BMW Bank of North America by and through it servicer BMW Financial Services
BMW Bank of North America by and through it servicer BMW Financial Services
Case Number
24CV01454
Case Type
Hearing Date / Time
Mon, 06/17/2024 - 10:00
Nature of Proceedings
Writ of Possession
Tentative Ruling
BMW Bank of North America v. John Murphy
Case No. 24CV01454
Hearing Date: June 17, 2024
HEARING: Plaintiff’s Application for Writ of Possession
ATTORNEYS: For Plaintiff BMW Bank of North America by and through its servicer BMW Financial Services: Christopher M. Domin, Rebecca A. Caley
For Defendant John Murphy: No appearance
TENTATIVE RULING:
- Plaintiff’s application for Writ of Possession is granted.
- Plaintiff shall modify the Proposed Order in the following respects:
- At page 2, paragraph 5: plaintiff shall uncheck subdivision (b), check subdivision (c) and include the amount of $28,760.22 as the amount of undertaking required by plaintiff. A copy of the undertaking shall be attached to the modified Order for Writ.
- At page 2, paragraph 5: plaintiff shall change the amount of undertaking required by defendant, in subdivision (d), to $28,760.22.
- At the bottom of page 2: plaintiff shall remove the added sentence: “The County Sheriff is authorized to break locks and enter private property upon Defendant’s refusal of entry.”
- Plaintiff shall add an attachment that includes the entire text of Code of Civil Procedure sections 515.020 and 515.030.
Background:
This action was commenced on March 13, 2024, by the filing of the verified complaint, by plaintiff BMW Bank of North America (“plaintiff”) against defendant John Murphy (“defendant”) for: (1) Breach of Contract; (2) Common Counts; (3) Claim and Delivery; and (4) Conversion.
As alleged in the complaint:
On January 21, 2022, in Calabasas, California, defendant execute and delivered to Bob Smith BMW, a written Motor Vehicle Retail Installment Contract (“agreement”) for the purchase of a 2018 BMW 330i Sedan SULEV vehicle, serial number WBA8B9C5XJAE22412 (“vehicle”). Defendant agreed to pay a total of $44,503.80 for the vehicle by way of 60 monthly payments of $741.73 each, beginning on March 7, 2022. Interest was payable at the rate of 3.99 percent per annum. Defendant took possession of the vehicle at the time he executed the agreement.
The dealer assigned the agreement to plaintiff and, pursuant to the terms of the agreement, plaintiff’s lienholder interest was perfected with the California Department of Motor Vehicles.
On July 7, 2023, defendant defaulted on the agreement by failing to make the payment that was then due and owing. Plaintiff has demanded payment from defendant, but defendant has failed to pay the balance owing under the agreement. As of the drafting of the complaint, defendant owed the principal balance of $30,123.69, late charges of $220.68, and accrued interest of $879.22.
The agreement provisions include that should defendant default on any payment due, plaintiff shall have the right to take possession of the vehicle and sell it after legal requirements are satisfied, and that plaintiff shall deduct from defendant's total default liability any proceeds from the sale of the vehicle less expenses and costs incurred in connection with the repossession, storage, restoration, and disposition of the vehicle. The agreement also has an attorney fees and costs provision for amounts incurred in collecting.
Plaintiff now applies for writ of possession of the vehicle. The application for writ of possession was served on defendant April 9, 2024, along with the summons and complaint.
Defendant has not filed opposition or any other response to the application.
Analysis:
“(a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.
“(b) The application shall be executed under oath and shall include all of the following:
“(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 basis of the plaintiff’s claim is a written instrument, a copy of the instrument shall be attached.
“(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.
“(3) A particular description of the property and a statement of its value.
“(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.
“(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.
“(c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.” (Code Civ. Proc., § 512.010.)
“(a) Prior to the hearing required by subdivision (a) of Section 512.020, the defendant shall be served with all of the following:
“(1) A copy of the summons and complaint.
“(2) A Notice of Application and Hearing.
“(3) A copy of the application and any affidavit in support thereof.
“(b) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.” (Code Civ. Proc., § 512.030.)
Defendant was properly served with the required documents on April 9, 2024.
“The “ ‘Notice of Application and Hearing’ ” shall 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 valid and the other requirements for issuing the writ are established. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decision at the hearing on the application for the writ.
