Federal National Mortgage Ass'n v. Bellamy

336 P.3d 526, 265 Or. App. 404, 2014 Ore. App. LEXIS 1236
CourtCourt of Appeals of Oregon
DecidedSeptember 10, 2014
DocketFE120475; A152173
StatusPublished
Cited by1 cases

This text of 336 P.3d 526 (Federal National Mortgage Ass'n v. Bellamy) 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
Federal National Mortgage Ass'n v. Bellamy, 336 P.3d 526, 265 Or. App. 404, 2014 Ore. App. LEXIS 1236 (Or. Ct. App. 2014).

Opinion

DUNCAN, P. J.

Plaintiff Federal National Mortgage Association brought this forcible entry and wrongful detainer (FED) action against defendant Bellamy, seeking possession of real property. The case proceeded to a bench trial, and the trial court awarded possession of the property to defendant. Plaintiff appeals, asserting that, given the evidence presented at trial, it was entitled to possession as a matter of law. For the reasons that follow, we agree with plaintiff and, therefore, reverse and remand.

Defendant obtained a loan from PTF Financial Corporation. As security for the loan, defendant executed a trust deed, which encumbered real property commonly known as 6323 SE Molt Street, Milwaukie, Oregon. The trust deed was recorded in Clackamas County, the county in which the property was located.

Defendant failed to perform the obligations required by the trust deed, and, on February 17, 2012, a trustee’s sale was held at which plaintiff was the successful bidder. Thereafter, a trustee’s deed was issued to plaintiff and recorded in Clackamas County. The trustee’s deed describes defendant’s failure to perform his obligations under the trust deed and the subsequent nonjudicial foreclosure proceedings, including the sale of the property to plaintiff. The trustee’s deed states that the trustee

“does hereby convey unto [plaintiff] all interest which the grantor had or had the power to convey at the time of the grantor’s execution of said Trust Deed, together with any interest the said grantor or grantor’s successors in interest acquired after the execution of said Trust Deed in and to the [property.]”

On April 5, 2012, plaintiff initiated this FED action against defendant, seeking a judgment against defendant for possession of the property. In its complaint, plaintiff alleged that (1) defendant was in possession of the property, (2) defendant was unlawfully holding the property by force, and (3) plaintiff was entitled to possession of the property. In support of its allegation that it was entitled to possession, plaintiff cited to a statute, former ORS 86.755(5)(a) (2009), amended by Oregon Laws 2011, [407]*407chapter 510, section 2,1 2which has been renumbered ORS 86.782(6)(a) and now provides:

“Except as provided in paragraph (b) or (c) of this subsection,[2] the purchaser at the trustee’s sale is entitled to possession of the property on the 10th day after the sale. A person that remains in possession after the 10th day under any interest, except an interest prior to the trust deed, or an interest the grantor or a successor of the grantor created voluntarily, is a tenant at sufferance. The purchaser may obtain possession of the property from a tenant at sufferance by following the procedures set forth in ORS 105.105 to 105.168 [the FED procedures] or other applicable judicial procedure.”

In response, defendant filed an answer on April 13, 2012; then, after retaining counsel, defendant filed an amended answer on May 14, 2012, approximately three months after the trustee’s sale. In his amended answer, defendant admitted that he was in possession of the property, but denied that he was holding the property by force and that plaintiff was entitled to possession. Defendant also raised several affirmative defenses.

On July 10, 2012, the case proceeded to trial, during which plaintiff submitted the trustee’s deed as its only evidence. By statute, the recitals in a trustee’s deed “shall be prima facie evidence in any court of the truth of the matters set forth therein!.]” Former ORS 86.780 (2012), renumbered as ORS 86.803 (2013). Defendant did not put on any evidence in response to plaintiffs evidence or in support of his affirmative defenses. Thus, the question before the trial [408]*408court was whether plaintiff had proved that it was entitled to a judgment against defendant for possession of the property. To do so, the plaintiff in an FED action must prove that (1) the defendant was in possession of the property, (2) the defendant was unlawfully holding the property by force, and (3) the plaintiff was entitled to possession. See ORS 105.123 (describing required contents of FED complaint). The trial court concluded that plaintiff had failed to carry its burden. It appears that the court concluded that plaintiff had failed to prove that defendant was unlawfully holding the property by force.3

As mentioned, plaintiff appeals, arguing that it was entitled to possession as a matter of law. In response, defendant acknowledges that, under former ORS 86.780, the recitals in the trustee’s deed are prima facie evidence of the matters asserted and that the recitals are prima facie evidence that plaintiff was entitled to possession; but, defendant contends that the recitals do not establish that he was in possession of the property or that he was unlawfully holding it by force. We address the evidence regarding those two elements in turn.

First, contrary to defendant’s argument on appeal, plaintiff did not fail to carry its burden of proving that [409]*409defendant was in possession of the property; rather, defendant himself relieved plaintiff of that burden. As mentioned, in his amended answer, defendant admitted that he was in possession of the property. An admission in an answer relieves the opposing party of the burden of putting on evidence of that fact at trial. Britton v. Frost, 282 Or 355, 361, 578 P2d 1241 (1978) (citing Schucking v. Young, 78 Or 483, 495, 153 P 803 (1915)).

Nevertheless, defendant argues that his amended answer does not constitute prima facie evidence of his possession because (1) the amended answer was never admitted into evidence and (2) the fact that defendant admitted that he was in possession at the time of the amended answer, which was filed on May 14, 2012, does not establish that he was still in possession at the time of trial, which was held on July 10, 2012.

With respect to defendant’s first contention, we note that “[a]n admission of fact in a pleading is a judicial admission and, as such, is normally conclusive on the party making such an admission.” Yates v. Large, 284 Or 217, 223, 585 P2d 697 (1978) (citations omitted). The amended answer did not need to be admitted into evidence because the facts admitted in that answer were already conclusive as to defendant. See Foxton v. Woodmansee, 236 Or 271, 278, 386 P2d 659 (1963), reh’g den, 388 P2d 275 (1964) (“[A] judicial admission is one made by a party or his attorney for the purpose of dispensing with proof of a fact in issue.”) (Citations omitted.)

Defendant’s second contention is also unpersuasive.

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Cite This Page — Counsel Stack

Bluebook (online)
336 P.3d 526, 265 Or. App. 404, 2014 Ore. App. LEXIS 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-national-mortgage-assn-v-bellamy-orctapp-2014.