United States District Court, D. Oregon
JEFFREY A. LONG Oregon Consumer Law Center
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.
M. THOMAS McCarthy & Holthus Attorneys for Defendant
Quality Loan Service Corporation of Washington
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
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); Wells
Fargo's Motion (#57) for Summary Judgment; and the Motion
(#59) for Summary Judgment of Defendant Quality Loan Services
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.
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
January 2, 2013, Plaintiff Azhang Shaine Aazami and his wife
Aletia 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 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.
January 2, 2013, Plaintiff executed an Allonge to Note as
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.
23, 2014, Wells Fargo sent the Aazamis a letter in which it
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.
Statement of Agreed Facts, Ex. C.
30, 2014, the Aazamis signed a certified mail return-receipt
indicating they had received Wells Fargo's June 23, 2014,
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.
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,
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.
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.
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.
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.
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.
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.
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
August 3, 2017, Wells Fargo responded to Plaintiff's NOE.
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.
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.
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.
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.
December 4, 2017, Plaintiff filed a Motion for Preliminary
Injunction in which he sought an order barring the
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.
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.
February 6, 2018, the Court issued an Opinion and Order
denying Plaintiff's Motion for Preliminary Injunction.
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.
Court took the parties' Motions under advisement on
December 28, 2018.
FOR JUDICIAL NOTICE
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.
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:
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.).
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.
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
FARGO'S MOTION (#65) TO STRIKE
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. The factual
averments and ...