Judge James C. Chalfant, Case Number: 24STLC02991, Date: 2024-08-08 Tentative Ruling

American Credit Acceptance, LLC v. Yates, 24STLC02991

Tentative decision on application for writ of possession: granted

Plaintiff American Credit Acceptance, LLC (“ACA”) seeks a writ of possession and turnover order against Defendant Michael Anthony Yates (“Yates) to recover a 2019 Chevrolet Silverado 1500 Crew Cab with VIN 3GCPYFED8KG189856 (“Vehicle”).

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

On April 23, 2023, Plaintiff ACA filed the Complaint against Defendant Yates for (1) breach of contract, (2) claim & delivery of personal property, and (3) declaratory relief. The Complaint alleges in pertinent part as follows.

Prior to this lawsuit, Carmax Auto Superstores California, Inc. (“Seller”) entered into a written contract (“Contract”) with Yates for the purchase of the Vehicle. Compl., ¶¶9-10. On or about April 29, 2022, ACA purchased the Contract. Compl., ¶13. Yates financed the Vehicle for $44,290.67, with payments of $1,299.83 due on the 13^th day of each month commencing on June 13, 2022. Compl., ¶14. The last payment or credit was posted on January 3, 2023. Compl., ¶14. Yates has since defaulted on the U/A Contract. Compl., ¶14.

ACA made a demand for Yates to surrender the Vehicle and he has failed to do so. Compl., ¶17. The principal balance due on the Vehicle is $44,290.67 with a current payoff amount of $49,491.91. Compl., ¶18. All conditions precedent to performance by Yates has been performed, waived, excused, satisfied, discharged or extinguished, including performance of the Contract by ACA and its assignor, Seller. Compl., ¶19.

ACA seeks (1) judgment for possession of the Vehicle, (2) recovery of the Vehicle, (3) a pre-trial writ of possession for the Vehicle and restraining Defendant from transferring and/or concealing the Vehicle, and (4) other relief as the court deems proper and just. Compl., at Prayer.

On June 6, 2024, Plaintiff ACA filed proof of service of the Complaint and Summons on Defendant Yates by substitute service through Josephine Yates, adult member of household.

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).

Plaintiff ACA owns the Vehicle pursuant to a purchase and assignment of the Contract in which Defendant Yates purchased the Vehicle. Palma Decl., ¶4, Exs. 1-2. Pursuant to the Contract, ACA has right to immediate possession of the Vehicle upon default of any provision thereof. Palma Decl., ¶¶4-5, 9, 14.

Yates is in default under the Contract by failing to make the payment due and owing after January 3, 2023, in the sum of $1,299.83 on the 13^th day of each month. Palma Decl., ¶¶6-7, 9. Yates is in default for $44,290.67 in principal, plus interest, for a total amount of $49,491.9. Palma Decl., ¶¶8-10, Ex. 3. ACA has made a demand upon Yates for payment or turnover of the Vehicle, but Yates has failed to surrender or pay for the Vehicle. Palma Decl., ¶9.

The J.D. Power report for January 18, 2024 states the Vehicle’s average wholesale and retail values are between $32,275 and $32,532. Palma Decl., ¶12, Ex. 4. The outstanding balance on the Contract exceeds the market value for the Vehicle, so Yates has no equity in the Vehicle. Palma Decl., ¶12.

There is no indication that the Vehicle has been taken on account of a tax, assessment or fine, or seizure under an execution or an attachment against the property of ACA. Palma Decl., ¶13.

ACA’s current records reflects that Yates’ place of residence is 4825 N Bonnie Cove Ave, Covina, CA 91724. Palma Decl. Re: Location, ¶4. This is the current location of the Vehicle. Palma Decl., ¶15.

Plaintiff ACA seeks a writ of possession against, and turnover order for the Vehicle from, Defendant Yates. No opposition is on file.

Plaintiff ACA owns the Vehicle pursuant to a purchase and assignment of the Contract in which Defendant Yates purchased the Vehicle. Palma Decl., ¶4, Exs. 1-2. Yates is in default under the Contract by failing to make the payment due and owing after January 3, 2023, in the sum of $1,299.83 on the 13^th day of each month. Palma Decl., ¶¶6-7, 9. The default amount totals $49,491.9. Palma Decl., ¶¶8-10, Ex. 3. ACA has made a demand upon Yates for payment or turnover of the Vehicle, but Yates has failed to surrender or pay for the Vehicle. Palma Decl., ¶9.

ACA has established the probable validity of its claim to possession of the Vehicle. CCP §§ 511.090, 512.060(a).

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.

The J.D. Power report for January 18, 2024 states the Vehicle’s average wholesale and retail values are between $32,275 and $32,532. Palma Decl., ¶12, Ex. 4. Yates owes a total amount of $49,491.9. Palma Decl., ¶¶8-10, Ex. 3. The outstanding balance on the Contract exceeds the market value for the Vehicle, so Yates has no equity in the Vehicle. Palma Decl., ¶12. The re-delivery bond will be $32,532. CCP §515.020(a).

Yates’ place of residence is 4825 N Bonnie Cove Ave, Covina, CA 91724. Palma Decl. Re: Location, ¶4. This is the current location of the Vehicle. Palma Decl., ¶15. The levying officer may enter this location to recover the Vehicle. CCP §512.060(b).

The application for writ of possession and turnover order is granted. ACA is not required to file an undertaking and the re-delivery bond will be $32,532. No order for writ of possession is on file and ACA is ordered to file it in the next two court days or it will be waived.

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