Judge: John J. Kralik, Case: 24NNCV00505, Date: 2024-08-02 Tentative Ruling
Case Number: 24NNCV00505 Hearing Date: August 2, 2024 Dept: NCB
North
Central District
|
north
mill equipment finance llc, a limited liability company and
servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST, Plaintiff, v. merexmortals,
inc., et al., Defendants. |
Case No.:
24NNCV00505 Hearing Date: August 2, 2024 [TENTATIVE] order RE: APPLICATIONs for writ of possession |
BACKGROUND
A.
Allegations
Plaintiff North Mill Equipment Finance
LLC, a limited liability company and servicing agent for North Mill Credit
Trust fka EFS Credit Trust (“Plaintiff”) alleges that Defendant Merexmortals,
Inc. (“Merexmortals”) and Defendant MXM NV, Inc. (“MXM”) entered into various
agreements with Plaintiff related to different types of machinery, of which
Defendant Adde Issagholi (“Issagholi”) guaranteed. Merexmortals also guaranteed MXM’s
agreements, and MXM guaranteed Merexmortal’s agreements. Plaintiff alleges that Merexmortals and MXM
breached the agreements and Issagholi breached the guarantees by failing to
make payments when due.
The complaint was filed on March 26, 2024. The 1st, 3rd, 5th,
12th, 14th, 16th, 18th, and 20th
cause of action are for breach of written agreement. The 2nd, 4th, 6th,
7th, 13th, 15th, 17th, 19th,
21st, and 22nd causes of action are for breach of written
guaranty. The 8th and 23rd
causes of action are for account stated.
The 9th and 24th causes of action are for
indebtedness. The 10th and 25th
causes of action are for conversion. The
11th and 26th causes of action are for claim and
delivery.
On July 24, 2024, the defaults of
Defendants Merexmortals, MXM, and Issagholi were entered.
B.
Motions
on Calendar
On May 22, 2024, Plaintiff filed 3
applications for writ of possession against Merexmortals, MXM, and
Issagholi.
The Court is not in receipt of an
opposition brief.
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
Plaintiff filed 3
applications for writ of possession against Merexmortals, MXM, and
Issagholi. The claimed property is
listed over 3 pages in Attachment 4 – Collateral of the application
papers.
A. Probable
Validity of Plaintiff’s Claims
“The standard elements of a claim for
breach of contract are: “(1) the contract, (2) plaintiff's performance or
excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff
therefrom. [Citation.]” (Wall
Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171,
1178.)
In support of the
application, Plaintiff provides the declaration of Ellen W. Miller, who is a
Vice President of Legal for Plaintiff. (Miller
Decl., ¶1.) There are 8 written
agreements and 10 guaranty agreements at issue:
·
Agreement #1: On July 19, 2021, Merexmortals entered into
written Commercial Security Agreement with related agreements with Plaintiff for
certain commercial sewing machines: five Jukis with Model No. MO6814-S, five
Jukis with Model No. DDL-8700, and six Jukis with Model No. MF-7523. (Miller Decl., ¶¶5-6, Ex. 1.) Ms. Miller states that Merexmortals breached
the agreement on October 27, 2023 by failing to make payments and failing to
cure the breach. (Id.,
¶¶12-14.) She states that the balance
due is $17,476.35, including additional interest, penalties, and other fees,
charges, and/or costs, as well as attorney’s fees. (Id., ¶¶17-19, Ex. 4.)
o
Guaranty #1: On July 19, 2021, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶20-24, Ex. 1.)
·
Agreement #2: On August 2, 2021, Merexmortals entered into
written Commercial Security Agreement with related agreements with Plaintiff for:
one model year 2021 Workhorse Sabre AG Automatic Printing Press, Serial No.
B-108670. (Miller Decl., ¶¶25-26,
Ex. 5.) Ms. Miller states that
Merexmortals breached the agreement on November 10, 2023 by failing to make
payments and failing to cure the breach.
(Id., ¶¶32-34.) She states
that the balance due is $32,834.25, including additional interest, penalties,
and other fees, charges, and/or costs, as well as attorney’s fees. (Id., ¶¶37-39, Ex. 8.)
o
Guaranty #2: On August 2, 2021, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶40-44, Ex. 5.)
