Judge: Olivia Rosales, Case: 22NWCV00915, Date: 2022-12-07 Tentative Ruling

Case Number: 22NWCV00915    Hearing Date: December 7, 2022    Dept: SEC

FINANCIAL PACIFIC LEASING, INC. v. SUPERIOR TRUCK SERVICES, INC.

CASE NO.:  22NWCV00915

HEARING: 12/07/22

#6

TENTATIVE ORDER

Plaintiff FINANCIAL PACIFIC LEASING, INC.’s application for writ of possession is DENIED without prejudice. 

Opposing Party to give Notice.

Plaintiff FINANCIAL PACIFIC LEASING, INC. (“Plaintiff”) applies for a writ of possession 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 October 24, 2022 shows that Defendants were served.

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).)

“On or about August 22, 2017, Defendant Superior Truck Services, Inc… entered into a written Equipment Finance Agreement… with Plaintiff whereby Superior… financed a truck with a trailer….” (Gonzales Decl., ¶4.) “Francisco Javier Rivera (hereinafter ‘Rivera’) executed the Agreement on behalf of Superior and also signed a Personal Guaranty….” (Id. at ¶5.) “On or about October 1, 2019, Superior… defaulted…. Therefore, Superior… have been in default since October 1, 2019, and are currently delinquent of the Agreement.” (Id. at ¶6.) “On or about June 2, 2022, Defendant contacted Plaintiff and informed them that the equipment financed… had been in an accident and the trailer had been deemed a total loss. Thereafter, Plaintiff was contacted by AmTrust Financial Services, Inc…. AmTrust then mailed Plaintiff a check in the amount of $48,260.83 as a Total Loss Settlement on the trailer only.” (Id. at ¶9.) “Defendants are still in possession of the truck and have refused to return it to Plaintiff….” (Id. at ¶10.)

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

In Opposition, Defendant Rivera argues that payments were made after October 1, 2019. Rivera has attached checks and invoices as exhibits to the Opposition showing that payments were made to Defendant in 2020, 2021, and April 2022. 

In Reply, Plaintiff states that the Complaint was field on September 30, 2022, and that “[t]he amount sued for in the Complaint reflects the amount due and owing at that time and those checks had already been applied to the balance due. Regardless, according to Defendants’ own admission, the last payment made was on April 5, 2022. The estimated value of the truck is $22,000, still far below the amount due and owing to Plaintiff even if Defendants were entitled to an additional credit. Accordingly, Plaintiff is still entitled to possession of the Equipment. Once Plaintiff takes possession of the truck, it will attempt to sell it and any proceeds received will be applied to the balance due.” (Reply. 2:7-14.)

Based on the evidence presented, Plaintiff has not established that Plaintiff’s claim is probably valid. Plaintiff seeks possession of the truck based on the fact that the Agreement had been in default since October 1, 2019. In Reply, Plaintiff does not dispute that payments had actually been in 2020, 2021, and 2022. Even if Defendant defaulted after April 2022, Plaintiff needs to provide an updated accounting to show that Defendant’s payments made after October 1, 2019 were actually credited. Plaintiff must provide evidence to show that the balance due and owing after April 2022 is greater than the fair market value of the truck. 

The Application is DENIED without prejudice.