Judge: Ashfaq G. Chowdhury, Case: 24NNCV02472, Date: 2024-10-18 Tentative Ruling
Case Number: 24NNCV02472 Hearing Date: October 18, 2024 Dept: E
Hearing Date: 10/18/2024 – 8:30am
Case No. 24NNCV02472
Trial Date: UNSET
Case Name: BMO BANK N.A. formerly known
as BMO HARRIS BANK N.A. v. RED LINE TRANSPORT, INC., a California corporation;
HAYK MELIKSETYAN, an individual; 1-100 inclusive
WRIT OF POSSESSION – Res ID 7660
RELIEF REQUESTED
Plaintiff, BMO Bank N.A., formerly known as BMO Harris Bank N.A., applies for a
writ of possession after hearing (CCP § 512.010) against Defendant, Red Line
Transport, Inc., a California corporation.
BACKGROUND
Plaintiff, BMO Bank N.A.
formerly known as BMO Harris Bank N.A., filed a Complaint on 06/25/2024
alleging six causes of action for: (1) Breach of Written Agreement, (2) Breach
of Guaranty, (3) Claim and Delivery, (4) Conversion, (5) Account Stated, and
(6) Indebtedness.
The first cause of
action for breach of written agreement is alleged against Defendant, Red Line
Transport, Inc., a California corporation (Red Line). Plaintiff alleges that on
or about December 30, 2018, Red Line entered into a Loan and Security Agreement
(Agreement) with Plaintiff for the finance of certain collateral (Collateral)
for a term of 72 months, commencing on March 1, 2019. (Compl. ¶ 8.) [Paragraph
26 of the Complaint, located within the third cause of action, indicates that
the Collateral is a 2019 Volvo VNL-S, VIN 4V4NC9EJXKN871730.] Plaintiff alleges
that the Collateral securing the Agreement was delivered to Red Line as
evidenced by the acceptance executed by Red Line in the Agreement and Plaintiff
perfected its interest in the collateral by obtaining Certificates of Title
from the State of California Department of Motor Vehicles. (Compl. ¶ 9.)
Plaintiff alleges that Red Line breached the terms of the Agreement on October
1, 2023 when it failed to make the monthly installment then due and owing.
(Compl. ¶ 10.) Plaintiff alleges that pursuant to the terms of the Agreement,
upon Red Line’s default, Plaintiff elected to accelerate the balance of the
Agreement. (Compl. ¶ 11.)
The second cause of
action for breach of guaranty is alleged against Defendant, Hayk Meliksetyan,
an individual (Hayk). Plaintiff alleges that Hayk is indebted to Plaintiff
based on the Continuing Guaranty that Hayk signed on December 30, 2018. (See
Compl. ¶¶ 21-22.)
The third cause of
action (claim and delivery), fourth cause of action (conversion), fifth cause
of action (account stated), and sixth cause of action (indebtedness) are alleged
against both Defendants Red Line and Hayk.
The instant writ of
possession only applies to Defendant Red Line as indicated in Plaintiff’s
Notice of Application for Writ of Possession and Hearing.
PROCEDURAL
Moving
Party: Plaintiff,
BMO Bank N.A. formerly known as BMO Harris Bank N.A. (Plaintiff or BMO)
Responding
Party: No opposition by Defendant, Red Line Transport, Inc., a California
corporation (Red Line or Defendant)
Moving Papers: Notice of Application for Writ
of Possession and Hearing; Application for Writ of Possession After Hearing;
Memorandum (a single memorandum was submitted for both writs of possession that
are on calendar for 10/18/2024); Declaration of Whitney Oliver (a single
declaration was submitted for both writs of possession that are on calendar for
10/18/2024); Notice of Rescheduled Applications for Writ of Possession (a
single notice of rescheduled applications was filed for both writs of
possession)
Opposition Papers: No Opposition
Reply Papers: No Reply Papers
Proof of
Service Timely Filed (CRC Rule 3.1300): No - “Proof of service of the
moving papers must be filed no later than five court days before the time
appointed for the hearing.” (Cal Rules of
Court, Rule 3.1300(c).) Here, the hearing is set for 10/18/2024. Five
court days before the hearing would be 10/11/2024. As of the afternoon of
10/14/2024, no proof of service for any of the moving papers has been
submitted.
