YALE HOLDINGS, LLC, an Oregon limited liability company, Plaintiff-Appellant,
CAPITAL ONE BANK, as successor to Chevy Chase Bank, FSB, Defendant-Respondent, and DONALD W. SLEEMAN; ANNE P. SLEEMAN; STEPHEN MADISON; KRISTIN POLLOCK; HOME FEDERAL BANK; PARR LUMBER COMPANY; SHELDON DEVELOPMENT, INC.; TUSCAN HILLS OWNERS ASSOCIATION; LISA A. SHENK, aka Lisa A. Pollock; and CHICAGO TITLE INSURANCE COMPANY, Defendants
Argued and Submitted March 6, 2014.
Clackamas County Circuit Court. CV11040331. Thomas J. Rastetter, Judge.
Ridgway K. Foley, Jr., argued the cause for appellant. With him on the brief were Charles R. Markley, Sanford R. Landress, and Greene & Markley, P.C.
C. Marie Eckert argued the cause for respondent. With her on the brief were Jeanne Kallage Sinnott and Miller Nash LLP.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[263 Or.App. 73] LAGESEN, J.
This dispute centers on a trust deed that contains inconsistent descriptions of the property that it encumbers; one of the descriptions is necessarily a mistake. If one description--the tax-parcel-number description--is the correct one, then the trust deed encumbers the entirety of a one-of-a-kind mansion and its surrounding grounds. If the other description--the metes-and-bounds description--is the correct one, then the trust deed encumbers only part of the mansion (which is not wholly contained within the metes-and-bounds borders) and part of the surrounding grounds. On cross-motions for summary judgment, the trial court concluded that the tax-parcel-number description controls, and that, as a result, the trust deed encumbers the entirety of the mansion and grounds. We reverse, concluding that the trust deed is ambiguous as to what property it encumbers and that the ambiguity is not capable of resolution on summary judgment.
A. The Trust Deed at Issue, the Loan It Secures, and the Descriptions of the Property That It Encumbers.
The mansion and grounds are located on what was previously three separate tax parcels, referred to by the parties to this dispute as Parcel I, Parcel II, and Parcel III. In 2005, those three parcels were combined into a single tax lot (the " Fielding Road property" ). As explained by a Clackamas County senior planner,
" [t]he effect of the 2005 lot combination * * * was to combine the three historic tax lots into one tax lot with one address and one parcel account number. Through this process, tax lots 100 and 200 were combined into tax lot 300. After the combination, the property had one address, 12850 S.W. Fielding Road, and consisted of one tax lot, lot 300, approximately 2.95 acres in size, with one property account, number 00180477. The tax lot combination process was effective on or about January, 2005."
(Emphasis added.) Around the same time, the then-property owner, Roger Pollock, extensively remodeled the residence, which originally was located solely on former Parcel I. As a [263 Or.App. 74] result of the remodel, the residence spanned two of the three historic parcels.
In 2007, Pollock applied to refinance his home with a $5 million loan from Chevy Chase Bank, F.S.B. Pollock's loan application (1) represented that the " subject property" was located at 12850 S.W. Fielding Road and that the property had originally cost $6,500,000, and (2) stated " see prelim" on the line requesting the legal description of the subject property. Chevy Chase Bank ordered two appraisals in connection with Pollock's loan request. Both appraisals assessed the value of the entire home and the 2.95-acre property, although the second appraisal contained a metes-and-bounds description that described the boundaries only of former Parcel I. One appraisal assessed the value of the house and land at $7,750,000, and valued the ...