Judge: Lee W. Tsao, Case: 22NWCV01081, Date: 2023-02-08 Tentative Ruling

Case Number: 22NWCV01081    Hearing Date: February 8, 2023    Dept: C

ALLIANT CREDIT UNION v. GARCIA

 

#7

TENTATIVE RULING

 

Plaintiff Alliant Credit Union’s application for writ of possession is DENIED without prejudice.

 

Moving Party to give NOTICE.

 

 

Plaintiff Alliant Credit Union applies for a writ of possession pursuant to CCP § 512.010 et seq.

 

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 court is not in receipt of Plaintiff’s proof of service showing that Defendant was served with a copy of the summons and complaint.  Accordingly, the application is DENIED without prejudice.

 

Merits

 

If the proof of service is filed on or before the hearing, the following analysis applies:

 

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, which may be established by affidavit, pursuant to CCP § 512.101(b):

 

1.    The basis of the plaintiff’s claim that the plaintiff is entitled to possession;

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).)

 

Defendant entered into an agreement, giving Plaintiff the right to immediate possession of the collateral upon default.  (Chism Decl, ¶ 4.)  Defendant defaulted.  (Id.)  The contract describes the property as a 2021 Grand Design M-397TH motor vehicle, Vehicle Identification No. 573FM4532Ml 118679.  (Id.)  The property is not being seized pursuant to an execution or attachment.  (Id. at ¶ 8.)  The property is believed to be located at 25017 Harker Ln., Moreno Valley, CA 92551.  (Id. at ¶ 10.)  Based on Plaintiff’s declaration and lacking any opposition, Plaintiff’s claim is probably 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).)

 

Since the balance owed ($123,426.84) is greater than the value ($75,300.00), Defendant has no interest in the property.  Plaintiff is not required to post an undertaking.  

 

Accordingly, Plaintiff Alliance Credit Union’s application for writ of possession is GRANTED.  No bond.