“(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 Section 515.020.
“(d) The notice shall 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.’ ” (Code Civ. Proc., § 512.040.)
Plaintiff served a Judicial Council Form notice of application for writ of possession and hearing which complies with the requirements of Code of Civil Procedure section 512.040.)
“(a) At the hearing, a writ of possession shall issue 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.
“(2) The undertaking requirements of Section 515.010 are satisfied.
“(b) No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.” (Code Civ. Proc., § 512.060.)
Plaintiff has provided the declaration of Sarah Phillips (“Phillips declaration”), the Collections Legal and Replevin Analyst for defendant. Phillips declares facts relative to defendant’s purchase of the vehicle, defendant’s payments, assignment of the account by the dealer, and information garnered from the vehicles tracking device that the vehicle is located at 5 Rincon Point Lane, Carpinteria. The Phillips declaration also includes declarations regarding the vehicle’s estimated value.
Plaintiff has complied with the basic requirements for obtaining an Order for Writ of Possession by establishing the probable validity of its claim of possession of the vehicle.
Plaintiff has submitted a proposed order.
“The writ of possession shall meet all of the following requirements:
“(a) Be directed to the levying officer within whose jurisdiction the property is located.
“(b) Describe the specific property to be seized.
“(c) Specify any private place that may be entered to take possession of the property or some part of it.
“(d) Direct the levying officer to levy on the property pursuant to Section 514.010 if found and to retain it in custody until released or sold pursuant to Section 514.030.
“(e) Inform the defendant of the right to object to the plaintiff’s undertaking, a copy of which shall be attached to the writ, or to obtain redelivery of the property by filing an undertaking as prescribed by Section 515.020.” (Code Civ. Proc., § 512.080.)
The proposed order complies with subdivisions (a), (b), (c), and (d). It does not, however, comply with subdivision (e). Plaintiff will be ordered to modify the proposed order to include an attachment that includes the entire text of Code of Civil Procedure sections 515.020 and 515.030.
Undertaking:
“(a) Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession until the plaintiff has filed an undertaking with the court. 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. 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. 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.
“(b) If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking and shall include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code Civ. Proc., § 515.010.)
Plaintiff argues that defendant has no interest in the vehicle so that no undertaking is required by plaintiff. In support, the Phillips declaration includes, as Exhibit 4, a printout from Kelley Blue Book valuing the vehicle at $17,752.00. Plaintiff requests that the court take judicial notice of the printout pursuant to Evidence Code section 452, subdivisions (g) and (h), and Civil Code section 2987 (c). Evidence Code section 452, subdivision (g) permissibly allows judicial notice to be taken of: “Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” Subdivision (h) permissibly allows judicial notice to be taken of: “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”
Here, the Kelley Blue Book printout is insufficient. Plaintiff has failed to explain how the abbreviated printout is “common knowledge” or how the Kelley Blue Book is “not reasonably subject to dispute and . . . capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Further, plaintiff fails to show the totality of information input into the Kelley Blue Book website, including the condition of the vehicle, or to provide evidence that defendant did not make modifications or improvements to the vehicle that would increase its value. Plaintiff’s request for judicial notice is denied. Plaintiff will be required to file an undertaking.
As defendant purchased the vehicle for $44,503.80 (Phillips Dec., ¶ 9), and there is $30,123.69 owing on the principal balance (Phillips Dec., ¶ 15), the court will determine, solely for the purposes of determining the amount of the undertaking, that defendant’s potential interest in the vehicle is $14,380.11. Plaintiff will be required to file an undertaking for, pursuant to Code of Civil Procedure section 515.010, subdivision (a), twice that amount, or $28,760.22.
Defendant may prevent plaintiff from taking possession of the property by filing with the court an undertaking in an amount equal to plaintiff’s undertaking. (Code Civ. Proc., § 515.020, subd. (a).
Plaintiff’s Request that the County Sherriff be Authorized to Break Locks:
Plaintiff’s fail to provide any authority for the request that: "The County Sheriff is authorized to break locks and enter private property upon Defendant’s refusal of entry.” Such a request is facially improper and will be denied.
Plaintiff's application will be granted with the modifications set forth above.