Case Number: 19NWCV00482 Hearing Date: September 17, 2019 Dept: SEC

ALLY BANK v. VALDIVIA, et al.

CASE NO.: 19NWCV00482

HEARING: 9/17/19

JUDGE: LORI ANN FOURNIER

#4

TENTATIVE ORDER

Plaintiff Ally Bank’s application for writ of possession is GRANTED. No bond. (CCP 512.030.)

Moving Party to give NOTICE.

Plaintiff Ally Bank applies for a writ of possession pursuant to CCP 512.010 et seq.

NOTICE:

Prior to the hearing, the defendant shall be served with all of the following: (a) a copy of the summons and complaint; (b) A Notice of Application and Hearing; and (c) a copy of the application and any affidavit in support thereof. (CCP 512.030.)

The proof of service shows that Defendant was served with the summons, complaint, Notice, and Application for Writ of Possession on 7/10/19.

MERITS:

Upon the filing of the complaint or at any time thereafter, the plaintiff may apply for a writ of possession. (CCP 512.010(a).) The application shall include all of the following, which may be established by affidavit, pursuant to CCP 512.101(b):

1. The basis of the plaintiff’s claim that the plaintiff is entitled to possession;

2. A showing that the property is wrongfully detained and of the manner in which defendant came into possession;

3. A particular description of the property and a statement of its value;

4. The property’s location based on plaintiff’s knowledge, information and belief; and

5. A statement that the property has not been seized by statute or execution against it.

The writ will be issued if the plaintiff’s claim is probably valid. (CCP 512.040(b).) A writ to take possession of property at a private location requires the plaintiff to show probable cause that the property is located there. (CCP 512.060(b).)

Defendant entered into an agreement, giving Plaintiff the right to immediate possession of the collateral upon default. (Vang Decl, ¶ 5.) Defendant defaulted. (Vang Decl., ¶ 6.) The contract describes the property as 2017 Nissan Altima. (Vang Decl., ¶ 5.) The property is not being seized pursuant to an execution or attachment. (Vang Decl., ¶ 9.) The property is believed to be located at 1319 N. 20 Elderberry Ave., Ontario, CA 91762. (Vang Decl., ¶ 10.) Based on Plaintiff’s declaration and lacking any opposition, Plaintiff’s claim is probably valid.

Undertaking: A bond must be posted as part of the undertaking unless the court finds that the defendant has no interest in the property. (CCP 515.010(b).) The undertaking must be in an amount equal to twice the value of the defendant’s interest in the property (market value less all liens, etc.). (CCP 515.010.) Defendant’s interest is based on the market value of the property less (1) any amount due and owing on any conditional sales contract or security agreement, (2) all liens and encumbrances on the property, and (3) any other factors to determine the defendant’s interest in the property. (CCP 515.010(a).)

Since the balance owed ($31,048.62) is greater than the value ($24,400.00), Defendant has no interest in the property. Plaintiff is not required to post an undertaking.