Judge: Mitchell L. Beckloff, Case: 23STLC03925, Date: 2023-11-01 Tentative Ruling
Case Number: 23STLC03925 Hearing Date: February 2, 2024 Dept: 86
ALLY BANK v. RAMOS
Case Number: 23STLC03925
Hearing Date: February 2, 2024
[Tentative] ORDER
DENYING APPLICATIONS FOR WRITS OF POSSESSION
Plaintiff, Ally Bank, moves for writs of
possession against Defendants, We Care Auto Limited Liability Company and
Mohamed Gabr, with respect to the following property: 2019 Nissan Altima, motor vehicle, Vehicle
Identification Number 1N4BL4EV9KC193672 (the Vehicle).
RELEVANT PROCEDURAL HISTORY
On August 24, 2023, Plaintiff filed the first
amended complaint for claim and delivery and other causes of action.
On November 21, 2023, Plaintiff filed the applications
for writs of possession.
On December 14, 2023, Plaintiff filed proofs of
service of the summons, complaint, applications for writs of possession, and
notices of hearing on Defendants. The
proofs of service show personal service of these papers on Defendants on
November 27, 2023.
On December 14, 2023, the court entered
Plaintiff’s request for dismissal of Defendant Hector Alfonso Angulo
Ramos.
The applications are unopposed.
SUMMARY OF
APPLICABLE LAW
“Upon the
filing of the complaint or at any time thereafter, the plaintiff may apply
pursuant to this chapter 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.” (Id. at
§ 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.” (Id. at § 511.090.)
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.” (Id. at § 515.010, subd. (a).)
ANALYSIS
Notice
Notice of the applications appears proper.
Probable
Validity of Plaintiff’s Claim
Plaintiff
seeks writs of possession based on its cause of action for claim and
delivery.
Plaintiff contends it owns, pursuant to an assignment, the Retail
Installment Sale Contract executed by Defendant Ramos with respect to the
Vehicle (Agreement). (Singleton Decl. ¶ 7.)
“The burden of proving an assignment falls
upon the party asserting rights thereunder.”
(Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284,
292.) On this record, Plaintiff does not meet this burden. The Agreement states
the seller was Darcars of Cherry Hill Road, Inc., of Silver Spring, Maryland. The
Agreement does not include an assignment from the seller to Plaintiff. (Singleton
Decl. Exh. A.) Plaintiff’s declarant, James Singleton, does not specify when
the purported assignment occurred or how he has personal knowledge to support
his testimony about the assignment. (Id. ¶¶ 1, 7.) While Singleton
purports to authenticate a “Maryland Certificate of Title,” he does not lay a
foundation for authenticating that out-of-state document. (Id. ¶ 7, Exh. B.) Plaintiff also does not
submit a certified copy of the document, which is actually entitled a “Maryland
Notice of Security Interest Filing” and states “This is Not a Title.” (Ibid.)
Even if the document were authenticated, it reports Ally Financial filed a
security interest in the Vehicle. Plaintiff herein is Ally Bank, not Ally
Financial. Moreover, in the absence of additional corroborating evidence, the
filing of a security interest, alone, does not prove an assignment occurred. Finally,
while Singleton purports to authenticate “the customer’s payment history” as
Exhibit C, that evidence does not demonstrate an assignment or Plaintiff’s
ownership. Singleton does not show personal knowledge to testify Ramos made
payments to Plaintiff on the Agreement, and neither Singleton nor Exhibit C
specifies that a payment was made to Plaintiff.
(Id. ¶ 8, Exh. C.)
Based on the foregoing, Plaintiff has not shown a probably valid claim
because there is insufficient evidence of an assignment of the Agreement to
Plaintiff.
CONCLUSION
The applications are DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
February 2, 2024 _______________________________
Hon. Mitchell Beckloff
Judge of the Superior Court