TENTATIVE RULING

Calendar: 8

Date: 8/11/2023

Case No.: 23 GDCV01106 Trial Date:  None Set

Case Name: BMW Bank of North America v. Dishoyan   

WRIT OF POSSESSION

Moving Party: Plaintiff BMW Bank of North America    

Responding Party: Defendant Svetlana Dishoyan 

Required Documents:

__X_ Summons and Complaint  

__X__ Notice of Application &  Hearing (CCP §512.040)

__X__ Application for Writ and all declarations or affidavits in support of motion (CCP §512.010)

__X__ Memo of  Points & Authorities (CCP § 512.050)

__X__ Proof of Service (CCP § 512.030)

GROUNDS FOR MOTION

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

Plaintiff BMW Bank of North America is the assignee of a written Motor Vehicle Retail Installment Contract with defendant Svetlana Dishoyan for the purchase of a 2019 BMW 750i Sedan motor vehicle.  [Phillips Decl. ¶¶ 8-10; Exs. 1, 2].  Under this Agreement, upon a default, plaintiff has the right to take possession of the vehicle.  [Decl. ¶ 16; Ex. 1 ¶ 14 (B) (ii)].  Defendant has defaulted in payment on the agreement. [Decl. ¶ 14]. Plaintiff has made demand for surrender, and is entitled to return of the vehicle. [Decl. ¶17].   

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.¶¶ 8, 10, 11, 12, 17; Ex. 2].

Particular description of property and statement of its value?

Description and VIN [Decl. ¶ 8; Application ¶ 4]

Value and Kelley Blue Book listing, $38,148.00. [Decl.¶ 20; Application ¶ 4; Ex. 4]

Statement of location of the property

Ok [Decl ¶ 19]

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

Application ¶ 8

             

OPPOSITION:

NO OPPOSITION 

ANALYSIS:

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 application submits evidence from which the court may find that the claim to possession is probably valid.  The Assignment of the rights under the Agreement to plaintiff is included in the Motor Vehicle Retail Installment Contract at paragraph 21. [Ex. 1].    

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...”   

Under subdivision (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 the subject contract.   

Here, the market value of the vehicle is $38,148.00.  [Decl.¶ 20, Ex. 4].  The amount owed is $68,969.76, which exceeds the market value.  [Decl. ¶¶ 15, 21, Ex. 3].  Accordingly, defendant has no interest in the property, and no bond is required.

RULING:

[No opposition].

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.

Pursuant to CCP sections 515.020 and 515.010(b), the court sets the amount of defendant’s undertaking at $48,000.  

UNOPPOSED Application for Writ of Possession as to defendant Home Sayphraraj 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 the amount owed exceeds the market value of the vehicle.  CCP §515.010.

(Market value $38,148.00; Amount owed $68,969.79).  

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearances.  However, ADVANCE REGISTRATION IS REQUIRED. 

If no appearance is set up through LACourtConnect/Microsoft Teams, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.