Aazami v. Wells Fargo Bank, N.A. et al

Filing 32

Opinion and Order. The Court DENIES Plaintiff's Motion (# 2 ) for Preliminary Injunction. IT IS SO ORDERED. Signed on 2/6/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

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
4248 Galewood St.
Lake Oswego, OR 97035
[phone]
MARC E. DANN
DannLaw
2728 Euclid Ave
Suite 300
Cleveland, OH 44115
[phone]
Attorneys for Plaintiff

1 - OPINION AND ORDER

3:17-cv-01564-BR
OPINION AND ORDER

JOSEPH A. ROHNER IV
Anglin Flewelling Rasmussen Campbell & Trytten LLP
121 S.W. Salmon St.
Suite 1100
Portland, OR 97204
[phone]
Attorneys for Defendant Wells Fargo Bank, N.A.
JOHN M. THOMAS
McCarthy & Holthus
920 S.W. Third Avenue
Portland, OR 97204
[phone]
Attorneys for Defendant Quality Loan Service
Corporation of Washington
BROWN, 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

2 - OPINION AND ORDER

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

1

At oral argument on Plaintiff’s Motion for Preliminary
Injunction Plaintiff’s counsel advised the Court that Plaintiff
has not made any mortgage payments since August 1, 2014.
3 - OPINION AND ORDER

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,

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(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 proceedings.
Wells Fargo stated it would provide a Declaration or “other
evidence” in support of its assertion if requested.
On January 8, 2018, the Court issued an Order in which it
directed Wells Fargo to file evidence in support of its
assertions in the Joint Statement no later than January 16, 2018,
and permitted Plaintiff to file a response no later than
January 26, 2018.
The Court took this matter under advisement on January 26,
2018.

5 - OPINION AND ORDER

STANDARDS
A party seeking a preliminary injunction must demonstrate
(1) it is likely to succeed on the merits, (2) it is likely to
suffer irreparable harm in the absence of preliminary relief,
(3) the balance of equities tips in its favor, and (4) an
injunction is in the public interest.

Winter v. Nat. Res. Def.

Council, 129 S. Ct. 365, 374 (2008).
"The elements of [this] test are balanced, so that a
stronger showing of one element may offset a weaker showing of
another.

For example, a stronger showing of irreparable harm to

plaintiff might offset a lesser showing of likelihood of success
on the merits."

Alliance For The Wild Rockies v. Cottrell,

No. 09-35756, 2011 WL 208360, at *4 (9th Cir. Jan. 25, 2011)
(citing Winter, 129 S. Ct. at 392).

Accordingly, the Ninth

Circuit has held "'serious questions going to the merits' and a
balance of hardships that tips sharply towards the plaintiff can
support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable
injury and that the injunction is in the public interest."
at *7.

Id.,

"An injunction is a matter of equitable discretion" and

is "an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief."
129 S. Ct. at 376, 381.
6 - OPINION AND ORDER

Winter,

DISCUSSION
At oral argument Plaintiff advised the Court that he seeks
the specified injunctive relief enjoining the February 5, 2018,
sale based only on his First and Second Claims for Declaratory
Judgment and Breach of Contract.
I.

Plaintiff’s Claim for Declaratory Judgment
In his First Claim for Declaratory Judgment Plaintiff

asserts Defendants violated the Oregon Trust Deed Act (ODTA),
Oregon Revised Statutes § 86.705, et. seq., with respect to the
Trust Deed and Note on the ground that MERS did not have the
authority to assign the beneficial interest under the Trust Deed,
and, therefore, all subsequent nonjudicial foreclosure
activities, including QLS’s attempted sale, “are void ab initio.”
Plaintiff relies on the Oregon Supreme Court’s decision in
Brandrup v. ReconTrust Co, 353 Or. 668 (2013), to support his
assertion.
In Brandrup the Oregon Supreme Court addressed whether MERS
can be a beneficiary under the ODTA and noted “[f]or the purposes
of O.R.S. § 86.735(1), the ‘beneficiary’ is the lender to whom
the obligation that the trust deed secures is owed or the
lender's successor in interest.”

Brandrup, 353 Or. at 673–74.

The Court concluded MERS cannot be the beneficiary because it
does not hold the beneficial right to repayment of the
7 - OPINION AND ORDER

obligation.

Id. at 693.

“For the purposes of the OTDA, the only

pertinent interests in the trust deed are the beneficial interest
of the beneficiary and the legal interest of the trustee.”

