Superior Court of California

County of Los Angeles

North Central District

Department B

financial services vehicle trust by and through its servicer bmw financial services na, llc,

Plaintiff,

hrach panosian,

Defendant.

Case No.: 23BBCV02763

Hearing Date: April 12, 2024

[TENTATIVE] order RE:

APPLICATION for writ of possession

BACKGROUND

A. Allegations

Plaintiff Financial Services Vehicle Trust, by and through its servicer, BMW Financial Services NA, LLC (“Plaintiff”) alleges that on March 17, 2022, Defendant Hrach Panosian (“Defendant”) entered the Motor Vehicle Lease Agreement with dealer Crevier BMW for the use of a 2022 BMW M8 CNV motor vehicle. Defendant agreed to make 36 monthly base payments of $2,245.75 each, plus applicable taxes, commencing March 17, 2022 and thereafter on the 17^th day of each consecutive month until the maturity date of March 17, 2025. Plaintiff alleges that on February 17, 2023, Defendant defaulted on the terms of the agreement by failing to make payment when due.

The complaint, filed November 21, 2023, alleges causes of action for: (1) breach of contract; (2) common count; (3) claim and delivery; and (4) conversion.

B. Application for Writ of Possession

On December 19, 2023, Plaintiff filed the application for writ of possession against Defendant.

The Court is not in receipt of an opposition brief.

The Court notes that Defendant was served with the summons, complaint, and the application papers by personal service on January 10, 2024 at 1021 Raymond Ave., Apt. B, Glendale, CA 91201.

LEGAL STANDARD

CCP § 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.

(CCP § 512.010(b).)

CCP § 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.

(2) The undertaking requirements of CCP §515.010 are satisfied.

(CCP § 512.060.)

DISCUSSION

A. Probable Validity of Plaintiff’s Claim

Plaintiff provides the declaration of Sarah Phillips in support of its application for writ of possession of the vehicle. Ms. Phillips states that she is employed by BMW Financial Services NA, LLC as a Collections Legal and Replevin Analyst and is the custodian of records for the subject account. (Phillips Decl., ¶¶1-7.)

Ms. Phillips states that Plaintiff and Crevier BMW entered into the March 17, 2022 Motor Vehicle Lease Agreement for the subject vehicle. (Id., ¶8, Ex. 1.) She states that Plaintiff received an assignment of the agreement from the dealer and that Plaintiff’s legal ownership interest in the vehicle was perfected with the California DMV. (Id., ¶11, Ex. 2.) She states that on February 17, 2023, Defendant defaulted pursuant to the terms of the agreement by failing to make the payment due. (Id., ¶12.) Ms. Phillips states that Plaintiff demanded payment from Defendant, but Defendant failed and refused to pay. (Id., ¶13.) She states that $132,744.88 is currently due and owing from Defendant. (Id., Ex. 3.) Pursuant to the agreement at paragraph 23(ii), upon default, Plaintiff is entitled to take possession of the vehicle. (Id., ¶14.)

Ms. Phillips’ declaration provides evidence to establish the probable validity of Plaintiff’s claim to possession of the vehicle with regard to Defendant because it shows that Plaintiff has the right to take immediate possession of the vehicle since Defendant is in default of the contract.

B. Location of Vehicle

Under CCP § 512.010(b)(4), the plaintiff must provide evidence of the location of the property. Further, if the property is within a private place which may have to be entered to take possession, section (b)(4) requires there to be a showing that there is probable cause to believe that the property is located there.

Ms. Phillips states that the vehicle is in the control and possession of Defendant. She believes that the vehicle is located at Defendant’s primary residence at 9705 Via Roma, Burbank, CA 91504, based on Plaintiff’s records. (Phillips Decl., ¶¶15, 18.)

These facts are sufficient to identify the location of the vehicle at Defendant’s residence.

C. Undertaking

Finally, CCP § 512.060 requires that an undertaking be filed before a writ of possession may be issued. CCP § 515.010(a) states that the undertaking shall be set at an amount not less than twice the value of the defendant's interest in the property. In addition, CCP § 515.010(a) defines the value of the defendant's interest in the property as 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. When a defendant does not have any interest in the property, CCP § 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.

If the defendant seeks to retain possession of the property, CCP § 515.020 permits the defendant to file an undertaking and retain the property in an amount equal to the amount of the plaintiff’s undertaking determined in CCP § 515.010(a), or in an amount determined by the Court pursuant to CCP § 515.010(b).

Ms. Phillips estimates the approximate value of the vehicle to be $123,850 based on the Kelley Blue Book Online Official Used Car Guide. (Phillips Decl., ¶19, Ex. 4.) Plaintiff claims that Defendant owes $132,744.88 on the agreement. (Id., ¶13.) Plaintiff argues that it should not be required to post a bond because the vehicle was delivered to Defendant based on a lease agreement, such that no equity or ownership interest was ever conveyed to Defendant. (Id., ¶20; App. Mem. of Points & Authorities at p.5.) For the purposes of CCP § 515.010, Defendant has no interest in the vehicle. Accordingly, the Court waives the requirement for Plaintiff to file an undertaking because Defendant has no interest in the vehicle.

As the application is not opposed, it does not appear that Defendant seeks to retain possession of the vehicle.

CONCLUSION AND ORDER

Plaintiff Financial Services Vehicle Trust, by and through its servicer, BMW Financial Services NA, LLC’s application for a writ of possession is granted. The Court issues the requested writ of possession to obtain the 2022 BMW M8 CNV motor vehicle at Defendant Hrach Panosian’s address at 9705 Via Roma, Burbank, CA 91504.

The requirement for Plaintiff to post an undertaking is waived.

Plaintiff is ordered to provide notice of this order.

DATED: April 12, 2024 ___________________________

John J. Kralik

Judge of the Superior Court