of this stipulation as an order of the court. Plaintiff and defendant agree that the court shall retain jurisdiction of this action pursuant to Code of Civil Procedure Section 664.6 regardless of any dismissal, pending the completion of all payments by defendant pursuant to this stipulation. The parties further agree that this stipulation may also be enforced by independent action.

6. Time is of the essence in the performance of this stipulation and payments due hereunder.

7. Acceptance of any one or more late payments or anyone acting on plaintiff's behalf shall not constitute a waiver or in any way prejudice plaintiff's right to receive and demand timely payments thereafter or to declare a default hereunder. Plaintiff, in its sole discretion, shall have the right to declare a default if any payment is not timely made as required herein, regardless of any previous failure to do so.

8. In the event that any payment pursuant is not received by plaintiff's counsel pursuant to this stipulation, defendant shall be in default and plaintiff may immediately file a motion to vacate the dismissal, if any, and to enter judgment against the defendant for the full amount of all sums prayed for in plaintiff's complaint, interest, attorneys' fees and court costs, less credit for all payments received.

9. Defendant hereby agrees and acknowledges a voluntary waiver of rights and the provisions of California Code of Civil Procedure Sections 583.160, 583.310, 583.360, 583.410, 583.420 and all other provisions of California law regarding dismissal actions for failure to prosecute or to bring an action to trial within any time limit.

10. The parties hereto agree that a commissioner of the court may hear any proceeding arising out of this stipulation.

11. Defendant hereby acknowledges that they had the opportunity to consult with legal counsel of their legal rights with respect to the form and content of this stipulation and the advisability of executing it.

12. This stipulation may be signed in counterparts by the parties and their attorneys. Each counterpart shall be deemed an original.

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My goal is to settle without judgment, but they just push that off and tell me to get this important thing mailed back. Is this stipulation fair? And is it appropriate for me to wait it out until the CMC in May, even though I offered to start making payments this month? Any light shed on this issue is much much appreciated. You guys are all ridiculously smart, and I hope that in my inexperience, this place and these situations help me wise up. Thanks so much!

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It is hereby agreed that after August 23, 2011, the parties will try to negotiate a higher payment level with payments to continue at the negotiated rate on the negotiated schedule until the total judgment plus interest at the legal rate of 10% per anuum is paid in full. In the even that the parties do not agree to a new payment amount, the total balance remaining on the judgment plus interest will be all due and payable on or before September 23, 2011.

Did the person you spoke to give you any idea of what the "higher payment level might be"? That would be of concern to me considering the highlighted stipulation.

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No, we talked over the phone, and they just briefly brushed over it. I guess my original offer of $100 a month wasn't what they wanted so they said that we could start with that and in August raise it up, considering I've recently started working again. I don't know, they are very focused on one thing, and it's not going into much detail. :(

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Bass,

A couple of things to consider, Stipulated Judgement is the same as spending a year in court fighting the case and loosing, only difference is you are saying you agree to have a judgement against you, right now!

Next what are you going to do in August if they decide that they believe your new monthly payment should $300-$500 per month? You have already agreed that you are going to pay via judgement, in writing. You have very little bargining power once you sign the judgement.

I am not saying you shouldn't go this route, but you are just learning about your options, just started a job. You have filed an answer with general denials and I hope affirmative defenses. This alone has bought you at least 6 months of time, wheels of justice in civil court moves fairly slowly, so no reason to Stipulated Judgement at this point.

I streched a case out for almost a year, lost the case, but still negociated balance down by $1300 with lump sum payment. My point is if you learn a bit more, you might be able to force this case to go a year, all the while setting aside $100-$200 bucks. If you loose you have cash money to settle with, might be able to cut a better deal. These guys are about getting $ as fast as possible.

This is Crap One, they wont give up but as you learn a bit more there are ways to soften them up for a better deal than what you have now, IMO.

Good Luck

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BV80, that was something I didn't pay much attention to the first time through. But yeah, that point definitely concerns me.

And thanks, Skippy. I was just about ready to mail them the SJ, having just about given up in wanting to deal with this, but it's great to find out that it's possible to take that route, and I'm definitely wanting to learn everything I can. I guess the next step is to prep for the CMC in mid-May?