Id.

at 675.
The court also concluded in Brandrup that “the person
entitled to repayment of the secured obligation also controls the
foreclosure process.”

Id. at 688.

“Because MERS does not have

the right to receive repayment of the notes in these cases, the
OTDA does not allow MERS to hold and transfer legal title to the
trust deeds that secure them.”
transfers are invalid.”

Id. at 705.

Id. at 707.

Thus, “[a]ny such

The Brandrup court,

however, “also re-affirmed the longstanding principal [sic] that
when a promissory note changes hands, the securing deed of trust
follows by operation of law.”

Romani v. NW Trustee Svcs.,

No. 3:11–cv– 0382–PA, 2013 WL 6530583, at *3 (D. Or. Dec. 12,
2013)(citing Brandrup, 353 Or. at 694).

Thus, when a promissory

note is transferred, the Deed of Trust also “transfers by
operation of law and the party entitled to payment under the Note
is the beneficiary notwithstanding the designation of MERS as the
beneficiary in the Deed of Trust.”

Id.

In Romani the plaintiff’s Trust Deed identified MERS as the
beneficiary “solely as nominee for Lender and Lender's successors
and assigns.”

The Lender in the promissory note was Sunset

Mortgage, but Sunset subsequently transferred the Note “by
8 - OPINION AND ORDER

endorsement in blank to Wells Fargo Bank, N.A.”
at *1.

2013 WL 6530583,

Ultimately MERS transferred the Trust Deed to Wells

Fargo, and Wells Fargo began foreclosure on the plaintiff’s
property.

The plaintiff brought an action to rescind the trustee

sale alleging, among other things, that the designation of MERS
as beneficiary was invalid.

The district court reviewed the

Oregon Supreme Court’s holding in Brandrup and agreed MERS could
not hold or transfer legal title to the Trust Deed securing the
plaintiff’s mortgage.

The district court, however, also noted

Brandrup’s affirmation that “when a promissory note changes
hands, the securing deed of trust follows by operation of law.”
In Romani the record reflected
the Note was transferred by endorsement in blank
to Wells Fargo by the original lender[, the] Deed
of Trust . . . also transferred to Wells Fargo, by
operation of law. As the party entitled to
payment under the Note and Deed of Trust, Wells
Fargo was the beneficiary, notwithstanding the
designation of MERS as beneficiary in the Deed of
Trust.
2013 WL 6530583, at *3.

The district court, therefore, concluded

although
[a]ny purported assignments of the Deed of Trust
by MERS are legal nullities[,] Wells Fargo, as
holder of the Note, possessed the right to appoint
a successor trustee and to take all of the other
actions necessary to initiate the non-judicial
foreclosure. [Thus,] The involvement of MERS does
not invalidate the completed sale.
Id.
As noted, here Wells Fargo asserts the Note was transferred
9 - OPINION AND ORDER

to Wells Fargo from USA Direct Funding by the January 2, 2013,
Allonge to Note, and, therefore, Wells Fargo was the beneficiary
of the Trust Deed at all relevant times notwithstanding the
designation of MERS as beneficiary in the Deed of Trust.

As in

Romani, the purported assignment of the Trust by MERS is a “legal
nullity,” but, nevertheless, Wells Fargo as holder of the Note
possessed the right to appoint a successor trustee and to take
all of the other actions necessary to initiate the nonjudicial
foreclosure.

Thus, the involvement of MERS here does not justify

enjoining Defendants’ efforts to complete a non-judicial
foreclosure sale.
As noted, Plaintiff asserts Wells Fargo has not established
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 proceedings, and, therefore, it was not a
“person entitled to enforce [the Note]” pursuant to Oregon’s
Uniform Commercial Code.

Specifically, Oregon Revised Statutes

§ 73.0203(1) states "[a negotiable] instrument is transferred
when it is delivered . . . for the purpose of giving to the
person receiving delivery the right to enforce the instrument."
Emphasis added.

Oregon Revised Statutes § 73.02030(2) explains

"[t]ransfer of an instrument vests in the transferee any right of
the transferor to enforce the instrument, including any right as
a holder in due course."

10 - OPINION AND ORDER

Finally, Oregon Revised Statutes

§ 73.0301 defines a "person entitled to enforce an instrument" as
"the holder of the instrument, a nonholder in possession of the
instrument who has the rights of a holder, or a person not in
possession of the instrument who is entitled to enforce the
instrument.”

