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Aazami v. Wells Fargo Bank, N.A.

United States District Court, D. Oregon

February 6, 2018

AZHANG SHAINE AAZAMI, Plaintiff,
v.
WELLS FARGO BANK, N.A., a California Corporation; and QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington Corporation, Defendants.

          JEFFREY A. LONG Oregon Consumer Law Center MARC E. DANN DannLaw Attorneys for Plaintiff.

          JOSEPH A. ROHNER IV Anglin Flewelling Rasmussen Campbell & Trytten LLP Attorneys for Defendant Wells Fargo Bank, N.A.

          JOHN M. THOMAS McCarthy & Holthus Attorneys for Defendant Quality Loan Service Corporation of Washington.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff's Motion (#2) for Preliminary Injunction. For the reasons that follow, the Court DENIES Plaintiff's Motion.

         BACKGROUND

         The following facts are taken from the Complaint and the parties' filings related to Plaintiff's Motion for Preliminary Injunction.

         On January 2, 2013, Plaintiff Azhang Shaine Aazami executed a 30-year fixed-rate FHA loan via a promissory note for $405, 300.00 with nonparty USA Direct Funding as the lender. Plaintiff also executed a Trust Deed securing the property with MERS acting “solely as the nominee for Lender” and as beneficiary. Compl., Ex. 4 at 4. The Trust Deed was recorded in the records of Jackson County on January 7, 2013.

         Also on January 2, 2013, Plaintiff executed an Allonge to Note as follows:

IN FAVOR OF: USA DIRECT FUNDING
AND EXECUTED BY: [PLAINTIFF]
PAY TO THE ORDER OF [WELLS FARGO BANK, N.A.] WITHOUT RECOURSE USA DIRECT FUNDING

Compl., Ex. 4 at 13.

         On August 1, 2014, Plaintiff failed to make his required mortgage payment.[1]

         On August 14, 2014, MERS, acting as nominee, assigned the Trust Deed to Defendant Wells Fargo. The Assignment of Trust Deed was recorded in Jackson County on August 14, 2014.

         On December 31, 2015, Wells Fargo appointed Defendant Quality Loan Services (QLS) as the Trustee.

         On June 1, 2017, QLS executed a Notice of Sale as to Plaintiff's property to be held October 16, 2017.

         On October 4, 2017, Plaintiff filed an action in this Court against Wells Fargo and QLS. Plaintiff seeks declaratory judgment that “none of the Defendants is in fact the beneficiary of the Note and the actual beneficiary as defined under ORS 86.735, that the actual beneficiary of the Note has not been made known to the Plaintiff and therefore the Defendants cannot conduct a non-judicial sale on this property under ORS § 86.705 et seq.” Compl. at ¶ 19. Plaintiff also brings claims for breach of contract and violation of 12 C.F.R. § 1024.36 and 12 C.F.R. § 1024.35.

         On October 12, 2017, Plaintiff filed a Motion (#5) for Temporary Restraining Order in which he sought an order barring the nonjudicial foreclosure scheduled for October 16, 2017. Defendants agreed to defer the foreclosure sale until after the Court decided Plaintiff's Motion.

         On October 26, 2017, the Court held a hearing on Plaintiff's Motion for Temporary Restraining Order at which both Defendants appeared. On October 26, 2017, the Court entered an Order granting Plaintiff's Motion for Temporary Restraining Order, directing the parties to engage in limited discovery, and setting a preliminary-injunction hearing on January 3, 2018.

         On December 4, 2017, Plaintiff filed a Motion (#20) for Preliminary Injunction in which he seeks an order barring the nonjudicial foreclosure scheduled for February 5, 2018.

         On January 3, 2018, the Court heard oral argument on Plaintiff's Motion for Preliminary Injunction. The Court directed the parties to file a joint Stipulated Supplement to the Record and to advise the Court no later than January 5, 2018, (1) whether Plaintiff is asserting Wells Fargo was not in possession of the Note and Allonge to Note at the time it appointed QLS as the successor trustee and/or at the time QLS initiated foreclosure proceedings and (2) whether Wells Fargo is asserting it was in physical possession of the Note and Allonge to Note at the time it appointed QLS as the successor trustee and/or at the time QLS initiated foreclosure proceedings.

         On January 5, 2018, the parties filed a Joint Concise Statement in which they advised the Court that (1) Plaintiff is asserting Wells Fargo was not in possession of the Note and Allonge to Note at the time it appointed QLS as the successor trustee and/or at the time QLS initiated foreclosure proceedings and (2) Wells Fargo is asserting it was in possession of the Note and Allonge to Note at the time it appointed QLS as the successor trustee and/or at the time QLS initiated foreclosure ...


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