Judge: Mitchell L. Beckloff, Case: 23STLC06555, Date: 2024-03-29 Tentative Ruling
Case Number: 23STLC06555 Hearing Date: March 29, 2024 Dept: 86
ALLY BANK v. CRUZ
Case No. 23STCL06555
Hearing Date: March
29, 2024
[Tentative] ORDER DENYING APPLICATION FOR WRIT OF
POSSESSION
Plaintiff, Ally Bank,
applies for a writ of possession against Defendant, Evie Cruz, for a 2022
Chevrolet Trailblazer motor vehicle with a vehicle identification number of
KL79MPS24NB011188. Despite having proper notice, Defendant has not opposed the application.
The application is DENIED.
According to the title document submitted into evidence, the legal owner of the
vehicle is Ally Financial, not Ally Bank. It appears Ally Bank is not the proper
plaintiff. Further, at a minimum, it would appear Ally Financial, the legal
owner of the vehicle is entitled to notice of these proceedings.
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, George Chevrolet, entered into a contract
providing George Chevrolet with 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 a $384.30
payment due and owing on February 22, 2023 or any of the regular monthly
payments of $596/86 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 George Chevrolet to Plaintiff.
The Certificate of Title issued by the State of California evidences Ally
Financial in Cockeysville, Maryland as the legal owner (first lienholder)
of the motor vehicle. (Singleton Decl., Ex. B.)
According to
Plaintiff, as of September 11, 2023, Defendant owes $23,060.91 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 has a
security interest in the vehicle—it appears Ally Bank is not the proper plaintiff.
The Certificate of Title shows Ally Financial as the legal owner of the motor
vehicle. Without evidence to address the discrepancy, the court cannot find
Plaintiff is entitled to possession of the vehicle.
Evidence of Value and Location:
As evidence of the vehicle’s value, Plaintiff provides evidence of
a wholesale value of $23,510 and a retail value of $25,800 as of September 11, 2023.
(Singleton Decl. ¶ 7, Ex. C.)
Finally, Plaintiff provides some evidence the vehicle is currently
located at 143 E. 82nd Street in Los Angeles or 3908 W. 109th
Street in Inglewood. (Singleton Decl. ¶10.) It is not clear from the evidence why
Plaintiff’s employee believes the vehicle is in Inglewood.
Undertaking
Assuming Plaintiff can demonstrate it owns the rights under the
contract and is the legal owner of the vehicle, a writ could issue only after
Plaintiff files an undertaking in the amount of $1,000.
CONCLUSION
Based on the foregoing, the application for a writ of possession is
denied without prejudice.
IT IS SO ORDERED.
March 29, 2024 ________________________________
Hon.
Mitchell Beckloff
Judge of the Superior Court