ALLY BANK, A CORPORATION VS ANTHONY GONSALVES, AN INDIVIDUAL

Tentative Rulings

Case Number: 19STLC11789    Hearing Date: August 25, 2020    Dept: 82

Plaintiff Ally Bank (“Plaintiff”) seeks a writ of possession against Defendant Anthony Gonsalves (“Defendant”) over the following property: 2008 Mercedes-Benz S63, VIN # WDDNG77X38A205711(“Vehicle”).

Statement of the Case

According to Blong Vang, a replevin specialist and authorized representative for Plaintiff, Defendant entered into an Agreement regarding purchase of the Vehicle on or about July 18, 2016. Defendant failed to make payments required by the Agreement starting July 29, 2019. Defendant is in default under the Agreement, and Plaintiff seeks possession of the Vehicle after making demand for Defendant to surrender the Vehicle. (Vang Decl. ¶¶ 5-6, Exh. A-D.)

Procedural History

Plaintiff filed its complaint on December 30, 2019. Plaintiff filed its application for writ of possession on January 22, 2020.

On January 31, 2020, Plaintiff served Defendant with the summons, complaint, and application for writ of possession by personal service.

On April 14, 2020, based on conditions and orders related to the spread of Covid-19, the court continued the hearing on the application for writ of possession to July 30, 2020.

On April 22, 2020, Plaintiff mail-served notice of the continuance on Defendant.

No opposition has been received.

On July 30, 2020, the application came for hearing before the court. There was no appearance by Defendant. Court and counsel for Plaintiff conferred regarding the court’s tentative ruling. The court continued the hearing so that Plaintiff could file a supplemental declaration as to the authority of Plaintiff to proceed under the name Ally Bank.

On August 13, 2020, Plaintiff filed a supplemental declaration of Amanda Erickson. The declaration was served on Defendant on August 10, 2020. No response to the supplemental declaration from Defendant has been received.

Summary of Applicable Law

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (CCP, § 512.010, subd. (a).)

Pursuant to Code of Civil Procedure section 512.010, subdivision (b), the application must be submitted under oath and include:

(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 by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

(3) A particular description of the property and a statement of its value.

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

Before the hearing on the Writ of Possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (Id., § 512.030.)

“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (Id., § 512.040, subd. (b).) “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.” (Id., § 511.090.)

Prior to the issuance of a writ of possession, the Plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.” (Id., § 515.010, subd. (a).)

Analysis

1. Notice

Notice is adequate as stated above.

2. Basis of Plaintiff’s Claim

Plaintiff seeks a writ of possession based on its claim for claim and delivery. Vang represents that the seller of the Vehicle assigned its interest to Plaintiff in the sales contract. (Vang Decl. ¶ 5, Exh A.) The Agreement appears to show an assignment to “Ally” from the seller on or about July 18, 2016, when the Agreement was executed. (Ibid.) Attached to the Agreement is a Limited Power of Attorney appointing Ally Financial as attorney-in-fact for Plaintiff, including with respect to all retail installment sale contracts and the collateral securing such contracts.[1] (Ibid.) Vang authenticates a copy of Defendant’s payment history, which shows payments made on the Agreement from July 18, 2016, through June 29, 2019. (Id. Exh. D.) Considering the Agreement with other evidence in the record, including the Certificate of Title and evidence of payment to Plaintiff, there is sufficient evidence of a valid assignment. (See Id. ¶¶ 5-6, Exh. B, C, D.)

The court continued the hearing so that Plaintiff could explain why the action is taken under the name of Ally Bank, and not Ally Financial. On August 13, 2020, Plaintiff submitted a supplemental declaration of Amanda Erickson, a replevin specialist and authorized representative of Plaintiff. Erickson provides the following explanation: “After purchasing the retail installment sale contract from the dealership, Ally Bank designates its affiliate, Ally Financial Inc., to serve as its collateral agent and appear as lien holder on the Subject Vehicle's certificate of title for the benefit of the Plaintiff. Attached hereto as Exhibit ‘A’, and incorporated herein by this reference as though set forth in full is a true and correct copy of the assignment of Limited Power of Attorney from Ally Bank to Ally Financial Inc.” (Erickson Decl. ¶ 5, Exh. A.) The Erickson declaration sufficiently supports that Plaintiff is the assignee and has standing to enforce the Agreement, even though Ally Financial, pursuant to the Limited Power of Attorney executed by Plaintiff, is listed as the lienholder on the Certificate of Title.

Vang declares that Defendant failed to make monthly payments required by the Agreement starting July 29, 2019, and that Defendant presently owes a principal sum of $16,944.77. (Id. ¶ 6, Exh. C-D.) No opposition has been received to dispute this evidence. Based on the foregoing, Plaintiff shows a probable validity of its claim.

3. Wrongful Detention

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(2), the application must include “a showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.”

Under the Agreement, Plaintiff has the right to repossess the Vehicle in the event of default. (Vang Decl. Exh. A.) Plaintiff has made a showing that Defendant wrongfully detained the Vehicle after defaulting on the Agreement.

4. Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(3), the application must include a particular description of the property and a statement of its value.

Plaintiff has provided a particular description of the property, by make, model, and VIN number. Plaintiff has also given a statement as to value. (Appl. ¶ 4; Vang Decl. ¶ 7.) Plaintiff therefore satisfies section 512.010, subdivision (b)(3).

5. Statutory Statements

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(4)-(5), the application must include:

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

Plaintiff has provided a statement that the property has not been taken for a tax, assessment, or fine, pursuant to statute and has not been seized under an execution against the Plaintiff’s property.

Concerning location of the vehicle, Vang declares that Plaintiff’s file reflects that Defendant resides at 45382 Crystal Springs Dr., Indio, CA 92201. (Vang Decl. ¶ 10.) In reliance on that information, Vang states on information and belief that the Vehicle is located at that location. (Ibid.)

Because the application asks for an order permitting a levying officer to enter the Property and take possession of the Vehicle, Plaintiff must establish “probable cause” to believe that the Vehicle is located at the Property. (See CCP §§ 512.010, subd. (b)(4), 512.080.) Plaintiff has not submitted a declaration of any agents or repossessors that spotted the Vehicle at the stated location. The purchase agreement and Certificate of Title state Defendant’s address as 45382 Crystal Springs Dr., Indio, CA 92201. Plaintiff also sent a demand letter to that address. (Vang Decl. Exh. A-C.) Plaintiff also personally served Defendant with summons and complaint at 45382 Crystal Springs Dr., Indio, CA 92201. The proof of service is executed under penalty of perjury.

Considering all the evidence, the court finds sufficient probable cause to believe that the Vehicle is located at 45382 Crystal Springs Dr., Indio, CA 92201.

6. Undertaking

Code of Civil Procedure section 515.010 requires an undertaking to be filed before the writ issues in the amount of “not less than twice the value of the defendant’s interest in the property.” Plaintiff provides evidence that the amount owing on the Vehicle exceeds its market value. Thus, no undertaking is required.

Request to Take Evidence at Hearing

Plaintiff contends that there is good cause for oral testimony or other evidence at the hearing to show probable cause for the Vehicle’s location. (Points and Authorities 3, citing CCP § 512.050.) Specifically, Plaintiff argues that an examination of Defendant would update the information of the Vehicle’s location. The court denies this request. Plaintiff does not show good cause to take oral testimony, which is also unnecessary because the court finds probable cause with respect to the Vehicle’s location.

Conclusion

The application is GRANTED.