Judge: Nick A. Dourbetas, Case: 2020-01165533, Date: 2022-08-26 Tentative Ruling

Motion - Other- Application for Writ of Possession

The Application for Writ of Possession of a 2017 Cadillac Escalade, VIN 1GYS3AKJ3HR299609 (Vehicle”) by5 Americredit Financial Services, Inc., dba “GM Financial” is DENIED. (See Code Civ. Proc. § 512.010.) Plaintiff has not made the required evidentiary showing.

A plaintiff moving for a prejudgment writ of possession must submit admissible evidence of: (1) A right to possession of the personal property to be seized under the writ (Code Civ. Proc. § 512.010(b)(1)); (2) How Defendant came into possession of the property; (3) The Defendant’s wrongful possession of the property (Code Civ. Proc. § 512.010(b)(2)); (4) A description of the property and its value; (5) The location of the property (Code Civ. Proc. § 512.010(b)(4)); (6) The property has not been taken by the government for a tax sale (Code Civ. Proc. § 512.010(b)(5).)

Additionally, the plaintiff must demonstrate the valid probability of its claim for possession of the property. The plaintiff must also post an undertaking of twice the defendant’s interest in the property. (Code Civ. Proc. § 512.060(a)(2)).

Plaintiff’s evidence states:

(i)       Defendants Renewable Technology Solutions, Inc. and Guy Griffithe leased the Vehicle and that Plaintiff is the legal owner of the Vehicle and has been since the inception of the Lease;

(ii)      Defendants Renewable Technology Solutions, Inc. and Guy Griffithe failed to make the 03/14/1 on Lease payment and all subsequent payments;

(iii)     Plaintiff has exercised its rights under the Lease, has accelerated the payments due, and demands possession of the Vehicle;

(iv)     Defendant Jennifer Cagle is currently in possession of the Vehicle.

The face of the Lease reflects that the Lease is between Defendant Renewable and Dutton Motor Company, not Plaintiff and Defendant Renewable. Plaintiff now provides evidence reflecting that the Lease has been assigned to Plaintiff.

Plaintiff alleges that it is the legal owner/lienholder of the Vehicle.  However, per the DMV Certificate of title submitted by Plaintiff it appears that “Wells Fargo Bank as CTL Agent” is the legal owner/lienholder, not the Plaintiff, as Mr. January declares in his declaration. Plaintiff provides no evidence reflecting that Wells Fargo is holding title as agent for Plaintiff, or any other explanation for this discrepancy. The certificate of title does not reflect that plaintiff is the registered owner as stated in Mr. January’s declaration.

Thus, Plaintiff has failed to establish of its right to possession of the personal property to be seized, Defendant’s wrongful possession of the property, and the probable validity of its claim for possession of the property. (See Code Civ. Proc. §§ 512.010, subd. (b) and 512.060, subd. (a)(2).)

Moving party to give notice.

***Plaintiff’s counsel may appear on hearing date with any further evidence of right to possession for the Court to consider.