Case Number: KC069870 Hearing Date: March 22, 2018 Dept: J

Re: Ally Financial Inc. v. Ashot Ghazaryan, etc., et al. (KC069870)

APPLICATION FOR WRIT OF POSSESSION AFTER HEARING

Moving Party: Plaintiff Ally Financial Inc.

Respondent: No timely opposition filed

POS: Moving not OK

On or about 3/16/15, Defendant Ashot Ghazaryan (“Ghazaryan”) made, executed and delivered to Plaintiff Ally Financial Inc.’s (“plaintiff”) assignor a written Retail Installment Sales Contract (“Agreement”) for the purchase of certain personal property described as a 2015 Chevrolet Suburban motor vehicle, Vehicle Identification No. 1GNSCHEC1FR623463 (“subject vehicle”). Pursuant to the Agreement, Ghazaryan agreed to make monthly installment payments until paid in full. Plaintiff thereafter received the Agreement by assignment, and its lienholder interest in the subject vehicle was perfected. Plaintiff alleges that, on or about 7/30/17, Ghazaryan defaulted under the terms and conditions of the Agreement by failing to make the payment due and owing in the sum of $691.66 or any of the regular monthly payments of $1,015.74 due thereafter. The complaint, filed on 12/11/17, asserts causes of action for:

Claim & Delivery of Personal Property

Money on a Contract

A Case Management Conference is set for 5/7/18.

Plaintiff Ally Financial Inc. (“plaintiff”) applies for a writ of possession after hearing pursuant to CCP § 512.010 et seq. Plaintiff seeks to recover collateral now in the possession of Defendant Ashot Ghazaryan (“Ghazaryan”).

Claim and delivery (See CCP §§ 511.010, et seq.) is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment. Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.

Procedural Considerations:

No writ of attachment may issue, except after a hearing on a noticed motion (CCP § 512.020(a)) or by ex parte application satisfying the conditions of CCP § 512.020(b). Accordingly, prior to the CCP § 512.020 hearing, the defendant must be served with all of the following: (a) A copy of the summons and complaint; (b) A Notice of Application and Hearing; (c) A copy of the application and any affidavit in support thereof. (CCP § 512.030.) The “Notice of Application and Hearing” must inform the defendant of all of the following: (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff’s application for a writ of possession; (b) The writ will be issued if the court finds that the plaintiff’s claim is probably (not actually) valid and the other requirements for issuing the writ are established; (c) 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 CCP § 515.020; (d) The notice must contain the following statement: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.” (CCP § 512.040.)

Although plaintiff mail-served Ghazaryan with a “Notice of Case Management Conference” on 1/29/18 and with a “Notice of Order to Show Cause” on 2/6/18, there is no proof of service in the file reflecting service of the summons, complaint, notice of application for writ of possession after hearing, application, and points and authorities. There is an Order to Show Cause re: failure to file proof of service set for 3/27/18.

MERITS:

As for the merits of the application, the court must make its determinations upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider additional evidence and authority produced 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. CCP § 512.050. The court must issue writ of possession if the plaintiff establishes “the probable validity of his claim” to possession of the property and provides an undertaking, pursuant to CCP § 515.010. CCP § 512.060; RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3. “Probable validity” exists where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. CCP § 511.090; RCA Service Co., supra, 137 Cal.App.3d at 3.

Probable validity, in this case, is un-rebutted and obvious given the Declaration of Blong Vang (“Vang”) and the accompanying exhibits. Vang lays the foundation for her testimony as a Replevin Specialist and the authorized representative for plaintiff. Vang attests that she serves as one of the custodians of records on behalf of plaintiff with respect to contracts with customers who have defaulted on their obligations, that she is familiar with the manner and procedures by which the records, letters, and memoranda contained in plaintiff’s files are prepared and maintained and that she is able to certify the authenticity thereof and that she presently oversees Ghazaryan’s account with respect to the 2015 Chevrolet Suburban motor vehicle, Vehicle Identification No. 1GNSCHEC1FR623463 (“subject vehicle”). Vang authenticates a copy of the Retail Installment Sales Contract (“Agreement”), as well as the printout reflecting plaintiff’s lienholder interest in the subject vehicle (Id., ¶ 5, Exhibits “A” and “B”).

Vang attests that “[s]aid Contract is in default in that defendant Ashot Ghazaryan failed to make the payment due and owing 07/30/2017 in the amount of $691.66, or any of the regular monthly payments of $1,015.74 due thereafter. Plaintiff has made demand upon Defendants for the surrender of possession of the motor vehicle to Plaintiff, but Defendants have failed to surrender same to Plaintiff.” (Id., ¶ 6). The Agreement states at paragraph 3.d, “IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES…d. We may take the vehicle from you. If you default, we may take (repossess) the vehicle from you if we do so peacefully and the law allows it.” (Id., ¶ 5, Exhibit “A”). Vang has not produced a statement of account, but attests that “[a]s of December 7, 2017, there is due, owing, and unpaid to Plaintiff on account of the Contract the sum of $42,729.81, together with other charges as provided in said Contract.” (Id., ¶ 6).

Vang attaches a “NADA Used Cars/Trucks” report for December 2017, which reflects that the average wholesale and retail values for the subject vehicle are $29,350.00 and $34,775.00, respectively. (Id., ¶ 7, Exhibit “C”). To the best of Vang’s knowledge, information and belief, the subject vehicle is presently located at 800 E. Acacia Ave., #C, Glendale, California 91205.

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 is more than the value of the subject vehicle, Ghazaryan has no interest in same, and therefore plaintiff would not be required to post an undertaking. The application, however, is denied without prejudice due to the foregoing notice deficiency.