Certified Mortgage Co. v. Shepherd

838 P.2d 1082, 115 Or. App. 228, 1992 Ore. App. LEXIS 1740
CourtCourt of Appeals of Oregon
DecidedSeptember 16, 1992
Docket89003445CV; CA A65949
StatusPublished

This text of 838 P.2d 1082 (Certified Mortgage Co. v. Shepherd) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Certified Mortgage Co. v. Shepherd, 838 P.2d 1082, 115 Or. App. 228, 1992 Ore. App. LEXIS 1740 (Or. Ct. App. 1992).

Opinion

ROSSMAN, J.

This is an action to quiet title to real property brought by plaintiff Certified Mortgage Company (Company) on behalf of the nominal defendant Crawford, who is the real plaintiff in interest. Crawford claims rights in the property adverse to defendants Shepherd1 and Wales (defendants), judgment lienors of the property: Crawford appeals from a trial court decision that defendants have judgment liens against the property prior and superior to her interests. We reverse and remand.

Company is an Oregon corporation in the business of brokering and managing loans for investors. In 1981, Crawford, a member of the Klamath Tribe, received her share of the proceeds of the sale of certain tribal lands. After seeing a television advertisement for Company, she contacted it to discuss an investment of $75,000. OnApril2,1981, Crawford delivered that money to Company to loan to Dollard, with the understanding that the loan would be secured by real property owned by Dollard. Company gave Crawford a promissory note (first Company note) for $75,000, with interest at 18% per annum. The note provided that interest payments were to be made “monthly beginning May 7, 1981 and continuing until April 7,1984 at which time the entire unpaid balance of principal and interest shall become due and payable.” Company’s representative, Marlatt, testified that the note was given as a “receipt,” not as evidence of a debt owed by Company to Crawford. He also testified that, although parties to transactions such as this usually execute a written servicing agreement and he thought that there had been one in this case, he could not find it. Company obtained $10,000 from Mr. and Mrs. Hanson, also investors, to make up the total Dollard loan of $85,000.2

On April 7,1981, Dollard signed a promissory note to Company (first Dollard note), assigning his vendee’s interest in a land sale contract for his business property to Company as a security for the loan. Company then issued to Crawford a new promissory note (second Company note), which, like the [231]*231first Company note, was for $75,000 at 18% interest with a three-year maturity. The new note, however, indicated that it was secured by a 75/85 interest in the first Dollard note to Company. It also said that the first Dollard note was secured by “an interest in” Dollard’s business property. In a letter to Crawford, Company said that, due to the complicated nature of the transaction, the new note would “be easier for [Crawford] to understand,” and it also asked Crawford to return the first Company note. There is no indication in the record that Crawford did that.

In 1982, Dollard defaulted on his loan payments and declared bankruptcy. On January 26,1983, after negotiations with the bankruptcy trustee and Company, Dollard signed a second promissory note to Company (second Dollard note), in the amount of $85,000 at 18% interest, to be secured by a trust deed to an apartment building owned by him. The deed named a trustee and made Company the beneficiary. The apartment building is the real property that is the subject of this appeal.

In late 1983, Dollard defaulted on the second Dollard note. On January 4,1984, Company sent a letter to Crawford, advising her that the “loan you own” was in default and that foreclosure of the trust deed was being pursued. The letter explained that, on foreclosure, Crawford would have the option of “taking the property or having [Company] resell it on your behalf.” On July 11, 1984, the property was foreclosed and a trustee’s deed was executed, transferring the property to Company as the sole grantee because of Dollard’s default. Company recorded that deed.

Pursuant to Crawford’s request, Company managed the apartment building during the time that Company tried to resell it. Company collected rents and sent Crawford and the Hansons their respective shares. During that time, Crawford obtained certain loans, on which she was personally liable, to make repairs and pay taxes on the property and to buy out the Hansons’ interest. Crawford also used the loans to pay the attorney fees on the foreclosure, recording fees, investor loan fees, property management fees and other expenses to Company.

[232]*232In February, 1987, Crawford went to an attorney, who sent two letters to Company, indicating that no payments had been made on the second Company note and demanding that Company execute a deed to the apartment building to Crawford. Company did not respond to the letters, and the attorney did not follow up on them. In 1986,1987 and 1988, the money judgments of defendants were docketed against Company. The judgments did not arise out of any transaction related to the Dollard property. On October 27, 1987, Company ceased to be an active corporation in Oregon.

As a part of its activities in winding up its corporate affairs, Company filed this proceeding to quiet title to the apartment building. Company requested that the trial court declare title to be in Crawford and not subject to judgment liens of defendants.

The trial court found that, because no written servicing agreement had been made, an agency relationship between Company and Crawford would have to be implied. However, even if an agency were implied, the court concluded, title could not be quieted in favor of Crawford unless there was a resulting trust between the parties, because there was no indication that Crawford’s interest had ever been recorded or even referred to in the Dollard loan transaction. The trial court found that there was no resulting trust between Company and Crawford, because it was not until late 1983, when Dollard defaulted on the second Dollard note, that Company’s actions indicated an intent to act as a “trustee” or “servicing agent” for Crawford. The court found no documentary evidence of a trust 'relationship existing before that time, although there was testimony that that had been Company’s intent. Giving very little in the way of an explanation, the court’s conclusion was essentially that, because Company was not holding the property in trust for Crawford and because the property was recorded in Company’s name, Company’s creditors had no notice of any interest that Crawford may have had in the property. See ORS 18.350(1); ORS 18.370. Therefore, the property was subject to defendants’ judgment liens. The court did indicate that Crawford’s $75,000 investment was secured by either the first or second Company note but, because it did not consider that note to be secured by the Dollard property, the [233]*233note presumably would be enforceable only in a separate proceeding.

Crawford argues that the trial court erred in declaring that defendants have judgment hens encumbering the property, because she is the equitable owner of the property. Crawford contends that, although the judgment hens are based on ORS 18.350(1) and ORS 18.370, the rule in Wilson v. Willamette Industries, 280 Or 45, 569 P2d 609 (1977), precludes the attachment of those hens to the property in this case. ORS 18.350(1) provides:

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SHIPE v. Hillman
292 P.2d 123 (Oregon Supreme Court, 1955)
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Bluebook (online)
838 P.2d 1082, 115 Or. App. 228, 1992 Ore. App. LEXIS 1740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/certified-mortgage-co-v-shepherd-orctapp-1992.