This case was last updated from Los Angeles County Superior Courts on 03/14/2020 at 03:25:27 (UTC).

ALLY BANK, A CORPORATION VS ERICK ALEXANDER MONTEPEQUE, ET AL.

Case Summary

On 11/15/2019 ALLY BANK, A CORPORATION filed a Contract - Debt Collection lawsuit against ERICK ALEXANDER MONTEPEQUE. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0572

  • Filing Date:

    11/15/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

ALLY BANK A CORPORATION

Defendants

QUINTANILLA MARIA ZOILA AKA MARIA Z. QUINTANILLA AKA MARIA QUINTANILLA AN INDIVIDUAL

MONTEPEQUE ERICK ALEXANDER AKA ERICK A. MONTEPEQUE AKA ERICK MONTEPEQUE AN INDIVIDUAL

Attorney/Law Firm Details

Plaintiff Attorney

VANLOCHEM MICHAEL D

 

Court Documents

Request for Dismissal - Request for Dismissal

3/10/2020: Request for Dismissal - Request for Dismissal

Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)

2/25/2020: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)

Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

12/19/2019: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

12/19/2019: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

12/19/2019: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

12/19/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

12/19/2019: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

Proof of Service by Substituted Service - Proof of Service by Substituted Service

1/10/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

1/10/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Complaint - Complaint

11/15/2019: Complaint - Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

11/15/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Summons - Summons on Complaint

11/15/2019: Summons - Summons on Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

11/15/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

1 More Documents Available

 

Docket Entries

  • 03/12/2020
  • DocketNon-Jury Trial scheduled for 05/14/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 03/12/2020

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  • 03/12/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/18/2022 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 03/12/2020

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  • 03/11/2020
  • DocketAddress for MICHAEL D VANLOCHEM (Attorney) updated

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  • 03/10/2020
  • DocketOn the Complaint filed by Ally Bank, a corporation on 11/15/2019, entered Request for Dismissal without prejudice filed by Ally Bank, a corporation as to the entire action

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  • 03/10/2020
  • DocketERROR with ROA message definition 99 on [ln 28, col 22] with Document:76606796

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  • 02/25/2020
  • DocketOther - Decision on application for writ of possessions: granted; Filed by: Clerk

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  • 02/25/2020
  • DocketMinute Order (Hearing on Application for Writ of Possession Against Defenda...)

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  • 02/25/2020
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/25/2020 at 01:30 PM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 02/25/2020; Result Type to Held - Motion Granted

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  • 02/25/2020
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/25/2020 at 01:30 PM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 02/25/2020; Result Type to Held - Motion Granted

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  • 01/10/2020
  • DocketProof of Service by Substituted Service; Filed by: Ally Bank, a corporation (Plaintiff); As to: Erick Alexander Montepeque (Defendant); Proof of Mailing Date: 01/07/2020; Service Cost: 95.00; Service Cost Waived: No

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5 More Docket Entries
  • 12/19/2019
  • DocketApplication for Writ of Possession (Claim and Delivery); Filed by: Ally Bank, a corporation (Plaintiff)

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  • 12/19/2019
  • DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: Ally Bank, a corporation (Plaintiff)

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  • 12/19/2019
  • DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: Ally Bank, a corporation (Plaintiff)

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  • 11/18/2019
  • DocketNon-Jury Trial scheduled for 05/14/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/18/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/18/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/18/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 11/15/2019
  • DocketComplaint; Filed by: Ally Bank, a corporation (Plaintiff); As to: Erick Alexander Montepeque (Defendant); Maria Zoila Quintanilla (Defendant)

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  • 11/15/2019
  • DocketCivil Case Cover Sheet; Filed by: Ally Bank, a corporation (Plaintiff); As to: Erick Alexander Montepeque (Defendant); Maria Zoila Quintanilla (Defendant)

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  • 11/15/2019
  • DocketSummons on Complaint; Issued and Filed by: Ally Bank, a corporation (Plaintiff); As to: Erick Alexander Montepeque (Defendant); Maria Zoila Quintanilla (Defendant)

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  • 11/15/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC10572    Hearing Date: February 25, 2020    Dept: 85

Hearing Date: February 25, 2020

Ally Bank v. Erick Alexander Montepeque, et al., 19STLC10572

Tentative decision on applications for writs of possession: granted

Plaintiff Ally Bank (“Ally”) seeks a writ of possession against Defendants Erick Alexander Montepeque aka Erick A. Montepeque, aka Erick Montepeque (“Montepeque”) and Maria Zoila Quintanilla aka Maria Z. Quintanilla aka Maria Quintanilla (“Quintanilla”) to recover a 2014 Mitsubishi Lancer, VIN JA32W8FV0EU016836 (“Vehicle”).

