Judge: Layne H. Melzer, Case: 2014-00711374, Date: 2023-08-10 Tentative Ruling

Plaintiff AMERICAN EXPRESS BANK, FSB, A FEDERAL SAVINGS BANK

Motion for Order Amending Plaintiff's Name

Moving party asks that the Court for an order that “going forward Plaintiff’s name on the court’s record is American Express National Bank” (see Proposed Order) based on the 4/1/2018 merger whereby Plaintiff ‘American Express Bank, FSB’ became ‘American Express National Bank’.  (Hoffmann Decl. ¶2.)  In so doing, moving party relies upon CCP 473:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

This provision provides authority for a court to “amend pleadings or proceedings” to “add or strike” the name of any party.  This section has been interpreted to permit such amendments without notice by ex parte request. 

(a) [9:354.6] Minor amendments to pleadings; extensions of time to plead: CCP § 473(a)(1) authorizes courts to:

·         — enlarge the time for answer or demurrer; or

·         — allow minor amendments to a party's pleadings (“by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect”) (e.g., “Doe” amendments).

Although the statute does not expressly state such relief may be granted without notice to the adverse party, that is implicit in the statute's requirement for notice for other amendments to the pleadings and for orders allowing tardy answers. [See CCP § 473(a)(1), 2nd sent.]

F. Ex Parte Applications, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-F

However, the Court cannot retroactively amend any pleadings (and certainly not the judgment) in this case on an ex parte basis: 

“The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment. The court does retain power to correct clerical errors in a judgment which has been entered. However, it may not amend such a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error. [Citations.]’ ”

(Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228 at p. 1237.)

In clarifying its request moving party states as follows:

“In the instant case, plaintiff obtained judgment against defendant on 07/23/14. As is set forth in the declaration of plaintiff's counsel, filed herewith, plaintiff merged with and into AMERICAN EXPRESS NATIONAL BANK effective April 1, 2018. The surviving entity after the merger is AMERICAN EXPRESS NATIONAL BANK. See Exhibit A to the declaration of plaintiff's counsel. Plaintiff intends to enforce the judgment in its true and current name of AMERICAN EXPRESS NATIONAL BANK. Plaintiff does not intend to vacate or amend the judgment, but only to update the court records to be able to file subsequent pleadings in its current name AMERICAN EXPRESS NATIONAL BANK” (ROA #44)

An amendment per CCP 473 is not the  appropriate vehicle to address the current situation which involves the assignment of the judgment in this case as a “matter of law” by way of merger.  In this regard the Court notes that the assignment of rights under a judgment is addressed in CCP §673 which provides as follows:

(a) An assignee of a right represented by a judgment may become an assignee of record by filing with the clerk of the court which entered the judgment an acknowledgment of assignment of judgment.

(b) An acknowledgment of assignment of judgment shall contain all of the following:

(1) The title of the court where the judgment is entered and the cause and number of the action.

(2) The date of entry of the judgment and of any renewals of the judgment and where entered in the records of the court.

(3) The name and address of the judgment creditor and name and last known address of the judgment debtor.

(4) A statement describing the right represented by the judgment that is assigned to the assignee.

(5) The name and address of the assignee.

(c) The acknowledgment of assignment of judgment shall be:

(1) Made in the manner of an acknowledgment of a conveyance of real property.

(2) Executed and acknowledged by the judgment creditor or by the prior assignee of record if there is one.

(d)(1) If an acknowledgment of assignment of judgment purports to be executed or acknowledged by an authorized agent of the judgment creditor or an authorized agent of a prior assignee of record, then documentation sufficient to evidence that authorization shall be filed together with the acknowledgment of assignment of judgment.

(2) Notwithstanding paragraph (1), an assignee of a right represented by a judgment may also become an assignee of record by filing with the clerk of the court that entered judgment a court order or other documentation that evidences assignment of judgment by operation of law.

A legal treatise discussing this section also discusses notice to be given to the judgment debtor:

(3) [6:1542.6] Validity of assignment not open to challenge under § 673: The scope of CCP § 673 (¶ 6:1540 ff.) is limited to the process for an assignee to obtain standing to proceed under the EJL as the judgment creditor. No provision is made therein for a debtor to attack the creditor's authority to make the assignment or otherwise to challenge assignment of the judgment. Any challenge to the assignment must be raised in a separate proceeding. [See California Coastal Comm'n v. Allen, supra, 167 CA4th at 327, 83 CR3d at 909-910]

b. [6:1543] Judgment debtor protected until notice of assignment received: Filing the acknowledgment of assignment with the court clerk does not give the judgment debtor notice of the assignment. If the judgment debtor pays the judgment creditor without actual notice of the assignment, such payment is credited to the judgment and the assignee cannot recover the amount of the payment from the judgment debtor. [Civ.C. § 954.5(c); and see Comment to CCP § 673]

➪ [6:1544] PRACTICE POINTER: For this reason, the assignee should immediately serve a copy of the executed acknowledgment of assignment on the judgment debtor and his or her attorney of record. The copy should be sent by certified mail, return receipt requested.

11. [6:1539] Enforcement of Judgment by Assignees:, Cal. Prac. Guide Enf. J. & Debt Ch. 6G-11

The Court is inclined to find that moving party is an “assignee of right” based on the evidence submitted demonstrating a merger involving Plaintiff and moving party.  To validate moving party’s status as an “assignee of record” moving party may submit electronically a proposed order consistent with CCP §673.  Upon execution by the Court, moving party as an adjudicated “assignee of record” shall serve a copy of this order on judgment debtor and his attorney of record by certified mail return receipt requested.

The Court independently notes that the term ‘judgment creditor’ “means the person in whose favor a judgment is rendered or, if there is an assignee of record, means the assignee of record. Unless the context otherwise requires, the term also includes the guardian or conservator of the estate, personal representative, or other successor in interest of the judgment creditor or assignee of record.”  (Code Civ. Proc., § 680.240.)  This raises the question as to whether a formal “assignee of record” affirmation is required. 

The Court will hear from counsel as to what procedure is appropriate under the circumstances.