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i know its always easy to say what i will or wont do when im not the one going through the situation. so forgive me on what im going to say:

i wouldnt agree to paying interest. if you are going to be paying, it should be a certain and specific amount without interest. and all those other fees like attorney fees and appearance fees they need to bite that too. there's gotta be some compromise from both sides. i dont know the terms of the capital one agreement, but it might be something to look at with respect to all those extra fees. you shouldn't have to pay the law firm with a separate check, that's the cost of doing business, they have to eat that. (unless you can find your agreement, or ask them to send you a copy so you can read what it says about attorney fees, interest, etc)

if you agree to anything, make a settlement agreement, not an agreement for stipulated judgment. you dont want a judgment, whether its stipulated or not. you might as well take it to court and possibly dismiss it if you're just gonna have a judgment.

how much are they suing you for? did they at least give you a break on the total amount??

if they did not give you a break on the total amount they are suing for, then they're just leading you to the slaughterhouse.

i like to fight, so i may not be the best person to talk to, and im also not from your state, but i would negotiate new terms and call it a "settlement agreement". dont let them tell you what it is, have a say in the terms (that is if you want to negotiate.)

Edited by jackson212
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i like to fight, so i may not be the best person to talk to, and im also not from your state, but i would negotiate new terms and call it a "settlement agreement". dont let them tell you what it is, have a say in the terms (that is if you want to negotiate.)

The document will more than likely be filed with the court. It might possibly be a court form with that title that will be filled out, or it could simply be what they call that particular document in the poster's state. Retitling it may not be an option.

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BV80, that was something I didn't pay much attention to the first time through. But yeah, that point definitely concerns me.

If a judgment were to be entered against you, are you judgment proof? Whether you are or not might make a difference in how you proceed.

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Guest usctrojanalum

The deal they are offering is not all that terrible. I have learned that there are many different meanings for "stipulated judgement" across many jurisdictions. This is not a case of what I, and others, think of when we hear stipulated judgement which is the defendant agreeing that a judgment be entered against him.

The part about negotiating a higher repayment plan in August, and the escalation clause is a little whacky - I've never seen something like that.

I'm guessing the reason why they call this a "stipulated judgment" is because a judge is going to sign it? is that correct?

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how much are they suing you for? did they at least give you a break on the total amount??

The amount stated on the "Stipulation" is the full amount, no breaks. Along with every bit of interest they can get. And all the fees tacked on, I basically rounded to the nearest hundred in the first post.

If a judgment were to be entered against you, are you judgment proof? Whether you are or not might make a difference in how you proceed.

I'm not entirely sure what that fully entails, but I don't think I'm judgment proof. Other than being a bit on the poor side (just got out of college with a bachelor's degree and barely a job), I haven't any disability, or social security, or anything like that.

The part about negotiating a higher repayment plan in August, and the escalation clause is a little whacky - I've never seen something like that.

I'm guessing the reason why they call this a "stipulated judgment" is because a judge is going to sign it? is that correct?

Yeah, at the end, is a place for both parties to sign, and also a Judge of the Superior Court. I was afraid of the idea of a judgment going against me (especially one like this where I agree to pay all their expenses, a good amount of interest, and give up on a bunch of rights), when there's the possibility to have a reasonable settlement - even if its for the full principle and accrued interest.

I can't thank you guys enough for all your input. Your viewpoints and ideas are invaluable. :)

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The deal they are offering is not all that terrible. I have learned that there are many different meanings for "stipulated judgement" across many jurisdictions. This is not a case of what I, and others, think of when we hear stipulated judgement which is the defendant agreeing that a judgment be entered against him.

The part about negotiating a higher repayment plan in August, and the escalation clause is a little whacky - I've never seen something like that.

I'm guessing the reason why they call this a "stipulated judgment" is because a judge is going to sign it? is that correct?

Stipulated Judgment in California, based on my learnings are as follows and why CA is using this tool:

It is the same as the OC has proven the case and won in court so all rights of appeal are lost. As soon as Debtor misses payment, CA can immediately move to collection phase of judgement, with garnishment or bank levy. What may have taken 18 months to begin to recieve funds, they get right now. CA's dream come true, after all they have added the full attorney costs for collection, when they have done little, other than file the complaint and a couple fo dunning letters.

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Guest usctrojanalum

As soon as Debtor misses payment, CA can immediately move to collection phase of judgement, with garnishment or bank levy. What may have taken 18 months to begin to recieve funds, they get right now. CA's dream come true, after all they have added the full attorney costs for collection, when they have done little, other than file the complaint and a couple fo dunning letters.

If you read the agreement though, that is not what it says.

8. In the event that any payment pursuant is not received by plaintiff's counsel pursuant to this stipulation, defendant shall be in default and plaintiff may immediately file a motion to vacate the dismissal, if any, and to enter judgment against the defendant for the full amount of all sums prayed for in plaintiff's complaint, interest, attorneys' fees and court costs, less credit for all payments received.

