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Htaike v. Sein

Court of Appeals of Oregon

December 6, 2017

Thein HTAIKE and Naw Myint, Plaintiffs-Respondents,
v.
Rosalind SEIN, aka Daw Myint Myint Sein; Victor Sein; Sanda Altman;andFamily Trust of Rosalind Sein, Defendants-Appellants.

          Argued and submitted October 25, 2016 .

         Washington County Circuit Court C093264CV; Suzanne Upton, Judge.

          Margaret H. Leek Leiberan argued the cause for appellants. With her on the briefs was Jensen & Leiberan.

          Emil R. Berg, Idaho, argued the cause for respondents. With him on the brief were Leonard D. DuBoff and The DuBoff Law Group, LLC.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*] POWERS, J.

         [289 Or. 273] Case Summary: Defendants appeal from a judgment entered following a remand from the Court of Appeals after it concluded that the trial court had erred by granting summary judgment on a claim brought under the Oregon Racketeer Infuenced and Corrupt Organization Act (ORICO) because the statute of limitations had not run. On remand, plaintiffs fled a motion to modify the general judgment that asked the trial court, among other changes, to enter judgment on the ORICO claim in their favor without further proceedings, which defendants opposed. The trial court granted the motion. On appeal, defendants assign error to the entry of the corrected general judgment without providing defendants the opportunity to defend or present evidence and legal argument on the ORICO claim. Held: The trial court erred in entering the corrected general judgment without providing defendants the opportunity to be heard on the ORICO claim.

         [289 Or. 274]

          POWERS, JUDGE.

         This appeal is the latest chapter in a dispute between Thein Htaike and Naw Myint (plaintiffs) and Rosalind Sein, Victor Sein, Sanda Altman, and the Family Trust of Rosalind Sein (defendants). The underlying dispute involves claims that defendants made predatory loans to plaintiffs through loansharking practices. In an earlier appeal, we held that the trial court had incorrectly granted defendants summary judgment on a claim brought under the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO) because the statute of limitations had not run. Accordingly, we reversed the judgment in that respect and remanded to the trial court. Htaike v. Sein, 269 Or.App. 284, 303, 344 P.3d 527, rev den, 357 Or. 595 (2015) (Htaike I). On remand, plaintiffs filed a motion to modify the general judgment asking the trial court, among other changes, to enter judgment on the ORICO claim in their favor without further proceedings, which defendants opposed. The trial court granted the motion. We reverse and remand because the trial court erred in entering the corrected general judgment without giving defendants the opportunity to be heard on the ORICO claim.

         We summarized the facts of the underlying case in Htaike I:

"Plaintiffs filed *** action seeking recovery of over $200, 000 on the general theory that defendants had secured a series of promissory notes at exorbitant interest rates from plaintiffs through loansharking. Over the years, plaintiffs paid substantial sums on those notes but, despite repeated requests from plaintiffs, defendants never gave them an accounting of how much they owed at any given time. Seven years after the first note was given, defendants issued past due notices, asserting that plaintiffs still owed more than $180, 000 to defendants. At that point, plaintiffs stopped making payments, consulted an attorney, and brought an action alleging several claims for relief. Before trial, the trial court granted summary judgment to defendants on plaintiffs' claim for fraud and a claim brought under the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO), ORS 166.715-166.735. After a bench trial, the court concluded that plaintiffs had [289 Or. 275] proved claims for restitution, unjust enrichment, money had and received, and rescission, and entered judgment for plaintiffs awarding damages, prejudgment interest, attorney fees, costs, and an enhanced prevailing party fee."

269 Or.App. at 286. After the trial, defendants appealed on a number of grounds, and plaintiffs cross-appealed, arguing that the trial court incorrectly granted defendants' motion for summary judgment on plaintiffs' ORICO claim. We affirmed on appeal and reversed on cross-appeal, holding that "[p]laintiffs alleged violations of ORICO that were based on conduct that occurred one year before they filed their action. Accordingly, the statute of limitations had not run against plaintiffs' ORICO claim, and the trial court erred in concluding otherwise." Id. at 302.

         On remand, plaintiffs filed a motion to modify the general judgment requesting that the court award plaintiffs treble damages in accordance with ORICO and add Sanda Altman, a named defendant, to the list of judgment debtors. In that motion, plaintiffs pointed to a comment that the trial court had made when it announced its factual findings during the bench trial that plaintiffs produced evidence "sufficient to support the ORICO claim and that the [c]ourt would have found the defendants liable but for the dismissal via summary judgment." Further, plaintiffs noted that, in the general judgment, the court stated, "[d]espite prior [summary judgment] - evidence at trial was sufficient to support RICO."

         Defendants responded by arguing that the motion to modify the judgment should be denied because the ORICO claim had not been tried, they did not obtain discovery on the ORICO claim, and it would be improper for the trial court to enter judgment without trial or any evidentiary hearing on the ORICO claim. Defendants further argued that it would be procedurally incorrect for the trial court to enter a judgment on the ...


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