This case was last updated from Los Angeles County Superior Courts on 02/25/2021 at 11:01:07 (UTC).

ALLY BANK, A CORPORATION VS PATRICK AYSON

Case Summary

On 09/30/2020 ALLY BANK, A CORPORATION filed a Contract - Debt Collection lawsuit against PATRICK AYSON. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8233

  • Filing Date:

    09/30/2020

  • 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

SERENA R. MURILLO

 

Party Details

Plaintiff

ALLY BANK A CORPORATION

Defendant

AYSON PATRICK

Attorney/Law Firm Details

Plaintiff Attorney

VANLOCHEM MICHAEL D

 

Court Documents

Request for Dismissal - Request for Dismissal

2/11/2021: Request for Dismissal - Request for Dismissal

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

2/5/2021: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

2/5/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

2/5/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Request for Dismissal - Request for Dismissal

2/5/2021: Request for Dismissal - Request for Dismissal

Notice of Ruling - Notice of Ruling

2/5/2021: Notice of Ruling - Notice of Ruling

Memorandum (name extension) - Memorandum Deficiency Memo

2/5/2021: Memorandum (name extension) - Memorandum Deficiency Memo

Declaration (name extension) - Declaration By Attorney Arden D. Burstein In Support of Application For Writ of Possession

1/27/2021: Declaration (name extension) - Declaration By Attorney Arden D. Burstein In Support of Application For Writ of Possession

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

1/28/2021: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)

Order (name extension) - Tentative decision on application for writ of possession: ordered filed but not adopted

1/28/2021: Order (name extension) - Tentative decision on application for writ of possession: ordered filed but not adopted

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

11/30/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Memorandum of Points & Authorities - Memorandum of Points & Authorities

11/5/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

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

11/5/2020: 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)

11/5/2020: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

Civil Case Cover Sheet - Civil Case Cover Sheet

9/30/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

9/30/2020: Complaint - Complaint

Summons - Summons on Complaint

9/30/2020: Summons - Summons on Complaint

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

9/30/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

6 More Documents Available

 

Docket Entries

  • 02/17/2021
  • DocketNon-Jury Trial scheduled for 03/30/2022 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 02/17/2021

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  • 02/17/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/04/2023 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 02/17/2021

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  • 02/11/2021
  • DocketOn the Complaint filed by Ally Bank, a corporation on 09/30/2020, entered Request for Dismissal without prejudice filed by Ally Bank, a corporation as to the entire action

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  • 02/11/2021
  • DocketAddress for MICHAEL D VANLOCHEM (Attorney) null

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  • 02/05/2021
  • DocketRequest for Dismissal; Filed by: Ally Bank, a corporation (Plaintiff)

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  • 02/05/2021
  • DocketDeclaration Pursuant to 585 CCP in Support of Default Judgment; Filed by: Ally Bank, a corporation (Plaintiff)

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  • 02/05/2021
  • DocketRequest for Entry of Default / Judgment; Filed by: Ally Bank, a corporation (Plaintiff); As to: Patrick Ayson (Defendant)

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  • 02/05/2021
  • DocketRequest for Entry of Default / Judgment; Filed by: Ally Bank, a corporation (Plaintiff)

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  • 02/05/2021
  • DocketNotice of Ruling; Filed by: Ally Bank, a corporation (Plaintiff)

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  • 02/05/2021
  • DocketMemorandum Deficiency Memo; Filed by: Ally Bank, a corporation (Plaintiff)

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9 More Docket Entries
  • 11/05/2020
  • DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: Ally Bank, a corporation (Plaintiff)

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  • 11/05/2020
  • DocketApplication for Writ of Possession (Claim and Delivery); Filed by: Ally Bank, a corporation (Plaintiff)

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  • 11/05/2020
  • DocketMemorandum of Points & Authorities; Filed by: Ally Bank, a corporation (Plaintiff)

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  • 09/30/2020
  • DocketComplaint; Filed by: Ally Bank, a corporation (Plaintiff); As to: Patrick Ayson (Defendant)