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I notice at least two very difficult points for the OP if he signs this (and I wouldn't sign it if it were me):

1) Paragraph 2 essentially makes this a balloon note. All the proceeds are due by Sept 23 2011 if a new agreement for a higher payment is not made. So you have the worst of all worlds: a judgment the moment you sign it and a balloon note you are facing in 6 months. There is nothing in the agreement that says the attorney's office will be reasonable in asking for a higher payment. They left that part off and decided to make it operate like a balloon note - where everything is due if an agreement can't be reached. This agreement is (natually) all in the CA's favor. For this reason alone, I would never sign it.

2) The default period is 10 days (see paragraphs 4, 7 and 8). That is an extremely short timeframe. Also the default can be declared by the CA at any time in their sole discretion. That is a very nice way to say that anytime you are late 10 days they can call the "note" due, file the judgment and you have NO RECOURSE because you already agreed to it!

If you are going to sign a note (and that's what this is), get some terms in your favor. Don't let them make an automatic judgment with your consent (that's how it reads now).

You are also waiving some of your rights. I did not research what they are because of the two points above would make me NOT sign it, but the information is in paragraph 9. Did you look up the California Code of Civil Procedure sections listed to know what you are giving up?

I think you need to pursue the fight and save funds to negotiate a lump sum payment at some future time (if you have to) without a judgment. Even if you have an agreed payment plan, it does not mean you have to consent to an automatic judgement. Especially one like this that is designed to fail.:shock:

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Guest usctrojanalum

You are missing it too Denita, the agreement as written in the OP is not the OP agreeing to an automatic judgment. Nothing in the agreement states that, it actually states the opposite in paragraph 8. I do agree with you that I have concern over the fact that it is basically a balloon agreement though.

The reason why this is called a "stipulated judgment" is because both parties agree (stipulate) and the Judge signs it, or So Orders it (the judgment part).

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You and I have discussed this before about these Stipulated Judgments (or Agreed Judgments) or whatever name the CA/attorney has for them. I am opposed to having the OP (or anyone) give up their rights to fight a judgment especially if they are making payments on the debt.

In paragraph 8 it states: In the event that any payment pursuant is not received by plaintiff's counsel pursuant to this stipulation, defendant shall be in default and plaintiff may immediately file a motion to vacate the dismissal, if any, and to enter judgment against the defendant for the full amount of all sums prayed for in plaintiff's complaint, interest, attorneys' fees and court costs, less credit for all payments received.

Note the bolded part: immediately file a motion to vacate the dismissal, if any, and to enter judgment against the defendant etc. There is nothing in the agreement that states in this paragraph or any other that there will be a dismissal. In fact, it very specifically states that this agreement is all the terms and conditions (terms of this stipulation which contains the entire agreement of the parties. There are no oral or written agreements or understandings not contained herein) and no where in the agreement does it state that it will dismiss the court action at all. It just says that in no way will it dismiss any action prior to the signing of the agreement.

The OP needs to have an attorney (debtor defense type attorney) write up something that gives him some protection. I understand where you are coming from USC - you and your firm would probably never file a judgment against someone making payments in accordance with the agreement. HOWEVER, there are lots of CA's and attorney firms representing CA's that would. They would file that judgment in a heartbeat (11th day of missed payment) and then the OP is really stuck. In fact, I believe that some unscrupulous CA's would hold the payment beyond 10 days and then file the judgment anyway. :-( In this agreement the OP would have no option because the default is determined by the CA in his sole discretion. That alone is enough reason to modify the agreement.

Now, I agree with you that the CA would still have to go thru the legal system to get a garnishment etc. But I don't know that for a fact because I still haven't read the California statutes that the OP waives in the agreement plus I'm not an attorney. In my simple mind, the agreement needs to be made so that ALL parties understand exactly what they are giving up/getting in the agreement - especially the OP since he is the one on the hook.

That balloon note is a deal killer. It speaks to the intent of the CA/attorney, IMO. If the OP wants to have an agreement, then let him get one that is on a level playing field. JMO.

Edited by Denita
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Guest usctrojanalum

You make fine points Denita, but in order to make a long monthly payment plan on an outstanding debt you are going to be sued for, you are going to take a beating with the stipulation no matter where you are or who you have representing you.

My feelings have always been - as long as there is no judgment entered against you while you are making the payments, there is a reasonable period to cure a default (at least 10 days) and the case is discontinued after the completion of the stip there is not really a better deal you are going to get out there.

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Your second paragraph is spot on...as long as the debtor makes the agreed upon payments timely. I happen to think a 10 day default is too quick. I think it should be closer to 30 days - after all, the CA then gets to file the judgment immediately upon default.