16/21 Court Days Lapsed (CCP § 1005(b)): No/Uncertain – In relevant part of CCP § 1005(b), “Unless otherwise
ordered or specifically provided by law, all moving and supporting papers shall
be served and filed at least 16 court days before the hearing.” Here, the Court
is unable to tell if the moving papers were timely served because no
proof of service was filed to indicate when, or if, the moving papers were
served upon Defendant. The moving papers were timely filed. However, the
Court cannot tell if the moving papers were timely served due to the
lack of proof of service of the moving papers.
Proper Address (CCP § 1013, § 1013a, § 1013b)
: No/Uncertain – First, Plaintiff has not filed a proof of service for the
moving papers for the Court to be able to determine what address Plaintiff
served Defendant at. Second, the Court notes that it is unclear what the proper
service address is for Defendant. Defendant has not appeared in the action.
There is an Order to Show Cause Re: Failure to File Proof of Service currently
set for 10/18/2024.
Legal Standard Writ of Possession
A writ of possession is
issued as a provisional remedy in a cause of action for claim and delivery,
also known as replevin. (See Pillsbury, Madison & Sutro v. Schectman
(1997) 55 Cal.App.4th 1279, 1288.)
“Upon the filing of the
complaint or at any time thereafter, the plaintiff may apply pursuant to this
chapter for a writ of possession by filing a written application for the writ
with the court in which the action is brought.” (CCP § 512.010(a).)
(1) A showing of the
basis of the plaintiff’s claim and that the plaintiff is entitled to possession
of the property claimed. If the basis of the plaintiff’s claim is a written
instrument, a copy of the instrument shall be attached.
(2) A showing that the
property is wrongfully detained by the defendant, of the manner in which the
defendant came into possession of the property, and, according to the best
knowledge, information, and belief of the plaintiff, of the reason for the
detention.
(3) A particular
description of the property and a statement of its value.
(4) A statement,
according to the best knowledge, information, and belief of the plaintiff, of
the location of the property and, if the property, or some part of it, is
within a private place which may have to be entered to take possession, a
showing that there is probable cause to believe that such property is located
there.
(5) A statement that
the property has not been taken for a tax, assessment, or fine, pursuant to a
statute; or seized under an execution against the property of the plaintiff;
or, if so seized, that it is by statute exempt from such seizure.
(CCP § 512.010(b)(1)-(5).)
“The requirements of subdivision (b) may be
satisfied by one or more affidavits filed with the application.” (CCP §
512.010(c).)
(1) A copy of the
summons and complaint.
(2) A Notice of
Application and Hearing.
(3) A copy of the
application and any affidavit in support thereof.
(CCP § 512.030(a).)
“A
claim has ‘probable validity’ where it is more likely than not that the
plaintiff will obtain a judgment against the defendant on that claim.” (Code
Civ. Proc., § 511.090.)
“No
writ directing the levying officer to enter a private place to take possession
of any property shall be issued unless the plaintiff has established that there
is probable cause to believe that the property is located there.” (CCP §
512.060(b).)
“Except
as provided in subdivision (b), the court shall not issue a temporary
restraining order or a writ of possession until the plaintiff has filed an
undertaking with the court . The undertaking shall provide that the sureties
are bound to the defendant for the return of the property to the defendant, if
return of the property is ordered, and for the payment to the defendant of any
sum recovered against the plaintiff. The undertaking shall be in an amount not
less than twice the value of the defendant’s interest in the property or in a
greater amount. The value of the defendant’s interest in the property is
determined by the market value of the property less the amount due and owing on
any conditional sales contract or security agreement and all liens and
encumbrances on the property, and any other factors necessary to determine the
defendant’s interest in the property.” (CCP § 515.010(a).)
“If
the court finds that the defendant has no interest in the property, the court
shall waive the requirement of the plaintiff’s undertaking and shall include in
the order for issuance of the writ the amount of the defendant’s undertaking
sufficient to satisfy the requirements of subdivision (b) of Section 515.020.”
(CCP § 515.010(b).)
