U.S. Bank National Ass'n v. Wright

289 P.3d 361, 253 Or. App. 207, 2012 WL 5286197, 2012 Ore. App. LEXIS 1314
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
DocketCV100181; A148778
StatusPublished
Cited by3 cases

This text of 289 P.3d 361 (U.S. Bank National Ass'n v. Wright) 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
U.S. Bank National Ass'n v. Wright, 289 P.3d 361, 253 Or. App. 207, 2012 WL 5286197, 2012 Ore. App. LEXIS 1314 (Or. Ct. App. 2012).

Opinion

NAKAMOTO, J.

Plaintiff U.S. Bank National Association filed this action to eject defendant John Wright from real property that plaintiff allegedly purchased at a trustee’s sale. Defendant, in his answer, alleged that he was the owner of the property and otherwise denied plaintiff’s allegations. Plaintiff then moved for summary judgment on the ejectment claim, and the trial court granted the motion. For the reasons explained below, there are genuine issues of material fact that preclude summary judgment on this record — namely, a factual dispute as to whether plaintiff actually purchased the property at a trustee’s sale. We therefore reverse and remand.

In August 2010, plaintiff, as “Trustee for the C-BASS Mortgage Loan Asset-backed Certificates, Series 2006-MH1,” filed a complaint to eject defendant from property located in Prineville (“the property”). Plaintiff alleged that defendant “was title owner to the [p]roperty”; that defendant had obtained a loan to purchase the property; and that defendant had executed a deed of trust to secure repayment of that loan. Plaintiff further alleged that defendant had “defaulted in the Terms of the Deed of Trust and a Notice of Trustee’s Sale was issued” to defendant.

According to the complaint, on July 20, 2010, the property was then “sold at a Trustee’s sale and conveyed to Plaintiff.” Because of that conveyance, plaintiff alleged, “[p]laintiff is the legal owner of the [p]roperty and is entitled to immediate possession thereof.” Plaintiff attached to the complaint a copy of the “recorded Trustee’s Deed Upon Sale” that recited that plaintiff had purchased the property.

Defendant’s answer essentially consisted of the following two paragraphs:

“Defendant Wright admits that he is the owner of the real property described in Plaintiff’s Complaint and that he obtained a loan thereon from Argent Mortgage Company, LLC and granted Argent Mortgage Company a Trust Deed on the real property as security for said loan.
“Defendant Wright denies all remaining allegations of Plaintiff’s Complaint.”

[210]*210After defendant answered, plaintiff filed a motion for summary judgment on the ejectment claim. Plaintiff argued that, despite defendant’s general denial of the allegations in the complaint, “the material facts are a matter of public record, showing that Plaintiff is the legal owner of the property in dispute pursuant to a Trustee’s Deed.” Specifically, plaintiff argued that the trustee’s deed attached to the complaint, which was recorded with Crook County on July 27, 2010, shows plaintiff as the owner of the property and “on its own provides thus sufficient basis for judgment for the Plaintiff.”

Furthermore, anticipating defendant’s response, plaintiff did not rest solely on the force of the recorded trustee’s deed. In its memorandum in support of its summary judgment motion, plaintiff “also discusse[d] the [nonjudicial foreclosure] process which led to the issuance of said deed since Defendant may also want to attack that process.” Plaintiff argued that each of the statutory requirements for nonjudicial foreclosure under ORS 86.755 had been satisfied, including, among other requirements, that the property was actually sold to plaintiff at a trustee’s sale. On that point— whether a sale occurred — plaintiff argued:

“Under ORS 86.755(1), the sale shall be held on the date and at a time and place designated in the notice of sale or may be postponed by the Trustee. The Trustee may postpone the sale for one or more periods totaling not more than 180 days from the original sale date, giving notice of each adjournment by public proclamation made at the time and place set for sale. ORS 86.755(2).
“The Sale was scheduled and held on 07/20/2010, which was more than 120 days from the Notice of Sale. A copy of the Sale Certificate is attached to the Declaration [in support of plaintiff’s motion].
“ORS 86.755(3) provides that within 10 days of the sale, the Trustee shall execute and deliver the Trustee’s Deed to the purchaser.
“The Trustee executed and delivered a Trustee’s Deed to the Beneficiary on July 27, 2010. Said Deed recited that a sale had occurred. See Declaration [in support of plaintiff’s [211]*211motion], ‘Exhibit F.’ Said recitations are prima facie evidence of their truth and conclusive evidence in the case of a good faith purchaser for value. ORS 86.780.
“Plaintiff relied upon the recitations in said Trustee’s Deed in good faith and paid value in the form of a credit bid. A credit bid is for ‘cash’ within the meaning of ORS 86.755. Bank of Myrtle Point v. Security Bank of Coos County, [79 Or App 184, 190, 718 P2d 1373 (1986)]. Thus the recitation is conclusive evidence that a sale actually occurred.”1

(Emphasis added.)

Defendant, as plaintiff expected, attacked the validity of the trustee’s deed, including plaintiff’s evidence that he was in default and that any trustee’s sale had actually occurred. Defendant’s opposition to the motion included declarations from himself and his wife in which they attested to the following facts. In December 2009, defendant received a notice that he was in default and that the trustee had elected to sell the property under the terms of the trust deed. The notice designated April 26,2010, as the date of the trustee’s sale. Then, approximately two weeks before that scheduled sale, defendant received a letter from Litton Loan Servicing, the company servicing his loan, that denied his request for a loan modification; the basis for that denial was that “you [defendant] are current on your mortgage loan”— in other words, not in default. Defendant’s wife and others nonetheless appeared at the Crook County courthouse at 11:00 a.m. on April 26, the designated place and time of the trustee’s sale, but no one appeared to conduct the sale. Three months later, defendant received a telephone call from a real estate agent telling him that his property would be sold on July 20, 2010, at 11:00 a.m. at the front door of the Crook County courthouse. Defendant’s wife and others appeared at the scheduled time, but again no one came to conduct the sale. Thus, defendant argued, the recitals in the trustee’s deed were a sham: No trustee’s sale had actually occurred.

[212]*212The trial court granted plaintiff’s motion for summary judgment. The court, in an opinion letter, explained:

“This is an eviction action. I find no authority, and none [was] presented by [defendant], to convince me that this is an action to determine the validity of the deed.
“In addition, there has been no showing that [defendant] could or would have cured the default in this case.

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Bluebook (online)
289 P.3d 361, 253 Or. App. 207, 2012 WL 5286197, 2012 Ore. App. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assn-v-wright-orctapp-2012.