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  • 09/30/2020
  • DocketCivil Case Cover Sheet; Filed by: Ally Bank, a corporation (Plaintiff); As to: Patrick Ayson (Defendant)

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  • 09/30/2020
  • DocketSummons on Complaint; Issued and Filed by: Ally Bank, a corporation (Plaintiff); As to: Patrick Ayson (Defendant)

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  • 09/30/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/30/2020
  • DocketNon-Jury Trial scheduled for 03/30/2022 at 08:30 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 09/30/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/04/2023 at 08:30 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 09/30/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC08233    Hearing Date: January 28, 2021    Dept: 85

Ally Bank v. Patrick Ayson, et al., 20STLC08233

Tentative decision on application for writ of possession: denied

Plaintiff Ally Bank seeks a writ of possession against Defendant Patrick Ayson (“Ayson”) to recover a 2011 Jeep Wrangler, VIN 1J4BA5H12BL571873, (“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 Bank commenced this proceeding on September 30, 2020, 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 Bank became the owner of a written contract (“Contract”) by which Ayson purchased the Vehicle from Ally’s assignor. Ally holds a perfected security interest in the Vehicle.

Ayson defaulted under the Contract by failing to make the payment due and owing on May 1, 2020, or any payments thereafter. There is currently due to Ally Bank the sum of $21,228.59 together with other charges provided in the Contract. Ally Bank has demanded that Ayson surrender the Vehicle, and he has failed to do so.

2. Course of Proceedings

A proof of service on file shows Ayson was served with the Summons, Complaint, and moving papers via substituted service on November 14, 2020, after personal service was attempted on November 10 and 12, 2020. The documents were thereafter mailed on November 16, 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 Bank seeks a writ of possession against Ayson to recover the Vehicle. Ayson does not oppose.

Ally presents evidence that on March 17, 2019, Ayson entered into the Contract with non-party Autonation Honda Valencia to purchase the Vehicle. Taylor Decl. Ex. A. The Contract was subsequently assigned to Ally Financial. Ibid. at pp. 7-8. Ally Financial holds a first priority perfected interest in the Vehicle. Taylor Decl. ¶5, Ex. B. There is no showing that Plaintiff Ally Bank holds any interest in the Vehicle.

Pursuant to the terms of the Contract, Ayson was required to make 71 monthly payments of $377.70, beginning on May 1, 2019. Taylor Decl. Ex. A. Ayson breached the Contract by failing to make the payment due and owing on May 1, 2020, or any payments thereafter. Taylor Decl. ¶6. Although Ally Bank demanded return of the Vehicle, Ayson has refused to surrender it. Taylor Decl. ¶6, Ex. C.

According to Ally Bank’s supporting declaration, the amount due under the Contract is $21,228.59. Taylor Decl. ¶6. However, Ally Bank fails to provide any documentary evidence in support of this amount.[2] The declaration must be set forth with particularity. CCP §516.030. This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same).

The retail market value of the Vehicle is $19,700. Taylor Decl. ¶7, Ex. E. Because the amount Ayson owes exceeds the value of the Vehicle, Ayson has no legal interest in it. CCP §515.010(a). The need for an undertaking is therefore waived.

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

Ally Bank asserts that the Vehicle is located at Ayson’s residence, 27715 Thalia Lane, Canyon Country, CA 91351. Taylor Decl., ¶10. This address is also where he was served with process. Any writ may direct the levying officer to enter Ayson’s residence to take possession of the Vehicle. See CCP §512.060(b).

The application for a writ of possession is denied. If Ally Bank shows at the hearing that it is the proper plaintiff and provides supporting documentary evidence of the debt, the application will be granted. In that circumstance, Ally Bank would be ordered to submit a proposed writ of possession order on the appropriate Judicial Council form within two court days after the hearing 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).

[2] Ally Bank cites to Ayson’s payment history purportedly attached to its application as Exhibit D. Taylor Decl., ¶6. The application does not contain this exhibit.

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