Chapter 088

 

      Chapter 88

 

NOTES OF DECISIONS

 

      Foreclosure is governed by statutes which do not require court to partition property before sale. John Hancock Mutual Life Ins. Co. v. Arnold, 85 Or App 140, 735 P2d 1270 (1987), Sup Ct review denied

 

      Where mortgagor’s grantee redeems property, redeemed property is subject to all junior liens on property existing prior to foreclosure. Franklin v. Spencer, 309 Or 476, 789 P2d 643 (1990)

 

ATTY. GEN. OPINIONS: Impairment of mortgagee’s remedy of foreclosure where local planning authorities, under local partition ordinance, deny permission to foreclose mortgage, (1978) Vol 38, p 2148

 

      88.010

 

NOTES OF DECISIONS

 

      Under this section foreclosure of possessory lien on truck was suit in equity. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

 

      As “other personal obligation” within meaning of this section could be anything other than promissory note, awarding deficiency judgment where plaintiff had not shown any evidence of debt was error. Skinner v. Keeley, 47 Or App 751, 615 P2d 382 (1980)

 

      Once a lien has been disallowed, case continues as an action at law for the underlying debt. McDonald v. McFadden, 63 Or App 726, 665 P2d 1255 (1983), Sup Ct review denied

 

      This section does not require entry of money judgment against lien debtor where foreclosure plaintiff does not seek money judgment against lien debtor. Bayview Loan Servicing, LLC v. Reed, 282 Or App 525, 385 P3d 1272 (2016)

 

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

 

      88.030

 

LAW REVIEW CITATIONS: 67 OLR 300 (1988); 69 OLR 864 (1990)

 

      88.040

 

NOTES OF DECISIONS

 

      Creditor who is legally prevented by debtor’s bankruptcy petition from execution on earlier judgment is excused from statutory requirement to execute judgment before foreclosure. Administration Service Co. v. Stallings, 73 Or App 114, 698 P2d 56 (1985)

 

      88.050

 

NOTES OF DECISIONS

 

      Where receivership was set up in Marion County, receiver could not contend that Lincoln County Circuit Court did not have jurisdiction to determine priorities of liens in foreclosure proceeding where receiver submitted self to jurisdiction of that court and affirmatively prayed that court determine priorities pursuant to this section. Family Federal Savings v. Paradise Ventures, Inc., 38 Or App 199, 589 P2d 1167 (1979), Sup Ct review denied

 

      Priority in distribution of proceeds from sale of judicially foreclosed property is determined by creditor’s priority in property at time of foreclosure. Commercial Bank v. Pride Furniture, Inc., 129 Or App 137, 877 P2d 1222 (1994), Sup Ct review denied

 

      88.060

 

NOTES OF DECISIONS

 

      Where creditor has judgment including money award based on debtor’s personal obligation and foreclosure of real property, creditor can collect money award from debtor before foreclosed real property is sold. Merrill Lynch Commercial Finance Corp. v. Hemstreet, 261 Or App 220, 323 P3d 361 (2014), Sup Ct review denied

 

      88.070

 

      See annotations under ORS 88.103.

 

      88.100

 

NOTES OF DECISIONS

 

      The vendor’s long-standing practice of accepting late payments precluded him from declaring the entire balance due and requesting strict foreclosure without first giving notice of his decision to do so and a reasonable opportunity to cure any default in the payments. Fisher v. Tiffin, 275 Or 437, 551 P2d 1061 (1976)

 

      Where debtors brought action against lender under Agricultural Credit Act, and Act provided implied right of action for debtors to enforce right to restructure debts, lender violated Act by continuing state court foreclosure action without weighing costs of foreclosure against costs of restructuring and creditors were enjoined from evicting debtors from their property. Harper v. Federal Land Bank of Spokane, 692 F Supp 1244 (D. Or. 1988)

 

      Ability of junior lienor to equitably redeem property prior to foreclosure sale is not dependent on junior lienor appearing in foreclosure proceeding. Federal Home Loan Mortgage Corp. v. Bauer, 151 Or App 591, 950 P2d 399 (1997), Sup Ct review denied

 

      Junior lienor’s equitable redemption of property prior to foreclosure sale terminates foreclosure decree and revives all outstanding liens on property. Federal Home Loan Mortgage Corp. v. Bauer, 151 Or App 591, 950 P2d 399 (1997), Sup Ct review denied

 

      88.103

 

(formerly 88.070)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 88.075)

 

      23 WLR 37, 52 (1987); 69 OLR 847 (1990)

 

      88.110

 

NOTES OF DECISIONS

 

      Defendant, who acquired his interest in property prior to expiration of 10-year statutory period, was not entitled to benefit of this section. Security State Bank v. Luebke, 303 Or 418, 737 P2d 586 (1987)

 

LAW REVIEW CITATIONS: 67 OLR 318 (1988)

 

      88.120

 

NOTES OF DECISIONS

 

      Use of equitable conversion doctrine to determine ownership under this section is inappropriate. Security State Bank v. Leubke, 303 Or 418, 737 P2d 586 (1987)