Judge James C. Chalfant, Case Number: 24STLC00113, Date: 2024-04-18 Tentative Ruling

Ally Bank Lease Trust v. National Transportation Inc, et. al 24STLC00113

Tentative decision on application for writs of possession: granted in part

Plaintiff Ally Bank Lease Trust (“ABLT”) seeks writs of possession against Defendants National Transportation Inc. (“National”), John Eldon Kindt (“Kindt”), and James Jim Gleich (“Gleich“) to recover a 2018 Kia Sorento, VIN 5XYPGDA58JG346689 (“Vehicle”).

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

Plaintiff ABLT filed the Complaint against Defendants National, Kindt, and Gleich, on January 8, 2024, alleging (1) claim and delivery and (2) money on a contract. The Complaint alleges as follows.

Defendants entered into a written Contract in which they leased the Vehicle from ABLT’s assignor. Defendant Gleich signed a personal guaranty. At all relevant times, ABLT has been the holder of a first priority security interest in the Vehicle. The Certificate of Title from the California Department of Motor Vehicles (“DMV”) reflects ABLT’s interest. The Contract gives ABLT the right to take and have immediate possession of the Vehicle after default.

Defendants breached the Contract on February 12, 2022, by failing to make the $405.33 monthly installment due. Defendants have since failed to make the regular monthly payments of $405.33 due thereafter. The balance due and owing is $19,461. Demands to turn over the Vehicle have failed.

ABLT seeks recovery of the Vehicle, a temporary restraining order enjoining Defendants from transferring possession of the Vehicle, and $19,461 in damages less proceeds from ABLT’s resale of the Vehicle.

On March 13, 2024, ABLT served Defendants Gleich and National with the Complaint, Summons, and moving papers by personal service, and filed POS-010 for each Defendant April 2, 2024. No proof of service is on filed for Kindt.

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).

On April 12, 2021, Defendants and ABLT’s assignor, Community Partners Funding, Inc. (“Partners”) entered into a written lease (“Lease”) for the Vehicle. Singleton Decl., ¶5, Ex. A. Pursuant to the Lease, Defendants were required to make 60 monthly payments of $405.33 thereafter. Singleton Decl., ¶5, Ex. A. In the event of Defendants’ default for failure to pay, Partners had the right to accelerate the amount owed, and repossess the Vehicle. Singleton Decl., ¶7, Ex. A. Defendant James Jim Gleich signed a personal guaranty. Singleton Decl., ¶5, Ex. A.

Partners assigned all of its rights under the Lease to ABLT and Ally Financial Lease Trust. Singleton Decl., Ex. A. The July 2, 2022 Certificate of Title from the DMV reflects Ally Financial as the lienholder.[2] Singleton Decl., Ex. B.

Defendants breached the Lease on February 12, 2022 when they failed to pay $405.33. Singleton Decl., ¶7. Defendants have since failed to make the regular monthly payments of $405.33 due thereafter. Singleton Decl., ¶7. As of November 9, 2023, the balance due and owing is $19,461. Singleton Decl., ¶7. Demands to turn over the Vehicle have failed. Singleton Decl., ¶9.

The J.D. Power report for November 9, 2023 lists the Vehicle’s wholesale value as $14,000.00 and retail value as $16,875. Singleton Decl., ¶8, Ex. C.

The Lease lists Defendant National’s address as 1417 Madrid Ave, Torrance, CA 90501. Singleton Decl., ¶11, Ex. B. ABLT’s file lists Defendant Gliech as residing at the same address. [3] Singleton Decl., ¶11. ABLT believes the Vehicle is currently at that address. Singleton Decl., ¶11.

Plaintiff ABLT seeks a writ of possession and turnover order against Defendants for the Vehicle. No proof of service is on file for Defendant Kindt and no writ of possession may issue against him.

The Lease is almost illegible and Plaintiff’s’ counsel is warned that legible agreements must be provided or Plaintiff will be at risk that future applications will be denied.

The Lease required Defendants to make 60 monthly payments of $405.33 for the Vehicle. Singleton Decl., Ex. A. Any late payment would entitle the assignor to accelerate the amount owed and repossess the Vehicle. Singleton Decl., Ex. A. Partners assigned all of its rights under the Contract to ABLT and Ally Financial Lease Trust. Singleton Decl., ¶5, Ex. A. The Certificate of Title from the DMV reflects Ally Financial as the Vehicle lienholder. Singleton Decl., ¶5, Ex. B. Despite the fact that the Certificate of Title names a different lienholder, ABLT is the assignee and therefore the proper Plaintiff.

In seeking a writ of possession, the supporting declaration 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). ABLT presents conclusory evidence that the balance due is $19,461. Singleton Decl., ¶7. ABLT fails to support this conclusion with a payment history or calculation that these are the amounts owed. As Defendants have not opposed, this defect is waived.

The undertaking shall be in an amount not less than twice the value of the defendants’ interest in the property or in a greater amount. CCP §515.010(a).

The Vehicle’s retail value is estimated to be $16,875. Singleton Decl., ¶8, Ex. C. The balance Defendants owe is $19,461. Singleton Decl., ¶6. The difference is $16,875- $19,461 = -$2,586, meaning that Defendants have no legal interest in the Vehicle. No undertaking is necessary.

When an undertaking is required, the defendant may prevent the plaintiff from taking possession by filing an undertaking in an amount equal to either the amount of the plaintiff’s undertaking (CCP §515.020(a)) or the amount determined by the court under CCP section 515.010(b). The redelivery bond will be the amount owed of $16,875.

The Lease and Certificate of Title list Defendant National’s address as 1417 Madrid Ave., Torrance, CA 90501. Singleton Decl. ¶11, Exs. A-B. This is also Gleich’s address. Singleton Decl., ¶11. ABLT believes the Vehicle is located at that address. Id. A writ may issue to enter a private residence at this address.

The court may 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, supra, 230 Cal.App.3d at 178.

ABLT requests a turnover order compelling Defendants to transfer possession of the Vehicle. Mem. at 3. The request for a turnover order is granted.

The applications for a writ of possession and turnover order for the Vehicle is granted against Defendants National and Gleitch only. ABLT has not filed a proposed order for writ of possession and must do so within two court days of this hearing on the proper Judicial Council form or it will be waived. The redelivery bond shall be $16,875. The levying officer may enter a private residence and/or commercial residence at 1417 Madrid Ave., Torrance, CA 90501, as well as any commercial or public address.

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

[2] ABLT also presents a power of attorney in which Ally Bank named Ally Servicing LLC as its lawful attorney-in-fact. Singleton Decl., Ex. A. This power of attorney is irrelevant because neither entity is Plaintiff or the lienholder.

[3] Singleton declares National Transportation Inc.’s place of business is 1417 Madrid Ave., Torrance, CA 90501 and that both John Kindt (owner) and Jim Gleich (president) reside there. Singleton Dec., ¶11.