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Aazami v. Wells Fargo Bank, N.A.

United States District Court, D. Oregon

January 22, 2019

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

          BARBARA L. BOLLERO ANN T. MARSHALL 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 the Request (#44) of Defendant Wells Fargo Bank, N.A., for Judicial Notice; Plaintiff's Request (#62) for Judicial Notice; Wells Fargo's Motion (#65) to Strike (part of Wells Fargo's Reply to its Motion for Summary Judgment)[1]; Wells Fargo's Motion (#57)[2] for Summary Judgment; and the Motion (#59) for Summary Judgment of Defendant Quality Loan Services (QLS).

         For the reasons that follow, the Court GRANTS Wells Fargo's Request for Judicial Notice, GRANTS Plaintiff's Request for Judicial Notice, GRANTS Wells Fargo's Motion to Strike, and GRANTS Defendants' Motions for Summary Judgment.

         BACKGROUND

         The following facts are taken from the Complaint, the parties' Joint Statement of Agreed Facts, and the parties' filings related to Defendants' Motions for Summary Judgment and the parties' Requests for Judicial Notice.

         On January 2, 2013, Plaintiff Azhang Shaine Aazami and his wife Aletia Aazami[3] 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 certain residential real property with MERS acting “solely as the nominee for Lender” and as beneficiary. Joint Statement of Agreed Facts, Ex. B. The Trust Deed was recorded in the records of Jackson County on January 7, 2013.

         Also on January 2, 2013, Plaintiff executed an Allonge[3] 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 June 23, 2014, Wells Fargo sent the Aazamis a letter in which it advised:

Your mortgage loan is in default. Please contact us immediately to discuss your situation. We would like to meet with you to review your financial situation and determine possible options to assist you in bringing your loan current.
Please call us at 1-800-416-1472 to set up a time to discuss your financial situation.

         Joint Statement of Agreed Facts, Ex. C.

         On June 30, 2014, the Aazamis signed a certified mail return-receipt indicating they had received Wells Fargo's June 23, 2014, letter.

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

         On September 5, 2014, the Aazamis signed an FHA HAMP Trial Plan - Terms and Conditions (the HAMP TPP), in which they agreed to a trial plan of payments due October, November, and December 1, 2014. The parties agree, however, that Plaintiff has not made any mortgage payments since at least August 1, 2014.

         On October 7, 2015, the State of Oregon Foreclosure Avoidance Program issued a Certificate of Compliance with the Oregon Foreclosure Avoidance Program and indicated the Aazamis “did not pay the required fee by the deadline.” Joint Statement of Agreed Facts, Ex. G.

         On December 31, 2015, Wells Fargo appointed Defendant QLS as the Trustee of the Deed of Trust. The Appointment was recorded in Jackson County on January 12, 2016.

         On June 8, 2016, Aletia Aazami quit-claimed her interest in the property to Plaintiff. The Quitclaim Deed was recorded in Jackson County on June 13, 2016.

         On April 17, 2017, the State of Oregon Foreclosure Avoidance Program issued a Certificate of Compliance with the Oregon Foreclosure Avoidance Program and indicated Plaintiff “complied with the requirements [of the program].” Joint Statement of Agreed Facts, Ex. J.

         On May 15, 2017, Plaintiff sent three Requests for Information (RFI) to Wells Fargo seeking various documents pursuant to Regulation X of the Mortgage Servicing Act, 12 C.F.R. § 1024.36. Wells Fargo responded to Plaintiff's requests on May 22 and 24, 2017.

         On May 30, 2017, QLS recorded in Jackson County a Notice of Default and Election to Sell Plaintiff's property in which it noted a scheduled sale of Plaintiff's property would be held October 16, 2017.

         On July 19, 2017, Plaintiff sent to Wells Fargo a Notice of Error (NOE) pursuant to 12 C.F.R. § 1024.35(b)(11) in which Plaintiff alleged Wells Fargo had failed to respond properly to Plaintiff's RFIs. Wells Fargo received the NOE on July 25, 2017.

