On 12/06/2019 ALLY FINANCIAL INC , A CORPORATION filed a Contract - Debt Collection lawsuit against DON THOMAS FERRIGNO. 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 Disposed - Judgment Entered.
Disposed - Judgment Entered
JAMES E. BLANCARTE
ALLY FINANCIAL INC. A CORPORATION
FERRIGNO DON THOMAS AKA DON T. FERRIGNO AKA DON FERRIGNO AN INDIVIDUAL
VANLOCHEM MICHAEL D
VANLOCHEM MICHAEL DONALD
11/13/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment
11/13/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
11/13/2020: Memorandum (name extension) - Memorandum Deficiency Memo
12/4/2020: Judgment - Judgment Judgment
12/24/2020: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims
3/27/2020: Request for Dismissal - Request for Dismissal
3/27/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
3/24/2020: Notice of Ruling - Notice of Ruling
3/10/2020: Order (name extension) - Order Decision on applications for writs of possession: granted
3/10/2020: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)
1/16/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities
1/16/2020: Notice of Application for Writ of Possession and Hearing (Claim and Delivery) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)
1/16/2020: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)
2/5/2020: Proof of Personal Service - Proof of Personal Service
12/6/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
12/6/2019: Summons - Summons on Complaint
12/6/2019: Complaint - Complaint
12/6/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
DocketAbstract of Judgment - Civil and Small Claims; Issued by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketDefault judgment by Court entered for Plaintiff Ally Financial Inc., a corporation against Defendant Don Thomas Ferrigno AKA Don Ferrigno, an individual, AKA Don T. Ferrigno on the Complaint filed by Ally Financial Inc., a corporation on 12/06/2019 for damages of $21,272.27, attorney fees of $1,028.16, and costs of $539.50 for a total of $22,839.93.; Other: See court order for terms and conditions of the judgment.Read MoreRead Less
DocketJudgment Judgment; Signed and Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Don Thomas Ferrigno (Defendant)Read MoreRead Less
DocketUpdated -- Judgment Judgment: As To Parties changed from Don Thomas Ferrigno (Defendant) to Don Thomas Ferrigno (Defendant)Read MoreRead Less
DocketNon-Jury Trial scheduled for 06/04/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 12/04/2020Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/09/2022 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 12/04/2020Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketDeclaration Pursuant to 585 CCP in Support of Default Judgment; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketMemorandum Deficiency Memo; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
Docket; On the Complaint filed by Ally Financial Inc., a corporation on 12/06/2019Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketApplication for Writ of Possession (Claim and Delivery); Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 06/04/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/09/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketComplaint; Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Don Thomas Ferrigno (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Don Thomas Ferrigno (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Don Thomas Ferrigno (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
Case Number: 19STLC11222 Hearing Date: March 10, 2020 Dept: 85
Ally Financial Inc. v. Don Thomas Ferrigno, et al., 19STLC11222
Tentative decision on applications for writs of possession: granted
Plaintiff Ally Financial Inc. (“Ally”) seeks a writ of possession against Defendant Don Thomas Ferrigno aka Don T. Ferrigno aka Don Ferrigno to recover a 2016 Dodge Ram, VIN 1C6RR6GT6GS240854 (“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
Plaintiff Ally commenced this proceeding on December 6, 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 Ferrigno purchased the Vehicle from Ally’s assignor. Ally holds a perfected security interest in the Vehicle.
Ferrigno defaulted under the Contract by failing to make the payment due and owing on June 27, 2019, or any payments thereafter. There is currently due to Ally the sum of $21,272.27 together with other charges provided in the Contract. Ally has demanded that Ferrigno surrender the Vehicle, and he has failed to do so.
2. Course of Proceedings
According to proofs of service on file, Ferrigno was personally served with the Complaint, Summons, and moving papers on January 20, 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.
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. 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).
Plaintiff Ally seeks a writ of possession against Ferrigno to recover the Vehicle. Defendants do not oppose.
Ally presents evidence that on October 13, 2016, Ferrigno entered into the Contract with non-party Car Pros Kia 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, Ferrigno was required to make 71 monthly payments of $642.30, beginning on November 27, 2016. Vang Decl. Ex. A. Ferrigno breached the Contract by failing to make the payment due and owing on June 27, 2019, or any payments thereafter. Vang Decl. ¶6. Although Ally demanded return of the Vehicle, Ferrigno has refused to surrender it. Vang Decl. ¶6, Ex. C.
According to Ally’s supporting declaration, the amount due under the Contract is $21,272.27. Vang Decl. ¶6. However, the supporting exhibit shows the amount owing is $20,133.10 as of December 10, 2019. Vang Decl. Ex. D. The retail market value of the Vehicle is $20,775. Vang Decl. ¶7, Ex. E. Ferrigno therefore has equity in the Vehicle in the amount of $641.90. Under CCP section 515.010(a), Ally’s undertaking must be set at twice the value of Ferrigno’s interest, or $1,283.80. An undertaking from Defendants to prevent Ally from taking possession will be in the amount of $20,775. See CCP §515.020(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 Ferrigno’s residence, at 12665 Village Lane, Apartment 2212, Playa Vista, CA 90094. Vang Decl. ¶10. This addresses is also where Ferrigno was served with process. The writ may direct the levying officer to enter Ferrigno’s residence to take possession of the Vehicle. See CCP §512.060(b).
The application for a writ of possession is granted. Ally has not submitted a proposed writ of possession order on the appropriate Judicial Council form and is ordered to do so within two court days or the writ will be deemed as waived.
 Ally fails to provide tabs for its courtesy copy exhibits and its counsel is admonished to do so for all future filings.
 If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).
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