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Streater v. Federal National Mortgage Association

United States District Court, D. Oregon, Portland Division

August 16, 2017

KENNETH STREATER, an individual, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION and FIRST AMERICAN TITLE COMPANY, as Successor Trustee, Defendants.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         Defendants, Federal National Mortgage Association ("Fannie Mae") and First American Title Company ("FATC"), each separately move this Court for orders of summary judgment on claims filed by plaintiff, Kenneth Streater. (Docs. 16 and 23). For the following reasons, defendants' Motions for Summary Judgment are GRANTED.

         BACKGROUND

         This case arises from a non-judicial foreclosure of a deed of trust on land owned by Plaintiff situated at 49687 and 49701 McKenzie Highway, Vida, OR 97488 ("the McKenzie Property"). Pl.'s Compl. ¶ 1. Plaintiff alleges that he purchased the McKenzie Property in 2002 under a promissory note issued by lender, Homecomings Financial Network, Inc., and that this note was secured by a deed of trust that identified Mortgage Electronic Registration Systems, Inc. ("MERS"), as the beneficiary. Id. at 2-3. Plaintiff alleges he then experienced financial difficulties between 2011 and 2012 that resulted in several missed monthly payments on the mortgage note. Id. at 7-8. These missed mortgage payments gave rise to judicial foreclosure proceedings with non-party GMAC Mortgage, LCC ("GMAC"), which ultimately led to a settlement agreement in 2012 in lieu of foreclosure. Id. at 9, Ex, 1. Plaintiff alleges by this time the agreement was made on behalf of another beneficiary, Fannie Mae. Id.

         Despite these efforts, in August 2015 the McKenzie Property again went into foreclosure, Id. at 11, Ex. 2, This time, FATC initiated non-judicial foreclosure proceedings, acting on behalf of beneficiary Fannie Mae as the successor trustee. Id. FATC initiated these proceedings by recording a Notice of Default and Election to Sale and sending a copy of the notice to several addresses associated with plaintiff. Specifically, FATC sent copies of the notice to plaintiffs physical address in Redmond - 2606 SW 58th St., Redmond, OR 97556-95551 - as well as both addresses associated the McKenzie Property, and a separate P.O. Box located in Sisters, Oregon, which was listed on the second priority Deed of Trust and particular tax records identifying plaintiff.[1] Id. at 7. Plaintiff complains, however, that FATC did not send a copy to P.O. Box 1716, Redmond, OR, which was referenced in the 2012 settlement agreement. Id. at 13, Ex. 2. Plaintiff avers that this was his only mailing address and defendants knew it to be so.

         These facts form the basis of plaintiff s complaint, where he alleges that defendants failed to comply with the requirements of the Oregon Trust Deed Act ("ODTA") by not adequately providing notice of the sale. Plaintiff requests that this Court grant declaratory judgment in his favor "setting aside, voiding, and invalidating the non-judicial foreclosure" and restoring his interest in the McKenzie Property based on the inadequate notice. Pl.'s. Compl. ¶ 10, Defendants subsequently filed timely motions for summary judgment now before this Court.

         STANDARD

         Summary judgment must be granted where the moving party demonstrates there is "no genuine dispute as to any material fact." FRCP 56(a). Specifically, a "genuine issue" of material fact arises where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Celotex Corp. v. Cartrett, 477 U.S. 317, 324 (1986).

         DISCUSSION

         Plaintiffs first two claims for relief against FATC were previously dismissed by this Court. See Streaterv. Fed. Nat'l Mortz. Ass'n 224 F.Supp.3d 1113, (D. Or, 2016). Based on that decision, plaintiff submits that he voluntarily withdraws his first and second claim for relief against Fannie Mae as well. PL Resp. in Opp'n 1. Thus, the only remaining issue before this Court on summary judgment is whether defendants adequately complied with OTDA's notice requirements.

         FATC's Motion for Summary Judgment

         FATC moves for summary judgment against plaintiff s claim for relief based on inadequate notice under the OTDA. Specifically, plaintiff argues the Notice of Sale distributed by FATC was deficient because a copy was never mailed to the Redmond P.O. Box address listed in the 2012 settlement agreement. FATC counters that it was not required to send a copy of the notice to that address and that it adequately complied with notice requirements of the OTDA. For the following reasons, FATC is correct.

         FATC acts as a trustee under Oregon law and, as such, is bound by notice provisions in the OTDA. Oregon Revised Statute ("ORS") 86.764. That provision is as follows; "[a]fter recording a notice of default as provided in ORS 86.752, and at least 120 days before the day the trustee conducts the sale, notice of the sale with the contents described in ORS 86.771 must be served pursuant to [Oregon Rules of Civil Procedure] 7 D(2) and 7 D(3) or mailed by both first class and certified mail with return receipt requested."[2] OR 86.764(1). To be clear, the notice of default is not at issue here, nor is the content of FATC's notice of sale.

         Rather, plaintiff argues that he simply never received the notice of sale. This argument hinges on the claim that FATC failed to provide notice at plaintiffs "last-known address."[3] ORS 86.764(2). The question of what a trustee knows is, at least initially, one of fact. Plaintiff during discovery sought to demonstrate that FATC learned of the Redmond P.O. Box address through its interactions with ...


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