Thus, for example, the court in LNV Corp. v. Fauley

held
the fact that the trust deed and Note have taken
divergent paths is entirely inapposite. There is
no question that the Note has been transferred to
LNV by endorsement, and that LNV is in current
physical possession of the Note. Therefore, LNV
is the entity entitled to repayment of the [N]ote
obligation, and, in turn, LNV is the beneficiary
of the trust deed, irrespective of its “muddled”
chain of title.
178 F. Supp. 3d 1043, 1048 (D. Or. 2016)(emphasis added).
Although the parties’ initial filings related to Plaintiff’s
Motion for Preliminary Injunction established the Note had been
transferred by Allonge to Wells Fargo, those filings did not
establish Wells Fargo was in physical possession of the Note and
Allonge to Note at all relevant times.

On January 16, 2018,

however, Wells Fargo filed the Declaration of Meredith Deal in
Response to the Court’s January 8, 2018, Order.

Deal testifies

in her Declaration that she is a Vice President of Loan
Documentation for Wells Fargo; that she has personal knowledge
generally of Wells Fargo’s practices and procedures “in making
and maintaining business records” and specifically of the matters
pertaining to this action; and that

11 - OPINION AND ORDER

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.
Decl. of Meredith Deal at ¶ 5

Plaintiff did not submit any

evidence in response that established or suggests Wells Fargo was
not in possession of the Note and Allonge to Note at all relevant
times.
On this record the Court concludes Wells Fargo has
established it was in physical possession of the Note and Allonge
to Note at all relevant times and, therefore, is a “person
entitled to enforce” the Note and Deed of Trust.

As a result,

the Court also concludes the purported assignment of the Trust
Deed by MERS is a legal nullity, but, nevertheless, Wells Fargo,
as holder of the Note, possessed the right to appoint a successor
trustee and to take all of the other actions necessary to
initiate the nonjudicial foreclosure.

Accordingly, the actions

of MERS do not provide a basis to enjoin the February 5, 2018,
sale.
The Court, therefore, concludes Plaintiff has not
established a likelihood of success on the merits of his claim
for Declaratory Judgment for violation of the ODTA.
12 - OPINION AND ORDER

II.

Plaintiff’s Claim for Breach of Contract
In his Second Claim Plaintiff alleges Defendants breached

the Trust Deed and Note when they failed to meet a condition
precedent required for acceleration of the mortgage.
Specifically, Plaintiff asserts Defendants failed to arrange a
face-to-face interview with Plaintiff “before three full monthly
installments due on the mortgage [we]re unpaid” as required by
Housing and Urban Development (HUD) regulation 24 C.F.R.
§ 203.604.

Plaintiff seeks damages on his Second Claim “in an

amount to be determined at trial but not to exceed $466,000.00.”
“To state a claim for breach of contract, plaintiff must
allege the existence of a contract, ‘its relevant terms,
plaintiff's full performance and lack of breach and defendant's
breach resulting in damage to plaintiff.’”

Slover v. Or. Bd. of

Clinical Soc. Workers, 144 Or. App. 565, 570 (1996)(quoting
Fleming v. Kids and Kin Head Start, 71 Or. App. 718, 721 (1985)).
Courts that have addressed the issue have concluded “the
breach of [HUD servicing] regulations [such as 24 C.F.R.
§ 203.604] do[es] not ordinarily provide a private right of
action.”

Fowler v. Wells Fargo Bank, N.A., No. 3:2017cv02092,

2017 WL 3977385, at *4 (N.D. Cal. Sept. 11, 2017)(quotations
omitted).

Nevertheless, in Fowler the court concluded HUD

regulations “that are properly incorporated into a contract [may]
form the basis of a breach of contract claim.”
13 - OPINION AND ORDER

Id.

In Fowler

the plaintiff “identified the provision of the promissory note —
allegedly incorporating [the HUD regulations] — that Defendant
allegedly breached and her resulting damages.

The Court finds

that this is enough . . . to survive at the motion to dismiss
stage.”

Id.

Here in Plaintiff’s supplemental Response he asserts the
Note and Trust Deed incorporated the HUD regulations by
reference.

Specifically, the Note provides:
If Borrower defaults by failing to pay in full any
monthly payment, then Lender may, except as
limited by regulations of the Secretary in the
case of payment defaults, require immediate
payment in full of the principal balance remaining
due and all accrued interest. . . . This Note
does not authorize acceleration when not permitted
by HUD regulations.

