United States District Court, D. Oregon
A. Cochran, Pacific Property Law, LLC, 43672 SW Hiatt Rd.,
Forest Grove, OR 97116. Of Attorneys for Plaintiffs.
Marshall and Anglin Flewilling Rasmussen Campbell &
Trytten, LLP, 701 Pike St., Suite 1560, Seattle, WA 98101. Of
Attorneys for Defendant Wells Fargo Bank, N.A.
M. Thomas, McCarthy Holthus, LLP, 920 SW Third Ave., First
Floor, Portland, OR 97204. Of Attorneys for Defendant Quality
Loan Service Corporation of Washington.
J. IMMERGUT UNITED STATES DISTRICT JUDGE
Ruby Aftab and Zafar Haq bring this action against Defendants
Quality Loan Services Corp. of Washington
(“QLS”), Wells Fargo Bank, National Association
(“Wells Fargo”), and Does 1 through 5 regarding
the non-judicial trustee sale of Plaintiffs' residential
property located at 16617 SW Timberland Dr., Beaverton, OR
97007 (“the property”). Plaintiffs allege
Defendants violated the Fair Debt Collection Practices Act
(“FDCPA”), committed the tort of conversion, and
breached the covenants of good faith and fair dealing under
the Uniform Commercial Code (“UCC”) and Oregon
foreclosure laws. See ECF 1. This is the second
lawsuit Plaintiffs have filed against Defendants in an effort
to prevent the non-judicial trustee sale of the property.
See ECF 18, Ex. M (Complaint from Aftab &
Haq v. Wachovia Bank N.A. et al, No. 3:18-cv-00159-MO).
The previous case was settled and dismissed with prejudice in
2018. See Id., Ex. P; see also ECF 15.
this Court is Plaintiffs' Motion for a Temporary
Restraining Order (“TRO”) to temporarily enjoin
Defendants from proceeding with a trustee's sale of the
property. Plaintiffs argue that the trustee's sale is not
lawful because Defendants have not shown that they have the
right or authority to conduct the sale. Defendants respond by
arguing that Plaintiffs' claims are barred by res
judicata. Defendants further argue that Plaintiffs cannot
make a sufficient showing for a TRO because Plaintiffs are
unable to establish any likelihood of success on the merits.
On September 25, 2019, the Court held a hearing on
Plaintiffs' motion. At that hearing, the parties agreed
to have the Court decide Plaintiffs' request for a
preliminary injunction simultaneously with the TRO. For the
reasons discussed below, the Court DENIES Plaintiffs'
Motion for a Temporary Restraining Order and DENIES
Plaintiff's request for a preliminary injunction.
deciding whether to grant a motion for temporary restraining
order, courts look to substantially the same factors that
apply to a court's decision on whether to issue a
preliminary injunction. See Stuhlbarg Int'l Sales Co.
v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th
Cir. 2001). 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. Def. 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.
Winter, the Supreme Court rejected the Ninth
Circuit's earlier rule that the mere
“possibility” of irreparable harm was sufficient,
in some circumstances, to justify a preliminary injunction.
Id. The Court held that plaintiffs must establish
that irreparable harm is likely, not just possible, in order
to obtain a preliminary injunction. Id. 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, a preliminary injunction is appropriate when a
plaintiff shows that “serious questions going to the
merits were raised and the balance of hardships tips sharply
in plaintiff's favor, ” assuming the other two
elements of the Winter test are also met.
Id. at 1134-35. This test applies a sliding scale
approach where a stronger showing of one element of the
preliminary injunction test may offset a weaker showing of
another. 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, 697 F.3d 706, 725
(9th Cir. 2012).
reviewing evidence presented for a preliminary injunction or
a TRO, the court applies relaxed evidentiary standards for
admissibility. The court “may give even inadmissible
evidence some weight, when doing so serves the purpose of
preventing irreparable harm.” Native Fish Society
v. Nat'l Marine Fisheries Serv., No. 3:12-cv-00431,
2013 WL 12120102, at *7 (D. Or. May 18, 2013) (quoting
Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394
(9th Cir. 1984)).
burden of proof at the preliminary injunction phase tracks
the burden of proof at trial . . .” Thalheimer v.
City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011)
(citing Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 423 (2006)). For each of the
claims alleged in this case, Plaintiff bears the burden of
proof at trial to prove the violations by a preponderance of
the evidence. See Grogan v Garner, 498 U.S. 279, 286
(1991) (quoting Herman & Maclean v. Huddleston,
498 U.S. 375, 389-90 (1983)) (holding that the standard of
proof in civil cases is presumed to be the preponderance of
the evidence standard unless “important individual
interests are rights are at stake”); Reed v. AID
Assocs. Inc., 573 F.Supp.2d 1105, 1107 (S.D. Ind. 2009)
(holding that plaintiff had burden of proving FDCPA violation
by a preponderance of the evidence); Mason v.
Miller, 90 Or.App. 538, 541 (1988) (holding that each
element of conversion must be proved by a preponderance of
the evidence). Thus, in order to receive a preliminary
injunction, the moving party bears the burden of showing a
likelihood of success by a preponderance of the evidence.
See Feldman v. Arizona Sec. of State's Office,
843 F.3d 366, 403 (9th Cir. 2016).
Wells Fargo and QLS requested that this Court take judicial
notice of several documents, including documentation of the
trust deed, the name changes and later merger of World
Savings Bank, FSB into Wells Fargo, N.A., and the previous
lawsuit filed by Plaintiffs. See ECF 10, 18. Neither
party objected to this Court taking judicial notice of the
documents. A court may judicially notice a fact that
“can be accurately and readily determined from sources
whose accuracy cannot be reasonably questioned.”
Fed.R.Evid. 201. In addition, a court may take judicial
notice of proceedings and records filed in another case to
determine what issues were before the court and actually
litigated. See Reyn's Pasta Bella, LLC v. Visa USA,
Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). In line
with this guidance and without objection from Plaintiffs,
this Court took judicial notice of the documents from
Defendant Wells Fargo, ECF 18, and Defendant QLS, ECF 10.
reviewing all of the pleadings and documents submitted and
having heard arguments from all of the parties, this Court
determines that Plaintiffs have not met their burden for a
TRO or preliminary injunction. This Court concludes
Plaintiffs have little to no likelihood of success on the
merits, that Plaintiffs have not shown they will suffer
irreparable harm, that the balance of equities does not tip
in their favor, and that an injunction is not in the public
interest. The Court does not prejudge Plaintiffs' claims,
but notes that the FDCPA imposes liability only on
“debt collectors, ” defined under the statute as
“any person . . . who regularly collects or attempts to
collect . . . debts owed . . . or due another.” 15
U.S.C. § 1692a(6). The Supreme Court has held that the
FDCPA generally excludes debt owners seeking to collect debts
for themselves. See Henson v. Santador Consumer USA,
Inc., 137 S.Ct. 1718, 1721 (2017). Furthermore, the
Ninth Circuit has held that collecting money from a
trustee's sale does not qualify as collecting a debt as
defined by the FDCPA. See Ho v. ReconTrust Co.,
N.A., 858 F.3d 568, 571-72 (9th Cir. 2017). Thus,
“actions taken to facilitate the foreclosure or resell
of a security, such as sending a notice of default or notice
of sale, are not attempts to collect a
‘debt'” as defined by the statute.