On 08/03/2020 FLAGSHIP CREDIT ACCEPTANCE, LLC, A LIMITED LIABILITY COMPANY filed a Contract - Debt Collection lawsuit against THERESA SCOTT. 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
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
FLAGSHIP CREDIT ACCEPTANCE LLC A LIMITED LIABILITY COMPANY
VANLOCHEM MICHAEL D
11/9/2020: Notice (name extension) - Notice of Order to Show Cause
10/23/2020: Notice of Settlement - Notice of Settlement
10/23/2020: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)
10/20/2020: Minute Order - Minute Order (Hearing on Application for Writ of Possession (CCP 512.010))
8/28/2020: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)
8/28/2020: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)
8/28/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities
9/4/2020: Proof of Personal Service - Proof of Personal Service
8/3/2020: Summons - Summons on Complaint
8/3/2020: Complaint - Complaint
8/3/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
8/3/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing10/28/2021 at 09:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)Read MoreRead Less
DocketNotice of Order to Show Cause; Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff); As to: Theresa Scott (Defendant)Read MoreRead Less
DocketUpdated -- Notice of Settlement: Status Date changed from 10/23/2020 to 10/23/2020; Result Date: 10/23/2020; As To Parties: removedRead MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 10/28/2021 at 09:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: ClerkRead MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/07/2023 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 10/23/2020Read MoreRead Less
DocketNon-Jury Trial scheduled for 01/31/2022 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 10/23/2020Read MoreRead Less
DocketMinute Order (Hearing on Application for Writ of Possession (CCP 512.010))Read MoreRead Less
DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 10/20/2020 at 01:30 PM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 10/20/2020; Result Type to Held - Motion DeniedRead MoreRead Less
DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 10/20/2020 at 01:30 PM in Stanley Mosk Courthouse at Department 85Read MoreRead Less
DocketApplication for Writ of Possession (Claim and Delivery); Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff)Read MoreRead Less
DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff)Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 01/31/2022 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 08/07/2023 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketComplaint; Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff); As to: Theresa Scott (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff); As to: Theresa Scott (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Flagship Credit Acceptance, LLC, a limited liability company (Plaintiff); As to: Theresa Scott (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: 20STLC06484 Hearing Date: October 20, 2020 Dept: 85
Flagship Credit Acceptance, LLC v. Theresa Scott, et al., 20STLC06484
Tentative decision on application for writ of possession: denied
Plaintiff Flaship Credit Acceptance, LLC (“Flagship”) seeks a writ of possession against Defendant Theresa Scott (“Scott”) to recover a 2014 Mazda Mazda 6, VIN JM1GJ1V61E1135357, (“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 Flagship commenced this proceeding on August 3, 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, Flagship became the owner of a written contract (“Contract”) pursuant to an assignment in writing. Under the Contract, Scott purchased the Vehicle from Flagship’s assignor. Flagship holds a perfected security interest in the Vehicle.
Scott defaulted under the Contract by failing to make the payment due and owing on May 6, 2019, or any payments thereafter. There is currently due to Flagship the sum of $19,013.19 together with other charges provided in the Contract. Flagship has demanded that Scott surrender the Vehicle, and he has failed to do so.
2. Course of Proceedings
According to a proof of service on file, Scott was personally served with the Complaint, Summons, and moving papers on August 25, 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 Flagship seeks a writ of possession against Defendant Scott to recover the Vehicle. Scott does not oppose.
Flagship presents evidence that Defendant Scott entered into the Contract with non-party Camacho Auto Sales, Inc. on May 22, 2015 to finance and purchase the Vehicle. Kirkley Decl. Ex. A. The Contract was subsequently assigned to Flagship. Id., p.4. Flagship holds a first priority perfected interest in the Vehicle. Kirkley Decl. ¶4, Ex. B.
Pursuant to the terms of the Contract, Scott was required to make 71 monthly payments of $579.86, beginning on July 6, 2015. Kirkley Decl. Ex. A. Scott breached the Contract by failing to make the payment due and owing on May 6, 2019, or any payments thereafter. Kirkley Decl. ¶5. Although Flagship demanded return, Scott has refused to surrender the Vehicle. Kirkley Decl. ¶6, Ex. C.
According to Flagship’s supporting declaration, the amount due under the Contract is $19,013.19. Kirkley Decl. ¶5. However, Flagship fails to provide any documentary evidence in support of this amount. 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).
Assuming that Flagship can provide documentary evidence supporting this amount at the hearing, the following analysis applies.
The retail market value of the Vehicle is $11,898. Kirkley Decl. ¶6, Ex. C. Because the amount Scott owes exceeds the value of the Vehicle, Scott has no interest in it. CCP §515.010(a). The need for an undertaking is therefore waived.
Flagship seeks a turnover order pursuant to CCP section 512.070. Any writ will include a direction to turn the Vehicle over to Flagship.
Flagship asserts that the Vehicle is located at Scott’s residence at 2652 Belvedere Lane, Lancaster, CA 93535. Kirkley. Decl. ¶10. This address is also where Scott was served with process. The writ may direct the levying officer to enter Scott’s residence to take possession of the Vehicle. See CCP §512.060(b).
The application for a writ of possession is denied. If Flagship provides and declaration with supporting documentary evidence of the debt at the hearing, the application would be granted. In that circumstance, Flagship 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 after the hearing or the writ will be deemed as waived.
 Flagship 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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