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Nationstar Mortgage, LLC v. Niday

Court of Appeals of Oregon

February 15, 2017

NATIONSTAR MORTGAGE, LLC, its Successors and/or Assigns, Plaintiff-Respondent,
v.
Richard NIDAY and Rebecca Lewis, Defendants-Appellants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants.

          Argued and Submitted November 22, 2016.

         Clackamas County Circuit Court CV13070955 Robert D. Herndon, Judge.

          Elizabeth Lemoine and Lemoine Legal Services, P.C.; and W. Jeffrey Barnes and W. J. Barnes, P. A., fled the briefs for appellants.

          David J. Elkanich, Garrett S. Garfeld, and Holland & Knight LLP, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary: Defendants appeal a general judgment of foreclosure, asserting that the trial court erroneously granted summary judgment. Defendants also fled a motion for review and relief from a trial court order that set the amount of the supersedeas undertaking to stay the judgment pending appeal at $2, 500 per month. Held: The trial court properly entered summary judgment because the summary judgment record contained undisputed evidence that, at the time of the foreclosure action, plaintiff was in possession of the promissory note indorsed in blank and defendants were in default of their obligations under the promissory note and deed of trust. As for the supersedeas undertaking, on de novo review under ORS 19.360, the trial court's order setting the supersedeas undertaking at $2, 500 per month is affirmed.

          ORTEGA, P. J.

         Defendants Richard Niday and Rebecca Lewis appeal a general judgment of judicial foreclosure of a residential deed of trust. The trial court granted summary judgment to plaintiff on its claim of judicial foreclosure after determining that there was no genuine issue of material fact that plaintiff was the holder of the promissory note signed by defendants and that defendants were in default of their obligations under the promissory note and deed of trust. The trial court, however, held a bench trial on defendants' affirmative defense of "failure to mitigate." After defendants rested their case, the trial court granted plaintiff's motion for directed verdict on the affirmative defense. Accordingly, the court entered a general judgment of judicial foreclosure.

         On appeal, defendants claim that the trial court erred by granting summary judgment to plaintiff and by granting plaintiff's motion for directed verdict on their affirmative defense. We reject without written discussion their assignment of error directed at the trial court's grant of a directed verdict, and we also reject without written discussion a separate assignment of error that challenges the competency of an affidavit introduced by plaintiff to support summary judgment.

         As for defendants' assertion that summary judgment was improper because there were genuine issues of material fact as to "unresolved issues of transfer and ownership" of the promissory note and deed of trust, their assertion is foreclosed by two of our recent decisions. In Deutsche Bank Trust Co. Americas v. Walmsley. 277 Or.App. 690, 696, 374 P.3d 937 (2016), we held that the plaintiff

"proved that it was the 'holder' of the note, and therefore entitled to enforce it in the event of a default, by establishing that it possessed the note at the time of the foreclosure action and that the note was indorsed to plaintiff. That is all plaintiff was required to prove with respect to its right to enforce the note, and defendant presented no evidence from which a reasonable juror could conclude otherwise."

Likewise, in Nationstar Mortgage, LLC v. Peper, 278 Or.App. 594, 596, 377 P.3d 678 (2016), we held that, under the Uniform Commercial Code, "the current holder of a promissory note, indorsed in blank, gives [the current holder] the right to enforce the note." In that case, we upheld the grant of summary judgment to the plaintiff because it

"presented evidence that it was in possession of the note, that defendant was in default, and that plaintiff was entitled to foreclose under those circumstances [and] defendant failed to introduce evidence that would have raised any genuine issues of material fact with respect to plaintiff's right to foreclose [.]"

Id. at 598. Similarly here, the summary judgment record contained undisputed evidence that, at the time of the foreclosure action, plaintiff was in possession of the promissory note indorsed in blank and defendants were in default of their obligations under the promissory note and deed of trust. Accordingly, plaintiff established the requisites for judicial foreclosure of a trust deed and defendants failed to introduce evidence that raised any genuine issue of ...


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