TENTATIVE RULING
CCP § 1005(b)/CRC, Rule 3.1300
In relevant part of CCP § 1005(b), “Unless
otherwise ordered or specifically provided by law, all moving and supporting
papers shall be served and filed at least 16 court days before the hearing.”
Here, the Court is unable to tell if the
moving papers were timely served because no proof of service was filed
to indicate when, or if, the moving papers were served upon Defendant.
The moving papers were timely filed. However, the Court cannot tell if
the moving papers were timely served due to the lack of proof of service
of the moving papers.
“Proof of service of the moving papers must
be filed no later than five court days before the time appointed for the
hearing.” (Cal Rules of Court, Rule
3.1300(c).)
Here, the hearing is set for 10/18/2024. Five
court days before the hearing would be 10/11/2024. As of the afternoon of 10/14/2024, no proof of service for any of
the moving papers has been submitted. Therefore, Plaintiff did not timely file
a proof of service under CRC, Rule 3.1300(c).
Since the Court cannot tell when, or if, the
moving papers were timely served, this appears to be grounds to DENY
Plaintiff’s Writ of Possession.
Additionally, the Court notes that since
Plaintiff has not filed a proof of service for the moving papers, the Court
cannot determine what address Plaintiff served Defendant at. Further, the Court
notes that it is unclear what the proper service address is for Defendant.
Defendant has not appeared in the action. There is an Order to Show Cause Re:
Failure to File Proof of Service currently set for 10/18/2024.
The Court will consider continuing this
hearing and future dates to allow for plaintiff to remedy some of the issues
raised in this tentative.
Service Under 512.030
Prior
to the hearing required by CCP § 512.020(a), the defendant shall be served with
all of the following:
(1) A copy of the summons and complaint.
(2) A Notice of Application and Hearing.
(3) A copy of the application and any
affidavit in support thereof.
(CCP § 512.030(a).)
“If the defendant has not appeared in the
action, and a writ, notice, order, or other paper is required to be personally
served on the defendant under this title, service shall be made in the same
manner as a summons is served under Chapter 4 (commencing with Section 413.10)
of Title 5.” (CCP § 512.030(b).)
Here, the Court cannot determine if the
requirements of CCP § 512.030 were met. Not only was a proof of service not
filed for the instant moving papers, but a proof of service was not filed for
the summons and complaint. An order to show cause for failure to file proof of
service is currently set for 10/18/2024.
Therefore, Plaintiff’s failure to comply with
CCP § 512.030 appears to be grounds to DENY Plaintiff’s Writ of Possession.
Other Service Rules
“Each
party shall file with the court and serve upon the other party within the time
prescribed by rule any affidavits and points and authorities intended to be
relied upon at the hearing. At the hearing, the court shall make its
determinations upon the basis of the pleadings and other papers in the record;
but, upon good cause shown, the court may receive and consider additional
evidence and authority produced at the hearing or may continue the hearing for
the production of such additional evidence, oral or documentary, or the filing
of other affidavits or points and authorities.” (CCP § 512.050.)
Requirements of 512.010(b)
Pursuant to CCP § 512.010(b), the application shall be executed under oath and
shall include the following:
(1) A showing of the basis of the
plaintiff’s claim and that the plaintiff is entitled to possession of the
property claimed. If the basis of the plaintiff’s claim is a written
instrument, a copy of the instrument shall be attached.
(2) A showing that the property is
wrongfully detained by the defendant, of the manner in which the defendant came
into possession of the property, and, according to the best knowledge,
information, and belief of the plaintiff, of the reason for the detention.
(3) A particular description of the
property and a statement of its value.
(CCP § 512.010(b)(1)-(5).)
“The requirements of subdivision (b) may be
satisfied by one or more affidavits filed with the application.” (CCP §
512.010(c).)
512.010(b)(1)
“A showing of the basis of the plaintiff’s claim and that the plaintiff is
entitled to possession of the property claimed. If the basis of the plaintiff’s
claim is a written instrument, a copy of the instrument shall be attached.”
(CCP § 512.010(b)(1).)
Here, Plaintiff’s Application for Writ of
Possession indicates that the basis of the Plaintiff’s claim and right to
possession of the claimed property is in the attached declaration.
