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US Bank, NA v. Eckert

Court of Appeals of Oregon

July 9, 2014

US BANK, NA, Plaintiff-Respondent,
v.
JOSEPH L. ECKERT, Defendant-Appellant

Argued and Submitted: February 12, 2014.

Clackamas County Circuit Court. FE111267. Katherine E. Weber, Judge.

Harry Ainsworth argued the cause and filed the brief for appellant.

Katrina E. Glogowski argued the cause and filed the brief for respondent.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.

OPINION

[264 Or.App. 190] DUNCAN, P. J.

Plaintiff brought this forcible entry and wrongful detainer (FED) action against defendant for possession of residential real property. Plaintiff asserted that it was entitled to possession because it had purchased the property following a trust deed foreclosure sale. The trial court entered a general judgment issuing a notice of restitution and writ of execution in favor of plaintiff.

Defendant appeals, asserting that the trial court erred in entering the judgment because plaintiff failed to prove that it was the " purchaser" of the property at the trustee's sale. Former ORS 86.755(5)(a) (2009), renumbered as ORS 86.782 (2013) (the " purchaser at the trustee's sale is entitled to possession of the property on the 10th day after the sale" ); see Option One Mortgage Corp. v. Wall, 159 Or.App. 354, 361, 977 P.2d 408 (1999) (reversing judgment in favor of the plaintiff in FED action because service of the notice of the trustee's sale was inadequate under former ORS 86.750 (1995), renumbered as ORS 86.774 (2013), and, thus, the plaintiff was not entitled to possession of the property as a " purchaser" at the trustee's sale, former ORS 86.755(5)(a)). Defendant argues that plaintiff failed to prove that it was the purchaser of the property because it failed to prove that two prerequisites for a trustee's sale had been satisfied. First, defendant argues that plaintiff failed to prove that " any appointment of a successor trustee [was] recorded." Former ORS 86.735(1) (2009), renumbered as ORS 86.752 (2013). Second, defendant argues that plaintiff failed to prove that the notice of the trustee's sale was personally served on an occupant. Former ORS 86.750. We agree with defendant that plaintiff failed to prove that " any appointment of a successor trustee [was] recorded," former ORS 86.735(1), and we reverse on that

Page 1065

ground; thus, we do not address defendant's argument regarding service of the notice of sale.

We begin by describing the relevant statutory framework. ORS chapter 86 sets forth the process by which a trustee may foreclose a trust deed nonjudicially--that is, by advertisement and sale.[1] Former ORS 86.735 provided that [264 Or.App. 191] a trustee may foreclose a trust deed by advertisement and sale in the manner provided by former ORS 86.740 (2009), renumbered as ORS 86.764 (2013), former ORS 86.755, if certain assignments and appointments--including " any appointment of a successor trustee" --have been recorded; if the grantor or other person has defaulted on an obligation that is secured by the trust deed; if the trustee or beneficiary has properly filed a notice of default and election to sell; and, with limited exceptions, if no action has been instituted to recover any part of the debt remaining secured by the trust deed. If the trustee sells the property, the trustee executes a trustee's deed in favor of the purchaser. See former ORS 86.775 (2009), renumbered as ORS 86.800 (2013) (describing required contents of trustee's deed to purchaser). When the trustee's deed is recorded in the county where the property is located, " the recitals contained in the deed and in the affidavits required under ORS 86.750(3) and (4) shall be prima facie evidence in any court of the truth of the matters set forth therein." Former ORS 86.780 (2009), renumbered as ORS 86.803 (2013).

With certain exceptions not relevant here, the purchaser at a trustee's sale is entitled to possession of the property on the tenth day after the sale, and any person remaining in possession of the property on the tenth 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. Former ORS 86.755(5)(a). One way in which a purchaser may obtain possession of the property from a tenant at sufferance is through an FED action. Id. (" 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 or other applicable judicial procedure." ).

Pursuant to ORS 105.123, an FED complaint must state:

" (1) A description of the premises with convenient ...

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