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U.S. Bank National Association v. Vettrus

Court of Appeals of Oregon

May 17, 2017

U.S. BANK NATIONAL ASSOCIATION, as Successor Trustee to Bank of America, N.A., as Successor to LaSalle Bank, N.A. as Trustee for the Holders of Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certifcates, Series 2006-FF1, Plaintiff-Respondent,
v.
John S. VETTRUS, Defendant-Appellant, and FIRST FRANKLIN FINANCIAL CORP., et al., Defendants.

          Argued and submitted February 13, 2017

         Marion County Circuit Court 14C20727; Thomas M. Hart, Judge.

          Jeffrey A. Long argued the cause and fled the briefs for appellant.

          Adam G. Hughes argued the cause for respondent. With him on the brief was Anglin Flewelling Rassmussen Campbell & Trytten LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         In this appeal from a general judgment of judicial foreclosure, defendant assigns error to the grant of summary judgment in favor of plaintiff. Defendant argues that plaintiff was not entitled to summary judgment because plaintiff failed to present evidence that it had sent defendant a written notice of foreclosure and acceleration of his debt that complied with the terms of the deed of trust. Plaintiff counters that the evidence it submitted was sufficient and, even if it were not, any error was harmless.

         Held:

         Under ORCP 47 C, the Court of Appeals reviews the appeal of an order granting a motion for summary judgment in the light most favorable to the nonmoving party. Under that standard of review, plaintiff failed to meet its burden in the trial court to show that it was entitled to judgment as a matter of law. Further, based on the record on appeal, that error was not harmless.

         Reversed and remanded.

          SHORR, J.

         In this appeal from a general judgment of judicial foreclosure, defendant Vettrus assigns error to the trial court's grant of summary judgment in favor of plaintiff, U.S. Bank. Defendant argues that plaintiff was not entitled to summary judgment because it had not shown that it had complied with all conditions precedent to foreclosure. Specifically, defendant contends that, to meet its burden for summary judgment, plaintiff was required to present evidence that it had sent defendant a written notice of foreclosure and acceleration of his debt that complied with the terms of the deed of trust. Defendant argues that plaintiff did not submit sufficient evidence on that point and plaintiff was therefore not entitled to summary judgment. Plaintiff counters that the evidence it submitted was sufficient and, even if it were not, any error was harmless. We agree with defendant and reverse the trial court's grant of summary judgment.

         On review of a grant of a motion for summary judgment, the appellate court must "view the evidence and all reasonable inferences that may be drawn from the evidence" in favor of the adverse party. Jones v. General Motors Corp., 325 Or 404, 408, 939 P.2d 608 (1997). We state the facts relevant to the legal issues presented in this case, which are few and largely undisputed, in accordance with that standard.

         In 2004, defendant borrowed $168, 000 and executed a promissory note and trust deed securing the loan with the property at issue in this case. In October 2010, the loan servicer, Nationstar Mortgage, determined that defendant was in default on his loan. Plaintiff, which held the promissory note, initiated this action to foreclose on the encumbered property and moved for summary judgment. In its motion for summary judgment, plaintiff asserted that the loan was in default, that "the terms of the contract ha[d] been materially breached, " that defendant had been "advised of the default under the Note and Deed of Trust and provided the opportunity to cure the default, " and that defendant had been "informed that failure to cure the default within the time provided may result in the exercising of the option to accelerate the entire balance." Plaintiff attached to the motion for summary judgment a declaration from Tina Braune, an employee of Nationstar Mortgage. In her declaration, Braune asserted, inter alia, that she was familiar with the servicing of defendant's loan and ...


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