         On August 3, 2017, Wells Fargo responded to Plaintiff's NOE.

         On September 11, 2017, QLS recorded in Jackson County another Notice of Default and Election to Sell Plaintiff's property in which it noted a sale of Plaintiff's property scheduled for 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, violation of 12 C.F.R. § 1024.36, and violation of 12 C.F.R. § 1024.35.

         On October 12, 2017, Plaintiff filed a Motion for Temporary Restraining Order in which he sought an order barring the nonjudicial foreclosure sale 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 for Preliminary Injunction in which he sought an order barring the nonjudicial foreclosure.

         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 related to Plaintiff's assertions as to Wells Fargo's possession of the Note and Allonge to Note at the time QLS initiated foreclosure proceedings.

         On January 16, 2018, Wells Fargo filed the Declaration of Meredith Deal in which she testified in pertinent part:

Wells Fargo currently has possession of the original Note with the attached Allonge. Wells Fargo came into possession on January 24, 2013 and has maintained continuous possession from that time, including December 31, 2015, when it appointed Quality Loan Service Corporation of Washington as the successor trustee of said Deed of Trust, recorded on January 12, 2016 in the Jackson County Official Records, No. 2016-000798. Wells Fargo also had possession of the original Note and Allonge when non judicial foreclosure proceedings began in June 2017.

Deal Decl. at ¶ 5.

         On February 6, 2018, the Court issued an Opinion and Order denying Plaintiff's Motion for Preliminary Injunction.

         On November 6, 2018, Wells Fargo filed the pleading the Court deems to be an Amended Motion for Summary Judgment. On November 8, 2018, QLS filed a Motion for Summary Judgment Joining in Wells Fargo's Motion for Summary Judgment. On December 4, 2018, Plaintiff filed a Request for Judicial Notice. On December 14, 2018, Wells Fargo filed a Motion to Strike as part of its Reply to its Motion for Summary Judgment. Plaintiff did not file a response to Wells Fargo's Motion to Strike.

         The Court took the parties' Motions under advisement on December 28, 2018.

         REQUESTS FOR JUDICIAL NOTICE

         Wells Fargo requests the Court to take judicial notice of ten documents that are recorded in various county offices and publicly available including, for example, the Trust Deed, the Assignment of Trust Deed, the Notice of Default, and similar documents. Plaintiff does not object to Wells Fargo's request and relies on many of the same documents.

         Plaintiff requests the Court to take judicial notice of page 595 of the United States Department of Housing and Urban Development FHA Single Family Housing Policy Handbook (III)(A)(2)(h)(xii) Face-to-Face Interviews. Defendant does not oppose Plaintiff's Request other than to note that the web address for the complete Policy Handbook provided in Plaintiff's Request for Judicial Notice is incorrect. The correct address is: https://www.hud.gov/sites/documents/40001HSGH.PDF.

         I. Standards

         Federal Rule of Evidence 201 allows a court to take judicial notice of facts that can be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). The court may take judicial notice of documents that are matters of public record. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)(A district court may take “judicial notice of matters of public record outside the pleadings" when determining whether a complaint fails to state a claim.).

         II. Parties' Requests

         The documents attached to Wells Fargo's Request for Judicial Notice and the HUD Handbook page attached to Plaintiff's Request are matters of public record and their accuracy is not reasonably subject to debate.

         Accordingly, the Court GRANTS Wells Fargo's Request, GRANTS Plaintiff's Request, and takes judicial notice of the documents attached to Wells Fargo's Request as well as page 595 of the FHA Single Family Housing Policy Handbook attached to Plaintiff's Request.

         WELLS FARGO'S MOTION (#65) TO STRIKE

         In its Reply to its Motion for Summary Judgment Wells Fargo moves to strike ¶¶ 6-8 and Exhibits 5 and 6 to the Declarations (#60-2, #63) of Jeffrey Long and the Amended Declaration (#68) of Jeffrey Long in Opposition to Wells Fargo's Motion for Summary Judgment.[4] The factual averments and ...


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