Chapter 086

 

      86.010

 

LAW REVIEW CITATIONS: 69 OLR 847 (1990)

 

      86.140

 

NOTES OF DECISIONS

 

      Possession of promissory note does not constitute ownership of it. Lantz v. Safeco, 93 Or App 664, 763 P2d 744 (1988), Sup Ct review denied

 

      86.155

 

LAW REVIEW CITATIONS: 69 OLR 847 (1990)

 

      86.245

 

ATTY. GEN. OPINIONS: Real estate loan agreements made by the state, (1976) Vol 37, p 1395

 

      86.705 to 86.795

 

NOTES OF DECISIONS

 

      For purposes of Oregon Trust Deed Act, beneficiary of trust deed is person named or otherwise designated in trust deed as person to whom secured obligation is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

 

      Statutes regulating trust deeds do not regulate transfers of promissory notes. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

 

      Statutes regulating trust deeds are not preempted by federal Home Owner’s Loan Act. Higley v. Flagstar Bank, FSB, 910 F. Supp. 2d 1249 (D. Or. 2012)

 

      For purposes of Oregon Trust Deed Act, “beneficiary” is lender to whom obligation that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

 

      For purposes of Oregon Trust Deed Act, only pertinent interests in trust deed are beneficial interest of beneficiary and legal interest of trustee. Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

LAW REVIEW CITATIONS: 23 WLR 37, 55 (1987); 67 OLR 306 (1988); 69 OLR 851 (1990)

 

      86.705

 

NOTES OF DECISIONS

 

      “Beneficiary” of trust deed is person named or otherwise designated in trust deed as person to whom secured obligation is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

 

      Obligation of trust deed is payment of note. Reeves v. ReconTrust Company, N.A., 846 F. Supp. 2d 1149 (D. Or. 2012)

 

      Under this section, “beneficiary” is lender to whom obligation that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

 

LAW REVIEW CITATIONS: 49 WLR 77 (2012)

 

      86.710

 

NOTES OF DECISIONS

 

      Plaintiff did not irrevocably elect to foreclose when, before decree of foreclosure, it abandoned foreclosure remedy in favor of action on the note. Family Bank of Commerce v. Nelson, 72 Or App 739, 697 P2d 216 (1985), Sup Ct review denied

 

      Transfer does not require presentment of promissory note and foreclosure may occur if deed and note are separated and later rejoined. Olmstead v. ReconTrust Company, N.A., 852 F. Supp. 2d 1318 (D. Or. 2012)

 

      Trust deed may name Mortgage Electronic Registration System as beneficiary. Olmstead v. ReconTrust Company, N.A., 852 F. Supp. 2d 1318 (D. Or. 2012)

 

LAW REVIEW CITATIONS: 69 OLR 847 (1990)

 

      86.715

 

LAW REVIEW CITATIONS: 69 OLR 847 (1990)

 

      86.720

 

NOTES OF DECISIONS

 

      Provision of this section, stating that trustee shall reconvey upon written request of beneficiary, does not allow reconveyance upon presentment of note and trust deed by person with no ownership interest in note or beneficial interest in trust deed and no authority to act on behalf of person who has such interests. Lantz v. Safeco, 93 Or App 664, 763 P2d 744 (1988), Sup Ct review denied

 

      86.722

 

NOTES OF DECISIONS

 

      Where lender beneficiary uses correction deed to set aside trustee’s deed as though it “had not been recorded,” as used in this section, that action does not automatically unwind non-judicial foreclosure sale, void legal transfer of interest to purchaser obtained at that sale or reinstate borrower’s title and obligations under original trust deed. Hucke v. BAC Home Loans Servicing, L.P., 272 Or App 94, 355 P3d 154 (2015)

 

      86.735 to 86.755

 

LAW REVIEW CITATIONS: 69 OLR 847 (1990)

 

      86.735

 

      See annotations under ORS 86.752.

 

      86.750

 

      See annotations under ORS 86.774.

 

      86.752

 

(formerly 86.735)

 

NOTES OF DECISIONS

 

      Where default no longer existed at time property was sold at auction, sale of property was void. Staffordshire Investments, Inc., v. Cal-Western Reconveyance Corp., 209 Or App 528, 149 P3d 150 (2006), Sup Ct review denied

 

      For purposes of statute, beneficiary of trust deed is person named or otherwise designated in trust deed as person to whom secured obligation is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

 

      Assignment of note transferring security interest for protection of beneficiary does not implicate this section. Reeves v. ReconTrust Company, N.A., 846 F. Supp. 2d 1149 (D. Or. 2012)

 

      Security interest embodied in trust deed follows any transfer of promissory note for that security interest. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

 

      For purposes of section, “beneficiary” is lender to whom obligation that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

 

      Provision of section does not require recordation of “assignments” of trust deed by operation of law that result from transfer of secured obligation. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013); Hucke v. BAC Home Loans Servicing, L.P., 272 Or App 94, 355 P3d 154 (2015)

 

LAW REVIEW CITATIONS: 49 WLR 77 (2012)

 

      86.765

 

      See annotations under ORS 86.794.

 

      86.770

 

      See annotations under ORS 86.797.