Where you and I differ is that you assume the CA/attorney will follow the letter and intent of the agreement as long as the payments are timely made and I assume that the CA/attorney will *oops* file the judgment right away even though the payments are timely made. They do it to strengthen their position. Most debtors don't know because they are busy making their payments, assuming everything is ok because they are making the payments and they don't notice until they check their credit reports.

Given the above, I know there is a way to fashion an agreement that gives the creditor a right to get a judgment, just not automatically and not immediately. :mrgreen:

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Everyone's making some great points, all directed toward one main idea: make up a Settlement agreement with some more fair terms. I know that I will have to be paying, but taking the path of not signing, then coming up with a fair settlement, and whatever happens from this point through the CMC, giving me time to be able to save up for a possible lump sum down the line should they accept a settlement or I just lose.

From what I've read, the CMC is brief - setting up a litigation date, and possibly getting a chance to talk about a settlement agreement with a judge around? I know there are a few things to put on my CMC statement, but does this sound like a plausible road to take?

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From what I've read, the CMC is brief - setting up a litigation date, and possibly getting a chance to talk about a settlement agreement with a judge around?

I'm not sure about Cali, but in NJ a judge won't be in on any settlement talks. We go off with the plaintiffs attorneys alone and work something out. But you may get a more fair deal once it gets to that point and they see you are in it for the long haul.

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Are you working directly with the OC on this "stipulation?" And if so, what are the initials of the person you're working with? I have some experience with the OC and one of their legal spe******ts on this subject that I could share with you.

Pickles

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Hi!

I actually received a Stipulation for Entry of Judgement, which is the same thing. DON'T SIGN IT! Basically, by signing it, you are admitting guilt to any claim made in the Stipulation. If you ever default on your payment plan with them, FOR ANY REASON, even if you are late a few days, they will take that stipulation to court and win a case against you by default. If you try to fight it, the judge will say "but you signed this admission" and they will garnish your wages most likely for the full original amount.

Do some searching on the internet and you will find out what it is. I can't post links yet... GOOD LUCK!

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Are you working directly with the OC on this "stipulation?" And if so, what are the initials of the person you're working with? I have some experience with the OC and one of their legal spe******ts on this subject that I could share with you.

Pickles

Hey Pickles,

I'm not allowed to PM yet, so I'll just answer you here. I don't think they would be considered the OC, since the OC is Capital One, and I'm corresponding with H***** and Z*** Law Offices out of Los Angeles. How did you deal with yours?

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Bass,

While USC and Denita, showed you the finer points of breaking down legalese at the end of the day, as I stated, you can see that signing that Stipilated Judgement is probably not the best for your circustances. Better part of your rights are gone, they are banking that you will miss a payment and they can move to full blown collection, including garnishment and bank levy.

Key Point to remember, CA is representing OC, so don't go calling the OC trying to reach some agreement, just causes you problems. Parties represented by council, you must work through their legal counsel.

On your summons there should be a trial date already set, if not at CMC judge will want to know if any settlement has been reached, if discovery has been started these types of things.

So you have some time to prepare for your next steps-

1. You can dream of cutting some settlement deal, but unless you have +80% of the amount being asked for in a lump sum payment you can make in 30 days, you won't get very far.

2. Consider filing discovery to keep the process moving along, you could very well recieve discovery request from them also, certainly "Requests for Adimission" in hope that you will not answer or answer in a way that makes their case for summary judgement.

3. As this is Crap One, you may want investigate private arbitration based on the card agreement. Based on the amount of the debt and being early in the court process, you maybe able to extract a better settlement offer with arb.

Primary thing is to learn all you can, and start putting aside the $100 bucks, so you build a settlement fund for when the time is right.....

Best of Luck

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Hey Pickles,

I'm not allowed to PM yet, so I'll just answer you here. I don't think they would be considered the OC, since the OC is Capital One, and I'm corresponding with H***** and Z*** Law Offices out of Los Angeles. How did you deal with yours?

I can't go into too much detail, but after being sued by a law firm on a Cap One account, I elected arbitration. That got the the Cap One in-house legal department to take over and we negotiated a settlement. I did sign a stipulated order, and was assured they would not file it with the courts as long as I kept to my payments. They have, to date, been true to their word. My POC even provided top cover when one of my payments got returned due to a situation I had no control over. The robots at the payment call center essentially voided my settlement and tripled my payments. My POC found out about it, and reset everything back to the original settlement total and the payments. It's rare to say anything positive when trying to settle accounts, but in this case the person I'm working with has been really upstanding.

Pickles

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