Judge: Lee W. Tsao, Case: 23NWCV04117, Date: 2024-05-16 Tentative Ruling

Case Number: 23NWCV04117    Hearing Date: May 16, 2024    Dept: C

ALLY BANK, A CORPORATION v. MENCIAS, JR.

CASE NO.:  23NWCV04117

HEARING: 05/16/24

#7

Plaintiff ALLY BANK, a Corporation’s unopposed application for writ of possession as to Defendant HENRY R. MENCIAS, JR. is GRANTED. 

Moving Party to give Notice.

Plaintiff ALLY BANK, a Corporation (“Plaintiff”) applies for a writ of possession against Defendant HENRY R. MENCIAS, JR. (“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 5, 2024 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).)

The Contract at issue concerning the sale of a 2016 Peterbilt 389 motor vehicle was assigned to Plaintiff. (Singleton Decl., ¶5.) “Said Contract is in default…. As of November 29, 2023, there is due, owing, and unpaid to Plaintiff on account of the Contract the sum of $26,458.46….” (Id. ¶6.)

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 ($26,458.46) is less than the value of the Property (as valuated by Plaintiff to be between $47,500.00 and $64,025.00). Plaintiff is required to post an undertaking in the amount of $47,500.00 within 10 days after the Court’s issuance of this Order.

The undertaking required by Defendant for redelivery or to stay delivery is $21,041.54,. (CCP §515.020.)