 

      86.774

 

(formerly 86.750)

 

NOTES OF DECISIONS

 

      Service of notice of trust deed foreclosure sale of property on grantor who is also occupant of affected property must be made in manner specified in section in order for sale to affect grantor-occupant’s interest. NW Property Wholesalers, LLC v. Spitz, 252 Or App 29, 287 P3d 1106 (2012), Sup Ct review denied

 

      86.782

 

(formerly 86.755)

 

NOTES OF DECISIONS

 

      In forcible entry and detainer action, 30-day notice requirement to surrender possession applies to any interest that has been voluntarily created by grantor, including interest as tenant in common; thus, where purchaser of trust deed commenced forcible entry and detainer action 28 days after providing defendants with notice to surrender possession of premises, notice was insufficient and purchaser was not entitled to possession. Bank of America, NA v. Wilson, 276 Or App 238, 368 P3d 1193 (2016)

 

      86.794

(formerly 86.765)

 

NOTES OF DECISIONS

 

      Creditor-beneficiary and trustee of trust deed are not authorized unilaterally to declare trustee sale void and commence foreclosure process again because beneficiary bid more than its secured debt; plaintiff, as lienholder, was entitled to excess sale proceeds and trial court erred in granting summary judgment for beneficiary. Bank of Myrtle Point v. Security Bank of Coos County, 67 Or App 512, 678 P2d 772 (1984), Sup Ct review denied

 

      86.797

(formerly 86.770)

 

NOTES OF DECISIONS

 

      Prohibition against further action to collect deficiency following foreclosure sale does not prevent plaintiff from seeking other relief in same action seeking foreclosure. Siuslaw Valley Bank v. Canfield Assoc. Ore. Ltd., 64 Or App 198, 667 P2d 1035 (1983)

 

      Portion of judgment for attorney fees, costs and disbursements that was not satisfied from proceeds of judicial foreclosure and sheriff’s sale is “deficiency judgment” and forbidden by this section. Cottage Grove Apartment Investors v. Brandenfels, 69 Or App 192, 684 P2d 1235 (1984)

 

      Trust deed foreclosed was commercial despite apartment on premises because residence was incidental to storage business and residence exemption was intended to apply to individuals only. Oregon Bank v. Hawkins, 71 Or App 791, 693 P2d 1321 (1984)

 

      Beneficiary under “commercial” trust deed can get deficiency judgment after foreclosing trust deed by judicial proceeding, regardless of whether it is purchase money trust deed. FDIC v. Burdell, 92 Or App 389, 759 P2d 282 (1988), aff’d 307 Or 285, 766 P2d 1032 (1988)

 

      Election of remedy of non-judicial foreclosure occurs only upon sale and because plaintiff abandoned its non-judicial foreclosure proceeding before sale, no election of remedies occurred. Barclaysamerican/Financial Inc. v. Boone, 95 Or App 347, 768 P2d 439 (1989), on reconsideration 96 Or App 635, 773 P2d 1338 (1989)

 

      Trust deed anti-deficiency provision in this section does not initially preclude action being brought on note secured by trust deed. Beckhuson v. Frank, 97 Or App 347, 775 P2d 923 (1989), Sup Ct review denied

 

      When two trust deeds describe same property as security, trust deed beneficiary may foreclose non-judicially on one deed to obtain title to property and then bring action on other note. Urbach v. Monchamp Corp. 110 Or App 275, 821 P2d 1116 (1991), Sup Ct review denied

 

      State anti-deficiency law is not preempted by federal Department of Veterans Affairs regulations so long as state law provides method for secretary of Department to exercise right of indemnity and receive full measure of protection without displacing state law. Connelly v. Derwinski, 961 F2d 129 (1992)

 

      Plaintiffs, who signed deed of trust with defendant creditor and who defaulted on mortgage, could not challenge properly noticed trustee’s sale of home 19 months after date of sale because plaintiff’s interest in home was foreclosed and terminated at sale. Mikityuk v. Northwest Trustee Services, Inc., 952 F. Supp. 2d 958 (D. Or. 2013); Roisland v. Flagstar Bank, FSB, 989 F. Supp. 2d 1095 (D. Or. 2013)

 

      Where real property used as security for loan obligation was sold at trustee’s sale but sale was not conducted by trustee, this section does not bar property owner from post-sale challenge because this section applies only to validly conducted trustee sales. Wolf v. GMAC Mortgage, LLC, 276 Or App 541, 370 P3d 1254 (2016); Fed. Home Loan Mortg. Corp. v. Smith, 287 Or App 42, 400 P3d 1009 (2017). But see DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 381 P3d 961 (2016)

 

      Where grantor of trust deed had notice that property was being sold at trustee’s sale under Oregon Trust Deed Act, this section precludes post-sale challenge on sole ground that trustee’s notice of sale did not correctly identify beneficiary of trust deed. DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 381 P3d 961 (2016), Sup Ct review denied

 

      This section does not mandate strict compliance with every provision of Oregon Trust Deed Act for trustee’s sale to be valid and before person’s property interests may be terminated by trustee’s sale; thus, purported failure to identify beneficiary of trust deed in notice of sale did not render this section inapplicable and trustee’s sale invalid. DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 381 P3d 961 (2016), Sup Ct review denied

 

      This section does not allow post-sale challenges based on violation of each and every technical provision of Oregon Trust Deed Act; thus, where only defect in foreclosure process was that notice of non-judicial foreclosure sale failed to identify proper beneficiary, this section barred borrower’s claim that trustee’s sale was void. Woods v. United States Bank N.A., 831 F3d 1159 (9th Cir. 2016)

 

LAW REVIEW CITATIONS: 69 OLR 880 (1990)