Compl., Ex. 4 at 11 (emphasis added).

The Trust Deed provides:

In many circumstances regulations issued by the
Secretary [of HUD] will limit Lender’s rights, in
the case of payment defaults, to require immediate
payment in full and foreclose if not paid. This
Security instrument does not authorize
acceleration or foreclosure if not permitted by
regulations of the Secretary.
Compl., Ex. 4 at 8.

Although the Ninth Circuit has not reached

the issue, many courts have concluded inclusion of these types of
provisions in Trust Deeds and Notes is sufficient to incorporate
HUD regulations into Trust Deeds and Notes for breach-of-contract
claims.

See, e.g., Fowler, 2017 WL 3977385, at *4 (finding the

plaintiff had established the trust deed and note incorporated
HUD regulations when they were referenced in the trust deed and
14 - OPINION AND ORDER

note); Wright v. Wells Fargo, No. 1:15-cv-02416-AT-JCF, 2015 WL
12159206, at *5 (N.D. Ga. Oct. 8, 2015)(same); Njema v. Wells
Fargo, 124 F. Supp. 3d 852, 864 (D. Minn. 2015)(same).

But see

Klein v. Wells Fargo, No. A-14-CA-861-SS, 2014 WL 5685113, at *6
(W.D. Tex. Nov. 4, 2014)(finding the plaintiff did not have a
private right of action “notwithstanding referenced HUD
regulations in the note and deed of trust.”).

This Court,

however, need not decide whether the reference to HUD regulations
in the Trust Deed and Note incorporate those regulations by
reference sufficiently to support Plaintiff’s claim for breach of
contract because Plaintiff fails to plead or to establish how
Defendants’ alleged breach caused Plaintiff's damages.
As noted, Plaintiff alleges Defendants violated HUD
regulation 24 C.F.R. § 203.604, which requires the mortgagee to
have a “face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three full
monthly installments due on the mortgage are unpaid.”

Plaintiff,

however, does not plead in his Complaint or explain in his papers
in support of his Motion for Preliminary Injunction how
Defendants’ failure to arrange a face-to-face interview after
Plaintiff defaulted on his mortgage caused Plaintiff to suffer
the alleged $466,000 in damages.

Although it is not clear how

Plaintiff calculated his alleged damages, it appears it may be
the full amount Plaintiff owed on his mortgage, which included

15 - OPINION AND ORDER

unpaid principal, interest fees, and charges as of May 2017.

In

any event, Plaintiff does not point to any evidence that
Defendants’ failure to arrange or to try to arrange a face-toface meeting was the cause of Plaintiff’s default or failure to
pay his mortgage after August 2014.
Courts in similar circumstances have held the plaintiffs
failed to support their breach-of-contract claims.

For example,

in Njema the plaintiff defaulted on his mortgage and the
defendant foreclosed on the mortgage.

The plaintiff brought a

breach-of-contract claim against the defendant on the ground that
the defendant breached HUD regulation 24 C.F.R. § 203.604, which
the plaintiff asserted was incorporated by reference in his Note
and Trust Deed.

The court concluded the plaintiff failed to

prove that he suffered damages as a result of the defendant’s
failure to conduct a face-to-face meeting.

The court rejected

the plaintiff’s assertion that the harm he suffered was caused by
the foreclosure, and the court pointed out that the evidence
established “the foreclosure was due to [the plaintiff’s] default
on [his] . . . mortgage loan.”

124 F. Supp. 3d at 866.

The

court also rejected the plaintiff’s assertion that the plaintiff
would have received a loan modification and avoided foreclosure
if a face-to-face meeting had occurred.

The court noted that

argument was “completely speculative and, frankly, irrelevant.”
Id.

16 - OPINION AND ORDER

Similarly, in Wright the plaintiff defaulted on her mortgage
and the defendant began foreclosure proceedings.

The plaintiff

filed an action alleging, among other things, a claim for breach
of contract based on the defendant’s alleged failure to have a
face-to-face meeting as required by 24 C.F.R. § 203.604.

The

defendant filed a motion to dismiss the plaintiff’s breach-ofcontract claim.

The court concluded the plaintiff had

established the note and trust deed incorporated the HUD
regulations and that the defendant breached the regulations
incorporated in the note and trust deed when it failed to conduct
a face-to-face meeting before initiating foreclosure proceedings.
2015 WL 12159206, at *5.

