PROCEEDINGS: REQUEST FOR ENTRY OF DEFAULT JUDGMENT 

MOVING PARTY: Bank of America, N.A. 

RESPONDING PARTY: Mobile Auto Repair, Inc. and Fabiano Dias Do Nascimento aka Fabiano Dias aka Fabiano Dias Donascimento aka Fabiano Diasdonascimento aka Fabiano Dias Dascimento aka Fabinao Dias Orlando 

REQUEST FOR ENTRY OF DEFAULT JUDGMENT 

BACKGROUND 

This case arises from an unpaid debt.  Plaintiff Mobile Auto Repair Inc. entered into a Loan Agreement with Plaintiff Bank of America, N.A., whereby Plaintiff agreed to provide a line of credit for business purposes to Mobile up to the principal amount of $200,000 (“Loan”). MOBILE promised to pay the Loan in accordance with the terms of the Loan Agreement.  

Under the Loan Agreement, if any monthly payment is not paid on or before the fifteenth (15th) day after the date it is due, Plaintiff is entitled to a late charge in an amount equal to 4% of any late monthly payment.  In the event of default, the terms of the Loan Agreement provides for a default rate of interest defined as the lesser of six (6) percentage points per annum above the interest rate stated in the Loan Agreement or the maximum rate of interest permitted under applicable state law.  The terms of the loan Agreement also provide that Defendant is liable for all fees, costs and expenses incurred by Plaintiff in connection with the enforcement of remedies under the Agreement.  

To induce Plaintiff to enter into the Loan Agreement and extend credit to Mobile, Defendant Fabiano Dias Do Nascimento (“Fabiano”) executed in writing a Continuing and Unconditional Guaranty (“Guaranty”) of all of Mobile’s indebtedness to Plaintiff.  Said Guaranty provides for the payment of all indebtedness of Mobile to Plaintiff including the indebtedness due under the Loan Agreement which includes, but is not limited to, all fees, costs and expenses incurred by Plaintiff in connection with the enforcement of remedies under the terms thereof.   

To secure payment of the obligation set forth in the Loan Agreement, Mobile entered into a Security Agreement with Plaintiff, granting Plaintiff a security interest in, and the proceeds of, the Collateral described in the Security Agreement and defined in the Agreement (the “Collateral”).  On or about May 4, 2022, Mobile breached the terms of the Loan Agreement by terminating the Bank’s UCC-I Financing Statement, without the Bank’s knowledge, agreement or consent.  Based on this default, Plaintiff advised Defendants the Loan had been accelerated and was due in full, and demanded that Defendants pay the Loan in full. Defendants refused to do so.   

The Security Agreement provides, inter alia, that in the event of Mobile’s default under the Agreement, Plaintiff may take immediate possession of the Collateral.  The Security Agreement further provides that Plaintiff may enter the premises of Defendant and take possession of the Collateral. Mobile has defaulted under the terms of the Loan Agreement, and Plaintiff is entitled to immediate possession of all Collateral. Plaintiff has made demand on Mobile to surrender possession of the Collateral, but Mobile has failed and refused and continues to fail and refuse to do so and is presently wrongfully retaining possession thereof in derogation of the rights of Plaintiff. 

On October 10, 2022, Plaintiff filed a Complaint against Defendants and Does 1 to 100.  The Complaint alleges seven claims for (1) Breach of Loan Agreement; (2) Breach of Guaranty; (3) Foreclosure of Commercial Security Agreement; (4) Claim and Delivery; (5) Money Lent; (6) Account Stated, and (7) Indebtedness.  The Complaint seeks $234,176.67 in damages, plus late fees, interest (at the rate of 10% per annum from October 9, 2024), attorneys’ fees and recovery of possession of the Collateral.   

On October 21, 2022, Defendants were personally served with the Summons and Complaint.  Defendants were obligated to respond but failed to do so.  The Clerk of the Court entered default on November 25, 2024, following Plaintiff’s filing of a Request for Entry of Default.  Plaintiff then filed a request for entry of default judgment against Defendants on January 6, 2025.  The Request for Entry of Default and for Entry of Default Judgment were served by mail on Defendants.  

LEGAL STANDARD 

Code Civ. Proc. § 585 sets forth the two options for obtaining a default judgment. First, where the plaintiff’s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting, additional evidence, or the exercise of judgment to ascertain, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested.¿ (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.)  Section 585 also allows for interest, costs and attorney fees, where otherwise allowed by law. (Code Civ. Proc., § 585(a).) 

Multiple specific documents are required, such as: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code Civ. Proc. § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties.  (CRC Rule 3.1800.)  

RELIEF REQUESTED 

Default judgment against Defendants for a total of $222,199.73, which is comprised of: (1) $202,192.28, for damages, (2) $15,705.45, for interest, (3) $597, for costs, and (4) $3,885.00 for attorneys’ fees.  

DISCUSSION 

Plaintiff has properly complied with all the substantive and procedural requirements for a default judgment. Substantively, Plaintiff declares via declaration there have been damages in the amount of $215,426.28, consisting of principal in the amount of $199,500, accrued interest in the amount of $13,682.13 and at the per diem of $25.96 thereafter, and late fees in the amount of $2,244.15, with additional late fees thereafter of $448.13 (as of December 19, 2024).  (Temple Decl., paragraph 11.)  The evidence submitted (the Loan Agreement, the Security Agreement, the Guaranty, and demand letters) is authenticated by Plaintiff’s declaration.  (Id., paragraphs 3, 12, 14, 18.)  Plaintiff’s request for attorneys’ fees is authorized under the Loan Agreement, Security Agreement, and Guaranty, and the calculation of fees (of $3,885) is supported by Local Rule 3.214(a) and counsel’s declaration.  (Khatchadourian Decl., paragraph 2.)  A memorandum of costs in the amount of $597 is set forth in Item 7 of the CIV-100 form and is supported by Plaintiff’s declaration.  (Temple Decl., paragraph 41.)  Plaintiff seeks interest at the contractual rate of 10%, and the amount of the interest is set forth in Plaintiff’s Declaration.  Procedurally, Plaintiff properly served Defendants more than 30 days prior to requesting entry of default and default judgment, correctly completed JC Form CIV-100 in a manner that would not void or put at issue the entry of default, provided a declaration of non-military status, requested damages in amounts supported by the filings and not in excess of the amount stated in the Complaint, requested dismissal of doe defendants and filed a proposed judgment (JUD-100).  As default has already been entered and there has been no appearance by Defendants, default judgment is appropriate here.  

CONCLUSION AND ORDER 

Plaintiff Bank of America N.A.’s Request for Default Judgment is GRANTED as to Defendants Mobile Auto Repair Inc. and Fabiano Dias Do Nascimento aka Fabiano Dias aka Fabiano Dias Donascimento aka Fabiano Diasdonascimento aka Fabiano Dias Dascimento aka Fabiano Dias Orlando.  Judgment is awarded in favor of Plaintiff and against Defendants in the amount of $222,199.73.