TENTATIVE RULING

Calendar: 5

Date: 9/16/2022

Case No.: 22 GDCV00381 Trial Date:  None Set

Case Name: VW Credit, Inc. v. Elite Trans World, Inc., et al.    

WRITS OF POSSESSION (2)

Moving Party: Plaintiff VW Credit, Inc.     

Responding Party: Defendant Vahen Margaryan 

Defendant Elite Trans World, Inc. (No Opposition) 

GROUNDS FOR MOTION

Showing of the basis of the plaintiff’s claim and that entitled to possession?

Plaintiff VW Credit, Inc. is the assignee of a written Lease Agreement with defendants Elite Trans World, Inc. and Vahan Margaryan, for the lease of a motor vehicle.  [Ex. 1].  Under the Agreement, upon a default, plaintiff has the right to take possession of the vehicle.  [Ex. 1 ¶ 23].  Defendant has defaulted in payment on the agreement. [Decl. ¶ 6]. Plaintiff has made demand for surrender and is entitled to return of the vehicle. [Decl. ¶ ¶12, 13, 15].   

If based on written instrument, copy attached?

Yes, Exhibit 1  

Showing that property wrongfully detained by defendant, manner in which came into possession and reason for detention?

Vehicle delivered, electronic title document. [Decl.¶ 5; Ex. 2].

Particular description of property and statement of its value?

Description and VIN [Decl. ¶ ¶ 3, 16; Application ¶ 4]

Value and Kelley Blue Book listing, $60,193.00. [Decl.¶ 17; Ex. 3]

Statement of location of the property

Ok [Decl. ¶ 11; Application ¶ 6]

Property not taken for a tax, assessment, fine or seizure?

Application ¶ 8, Decl. ¶ 14

              

OPPOSITION:

NO OPPOSITION 

ANALYSIS:

Procedural

No Proof of Service 

Under CCP § 512.020, “no writ shall be issued under this chapter except after a hearing on a noticed motion.”  Under CCP § 512.030, prior to the hearing on an application for a writ of possession, the defendant “shall be served” with specific documents, including the Summons and Complaint, the Notice of Application and Hearing and a copy of the application and any affidavits.  

There is no proof of service attached to these documents or anywhere in the file.  A Declaration filed on August 19, 2022 Re Order to Show Cause re Proof of Service indicates that plaintiff’s attorney service was unable to serve defendants at the address provided with the Lease documentation.  [Mintz Decl. ¶ 4].  Plaintiff has conducted skiptracing on defendants, but was unable to locate a viable alternative address, so has referred the matter to a private investigator.  [Mintz Decl. ¶ 6].  Unless at the hearing plaintiff can produce proof of service on defendants, the applications cannot be considered.  The declaration also calls into question whether the writs should issue in connection with an address for the location of the collateral/vehicle which plaintiff is now aware is not an address where the collateral is in fact located for purposes of execution of the writs of possession.  

Substantive

Under CCP § 512.060:

“(a) At the hearing, a writ of possession shall issue if both of the following are found:

(1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property.

 

(2) The undertaking requirements of Section 515.010 are satisfied.”

Under CCP section 511.090:

“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.”

The Official Comments to CCP section 512.060 note:

“The burden of proof rests on the plaintiff to establish the probable validity of his claim.”

Here, as detailed above, the applications submit evidence from which the court finds that the claim to possession is probably valid.   

However, there are two problems with the writ applications.  

First, the Lease Agreement provides for assignment of the Lease Agreement from the dealer McKenna Audi to the assignee, designated as VW Credit Leasing, Ltd. [Decl. ¶ 6; Ex. 1 ¶ 27, and p. 5 of 5, Lessor’s Acceptance].  The Certificate of Title submitted with the application shows the registered owner of the vehicle as “VW CREDIT LSG LTD.”  [Ex. 2].  Plaintiff in this matter is VW Credit, Inc.  The applications offer no evidence or showing explaining how VW Credit, Inc. has standing to enforce a Lease Agreement to which it is not the named assignee.   The applications will be denied or continued for a further showing establishing how the named plaintiff is interested in this matter. 

Second, as noted above, the file shows that plaintiff since the filing of these applications has been informed that defendants are unknown at the address identified in the applications where the vehicle/collateral is located.  [Mintz Decl. ¶ 5].  This calls into question whether the issuance of the writs as requested would be 

futile, as the location were the writs would be executed is not a location where possession of the vehicle can be recovered.   This issue will be discussed at the hearing.  

If the writs are issued, under CCP section 515.010 (b), in ordering an undertaking, “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking...”    Here, the Lease Agreement is a lease agreement under which defendant has not perfected an interest in the vehicle, and no bond will be required.

RULING:

[No opposition].

Applications for writs of possession are DENIED.  Defendants have not been served with the Summons and Complaint, the Notice of Application and Hearing, a copy of the application, or the declaration in support of the application, as required under CCP §512.030 (a).

The applications also fail to show how plaintiff, VW Credit, Inc., has standing to enforce obligations which according to the Lease Agreement assignment provisions as well as the Certificate of Title have been assigned to VW Credit Leasing, Ltd.   

The Court is also concerned that the file shows that plaintiff has since the filing of the applications been informed that the address included in the applications is no longer an address where the vehicle/collateral is located. 

Or (ONLY if procedural issues corrected to the Court’s satisfaction) 

UNOPPOSED Application for Writ of Possession is GRANTED.  The Court finds that plaintiff has established the probable validity of its claim to possession of the property.  No bond required for issuance of the writ inasmuch as defendant has no interest in the subject property.  CCP §515.010.

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