ALLY BANK, A CORPORATION VS SHALANDRA GLOVER, AN INDIVIDUAL

Tentative Rulings

Case Number: 20STLC05205    Hearing Date: March 19, 2021    Dept: 86

ALLY BANK, INC. v. GLOVER

Case Number: 20STLC05205

Hearing Date: March 19, 2021

[Tentative] ORDER GRANTING APPLICATION FOR WRIT OF POSSESSION

Plaintiff, Ally Bank, seeks a writ of possession against Defendant, Shalandra Glover, over the following property: 2018 Toyota Camry, Vehicle Identification Number 4T1B11HK9JU059703 (the Vehicle). Defendant has not submitted an opposition.

The application for writ of possession is granted.

Plaintiff must provide more information concerning the location of the Vehicle versus the address where Plaintiff caused Defendant to be served. The court notes the address on the sales contract is different than the address where Plaintiff’s witness attests the Vehicle can be located and the address where Plaintiff caused Defendant to be served.

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.” (Code Civ. Proc. § 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 application for a 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. (Code Civ. Proc. § 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.” (Code Civ. Proc. § 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.” (Code Civ. Proc. § 511.090.) “If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff's right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.” (Code Civ. Proc. § 512.040, subd. (c).)

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.” (Code Civ. Proc. § 515.010, subd. (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 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.” (Ibid.) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code Civ. Proc. § 515.010, subd. (b).)

ANALYSIS

As an initial matter, the court finds notice has been given as required by law. Plaintiff caused Defendant to be served with the summons, complaint and relevant papers for this hearing on January 28, 2021 by substituted service.

Probable Validity of its Claim

A plaintiff seeking a writ of possession must make a showing that “the plaintiff is entitled to possession of the property claimed.” (Code Civ. Proc. § 512.010, subd. (b).) “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.” (Code Civ. Proc. § 512.040.)

Here, Plaintiff submits the declaration of Amanda Erickson, a Replevin Specialist with Plaintiff in support of this application for a writ of possession. The evidence demonstrates the seller of the Vehicle (Airport Marina Ford), on the one hand, and Defendant, on the other hand, entered into a sales agreement for the Vehicle. (Erickson Decl., ¶ 5, Ex. A.) Pursuant to the sales agreement, Defendant agreed to make monthly payments in the amount of $449.87. (Vang Decl., ¶ 6.) However, Defendant defaulted by failing to make the payment due on January 1, 2020, or any monthly payment thereafter. (Erickson Decl., ¶ 6.) As of June 10, 2020, Erickson represents $24,057.44 is owed on the contract. (Erickson Decl., ¶ 6.)

Based on the evidence, the court notes Plaintiff entered into her contractual obligations with Airport Marina Ford. Airport Marina Ford then assigned its interest in the contract to Ally Financial, Inc. Thereafter, Ally Financial, Inc. assigned its interest in the contract to Ally Bank aka Ally Capital Corp, aka Ally Bank Corp. “effective as of the date of the Contract.” (Assignment of Retail Installment Contract executed July 22, 2020. Thus, Plaintiff has rights as an assignee under the sales contract.

The court Plaintiff has shown a probable validity of its claim.

Plaintiff Submits Evidence Showing the Vehicle’s Probable Location

A plaintiff seeking a writ of possession over property located “within a private place which may have to be entered to take possession,” must “sho[w] that there is probable cause to believe that such property is located there.” (Code Civ. Proc. §§ 512.010, subd. (b)(4), 512.080; see also Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 242-43.)

Plaintiff submits evidence demonstrating a probable cause to believe the Vehicle is currently in the possession of Defendant at her residence located at: 3625 Banbury Drive #14b, Riverside, California. (Erickson Decl., ¶ 10.)

Additional information on this issue is required.

Plaintiff Has Established All Requirements for Issuance of a Writ

Pursuant to Code of Civil Procedure section 512.010, Plaintiff has shown it is entitled to possession of the Vehicle. Plaintiff has (1) shown the Vehicle is wrongfully detained by Defendant; (2) described the Vehicle and stated the value of the Vehicle is between $13,900 and $17,500; (3) submitted evidence the Vehicle is located at 3625 Banbury Drive #14b, Riverside, California; and (5) declared the Vehicle has not been taken for a tax, assessment or fine or seized under execution (Form CD-100 ¶ 8) (Erickson Decl, ¶ 9.)

CONCLUSION

For the foregoing reasons, Plaintiff’s application for a writ of possession is granted. [1]

IT IS SO ORDERED.

March 19, 2021 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court