Judge James C. Chalfant, Case Number: 24STLC05271, Date: 2025-04-10 Tentative Ruling

American Credit Acceptance v. Anahi Mancilla and Rashad Muhammad, 24STLC05271

Tentative decision on application for writ of possession: granted

Plaintiff American Credit Acceptance LLC (“American Credit”) seeks a writ of possession and turnover order against Defendant Anahi Jasmine Aguilar Mancilla (“Mancilla”) and Rashad Joseph Albert Muhammad (“Muhammad”) to recover a 2019 Lexus IS with VIN JTHBA1D20K5086079 (“Vehicle”).

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

On July 24, 2024, Plaintiff American Credit filed the Complaint against Defendants Mancilla and Muhammad, alleging causes of action for (1) breach of contract, (2) delivery of personal property, and (3) declaratory relief. The Complaint alleges in pertinent part as follows.

CarMax Auto Superstores California, Inc. (“CarMax”) and Mancilla and Muhammad entered into a written contract (“Contract”) for the purchase of the Vehicle. Compl., ¶¶ 9-10. Ex. 1. Under the Contract, CarMax held legal title to the Vehicle, a security interest in the Vehicle, and a right to possession in the event of default. Compl., ¶11.

CarMax assigned its position in the Contract, including title, security interest, and conditional right to possession, to American Credit in a financing agreement. Compl., ¶12. On March 9, 2023, American Credit purchased the Contract. Compl., ¶13.

Under the Contract, Mancilla and Muhammad owed monthly payments in the amount of $1,063.30 on the 23rd day of each month. Compl. ¶14. Mancilla and Muhammed defaulted by failing to pay on July 23, 2023. Compl., ¶¶ 14, 16. Mancilla and Muhammad’s last payment or credit posted on August 8, 2023. Compl., ¶14. The market value of the Vehicle at the time of default was $27,650, and its daily rental value is $34.96. Compl.,¶ 14. $38,568.20 remains unpaid on the Contract, of which $34,022.01 is remaining principal. Compl., ¶18.

American Credit has notified Mancilla and Muhammed of their breach. Compl. ¶18. American Credit has demanded the surrender of the Vehicle and Mancilla and Muhammed have refused. Compl., ¶17.

CarMax and American Credit have performed all obligations under the Contract, excepting only obligations which CarMax and American Credit were prevented or excused from performing. Compl., ¶15. All conditions precedent to performance by Mancilla and Muhammed are performed, waived, excused, satisfied, discharged, or extinguished. Compl. ¶19.

The Vehicle was not taken for a tax assessment, or fine pursuant to statute, or seized under execution against CarMax or American Credit. Compl., ¶24.

American Credit does not seek monetary damages. Compl., ¶20. American Credit seeks (1) judgment for possession of the Vehicle; (2) a pretrial writ of possession in favor of American Credit; (3) an order directing Mancilla and Muhammed to transfer possession; (4) an order restraining Mancilla and Muhammed from transferring or concealing the Vehicle; (5) a declaration that American Credit is the legal owner and lien holder of the Vehicle; and (7) such other relief that the court may deem proper and just.

American Credit filed its Complaint on July 24, 2024. Proofs of service on file reflect American Credit served the Complaint and Summons on Mancilla by personal service and on Muhammed by substituted service through Mancilla at their mutual residence on August 7, 2024.

American filed the instant application on February 7, 2025. Proofs of service on file reflect American Credit served the moving papers on both Mancilla and Muhammed by substituted service on February 14, 2025.

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 or about March 3, 2023, Defendants Mancilla and Muhammed entered into the Contract with CarMax for the purchase of the Vehicle. Hall Decl., Ex. 1. Under the Contract, CarMax held legal title to the Vehicle, a security interest in the Vehicle, and a right to take possession in the Vehicle in the event of a default. Hall Decl., ¶4.

CarMax sold and assigned all its interests in the Contract to Plaintiff American Credit as a part of the financing of the Vehicle purchase. Hall Decl., ¶4, Ex. 1. The Certificate of Title shows American Credit as lienholder. Hall Decl., ¶5, Ex. 2.

The Contract required Mancilla and Muhammed to pay $1,063.30 monthly on the 23rd. Hall Decl., ¶6. Mancilla and Muhammed defaulted on August 6, 2023. Hall Decl., ¶9. Mancilla and Muhammed have also refused demands to surrender the Vehicle. Hall Decl., ¶9. American Credit has performed all its obligations under the contract, except what Mancilla and Muhammed have prevented American Credit from performing. Hall Decl., ¶9.

The Vehicle payment history shows that Mancilla and Muhammed owe $34,022.01 in principal as of commencement of this action. Hall Decl., ¶¶ 9-10, Ex. 3. The full payoff amount is $38,568.20. Hall Decl., ¶10, Ex. 3. The Contract specifies an interest rate of 28% annually. Hall Decl., ¶8.

According to JD Power, the current reasonable market value of the Vehicle is $27,650. Hall Decl., ¶12, Ex. 4. Mancilla and Muhammed have no equity in the Vehicle because the outstanding balance on the Contract exceeds the current reasonable market value of the Vehicle. Hall Decl., ¶12.

The Vehicle has not been taken for tax, assessment, or fine pursuant to statute or seized under an execution against the property of American Credit, or if it is seized, it is by statute except from seizure. Hall Decl., ¶13.

American Credit is entitled to immediate possession of the Vehicle as a result of Mancilla and Muhammed’s default under the terms of the Contract. Hall Decl., ¶14.

The Vehicle is located at 240 E 118th Pl, Los Angeles, CA 90061, a private place, which is Defendants’ residence address. Hall Decl., ¶15; Hall Location Decl., ¶5.

The Vehicle is declining in value due to use, the passage of time, and exposure to loss. Hall Decl., ¶17.

Plaintiff American Credit applies for an order for a writ of possession against, and turnover order for the Vehicle from, Defendants Mancilla and Muhammed. No opposition is on file.

On or about August 6, 2023, Mancilla and Muhammed failed to make the payment due on the Contract and have failed to make any further payments. Hall Decl., ¶9, Ex. 3. American Credit has demanded payment of the balance or surrender of the vehicle under the Agreement. Hall Decl., ¶9.

American Credit 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 Vehicle’s fair market value is $27,650. Hall Decl., ¶12. The unpaid principal balance is currently $38,568.20. Hall Decl., ¶10. The amount owed exceeds the fair market value and no bond is required pursuant to CCP 515.010(b). The re-delivery bond shall be $27,650. CCP §515.020(a).

The Vehicle is located at 240 E 118th Pl, Los Angeles, CA 90061, which is the address of Mancilla and Muhammed on American Credit’s most current records. Location Decl.,¶ ¶ 3-4. The levying officer may enter this location to recover the Vehicle. CCP §512.060(b).

The application for order for a writ of possession and turnover order against Defendants Mancilla and Muhammed is granted. American Credit’s undertaking is waived. The re-delivery bond shall be $27,650. American Credit has not submitted a complete order for writ of possession (second page is missing) and is ordered to do so in 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).