Case Number: EC065582??? Hearing Date: November 18, 2016??? Dept: A
BMO Harris Bank v Gazaryan
APPLICATION FOR WRIT OF POSSESSION
Case No: EC065582
MP: Plaintiff, BMO Harris Bank, NA
RP: Defendant, Olga Ghazaryan
Writ of Possession for 2015 Kenworth T660 Series Tractor
This case arises from the Plaintiff?s claim that the Defendant breached a written loan agreement that were secured by a tractor.
At this hearing, the Plaintiff requests a writ of possession in order to obtain possession of the tractor that was security for the loan agreement. The writ of possession will permit the Plaintiff to obtain possession of the tangible personal property prior to trial. CCP section 512.060 permits the Court to issue a writ of possession when the Court finds the following:
1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property.
2) The undertaking requirements of Section 515.010 are satisfied.
The Plaintiff provides the declaration of Tonya Hinton to provide the facts in support of its application. Ms. Hinton states facts in paragraphs 1 to 6 to demonstrate that she is employed by the Plaintiff and that she has personal knowledge of the facts in the documents concerning the Defendant.
The Plaintiff?s claim of possession arises from the allegation that the Defendant, Olga Ghazaryan, breached a written loan agreement with General Electric Capital Corporation. A copy of the agreement is in exhibit 1. Ms. Hinton states in paragraph 7 that General Electric Capital Corp. assigned its rights in the agreement to the Plaintiff.
The agreement states in paragraph 5.2 that a remedy for a default is that the Plaintiff may take possession of the security. The agreement in exhibit 1 identifies the equipment as a Kenworth tractor.
Ms. Hinton states facts in paragraph 9 to demonstrate that the Defendant has been in default on the agreement since February 1, 2016 because she has failed to make any further payments. Ms. Hinton states in paragraph 19 that the Defendant has refused to surrender the equipment to the Plaintiff.
This evidence establishes the probable validity of the Plaintiff’s claim to possession of the equipment because it shows that the Plaintiff has the right to take immediate possession of the equipment since the Defendant is in default. In addition, this evidence shows that the Defendant has wrongful possession of the property because the Plaintiff has been unable to take possession, as the parties agreed was a remedy for a default. Accordingly, the Plaintiff has met its burden of showing that the probable validity of Plaintiff?s claim to possession.
Under CCP section 512.010(b)(4), the Plaintiff must provide evidence of the location of the property. Further, if the property is within a private place which may have to be entered to take possession, section (b)(4) requires there to be a showing that there is probable cause to believe that the property is located there.
Ms. Hinton states in paragraph 17 that the equipment is at 702 Raleigh St., #202, Glendale, CA 91205. This is the address that the Defendant identified as her residence and place of business in the contract and it is sufficient to show probable cause for the location of the equipment.
Further, the Plaintiff seeks relief under CCP section 512.070. When a writ of possession is issued, section 512.070 authorizes the Court to issue an order directing the defendant to transfer possession of the property to the plaintiff. Section 512.070 states that the order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court. Here, the Court will issue an order under section 512.070 that directs the Defendants to transfer possession of the tractor within 10 days.
Finally, CCP section 512.060 requires that an undertaking be filed before a writ of possession may be issued. CCP section 515.010 states that the undertaking shall be set at an amount not less than twice the value of the defendant’s interest in the property. In addition, CCP section 515.010 defines the value of the defendant’s interest in the property as 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. When a defendant does not have any interest in the property, CCP section 515.010(b) permits the Court to waive the requirement of the plaintiff’s undertaking and set an undertaking for the defendant to keep possession or regain possession.
Ms. Hinton provides facts in paragraphs 10 and 12 of her declaration to show that the Defendant owes a total of $122,661.37. In addition, Ms. Hinton states in paragraph 22 that, based on her experience as a litigation specialist for the Plaintiff, the fair market value of the security is $58,000.00. These facts show that the Defendant owes $122,661.37 on equipment with a market value of $58,000.00. Since this indicates that the Defendant owes more than the market value of the property, for the purposes of an undertaking under CCP section 515.010, the Defendant has no interest in the equipment.
Accordingly, the Court will waive the requirement for the Plaintiff to file an undertaking because the Defendant has no interest in the equipment.
In addition, if the Defendant seeks to retain possession of the equipment, CCP section 515.010(b) permits the Defendant to file an undertaking and retain the equipment. As discussed above, the Plaintiff shows that the value of the vehicle is $58,000.00 with the facts in the declaration of Ms. Hinton. This is the value of the Plaintiff?s interest in the equipment because this is the value that the Plaintiff will lose if the Plaintiff does not recover the equipment. Accordingly, the Court will set the Defendant?s undertaking to retain the equipment at $58,000.00
Therefore, the Court will grant the applications and issue the requested writ of possession. In addition, the Court will issue an order under CCP section 512.070 that directs the Defendant to transfer possession of the tractor to the Plaintiff and the Court will waive the requirement for the Plaintiff to file an undertaking. Finally, the Court will set the value of Defendants’ undertaking to keep or regain possession at $58,000.00.
Grant Plaintiff’s application and issue a writ of possession for the equipment.
Issue order under CCP section 512.070 that directs the Defendant to transfer possession of the equipment to the Plaintiff.
Waive requirement for Plaintiff to file undertaking.
Set Defendant?s undertaking to retain possession at $58,000.00