Judge James C. Chalfant, Case Number: 24STCV29313, Date: 2025-04-15 Tentative Ruling

BMW v. McClendon and Williams, 24STCV29313

Tentative decision on application for writ of possession: denied or continued

Plaintiff BMW Bank of North America (“Bank”), by and through BMW Financial Services NA, LLC (“BMW FS”) (collectively, “Bank”) seeks a writ of possession and turnover order against Defendants Olga McClendon (“McClendon”) and Tyrone R. Williams (“Williams”) to recover a 2021 BMW 840i with VIN WBAGV2C00MCF78790 (“Vehicle”).

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

On November 7, 2024, Plaintiff Bank filed the Complaint against Defendants McClendon and Williams, alleging causes of action for (1) breach of contract, (2) money due, (3) claim and delivery, and (4) conversion. Bank brings the action by and through its servicer BMW FS pursuant to a servicing agreement and power of attorney. Comp., ¶8. The Complaint alleges in pertinent part as follows.

On or about February 2, 2021, McClendon and Williams executed a written Retail Installment Sale Contract (“Agreement”) for the purchase of the Vehicle and delivered it to Beverly Hills BMW (“Dealer”). Compl., ¶7, Ex. 1. McClendon and Williams agreed to pay $135,714.16 in an initial $11,500 down payment and 84 monthly payments of $1,478.74 beginning on March 4, 2021. Compl., ¶¶ 7, 21. Interest under the Agreement accumulates at 5.69% per year. Compl., ¶7. McClendon and Williams took possession of the Vehicle at the time of execution. Compl., ¶7.

Dealer assigned to Bank all rights, title and interest in the Agreement and in the Vehicle, and Bank perfected its interest with the California Department of Motor Vehicles. Compl., ¶8, Ex. 2.

On or about November 7, 2022, McClendon and Williams requested to change the monthly payment due date from the 4th to the 21st. Compl., ¶9. Bank approved their request. ¶9.

On or about February 21, 2024, McClendon and Wiliams defaulted by failing to make their monthly payment then due and owing. Compl., ¶10. Despite demands from Bank, McClendon and Williams have not paid the balance owing. Compl., ¶15. McClendon and Williams owe in principal $65,856.71, $2,212.13 in late charges, $850 in collection charges, $1,601.56 in interest accrued through August 28, 2024. Compl., ¶¶ 15, 22. McClendon and Williams also owe expenses for enforcing the Agreement, including for expenses for repossession, transportation, storage, preparation for sale and sale of the Vehicle, late fees, and other amounts to be proven. Compl., ¶15.

The Agreement gives Bank the right to take possession of the Vehicle and to sell it after sufficient notice as required by law and provides that the proceeds from the sale be credited to McClendon and Williams’s account, less said enforcement expenses. Compl., ¶¶ 16, 25. The Agreement also provides for reasonable attorney fees and costs incurred in collection. Compl., ¶17.

Bank has performed all conditions precedent on its part required to be performed. Compl., ¶¶ 19, 23, 28.

McClendon and Williams are in control and possession of the Vehicle and have refused Bank’s demands to turn the Vehicle over. Compl., ¶26, 30.

Bank prays for (1) $70,520.40 plus accruing late charges and other allowable charges from August 29, 2024 through either the date paid in full or entry of judgment; (2) interest on the $65,856.71 principal balance at the 5.69 % annual Agreement rate; (3) return and possession of the Vehicle; (4) in the alternative, the actual value of the Vehicle plus interest at the Agreement rate; (5) judgment that the Agreement be foreclosed, that Bank be granted possession of the Vehicle or that the Vehicle be liquidated and the proceeds applied to McClendon and Williams’s balance, and for deficiency judgment; (6) conversion damage in the amount of the fair market value of the Vehicle plus interest according to proof; (7) reasonable attorney fees and costs; (8) exemplary punitive damages according to proof; and (9) such other relief as the court may deem just and proper.

Bank filed the instant applications on January 8, 2025. Proofs of service on file reflect that Bank served the Complaint, Summons, and moving papers on both McClendon and Williams by substituted service on February 3, 2024.

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. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).

A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.

The application must be executed under oath and include: (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 plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).

Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented 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. Id.

The court may order issuance of a writ of possession 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; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(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.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1] CCP §513.010(c).

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (“Edwards”) (1991) 230 Cal.App.3d 173, 178.

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). 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. Id. 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. Id. 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. Id.

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).

BWM FS (originally as “BMW Financial Services, Inc.” but reorganized and so renamed) is authorized to act on behalf of Bank through a servicing agreement and power of attorney, which have not been revoked. Skeen Decl., ¶¶ 11-12.

On or about February 2, 2021, McClendon and Williams executed and delivered to Dealer the Agreement to purchase the Vehicle for $135,714.16 with $11,500 down and monthly payments of $1,478.74 payable on March 4, 2021 and on the 4th each subsequent month until paid in full, with a 5.69% annual interest rate. Skeen Decl., ¶9, Ex. 1. Dealer assigned the Agreement to Bank, which perfected its interest with the California Department of Motor Vehicles. Skeen Decl., ¶10, Ex. 2.

On or about November 7, 2022, McClendon and Williams requested and received a change of payment date from the 4th to the 21st of each month. Skeen Decl., ¶14.

Bank has performed all conditions, covenants, and promises required under the Agreement. Skeen Decl., ¶13.