·
Agreement #3: On April 19, 2022, Merexmortals entered into
written Commercial Security Agreement with related agreements with Plaintiff for:
a 2022 Mack MD6 collateral. (Miller Decl., ¶45, Ex. 9.) Ms. Miller states that Merexmortals breached
the agreement on November 10, 2023 by failing to make payments and failing to
cure the breach. (Id., ¶¶52-55.) She states that the balance due is $111,024.81,
including additional interest, penalties, and other fees, charges, and/or
costs, as well as attorney’s fees. (Id.,
¶¶57-59, Ex. 12.)
o
Guaranty #3: On April 19, 2022, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶61-64, Ex. 9.)
·
MXM’s Guaranty: MXM entered into written Corporate Guaranties
on Agreements #1-3. (Miller Decl., ¶65,
Ex. 13.)
·
Agreement #4: On March 2, 2022, MXM entered into written
Commercial Security Agreement with related agreements with Plaintiff for: five
2022 CAMFive Model No. CFHS-918 collateral. (Miller Decl., ¶¶72-73, Ex. 14.) Ms. Miller states that MXM breached the
agreement on November 27, 2023 by failing to make payments and failing to cure
the breach. (Id., ¶¶79-81.) She states that the balance due is $156,331.58,
including additional interest, penalties, and other fees, charges, and/or
costs, as well as attorney’s fees. (Id.,
¶¶84-86, Ex. 17.)
o
Guaranty #4: On March 2, 2022, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶87-91, Ex. 14.)
·
Agreement #5: On June 14, 2022, MXM entered into written
Commercial Security Agreement with related agreements with Plaintiff for: a
2019 Roq and two 2021 Hangxing collateral. (Miller Decl., ¶¶92-93, Ex. 18.) Ms. Miller states that MXM breached the
agreement on November 21, 2023 by failing to make payments and failing to cure
the breach. (Id., ¶¶99-101.) She states that the balance due is $139,323.24,
including additional interest, penalties, and other fees, charges, and/or
costs, as well as attorney’s fees. (Id.,
¶¶104-105, Ex. 21.)
o
Guaranty #5: On June 14, 2022, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶107-111, Ex. 18.)
·
Agreement #6: On May 19, 2023, MXM entered into written
Commercial Security Agreement with related agreements with Plaintiff for: two
2021 CLM 250KG, a 2019 Ellis 650KG, a 2022 Cam Five 8 head, two 2021 Camfive
Flatbeds, a 2019 M&R Sportsman, and a 2017 Intechange collateral. (Miller Decl., ¶¶112-113, Ex. 22.) Ms. Miller states that MXM breached the
agreement on November 18, 2023 by failing to make payments and failing to cure
the breach. (Id., ¶¶119-121.) She states that the balance due is $576,566.65,
including additional interest, penalties, and other fees, charges, and/or
costs, as well as attorney’s fees. (Id.,
¶¶124-126, Ex. 21.)
o
Guaranty #6: On May 19, 2023, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶127-131, Ex. 22.)
·
Agreement #7: On June 1, 2023, MXM entered into written
Commercial Security Agreement with related agreements with Plaintiff for: two
2021 Ellis 250 KG, a 2021 CLm 250 KG, and a 2021 M&R Sportsman collateral.
(Miller Decl., ¶¶132-133, Ex. 26.) Ms. Miller states that MXM breached the
agreement on November 2, 2023 by failing to make payments and failing to cure
the breach. (Id., ¶¶139-141.) She states that the balance due is $264,490.81,
including additional interest, penalties, and other fees, charges, and/or
costs, as well as attorney’s fees. (Id.,
¶¶144-146, Ex. 29.)
o
Guaranty #7: On June 1, 2023, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶147-151, Ex. 26.)
·
Agreement #8: On June 16, 2023, MXM entered into written
Commercial Security Agreement with related agreements with Plaintiff for: a
2020 Kemco Boiler 200 HP and two 2021 Ellis 250 KG Tunnel Washer collateral.
(Miller Decl., ¶¶152-153, Ex. 30.) Ms. Miller states that MXM breached the
agreement on November 21, 2023 by failing to make payments and failing to cure
the breach. (Id., ¶¶159-161.) She states that the balance due is $263,769.47,
including additional interest, penalties, and other fees, charges, and/or costs,
as well as attorney’s fees. (Id.,
¶¶164-166, Ex. 33.)
o
Guaranty #8: On June 16, 2023, Issagholi entered into a
written Personal Guaranty regarding the aforementioned agreement. (Id., ¶¶167-171, Ex. 30.)
