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Federal National Mortgage Association v. Bellamy

Court of Appeals of Oregon

September 10, 2014

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Appellant,
v.
ROBERT BELLAMY, et al., Defendant-Respondent

Argued and Submitted March 13, 2014

Clackamas County Circuit Court FE120475. Susie L. Norby, Judge.

Tracy J. Frazier argued the cause for appellant. With her on the brief were Rochelle L. Stanford and Pite Duncan, LLP.

Jeffrey A. Myers argued the cause for respondent. With him on the brief were Richard M. Ferná ndez and John Bowles.

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

OPINION

Page 527

[265 Or.App. 406] DUNCAN, P. J.

Plaintiff Federal National Mortgage Association brought this forcible entry and wrongful detainer (FED) action against defendant Bellamy, seeking possession of real property. The case proceeded to a bench trial, and the trial court awarded possession of the property to defendant. Plaintiff appeals, asserting that, given the evidence presented at trial, it was entitled to possession as a matter of law. For the reasons that follow, we agree with plaintiff and, therefore, reverse and remand.

Defendant obtained a loan from PTF Financial Corporation. As security for the loan, defendant executed a trust deed, which encumbered real property commonly known as 6323 S.E. Molt Street, Milwaukie, Oregon. The trust deed was recorded in Clackamas County, the county in which the property was located.

Defendant failed to perform the obligations required by the trust deed, and, on February 17, 2012, a trustee's sale was held at which plaintiff was the successful bidder. Thereafter, a trustee's deed was issued to plaintiff and recorded in Clackamas County. The trustee's deed describes defendant's failure to perform his obligations under the trust deed and the subsequent nonjudicial foreclosure proceedings, including the sale of the property to plaintiff. The trustee's deed states that the trustee " does hereby convey unto [plaintiff] all interest which the grantor had or had the power to convey at the time of the grantor's execution of said Trust Deed, together with any interest the said grantor or grantor's successors in interest acquired after the execution of said Trust Deed in and to the [property.]"

On April 5, 2012, plaintiff initiated this FED action against defendant, On April 5, 2012, plaintiff initiated this FED action against defendant, seeking a judgment against defendant for possession of the property. In its complaint, plaintiff alleged that (1) defendant was in possession of

Page 528

the property, (2) defendant was unlawfully holding the property by force, and (3) plaintiff was entitled to possession of the property. In support of its allegation that it was entitled to possession, plaintiff cited to a statute, former ORS 86.755(5)(a) (2009), amended by Oregon Laws 2011, [265 Or.App. 407] chapter 510, section 2,[1] which has been renumbered ORS 86.782(6)(a) and now provides:

" Except as provided in paragraph (b) or (c) of this subsection,[2] the purchaser at the trustee's sale is entitled to possession of the property on the 10th day after the sale. A person that remains in possession after the 10th 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. The purchaser may obtain possession of the property from a tenant at sufferance by ...

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