Plaintiff attached the declaration of Whitney
Oliver (Oliver). Oliver stated that she is employed as a Litigation Specialist
by Plaintiff BMO Bank N.A. formerly known as BMO Harris Bank N.A. (Oliver Decl.
¶ 1.) Oliver further states she is one of the custodian of records as they
relate to the business records of her employer regarding the obligations of
Defendants Red Line and Hayk. (Id.)
The Oliver declaration states the following:
6. On or about December 30, 2018, RED LINE
entered into a Loan and Security Agreement (“Agreement”) with Plaintiff, for
the finance of certain collateral for a term of seventy-two (72) months,
commencing on March 1, 2019. A true and correct copy of the Agreement more
particularly describing the collateral is attached hereto and marked as Exhibit
“1” and are incorporated herein by this reference as though fully set
forth.
7. Theretofore and thereafter, Plaintiff duly
performed or was excused from performing all terms and conditions of Agreement
on its part to be performed. Specifically, the collateral securing the
Agreement was delivered to RED LINE as evidenced by the acceptance executed by
RED LINE in the Agreement and Plaintiff perfected its interest in the
collateral by obtaining Certificates of Title from the State of California
Department of Motor Vehicles, True and correct copies of the Certificates of
Title, are attached hereto collectively as Exhibit “2” and incorporated
herein by this reference as though fully set forth.
8. Defendant RED LINE breached the terms of
the Agreement on October 1, 2023, when it failed to make the monthly
installment then due and owing. In addition, RED LINE has failed and continues
to fail to make any further payments coming due thereunder. As a result
thereof, pursuant to the terms of the Agreement, Plaintiff has declared the
entire remaining balance due under the Agreement.
9. Pursuant to the terms of the Agreement,
upon RED LINE’s default, Plaintiff elected to accelerate the balance of the
Agreement. As a result of the acceleration and demand for payment in full, RED
LINE has no right to simply reinstate the past due sums due under the
Agreement.
10. The principal balance of the installment
payments due under the Agreement is $52,461.41.
11. Pursuant to the terms of the Agreement,
RED LINE is also liable for late fees of $1,162.49, as well as any repossession
charges to be incurred in an amount according to proof.
12. Pursuant to the terms of the Agreement
RED LINE is also liable for miscellaneous fees in the amount of $55.00.
13. At the time of the default, unpaid
interest in the amount of $435.26 was due at the nondefault rate of 9.96% per
annum, and interest at said rate accrued in the amount of $2,974.55 through the
date of acceleration on April 26, 2024.
14. Thereafter, interest began accruing at
the default rate of 18% per annum which will continue to accrue until the date
of judgment at the per diem rate of $26.23 with a total amount of $1,154.12
accrued as of June 10, 2024.
15. No part of said sums have been paid,
although demand, therefore, has been made.
16. The Agreement also provides for the
payment of reasonable attorney’s fees should legal action be instituted to
enforce the payment thereof. Plaintiff has retained the Law Offices of HEMAR,
ROUSSO & HEALD, LLP for the purpose of this action and is therefore
entitled to reasonable attorney’s fees as determined by the Court.
17. To induce Plaintiff to enter into the
Agreement, on or about December 30, 2018, MELIKSETYAN executed in writing a
Continuing Guaranty. A true and correct copy of the Continuing Guaranty is
attached hereto, marked as Exhibit “3” and incorporated herein by this
reference as though fully set forth.
18. By virtue of the above, MELIKSETYAN is
indebted to Plaintiff for all sums due under the Agreement as described above.
19. Said Continuing Guaranty also provides
for the payment of reasonable attorney’s fees should legal action be instituted
to enforce the payment thereof. Plaintiff has retained the Law Offices of
HEMAR, ROUSSO & HEALD, LLP for the purpose of this action and is therefore
entitled to reasonable attorney’s fees.
20. As part of the terms of the Agreement
referenced herein, RED LINE granted a security interest in the collateral that
Plaintiff agreed to finance.
21. Upon the default by RED LINE, Plaintiff
was entitled to recover its collateral. However, as of the filing of this
Complaint, Plaintiff has been unable to recover its collateral described below:
2019 Volvo VNL – S, VIN 4V4NC9EJXKN871730, FMV $31,925.00 (the “Collateral”).
22. Plaintiff is informed and believes and
thereon alleges that the Collateral is in possession or under the control of
the Defendants.
