December 24, 2014
US BANK, NA, Plaintiff-Respondent,
JOSEPH L. ECKERT, Defendant-Appellant
Clackamas County Circuit Court. FE111267. Katherine E. Weber, Judge.
Katrina Glogowski for petition.
Harry D. Ainsworth for response.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.
[267 Or.App. 722] DUNCAN, P. J.
On respondent's petition for reconsideration filed July 23, 2014, and appellant's response to petition for reconsideration filed July 31, 2014. Opinion filed July 9, 2014. 264 Or.App. 189, 331 P.3d 1064.
Plaintiff-respondent U.S. Bank, NA, petitions for reconsideration in US Bank, NA v. Eckert, 264 Or.App. 189, 331 P.3d 1064 (2014). As explained below, we allow the petition, reject plaintiff's argument for modification raised for the first time in its petition, and adhere to our opinion in Eckert.
In Eckert, a forcible entry and wrongful detainer (FED) case, we reversed the trial court's judgment awarding plaintiff possession of certain real property. 264 Or.App. at 195. We did so based on our conclusion that plaintiff had failed to present sufficient evidence that it was, as it claimed, entitled to possession as the " purchaser of the property at a 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" ). We explained that there are mandatory prerequisites for a trustee's sale and that, as defendant argued, plaintiff had failed to establish that one of those prerequisites had been satisfied; specifically, plaintiff had failed to establish that " any appointment of a successor trustee [was] recorded[,]" as required by former ORS 86.735(1) (2009), renumbered as ORS 86.752 (2013). Eckert, 264 Or.App. at 194-95.
Plaintiff petitions for reconsideration, asserting that we erred in " construing or applying the law to the facts." See ORAP 6.25(1)(e). Plaintiff's basic contention on reconsideration is that a defendant is not permitted to challenge the validity of the underlying trustee's sale in an FED action--or, indeed, in any action following the trustee's sale. In support of its contention, plaintiff argues that former 86.770(1) (2009), renumbered as ORS 86.797 (2013), bars a party that had notice of the trustee's sale from challenging that sale after it has been completed; that statute provides, in part, " If, under ORS 86.705 to 86.795, a trustee sells property covered by a trust deed, the trustee's sale forecloses and terminates the interest in the property that belongs to a person that received notice of the sale under ORS 86.740 and 86.750 * * *."  Plaintiff cites Mikityuk v. Northwest Trustee [267 Or.App. 723] Services, Inc., 952 F.Supp.2d 958 (D Or 2013), and Mitchell v. Homesales, Inc., No 3:13-cv-00665-SI, 2014 WL 1744991 (D Or Apr 30, 2014), as persuasive authority. Plaintiff also argues that, as a matter of public policy, an FED defendant should not be allowed to challenge the validity of the underlying trustee's sale because such sales should be final and FED proceedings should be summary proceedings.
Defendant responds that, as an initial matter, plaintiff's argument regarding former ORS 86.770(1) is not a basis for reconsideration because plaintiff did not raise it at trial or in plaintiff's answering brief.
As to the merits of plaintiff's argument, defendant argues that plaintiff ignores the portion of former ORS 86.770(1) that requires the trustee's sale to be conducted pursuant to the provisions of the Oregon Trust Deed Act (OTDA). See former ORS 86.770(1) (" If, under ORS 86.705 to 86.795, a trustee sells property covered by a trust deed * * *." (Emphasis added.)). Defendant further argues that the OTDA contemplates post-sale challenges to trustees' sales. According to defendant, the OTDA includes evidentiary presumptions that are of use only
in a post-sale judicial proceeding; specifically, former ORS 86.780 (2009), renumbered as ORS 86.803 (2013), provides that the recitals in a trustee's deed " shall be prima facie evidence in any court of the truth of the matters set forth therein, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them."  That statute, defendant argues, establishes that the legislature envisioned post-sale challenges to trustees' sales and made the recitals in a trust deed [267 Or.App. 724] conclusive only when a purchaser for value relied on them in good faith--otherwise, they are only prima facie evidence and may therefore be challenged.
In response to plaintiff's reliance on Mikityuk, defendant argues that Oregon courts have recognized the validity of post-sale challenges to trustees' sales. See U.S. National Bank Association v. Wright, 253 Or.App. 207, 289 P.3d 361 (2012) (holding that defendant could raise the trustee's alleged failure to conduct the trustee's sale as a defense in a post-sale ejectment action); NW Property Wholesalers, LLC v. Spitz, 252 Or.App. 29, 287 P.3d 1106 (2012), rev den, 353 Or. 203, 296 P.3d 1275 (2013) (allowing alleged failure to properly serve an occupant to be raised in a post-sale FED joined with an action for declaratory relief); Staffordshire Investments, Inc. v. Cal-Western, 209 Or.App. 528, 149 P.3d 150 (2006), rev den, 342 Or. 727, 160 P.3d 992 (2007) (holding that defendant could raise alleged lack of default as defense in a post-sale breach of contract action); Option One Mortgage Corp. v. Wall, 159 Or.App. 354, 977 P.2d 408 (1999) (holding that the failure to serve an occupant with notice of trustee's sale could be raised in a post-sale FED). Defendant asserts that Mikityuk, which plaintiff cites as persuasive authority, " ignored or minimized the existing Oregon law interpreting the scope of ORS 86.770 and 86.780."
We allow plaintiff's petition for reconsideration, but reject its suggestion that we should " reframe [our] analysis based on the decisive statutory language of [ former ] ORS 86.771 [ sic ] that was not considered in the briefing or holding." The opinion did not consider plaintiff's argument based on former ORS 86.770 because plaintiff did not make that argument in its briefing. Accordingly, we reject plaintiff's argument as not properly before us. Rogers v. RGIS, LLP, 232 Or.App. 433, 435, 222 P.3d 710 (2009), rev den, 348 Or. 291, 231 P.3d 795 (2010) (" A petition for reconsideration is not a proper method for making an argument for the first time." ).
Reconsideration allowed, former opinion adhered to.