The court, however, granted the

defendant’s motion to dismiss on the ground that the plaintiff
failed to plead damages that resulted from the defendant’s
alleged violation.

Id.

Specifically, the plaintiff asserted she

suffered damages as a result of the defendant’s breach because
the defendant reported the plaintiff’s default to various credit
agencies, which resulted in the plaintiff receiving a lower
credit score and “blocked Plaintiff from obtaining credit.”
at *6.

Id.,

The court, however, concluded these allegations did not

“plausibly show” the defendant’s failure to conduct a face-toface meeting caused her damages because “the alleged damages to
Plaintiff’s credit and reputation were caused by her own
undisputed failure to make loan payments, not the alleged actions

17 - OPINION AND ORDER

of [the defendant].”

Id.

See also Rourk v. Bank of N. Am. Nat.

Ass’n, No. 4:12–CV–42 (CDL), 2013 WL 5595964, at *6 (M.D. Ga.
Oct. 11, 2013)(“Even if Defendant had not substantially complied
with [§203.604], it was Plaintiff's failure to tender a single
payment for nearly two years that caused her default status and
the foreclosure.

Therefore, even if Plaintiff had demonstrated

that Defendant failed to make a reasonable effort to arrange a
face-to-face meeting with her, she has not established that such
a failure caused her any damages.”).
On this record the Court concludes Plaintiff has failed to
plead or to point to evidence in the record sufficient to
establish that Defendants’ alleged failure to comply with 24
C.F.R. § 203.604 caused Plaintiff’s alleged damages.

The Court,

therefore, concludes Plaintiff has not established she has a
likelihood of success on the merits of her claim for breach of
contract.
III. Irreparable Harm
Plaintiff asserts he is likely to suffer irreparable harm
from the foreclosure sale of his home.
This Court and other courts in this district have held the
loss of a home may result in irreparable harm.

See, e.g., Gosha

v. Bank of New York Mellon Corp., 3:16–CV– 00073–BR, 2016 WL
9211686, at *1 (D. Or. Jan. 25, 2016)(granting the plaintiff a
temporary restraining order when it was a close question on the
18 - OPINION AND ORDER

merits but the potential harm to plaintiffs, who were senior
citizens on a fixed income, was great); Irvin v. HSBC Bank USA,
N.A., No. 3:17–cv–01751–SI, 2017 WL 5075246, at *2 (D. Or.
Nov. 3, 2017)(granting a preliminary injunction when the
plaintiffs had lived in their home for 11 years and “retrofitted
and customized this home to adapt to the needs of their special
needs children.”).

Here Plaintiff lived in the house for only 19

months before defaulting on his mortgage, and he has lived in the
house for 3.5 years after his default without making any
payments.

Under these circumstances the Court concludes

Plaintiff has not established he will suffer irreparable harm
from the foreclosure sale.
Accordingly, the Court concludes this factor does not
provide any persuasive weight in favor of injunctive relief.
IV.

Public Interest
“When the reach of an injunction is narrow, limited only to

the parties, and has no impact on non-parties, the public
interest will be at most a neutral factor in the preliminary
injunction analysis.”

Stormans v. Selecky, 586 F.3d 1109,

1138–39 (9th Cir. 2009).

When the impact of the injunction

reaches beyond the parties and potentially impacts the public,
the public interest is relevant to the analysis.

Id.

Here

Plaintiff's Motion is limited to restraining Defendants from
conducting the foreclosure sale and does not involve any
19 - OPINION AND ORDER

nonparties to the action.
Accordingly, the Court concludes this factor is neutral.
V.

Balancing the Equities
As noted, the Court has concluded under these circumstances

that Plaintiff has not established he will suffer irreparable
harm from the foreclosure sale because Plaintiff has lived in the
house for approximately five years, but he has not made a
mortgage payment for 3.5 years.

Moreover, Plaintiff does not

allege he is capable of curing his default or tendering his
indebtedness.

In addition, Plaintiff has not established a

likelihood of success on the merits of his Motion for Preliminary
Injunction.
On this record the Court concludes the balance of equities
favors Defendants.

Accordingly, the Court denies Plaintiff’s

Motion for Preliminary Injunction.

CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#2)
for Preliminary Injunction.
The Court DIRECTS the parties to confer and to file a
proposed joint case-management schedule for resolution of the

20 - OPINION AND ORDER

remaining issues in this matter no later than February 20, 2018.
IT IS SO ORDERED.
DATED this 6th day of February, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

21 - OPINION AND ORDER