Judge: Lee W. Tsao, Case: 22NWCV00181, Date: 2023-03-01 Tentative Ruling

Case Number: 22NWCV00181    Hearing Date: March 1, 2023    Dept: C

SIGNATURE FINANCIAL v. KLOSS

CASE NO.:  22NWCV00181

HEARING: 03/01/23

#4

TENTATIVE ORDER

Plaintiff SIGNATURE FINANCIAL, LLC’s application for writ of possession as to Defendant PRECISION FORGING DIES, INC. is GRANTED. 

Moving Party to give Notice.

Plaintiff SIGNATURE FINANCIAL, LLC (“Plaintiff”) applies for a writ of possession against Defendant PRECISION DIES FORGING, INC. (“Defendant”)  pursuant to CCP §512.020. 

Notice

Prior to the hearing, the defendant shall be served with all of the following: (a) a copy of the summons and complaint; (b) A Notice of Application and Hearing; and (c) a copy of the application and any affidavit in support thereof.  (CCP §512.030.) 

The proof of service filed on February 16, 2023 shows that Defendant was served with all necessary documents.

Merits

Upon the filing of the complaint or at any time thereafter, the plaintiff may apply for a writ of possession.  (CCP §512.010(a).)  The application shall include all of 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 and of the manner in which defendant came into possession.

3.    A particular description of the property and a statement of its value.

4.    The property’s location based on plaintiff’s knowledge, information and belief; and

5.    A statement that the property has not been seized by statute or execution against it.

The writ will be issued if the plaintiff’s claim is probably valid.  (CCP §512.040(b).)  A writ to take possession of property at a private location requires the plaintiff to show probable cause that the property is located there.  (CCP §512.060(b).)

“In May 2019, Precision Forging and Liberty Capital Group, Inc… entered into a Collateral Financing Agreement… pursuant to which Liberty Capital agreed to lend Precision Forging $1,022,017.00 in order to fund Precision Forging’s purchase of a Mighty Viper Precision Boring Machine… A Mighty Viper CNC Vertical… and a Mighty Viper VTL-20.25 Vertical… including all tooling, standard and accessory equipment….” (McGowan Decl., ¶7.) “Pursuant to the terms of the Contract, Precision Forging was required to make 60 consecutive monthly payments of $20,601.00 each to Liberty Capital. The Contract also provided Liberty Capital a first priority security interest in the Collateral. The Contract provided that failure to make rent payments would be an event of default.” (McGowan Decl., ¶8.) “Precision Forging last paid its monthly interest only payment of $5,738.37 on October 1, 2021, but has failed to make any payments since…. Thus, Precision Forging is in default under the Contract for failing to make the respective payments thereunder.” (McGowan Decl., ¶16.) Co-Defendant Dan Kloss personally guaranteed the Contract. (McGowan Decl., ¶17.)

The property has not been seized pursuant to an execution or attachment.

Based on the evidence presented. It is relatively undisputed that Plaintiff’s claim is valid.

Undertaking:  A bond must be posted as part of the undertaking unless the court finds that the defendant has no interest in the property.  (CCP 515.010(b).)  The undertaking must be in an amount equal to twice the value of the defendant's interest in the property (market value less all liens, etc.).  (CCP 515.010.)  Defendant’s interest is based on the market value of the property less (1) any amount due and owing on any conditional sales contract or security agreement, (2) all liens and encumbrances on the property, and (3) any other factors to determine the defendant’s interest in the property.  (CCP 515.010(a).)

The balance owed ($1,146,734.69) is greater than the value of the Property (as valuated by Plaintiff to be about $400,000 for all of the collateral combined). Plaintiff is not required to post an undertaking.

The undertaking required by Defendants for redelivery or to stay delivery is $1,146,734.69. (CCP §515.020.)