McClendon and Williams owe in principal $65,856.71, $2,212.13 in late charges, $850 in collection charges, $1,601.56 in interest accrued through August 28, 2024. Skeen Decl., ¶16. McClendon and Williams also owe interest from August 29, 2024 at the Agreement rate of 5.69% annually, and Bank’s expenses pursuant to Agreement enforcement. Skeen Decl., ¶16. Bank has supplied a printout of a screen capture of a payoff quote from Bank’s internal account records software. Skeen Decl., ¶16, Ex. 3.

The Agreement gives Bank the right to take possession of and liquidate the Vehicle in the event of a default on any payment, subject to legally required notice. Skeen Decl., ¶17. It also provides for recovery of attorney fees, actual Vehicle value, and accruing interest. Skeen Decl., 20.

Bank has demanded the Vehicle, but McClendon and Williams have refused its return. Skeen Decl., ¶19.

Dealer delivered the Vehicle to McClendon and Williams at execution of the Agreement, and Bank is informed and believes it is still in their custody, control, and possession. Skeen Decl., ¶19. Based on its records, Bank is informed and believes that the Vehicle is located at 10855 Church St., Apt 1204, Rancho Cucamonga, CA 91730. This address is Williams’s mailing address, the address reported by the Vehicle’s electronic tracking device and, the address used in Williams’s credit and financing applications, and an address confirmed by the Rancho Cucamonga Postmaster where both McClendon and Williams receive mail. Skeen Decl., ¶21; Domin Decl., ¶3, Ex. 5.

The Vehicle’s current market value is estimated at $41,767. Skeen Decl., ¶22, Ex. 4. The value of the vehicle is less than the balance owed by McClendon and Williams, therefore they have no equity in the vehicle. Skeen Decl., ¶23.

Plaintiff Bank applies for an order for a writ of possession against, and turnover order for the Vehicle from, Defendants McClendon and Williams. No opposition is on file.

Bank presents evidence that, on or about February 2, 2021, McClendon and Williams executed and delivered to Dealer the Agreement to purchase the Vehicle for $135,714.16 with $11,500 down and monthly payments of $1,478.74 payable on March 4, 2021 and on the 4th each subsequent month until paid in full, with a 5.69% annual interest rate. Skeen Decl., ¶9, Ex. 1. Dealer assigned the Agreement to Bank, which perfected its interest with the Department of Motor Vehicles. Skeen Decl., ¶10, Ex. 2.

On February 21, 2024, McClendon and Williams defaulted under the Agreement by failing to make a payment. Skeen Decl., ¶15. Bank has demanded payment, but McClendon and Williams have refused to pay. Skeen Decl., ¶16. McClendon and Williams owe in principal $65,856.71, $2,212.13 in late charges, $850 in collection charges, $1,601.56 in interest accrued through August 28, 2024. Skeen Decl., ¶16. Bank has supplied a printout of a screen capture of a payoff quote from Bank’s internal account records software. Skeen Decl., ¶16, Ex. 3.

Bank’s showing has two defects. First, the declaration supporting a writ of possession application must be set forth with particularity. CCP §516.030. This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same). All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as non-hearsay evidence or exception to the hearsay rule, such as the business records exception. Lydig Construction, Inc. v. Martinez Steel Corp., (2015) 234 Cal.App.4^th 937, 944; Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182. For business records, evidence should be presented to establish that the record was made in the regular course of business, at or near the time of the act or event, and the custodian of records or other qualified witness must identify the record and its mode of preparation, as well as the sources of information and method and time of preparation. Id.

Bank fails to provide a summary of payments through which the amounts owed are calculated. The amount owed is important in determining the undertaking required. Bank’s payoff quote is insufficient to meet this requirement. Ex. 3.

Second, Bank does not show it has standing to pursue its claim because it fails to provide documentary evidence of the assignment from Dealer. The supporting declaration statement to this effect is insufficient. Skeen Decl., ¶10. The Certificate of Title filed with the California Department of Motor Vehicles also does not show Bank as lienholder. Skeen Decl., Ex. 2.

The undertaking required by CCP section 515.010(a) is an amount not less than twice the value of the defendant's interest in the property or in a greater amount. Id. 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. Id.

Assuming it is accurate, Bank’s payoff quote is $70,520.40. Skeen Decl., ¶16, Ex. 3. The Vehicle’s current market value is estimated at $41,767. Skeen Decl., ¶22, Ex. 4. The value of the Vehicle is less than the balance owed by McClendon and Williams, and they have no equity in the Vehicle. Skeen Decl., ¶23. No undertaking is required. The re-delivery bond shall be $70,520.40. CCP §515.020(a).

Based on its records, Bank is informed and believes that the Vehicle is located at 10855 Church St., Apt 1204, Rancho Cucamonga, CA 91730. This address is Williams’s mailing address, the address reported by the Vehicle’s electronic tracking device, the address used in Williams’s credit and financing applications, and an address confirmed by the Rancho Cucamonga Postmaster as the location where both McClendon and Williams receive mail. Skeen Decl., ¶21; Domin Decl., ¶3, Ex. 5. The levying officer may enter this location to recover the Vehicle. CCP §512.060(b).

The applications must be denied as they currently exist. As no opposition has been filed, the court is willing to continue the hearing to permit Bank to cure the defects.

[1] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).