The court has read and considered the moving papers (no opposition was filed), and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Ally commenced this proceeding on November 15, 2019, alleging causes of action for (1) claim and delivery of personal property, pre-trial writ of possession, and order directing transfer of personal property and restraining order and (2) money due on a contract. The Complaint alleges in pertinent part as follows.

Prior to the commencement of this action, pursuant to an assignment in writing, Ally became the owner of a written contract (“Contract”) by which Defendants purchased the Vehicle from Ally’s assignor. Ally holds a perfected security interest in the Vehicle.

Defendants defaulted under the Contract by failing to make the payment due and owing on June 25, 2019, or any payments thereafter. There is currently due to Ally the sum of $23,618.69 together with other charges provided in the Contract. Ally has demanded that Defendants surrender the Vehicle, and they have failed to do so.

2. Course of Proceedings

According to proofs of service on file, Montepeque and Quintanilla were served with the Complaint, Summons, and moving papers via substituted service on December 26, 2019, after personal service was attempted on December 23, 24, and 26, 2019. The documents were left with a co-occupant and thereafter mailed on January 7, 2020.

B. Applicable Law

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

1. Procedure

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).

A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.

The application must be executed 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 plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).

2. The Hearing

Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented at the hearing, or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. Id.

The court may order issuance of a writ of possession 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; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “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.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1] CCP §513.010(c).

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (1991) 230 Cal.App.3d 173, 178.

3. The Plaintiff’s Undertaking

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. Id. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. Id. 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. Id.

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).

C. Analysis

Plaintiff Ally seeks a writ of possession against Defendants to recover the Vehicle. Defendants do not oppose.

Ally presents evidence that on October 11, 2015, Defendants entered into the Contract with non-party Puente Hills Mitsubishi to finance and purchase the Vehicle. Vang Decl. Ex. A. The Contract was subsequently assigned to Ally. Id., p.6. Ally holds a first priority perfected interest in the Vehicle. Vang Decl. ¶5, Ex. B.

Pursuant to the terms of the Contract, Defendants were required to make 71 monthly payments of $700.99, beginning on November 25, 2015. Vang Decl. Ex. A. Defendants breached the Contract by failing to make the payment due and owing on June 25, 2019, or any payments thereafter. Vang Decl. ¶6. Although Ally demanded return of the Vehicle, Defendants have refused to surrender it. Vang Decl. ¶6, Ex. C.

According to Ally’s supporting declaration, the amount due under the Contract is $23,618.69. Vang Decl. ¶6. However, the supporting exhibit shows the amount owing is $22,013.62 as of November 13, 2019. Vang Decl. Ex. D. The retail market value of the Vehicle is $26,200. Vang Decl. ¶7, Ex. E. Defendants therefore have equity in the Vehicle in the amount of $4,186.38. Under CCP section 515.010(a), Ally’s undertaking must be set at twice the value of Defendants’ interest, or $8,372.76. An undertaking from Defendants to prevent Ally from taking possession will be in the same amount of $8,372.76. See CCP §515.010(a).

Ally seeks a turnover order pursuant to CCP section 512.070. Any writ will include a direction to turn the Vehicle over to Ally.

Ally asserts that the Vehicle is located at Montepeque’s residence, 13987 Aztec Street, Sylmar, CA 91342 or Quintanilla’s residence, 13986 Aztec Street, Sylmar, CA 91342. Vang Decl. ¶10. These addresses are also where Defendants were served with process. The writ may direct the levying officer to enter Defendants’ residences to take possession of the Vehicle. See CCP §512.060(b).

The application for a writ of possession is granted. Ally has not submitted proposed writ of possession orders on the appropriate Judicial Council forms and is ordered to do so within two court days or the writ will be deemed as waived.


[1] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).