On 08/25/2020 ALLY FINANCIAL INC , A CORPORATION filed a Contract - Debt Collection lawsuit against TIMOTHY DURDEN. 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 Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
ALLY FINANCIAL INC. A CORPORATION
BURSTEIN ARDEN D.
2/3/2021: Proof of Service by Substituted Service - Proof of Service by Substituted Service
2/24/2021: Declaration (name extension) - Declaration by Attorney Arden D. Burstein Regarding Evidence of the Debt
2/25/2021: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)
2/25/2021: Order (name extension) - Decision on application for writ of possession: orally modified
12/16/2020: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)
12/16/2020: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)
12/16/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities
8/25/2020: Complaint - Complaint
8/25/2020: Summons - Summons on Complaint
8/25/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
8/25/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing08/29/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearing02/22/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketMinute Order (Hearing on Application for Writ of Possession Against Defenda...)Read MoreRead Less
DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/25/2021 at 09:30 AM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 02/25/2021; Result Type to Held - Motion DeniedRead MoreRead Less
DocketDeclaration by Attorney Arden D. Burstein Regarding Evidence of the Debt; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Timothy Durden (Defendant); Proof of Mailing Date: 01/19/2021; Service Cost: 95.00; Service Cost Waived: NoRead MoreRead Less
DocketApplication for Writ of Possession (Claim and Delivery); Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Timothy Durden (Defendant)Read MoreRead Less
DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/25/2021 at 09:30 AM in Stanley Mosk Courthouse at Department 85Read 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
DocketMemorandum of Points & Authorities; Filed by: Ally Financial Inc., a corporation (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 02/22/2022 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/29/2023 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketComplaint; Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Timothy Durden (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Timothy Durden (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Ally Financial Inc., a corporation (Plaintiff); As to: Timothy Durden (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street CourthouseRead MoreRead Less
Case Number: 20STLC07224 Hearing Date: February 25, 2021 Dept: 85
Ally Financial, Inc. v. Timothy Durden, et al., 20STLC07224
Tentative decision on application for writ of possession: denied
Plaintiff Ally Financial, Inc (“Ally Financial”) seeks a writ of possession against Defendant Timothy Durden to recover a 2015 Buick Lacrosse, VIN 1G4GB5G38FF281889, (“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 Financial commenced this proceeding on August 25, 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 Financial became the owner of a written contract (“Contract”) by which Durden purchased the Vehicle from Ally Financial’s assignor. Ally Financial holds a perfected security interest in the Vehicle.
Durden defaulted under the Contract by failing to make the payment due and owing on March 10, 2020, or any payments thereafter. There is currently due to Ally the sum of $17,174.38 together with other charges provided in the Contract. Ally Financial has demanded that Durden surrender the Vehicle, and they have failed to do so.
2. Course of Proceedings
A proof of service on file shows that, Durden was served with the Summons, Complaint, and moving papers via substituted service on January 15, 2021, after personal service was attempted on December 11, 15, 18, 20, 27, 30, 2020 and January 4, 8, 12, 2021. The documents were thereafter mailed on January 19, 2021.
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 Financial seeks a writ of possession against Durden to recover the Vehicle. Durden does not oppose.
Ally Financial presents evidence that on January 25, 2020 Durden entered into the Contract with non-party Carson Nissan to purchase the Vehicle. Cinis Decl. Ex. A. The Contract was subsequently assigned to Ally Financial. Id., p.7. Ally Financial holds a first priority perfected interest in the Vehicle. Cinis Decl. ¶5, Ex. B.
Pursuant to the terms of the Contract, Durden were required to make 74 monthly payments of $374.66, beginning on March 10, 2020. Cinis Decl. Ex. A. Durden breached the Contract by failing to make the payment due and owing on March 10, 2020, or any payments thereafter. Cinis Decl. ¶6. Although Ally Financial demanded return of the Vehicle, Durden has refused to surrender it. Cinis Decl. ¶6, Ex. C.
According to Ally Financial’s supporting declaration, the amount due under the Contract is $17,174.38. Cinis Decl. ¶6. However, Ally Financial fails to provide any documentary evidence in support of this amount. Ally Financial only provides Durden’s payment history which is blank and does not show either payments or the amount due and owing. Cinis Decl., Ex. D. 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 $14,675. Cinis Decl. ¶7, Ex. E. Because the amount Durden owes exceeds the value of the Vehicle, Durden has no legal interest in it. CCP §515.010(a). The need for an undertaking is therefore waived.
Ally Financial seeks a turnover order pursuant to CCP section 512.070. Any writ will include a direction to turn the Vehicle over to Ally Financial.
Ally Financial asserts that the Vehicle is located at Durden’s residence, 1342 251st Street., Apt lW, Harbor City, CA 90710. Cinis Decl., ¶10. This address is also where Durden was served with process. The writ may direct the levying officer to enter Durden’ residence to take possession of the Vehicle. See CCP §512.060(b).
The application for a writ of possession is denied. If, at the hearing, Ally Financial provides supporting documentary evidence of the debt, the application will be granted. In that circumstance, Ally Financial 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.
 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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