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Torres v. Zamanizadeh

United States District Court, D. Oregon

February 6, 2018

ANGELA TORRES, Plaintiff,
v.
ALIREZA ZAMANIZADEH, a/k/a ALI ZAMANI, an individual, and ADULT CARE SEARCH, a foreign non-profit corporation, Defendants.

          OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

          Michael H. Simon United States District Judge.

         On January 10, 2018, the Court entered a temporary restraining order restraining Defendants from any and all activity resulting in the expenditure, encumbrance, or other disposition of funds or real property that may be traced back to Plaintiff. The Court ordered Defendants to appear and show cause why the Court should not issue a preliminary injunction. The Court held a hearing on January 19, 2018, and at the request of the parties extended the temporary restraining order and rescheduled the hearing for February 2, 2018. A few days before the hearing on February 2, 2018, counsel for Defendants withdrew. Defendant Alireza Zamanizadeh ("Zamani") appeared pro se at the February 2, 2018 hearing.

         After considering the record and the arguments and assertions made at the hearing, the Court grants Plaintiffs motion for a preliminary injunction.

         STANDARDS

         A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

         The Supreme Court's decision in Winter, however, did not disturb the Ninth Circuit's alternative "serious questions" test. All for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, '"serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus, 691 F.3d 706, 725 (9th Cir. 2012).

         BACKGROUND

         Plaintiff filed this case on February 21, 2017, in Clark County Superior Court in the State of Washington, alleging state court claims for fraud and unjust enrichment. Defendants removed the case to this Court on August 15, 2017. Plaintiff alleges that Zamani fraudulently induced Plaintiff to temporarily transfer money and one piece of real property to a charitable organization owned by Zamani-Defendant Adult Care Search ("ACS")-and to sign a power of attorney authorizing Zamani to engage in real estate transactions on Plaintiffs behalf. Plaintiff further alleges that Zamani then refused to return those monetary and real propery assets.

         In support of her motion for a temporary restraining order and preliminary injunction, Plaintiff submitted her declaration, the declaration of a state investigator, and the declaration of her counsel. Plaintiffs declaration attests to the following facts: (1) Zamani used his personal relationship with Plaintiff to induce her to transfer to ACS money and assets and to sign a power of attorney granting Zamani authority over real estate transactions; (2) in June 2016 Plaintiff transferred $290, 000 from her retirement account to ACS and transferred her Washington residence via quitclaim deed to ACS; (3) Plaintiff never intended to permanently donate those assets to ACS or to give them to Zamani; (4) Zamani convinced Plaintiff to transfer those assets to Zamani temporarily to shield them during Plaintiffs divorce proceedings and Zamani promised he would return them to Plaintiff; (5) Plaintiff nonetheless reported the assets during her divorce proceedings; (6) Zamani represented to Plaintiff that he has foreign bank accounts and assets and companies abroad; (7) Plaintiff repeatedly requested the return of her real property and money and Zamani would indicate his willingness to meet and do so and then not show up or otherwise stall; (8) Zamani finally stated that the money and real property was a "donation" to ACS and sent a donation receipt in February 2017, nearly eight months after the purported donation; (9) Plaintiff was awarded apiece of real property in Bend, Oregon as part of her divorce and in November 2016 Zamani asked her for the address of the property purportedly so he could ensure that there were no liens on the property; (10) on February 15, 2017, Zamani used the power of attorney he had obtained from Plaintiff to transfer the Bend, Oregon property to ACS and then obtained a $300, 000 cash-out mortgage on the property; and (11) Plaintiff was unaware of the transfer of the Bend, Oregon property and subsequent mortgage and did not learn about it until an investigation was conducted by the State of Oregon into ACS. Plaintiff attached numerous exhibits, including text messages and emails between her and Zamani, the power of attorney, the quit claim deeds, the money transfers, and the Trust Deed for the mortgage on the Bend property, supporting Plaintiffs factual assertions.

         The declaration of Frank M. Najar, an investigator with the Oregon Department of Justice's Charitable Activities Section, states that: (1) he investigated ACS and concluded that ACS does not perform any charitable activities; (2) 86 percent of ACS's funds deposited between February 2014 and February 2017 came from Plaintiff; (3) the money taken from Plaintiff was used for Zamani's personal benefit and not for any charitable purpose; (4) he noted the $300, 329.12 deposit into ACS's account and when asked for documentation relating to the deposit discovered the fact that it was from a cash-out mortgage on Plaintiffs Bend, Oregon property; (5) of the $590, 329.12 taken from Plaintiff and deposited into ACS's bank account, Zamani withdrew at least approximately $142, 000 in cash, without explanation for how that cash was spent; and (6) of the $590, 329.12 taken from Plaintiff and deposited into ACS's bank account, Zamani transferred at least approximately $338, 700 from the ACS bank account and into the bank account of Zamani's for-profit company, ACareOption.com, whereas Zamani transferred only approximately $56, 000 back from ACareoption.com to ACS.

         Finally, Plaintiffs counsel represented to the Court in his declaration that he filed the motion for temporary restraining order exparte because he is concerned that if notice were given Zamani would likely attempt to move, withdraw, spend, encumber, or dispose of Plaintiff s remaining cash and real estate assets under Defendant Zamani's ownership or control, or under ownership or control of Defendant ACS or Defendant Zamani's ACareOption.com, Inc. Plaintiffs counsel noted that Zamani has demonstrated his disregard for courts by encouraging Plaintiff to shelter her assets in her divorce, still has Plaintiffs power of attorney in his possession, and has demonstrated that he will dispose of Plaintiff s assets improperly by transferring title to Plaintiffs Bend property and taking a cash-out mortgage without Plaintiffs knowledge. Counsel further pointed out that Zamani has stated that ACS owns the assets and can do with them whatever it wants and has represented that he has bank accounts and assets in foreign countries, making it a viable risk that he can transfer Plaintiffs assets outside the country. Based on this evidence, the Court entered a temporary restraining order.

         Although Defendants did not file any response to the Court's order to show cause or before the preliminary injunction hearing, at the hearing Zamani provided some factual background from his perspective. Zamani claims that Plaintiff is making false allegations against Defendants after Zamani rejected Plaintiffs desire for a continued personal relationship. Zamani asserts that Plaintiff donated funds to Zamani's charity without his knowledge and of Plaintiff s own volition. Zamani also states that when he traveled to Iran he encountered difficulties with [ the Iranian government as a result of Plaintiff s communications with Zamani, and that because of those problems he was required to pay hundreds of thousands of dollars to the Iranian government. Zamani contends that when he told Plaintiff this, she offered some of her assets to help Zamani make the payment. Zamani further states that his relevant bank accounts only have approximately $35, 000.

         DISCUSSION

         A. Winter Factors

         1. Likelihood of Success on the Merits

         The Court finds that Plaintiff has shown a likelihood of success on the merits of her fraud and unjust enrichment claims. Plaintiff transferred $290, 000 of her retirement funds to ACS in two transactions, one on June 13, 2016 and one on June 22, 2016. Plaintiff ...


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