TENTATIVE RULING

Calendar: 10

Date: 2/23/2024

Case No.: 23 GDCV01864 Trial Date: None Set 

Case Name: Ally Bank v. BDR Marketing Inc., et al.

WRIT OF POSSESSION

GROUNDS FOR MOTION

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

Plaintiff Ally Financial is an assignee of a Contract with defendants BDR Marketing Inc. and Michael J. Greenberg for the sale of a motor vehicle.  [Ex. A].  Under this contract, upon a default of any provision, plaintiff has the right to immediate possession of the vehicle.  [Decl.¶ 5, Ex. A, ¶ 3d].  Defendants have defaulted in payment on the agreement. [Decl. ¶ 6]. Plaintiff has made demand for surrender and is entitled to return of the automobile. [Decl. ¶ 6].  

If based on written instrument, copy attached?

Yes, Exhibit A  

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

Vehicle delivered, certificate of title. [Decl. ¶ 5, Ex. B].

Particular description of property and statement of its value?

Description and VIN [Decl.¶ 5, Application ¶ 4]

Value and J.D. Power report, $388,600 average retail. [Decl. ¶ 7; Ex. C, App. ¶ 4]

Statement of location of the property

Ok [Decl. ¶ 10, Application ¶ 6]

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

[Decl. ¶ 9, 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.

 

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, the application appears to be in order, however, it is not clear that plaintiff here, Ally Bank, has standing to pursue the writ.  Moving party has failed to submit an assignment agreement, and Exhibit A does not appear to include an assignment clause.  The writ application does include a Montana Notice of Security Interest or lien filing pertaining to the subject vehicle, designating “Ally Financial” as the “Secured Party or Lienholder.”  [Ex. B].  The court notes that the moving party is “Ally Bank,” not Ally Financial, and will hear argument concerning how plaintiff has standing to pursue the writ.  If the court is satisfied with the information provided at the hearing, the writ will issue.  

Under CCP section 515.010 (a) the court shall not issue a writ of possession until plaintiff has filed an undertaking with the court, “in an amount not less than twice the value of the defendant’s interest in the property or in a greater amount.   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 any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property.”  

Here, the market value of the vehicle is $338,600 for an “Average” 

Retail, and $353,700 for a “Low” Retail.  [Ex. C].  The amount owed is $250, 206.31.  [Decl. ¶ 6].   Utilizing the Average Retail relied upon in the application here, defendants’ interest is $338,600, less $250,206.31, or $88,393.69.  Twice this sum is $176,787.38. An undertaking is required in this amount.

RULING:

[No opposition].

UNOPPOSED application for writ of possession is DENIED WITHOUT PREJUDICE.  It is not clear from the materials submitted how plaintiff has standing to pursue a writ of possession in this matter, as there is no documentation of an assignment, and the security holder appears to be Ally Financial, not Ally Bank. 

Or 

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.  

Bond required in the sum of $176,787.38.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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