23. Plaintiff is informed and believes that
the Collateral is currently located at 1123 E. Chestnut Street, Glendale, CA
91205, 806 E. Acacia Ave., Apt. B, Glendale, CA 91205, or such other location
known to Defendants.
24. Pursuant to the terms of the agreements
and by virtue of the aforementioned defaults, Plaintiff is entitled to
immediate possession of the Collateral.
(Oliver Decl. ¶¶ 6-24.)
512.010(b)(2)
“A showing that the property is wrongfully detained by
the defendant, of the manner in which the defendant came into possession of the
property, and, according to the best knowledge, information, and belief of the
plaintiff, of the reason for the detention.” (CCP § 512.010(b)(2).)
Here, the Oliver declaration states:
Plaintiff has made demand upon Defendants for
the return of the Collateral, however, as of the date hereof, the same has not
been delivered to Plaintiff. As a consequence, thereof, the Collateral is
wrongfully retained by Defendants.
(Oliver Decl. ¶ 25.)
Further, the Oliver
declaration states:
27. By virtue of the wrongful possession of
Plaintiff’s personal property by Defendants, Plaintiff is entitled to and
demands immediate possession of the Collateral.
28. As of the dates listed herein above,
Plaintiff, was, and still is, the lienholder of the Collateral, and was, and
still is, entitled to possession of said property.
29. As of the dates listed herein above,
Defendants wrongfully and unlawfully converted the property to their own use by
refusing to pay or to deliver said property to Plaintiff. Said acts and
omissions on the part of Defendants were in derogation of Plaintiff’s rights.
30. As of the dates listed herein above,
Defendants were fully aware of Plaintiff’s right to possession of said
property, but refused to relinquish the same.
31. Accordingly, Plaintiff requests an order
requiring Defendants to surrender possession of the Collateral to Plaintiff. If
possession thereof cannot be had, Plaintiff requests a money judgment equal to
the fair market value of the Collateral, or an amount according to proof.
(Oliver Decl. ¶¶ 27-31.)
512.010(b)(3)
“A particular description of the property and a statement of its value.”
Here, the Oliver
Declaration at ¶ 21 states that Plaintiff was entitled to recover the
Collateral, and the Collateral is described as a 2019 Volvo VNL-S, VIN
4V4NC9EJXKN871730, with a fair market value of $31,925.00. (See Oliver Decl. ¶ 21.)
512.010(b)(4)
“A statement, according to
the best knowledge, information, and belief of the plaintiff, of the location
of the property and, if the property, or some part of it, is within a private
place which may have to be entered to take possession, a showing that there is
probable cause to believe that such property is located there.” (CCP §
512.010(b)(4).)
Plaintiff’s application states
that to Plaintiff’s best knowledge, information, and belief the claimed
property or some party of it is located at 1123 E. Chestnut Street, Glendale,
CA 91205, 806 E. Acacia Ave., Apt. B, Glendale, CA 91205, or such other
location known to Defendants. (See Application ¶ 6.)
At the hearing, Plaintiff
should be prepared to address the probable cause requirement because
Plaintiff’s Application for Writ of Possession at ¶ 7 indicates that the
claimed property is located in a private place.
“No writ directing the
levying officer to enter a private place to take possession of any property
shall be issued unless the plaintiff has established that there is probable
cause to believe that the property is located there.” (CCP § 512.060(b).)
Further, at the hearing,
the Court would like an explanation as to why two addresses are listed because
this seems to indicate that Plaintiff may not know where the property is currently
located.
512.010(b)(5)
“A statement that the
property has not been taken for a tax, assessment, or fine, pursuant to a
statute; or seized under an execution against the property of the plaintiff;
or, if so seized, that it is by statute exempt from such seizure.” (CCP §
512.010(b)(5).)
Here, Plaintiff’s
Application for Writ of Possession at ¶8 states that the claimed property has
not been taken for a tax, assessment, or fine, pursuant to statute, and has not
been seized under an execution against the plaintiff’s property.
