Judge: Helen Zukin, Case: 22SMCV01246, Date: 2022-12-15 Tentative Ruling
Case Number: 22SMCV01246 Hearing Date: December 15, 2022 Dept: 207
Background
Plaintiff BMW Bank of North America, a Utah industrial bank,
by and through its servicer, BMW Financial Services NA, LLC
("Plaintiff") filed suit against Defendant Bianca Alexis Fairchild
a.k.a. Bianca A. Fairchild a.k.a. Bianca Fairchild ("Defendant"), alleging
Defendant entered into an installment contract for the purchase of a BWM i8
automobile. Plaintiff alleges Defendant breached the purchase agreement by
failing to make required monthly payments. Plaintiff filed a Complaint on July
29, 2022, alleging four causes of action for (1) breach of contract, (2) common
count, (3) claim and delivery, and (4) conversion.
Legal Standard
Code Civ.
Proc. § 512.010 requires that the application for writ of possession be
executed under oath and include affidavits showing 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.
(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.
Code Civ.
Proc. § 512.060 permits the Court to issue a writ of possession when the Court
finds the following: (1) the plaintiff has established the probable validity of
the plaintiff's claim to possession of the property and (2) the undertaking
requirements of section 515.010 are satisfied. Code Civ. Proc. § 515.010
provides: “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.” “Before
issuance of a writ of attachment … the plaintiff shall file an undertaking to
pay the defendant any amount the defendant may recover for any wrongful
attachment by the plaintiff in the action.” (C.C.P. § 489.210.) But when a
defendant does not have any interest in the property, Code Civ. Proc. §
515.010(b) permits the Court to waive the requirement of the plaintiff's
undertaking and set an undertaking for the defendant to keep possession or
regain possession.
Analysis
On review of the moving papers,
the Court finds Plaintiff has shown Defendant purchased the subject vehicle
through an installment contract which required Defendant to make a down payment
of $51,500.00 followed by 60 monthly installment payments of $2,350.81 each.
(Philips Decl. at ¶¶8-9.) The original seller, third-party Santa Monica BMW,
assigned the contract to Plaintiff. (Id. at ¶10.) Defendant then
defaulted under the agreement on or about January 13, 2022, when she stopped
making the required monthly payments under the installment contract. (Id.
at ¶12.) Under the terms of the installment contract, Plaintiff is entitled to
take possession of the vehicle in the event of Defendant’s default. (Id.
at ¶14; Ex. 1 to Phillips Decl. at ¶13.B.) The Court notes Plaintiff’s
application is unopposed and thus Plaintiff’s factual claims are undisputed.
The Court finds Plaintiff’s
showing satisfies the requirements of Code Civ. Proc. § 512.010. Plaintiff
shows (1) the basis of the claim on the vehicle, the assignment of the contract
to Plaintiff, and that Plaintiff is entitled to possession of the vehicle (Phillips
Decl. at ¶¶8-10); (2) the vehicle is wrongfully detained by Defendant (Id.
at ¶¶¿12-14); (3) a description of the vehicle as a 2019 BMW i8 with serial number
WBY2Z6C57KVG98154 and valued at $90,025.00 (Id. at ¶¶8, 19); (4) the
Vehicle is currently located at either 25366 Malibu Road, #3, Malibu,
California or 2190 E. 14th Street, #148, Los Angeles, California. (Id.
at ¶17); and (5) the property has not been taken for a tax, assessment, or
fine, pursuant to statute, or seized under an execution against property, or if
so seized, is exempt from such seizure by statute (Application at ¶8).
As to the undertaking to be
posted, Code Civ. Proc.
§ 515.010 requires an undertaking “in an amount not less than twice the value
of¿the¿defendant's interest in the property or in a greater amount.” Plaintiff shows Defendant currently owes $67,395.13 under
the terms of the installment contract. (Phillips Decl. at ¶ 13.) Plaintiff
argues its interest in the vehicle is the difference between the estimated
value of the vehicle and the amount owed to Plaintiff under the contract, or a
little under $23,000. The Court disagrees. Plaintiff’s interest in the vehicle
stems from the amount owed under the installment contract. In other words, if
Defendant did not owe any outstanding amount under the contract, Plaintiff
would not have a claim for repossession. The Court thus finds Plaintiff’s
interest in the property is the $67,395.13 alleged to be owed to Plaintiff
under the contract. Accordingly, Plaintiff must post a bond in the sum of
$135,000, which is slightly more than twice the value of Defendant’s interest
in the vehicle. The Court grants Plaintiff’s request to impose a re-delivery
bond of $69,000 for Defendant to retake possession under Code Civ. Proc. §
515.20(b).
Conclusion
Plaintiff’s application for a writ of possession is GRANTED.