·
Merexmortals Guaranty: Merexmortals entered into a series of
written Corporate Guaranties on Agreements #4-8. (Miller Decl., ¶¶172-180, Ex. 34.)
Ms.
Miller states that Plaintiff is entitled to possession of all the collateral in
Defendants’ possession based on the language of the agreements, but that
Defendants have failed to return the collateral. (Miller Decl., ¶¶181-185, 202-206.)
Ms. Miller’s declaration provides evidence
to establish the probable validity of Plaintiff’s claim to possession of the
subject collateral against Defendants because it shows that Plaintiff has the
right to take immediate possession of the collateral as a result of Defendants’
default on the written Agreements and Guaranties. The applications are not opposed and
Defendants are each in default.
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. Miller states
that the last known locations of the Merexmortals and MXM collateral are:
a. 5899 Compton Avenue, Los Angeles, CA 90001;
b. 1812 Foothill Drive, Glendale, CA 91201;
c. 4501 Mitchell Street, Suite A, North Las Vegas, NV 89081;
d. 9813 Twilight Moon Avenue, Las Vegas, NV 89148; or
e. Another address known to Defendants.
(Applications at § 6; Miller Decl.,
¶¶187, 208.)
These facts are
sufficient to identify the potential locations of the vehicle at Defendants’
addresses.
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. Miller provides the estimates
for the combined auction resale value of the collateral subject to the
Merexmortal agreements to be:
·
For the collateral under Agreement #1, she estimates
$12,000.
·
For the collateral under Agreement #2, she estimates
$45,000.
·
Total Merexmortals Collateral: $57,000.
(Miller Decl., ¶¶197-198.) She states that Plaintiff has an unpaid
principal balance of $161,335.41 on the Merexmortals agreements, such that
Plaintiff is under-secured as to the value of the collateral is below what is
owed. (Id., ¶199.) This indicates that, for the purposes of CCP
§ 515.010, Defendants have no interest in the vehicle. Accordingly, the Court waives the requirement
for Plaintiff to file an undertaking on the Merexmortals collateral because
Defendants have no interest in the collateral.
Ms.
Miller provides the estimates for the combined auction resale value of the
collateral subject to the MXM agreements to be:
·
For the collateral under Agreement #4, she estimates
$108,000.
·
For the collateral under Agreement #5, she estimates $18,000.
·
For the collateral under Agreement #6, she estimates
$236,000.
·
For the collateral under Agreement #7, she estimates $83,000.
·
For the collateral under Agreement #8, she estimates
$105,000.
·
Total MXM Collateral: $550,000.
(Miller
Decl., ¶¶217-218.) She states that
Plaintiff has an unpaid principal balance of $1,400,481.75 on the MXM
agreements, such that Plaintiff is under-secured as to the value of the
collateral is below what is owed. (Id.,
¶219.) This indicates that, for the
purposes of CCP § 515.010, Defendants have no interest in the vehicle. Accordingly, the Court waives the requirement
for Plaintiff to file an undertaking on the MXM collateral because Defendants
have no interest in the collateral.
As the application is not opposed,
it does not appear that Defendants seek to retain possession of the collateral.
CONCLUSION
AND ORDER
Plaintiff’s three applications for a writ
of possession against Defendants Merexmortals, Inc., MXM NV, Inc., and Adde
Issagholi are granted. The Court issues
the requested writ of possession to obtain the collateral listed in Attachment
4 of the application papers at the following addresses: (a) 5899 Compton Avenue, Los Angeles,
CA 90001; (b) 1812 Foothill Drive, Glendale, CA 91201; (c) 4501 Mitchell
Street, Suite A, North Las Vegas, NV 89081; and (d) 9813 Twilight Moon Avenue,
Las Vegas, NV 89148. The Court notes,
however, that it does not have the power to order levying officers in this
state to seize property in Nevada. Neither does it have the power to order
levying officers in Nevada to do anything. It is the Court’s advisory view that
this order or the judgment in this case must be confirmed in a Nevada Court to
be carried out in that state.
The requirement
for Plaintiff to post an undertaking is waived.
Plaintiff shall
provide notice of this order.
DATED: August 2, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court