United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge.
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
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
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. 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
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.
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
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
Motion for Summary Judgment
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.
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." 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.
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." 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