Judge: Lynette Gridiron Winston, Case: 22PSCV02056, Date: 2023-11-02 Tentative Ruling
Case Number: 22PSCV02056 Hearing Date: January 11, 2024 Dept: 6
Plaintiff Rock Creek Capital, LLC’s Request for Entry of Default Judgment
Defendants: Jesus E Espinoza and Pamela Witrago
STATEMENT OF DECISION
Plaintiff’s request for entry of default judgment is DENIED without prejudice.
BACKGROUND
This is a collection case. Plaintiff Rock Creek Capital, LLC (Plaintiff) is a debt buyer and acquired a series of education loans from original creditor Sallie Mae. On November 28, 2022, Plaintiff filed this action against Defendants Jesus E Espinoza, Pamela Witrago (Defendants), and Does 1 through 15, alleging one cause of action for breach of contract. Default was entered against Defendants on September 27, 2023. Following a denial of Plaintiff’s prior default judgment package, Plaintiff resubmitted a default judgment package on November 17, 2023.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.)
ANALYSIS
Plaintiff seeks default judgment against Defendants in the total amount of $112,129.36, including $112,129.36 in principal damages, $0.00 in prejudgment interest, $0.00 in attorney fees, and $0.00 in costs. However, Plaintiff appears to have resubmitted the same default judgment package from September 27, 2023 and has not remedied any of the defects identified in the Court’s November 2, 2023 ruling. (Order Re: Tentative Ruling (11/2/23).) To reiterate, the principal damages calculation is comprised in part of $28,050.80 in principal loan interest that accrued before the loan was charged off by the original creditor, but Plaintiff has provided no explanation of how that interest was calculated. (Cal. Rules of Court, rule 3.1800, subd. (a)(3).)
The documentation submitted in support of the request for entry of default appears to support the principal loan balance of $83,928.56 and a $150.00 late fee at the time the loan was charged off, but the same documentation at most evidences $9,975.39 in accrued interest. (Welch Decl., Ex. E, p. 6.) Additionally, the Court notes that the underlying loan agreement appears to be governed by the laws of the State of Utah. (Compl., Ex. A, Smart Option Student Loan, p. 5.) While this latter point is unlikely to make a difference, it could potentially affect whether the principal loan interest rate was legal or properly applied. If Plaintiff wishes to recover the $28,050.80 in principal loan interest, Plaintiff must provide evidence to support that amount; otherwise, it will not be included in the total judgment. (See Cal. Rules of Court, rule 3.1800, subd. (a)(3).)
Moreover, as stated before, Rule 3.1806 of the California Rules of Court requires the plaintiff to submit the original loan agreement or a declaration in lieu of the original with the default judgment package. (Cal. Rules of Court, rule 3.1806; Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1123.) Plaintiff still has not provided a copy of the original or a declaration in lieu of the original.
Furthermore, the Court notes that this action implicates the Fair Debt Buying Practices Act (FDBPA) since Plaintiff is a debt buyer. (Civ. Code § 1788.50, subd. (a); Welch Decl., Ex. C.) The loans at issue appear to be for personal purposes and therefore constitute consumer debt for purposes of the FDBPA. (Civ. Code § 1788.2, subds. (e), (f).) This means Plaintiff must submit the request for entry of default judgment on Form CIV-105. (Cal. Rules of Court, rule 3.1800, subd. (a).) Plaintiff submitted the request for entry of default judgment on Form CIV-100.
CONCLUSION