Judge Olivia Rosales, Case 22NWCV00341 2022-08-11 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00341, Date: 2022-08-11 Tentative Ruling

Case Number: 22NWCV00341 Hearing Date: August 11, 2022 Dept: SEC

FLAGSHIP CREDIT ACCEPTANCE, LLC v. THOMAS

CASE NO.: 22NWCV00341

HEARING: 08/11/22

JUDGE: OLIVIA ROSALES

TENTATIVE ORDER

I. Plaintiff FLAGSHIP CREDIT ACCEPTANCE’s unopposed application for writ of possession as to Defendant ELIJAH COLE WILSON THOMAS is GRANTED.

II. Plaintiff FLAGSHIP CREDIT ACCEPTANCE’s unopposed application for writ of possession as to Defendant GENEVIEVE MARIA WILSON is GRANTED.

Moving Party to give Notice.

No Oppositions filed as of August 9, 2022.

Plaintiff FLAGSHIP CREDIT ACCEPTANCE (“Plaintiff”) applies for writs of possession against Defendants ELIJAH COLE WILSON THOMAS and GENEVIEVE MARIA WILSON (collectively “Defendants”) pursuant to CCP §512.010.

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 proofs of service filed on June 30, 2022 show that Defendants were served with all necessary documents on June 21, 2022.

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).)

“Attached to this declaration as Exhibit ‘A’ and incorporated herein by this reference…is a true and correct copy of the Contract (‘Contract’) owned by Plaintiff pursuant to an assignment and pursuant to which the subject 2019 Dodge Charger motor vehicle… was purchased. Pursuant to the terms of said Contract, upon a default of any provision thereof, Plaintiff has the right to immediate possession of the subject motor vehicle.” (Kirkley Decl., ¶4.) “Said Contract is in default in that [Defendants] failed to make the payment due and owing 2/1/2022 in the amount of $530.72, or any of the regular monthly payments of $530.72 due thereafter.” (Kirkley Decl., ¶5.)

The property has not been seized pursuant to an execution or attachment.

No Oppositions have been filed as of August 9, 2022.

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 ($26,250.57) is less than the value of the Property (as valuated by Plaintiff) is between $30,461.00 and $32,013.00). However, when a defendant does not have any interest in the property, CCP §515.010(b) permits the Court to waive the requirement of the Plaintiff’s undertaking and set an undertaking for the Defendant to keep possession or regain possession. Plaintiff is not required to post an undertaking. The facts in the declaration of Mr. Kirkley demonstrate that the Defendants have no interest in the motor vehicle. Therefore, the Court will waive the requirement of an undertaking for the Plaintiff.

The undertaking required by Defendants for redelivery or to stay delivery is $26,250.57 (CCP §515.020.)