512.060 and 515.10
“At the hearing, a writ of possession shall issue if both
of the following are found: (1) The plaintiff has established the probable
validity of the plaintiff’s claim to possession of the property. (2) The
undertaking requirements of Section 515.010 are satisfied.” (CCP §
512.060(a)(1)-(2).)
Probable
Validity/512.060(a)(1)
“A claim has ‘probable validity’ where it is more likely
than not that the plaintiff will obtain a judgment against the defendant on
that claim.” (Code Civ. Proc., § 511.090.)
Here the Court will hear argument.
Undertaking/512.060(a)(2)
“At the hearing, a writ of possession shall issue if both of the following
are found: (1) The plaintiff has established the probable validity of the
plaintiff’s claim to possession of the property. (2) The undertaking
requirements of Section 515.010 are satisfied.” (CCP § 512.060(a)(1)-(2).)
“Except as provided in subdivision (b), the court shall
not issue a temporary restraining order or a writ of possession until the
plaintiff has filed an undertaking with the court . The undertaking shall
provide that the sureties are bound to the defendant for the return of the
property to the defendant, if return of the property is ordered, and for the
payment to the defendant of any sum recovered against the plaintiff. The
undertaking shall be in an amount not less than twice the value of the defendant’s
interest in the property or in a greater amount. The value of the defendant’s
interest in the property is determined by the market value of the property less
the amount due and owing on any conditional sales contract or security
agreement and all liens and encumbrances on the property, and any other factors
necessary to determine the defendant’s interest in the property.” (CCP §
515.010(a).)
“If the court finds that the defendant has no interest in
the property, the court shall waive the requirement of the plaintiff’s
undertaking and shall include in the order for issuance of the writ the amount
of the defendant’s undertaking sufficient to satisfy the requirements of
subdivision (b) of Section 515.020.” (CCP § 515.010(b).)
Here the Court will hear argument as to the undertaking
requirements. Plaintiff does not appear to have filed an undertaking nor does
Plaintiff address the undertaking requirements; Plaintiff should be prepared to
address any interest that Defendant has in the property based on any payments
made to Plaintiff.
No Opposition
While
there is currently no Opposition, if Defendant argues that Plaintiff should not
take possession, the Court cites the following:
(a) The defendant may prevent the
plaintiff from taking possession of property pursuant to a writ of possession
or regain possession of property so taken by filing with the court in which the
action was brought an undertaking in an amount equal to the amount of the
plaintiff’s undertaking pursuant to subdivision (a) of Section 515.010 or in
the amount determined by the court pursuant to subdivision (b) of Section
515.010.
(b) The undertaking shall state that, if
the plaintiff recovers judgment on the action, the defendant shall pay all
costs awarded to the plaintiff and all damages that the plaintiff may sustain
by reason of the loss of possession of the property. The damages recoverable by
the plaintiff pursuant to this section shall include all damages proximately
caused by the plaintiff’s failure to gain or retain possession.
(c) The defendant’s undertaking may be
filed at any time before or after levy of the writ of possession. A copy of the
undertaking shall be mailed to the levying officer.
(d) If an undertaking for redelivery is
filed and the defendant’s undertaking is not objected to, the levying officer
shall deliver the property to the defendant, or, if the plaintiff has
previously been given possession of the property, the plaintiff shall deliver
the property to the defendant. If an undertaking for redelivery is filed and
the defendant’s undertaking is objected to, the provisions of Section 515.030
apply.
(CCP § 515.020(a)-(d).)
(CCP § 512.080.)
WRIT
OF POSSESSION – Res ID 7968
RELIEF REQUESTED
Plaintiff, BMO Bank N.A., formerly known as BMO Harris Bank N.A., applies for a
writ of possession after hearing (CCP § 512.010) against Defendant, Hayk
Meliksetyan, an individual.
TENTATIVE RULING
The only difference
between the instant writ of possession (Res ID 7968) and the writ of possession
pertaining to Res ID 7660, is that for the instant writ of possession (Res ID
7968), the Defendant that Plaintiff seeks a writ of possession against is
Defendant Hayk Meliksetyan.
Therefore,
the Court incorporates all of the above from the writ of possession pertaining
to Res ID 7660 into the instant tentative ruling relating to the writ of
possession with a Res ID of 7968.