Judge: Mitchell L. Beckloff, Case: 23STCV13317, Date: 2023-10-04 Tentative Ruling

Case Number: 23STCV13317    Hearing Date: October 4, 2023    Dept: 86

ALLY BANK v. VITELA

Case Number: 23STCV13317

Hearing Date: October 4, 2023

[Tentative]       ORDER DENYING APPLICATION FOR WRIT OF POSSESSION

Plaintiff, Ally Bank, seeks writ of possession against Defendant, Valeria Alexis Vitela, for a 2016 Dodge Ram automobile with a vehicle identification number of 3C6UR5FL4GG368135. The court entered Defendant’s default on September 5, 2023.

The application for a writ of possession is DENIED without prejudice. Plaintiff has not established it—as opposed to Ally Financial—has any interest in the contract underlying the dispute between the parties.

APPLICABLE LAW

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply . . . for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc., § 512.010, subd. (a).)

Pursuant to Code of Civil Procedure section 512.010, subdivision (b), the application must be submitted under oath and include:

“(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.”

“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (Code Civ. Proc., § 512.040, subd. (b).) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 511.090.) “If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff's right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.” (Code Civ. Proc., § 512.040, subd. (c).)

Prior to the issuance of a writ of possession, the plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.” (Code Civ. Proc., § 515.010, subd. (a).) “The value of the defendant's interest in the property is determined by 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.” (Id.) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code Civ. Proc., § 515.010, subd. (b).)

ANALYSIS

The complaint alleges causes of action for (1) claim and delivery of personal property and

(2) money on a contract.

Probable Validity of Plaintiff’s Claim:

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 511.090.) 

Plaintiff provides evidence Defendant and non-party, Family Trucks and Vans, entered into a contract providing Family Trucks and Vans—or any assignee—has the right to immediate possession of the motor vehicle upon a default of any provision in the contract. (Singleton Decl. ¶ 5.) Plaintiff’s employee attests the contract is in default because Defendant failed to make the $310 payment due and owing on May 20, 2022 or any of the regular monthly payments of $862.00 due thereafter. (Singleton Decl. ¶ 6.) Plaintiff made a demand upon Defendant for the surrender of possession of the motor vehicle, but Defendant failed and refused to surrender to Plaintiff. (Singleton Decl. ¶ 6.)

The contract evidences an assignment from Family Trucks and Vans to non-party, Ally Financial. The Certificate of Title issued by the State of Colorado similarly evidences Ally Financial in Cockeysville, Maryland as the legal owner (first lienholder) of the motor vehicle. (Singleton Decl., Ex. B.) Plaintiff’s employee signed his declaration in this state. (See Singleton Decl.)

According to Plaintiff, as of May 23, 2023, Defendant owes $26,222.70 on the contract. (Singleton Decl. ¶ 6.)

The court cannot find Plaintiff’s claim is probably valid on this evidence. Plaintiff has not submitted sufficient competent evidence it is the assignee under the contract. The contract demonstrates Family Trucks and Vans assigned the contract to Ally Financial, not Plaintiff. The Certificate of Title similarly shows Ally Financial as the legal owner of the motor vehicle. The court has no evidence of regular payments made to Plaintiff—Ally Bank—through 2022 when payments ceased.

Evidence of Value and Location:

As evidence of the motor vehicle’s value, Plaintiff provides evidence of a wholesale value of $37,925 and a retail value of $44,250. (Singleton Decl. ¶ 7, Ex. C.)

Finally, Plaintiff provides some evidence the motor vehicle is currently located at 1417 S. Eastern Avenue in Commerce, California. (Singleton Decl. ¶10.)

Undertaking

Assuming Plaintiff can demonstrate it owns the rights under the contract, a writ could issue only after Plaintiff files an undertaking in the amount of $36,055.

CONCLUSION

Based on the foregoing, the application for a writ of possession is denied without prejudice.

IT IS SO ORDERED.

October 4, 2023                                                                     ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court