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Wells Fargo Bank, N.A. v. Jasper

Court of Appeals of Oregon

December 28, 2017

WELLS FARGO BANK, N.A., Successor by merger to Wells Fargo Bank Minnesota, N.A., as Trustee, fka Norwest Bank Minnesota, N. A., as Trustee for Amresco Residential Securities Corporation Mortgage Loan Trust 1999-1, Plaintiff-Respondent,
v.
Albert T. JASPER, Defendant-Appellant, and Michi JASPER, et al., Defendants.

          Submitted August 4, 2017

         Washington County Circuit Court C134903CV; Eric Butterfield, Judge.

          Albert T. Jasper fled the brief pro se.

          Emilie K. Edling and Houser & Allison, APC, fled the brief for respondent.

          Before Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a trial court order denying his motion to set aside as void a judgment by default under ORCP 71 B(1)(d). Defendant argues that the judgment is void because plaintiff did not properly serve him with a 10-day notice of intent to apply for an order of default as required by ORCP 69 B before obtaining an order of default, instead sending that notice to defendant?s former attorney.

         Held:

         When a party attempts to serve a 10-day notice of intent to take default on another party by providing notice to an attorney under ORCP 9 B, and the serving party receives actual notice that the other party is not represented by that attorney, it is improper to seek an order of default without serving the party correctly.

         Reversed and remanded.

         [289 Or.App. 611] AOYAGI, J.

         Defendant appeals a trial court order denying his motion to set aside a judgment by default under ORCP 71 B(1)(d). Defendant argues that the judgment must be set aside because it is void. In particular, he argues that it is void because plaintiff did not serve him with a 10-day notice of intent to apply for an order of default, instead sending that notice to defendant's former attorney. We agree with defendant that, on the facts of this case, plaintiff did not properly serve the required 10-day notice. The judgment therefore should have been set aside. Accordingly, we reverse and remand.

         We review for legal error whether a party has shown a cognizable ground for relief from a judgment under ORCP 71 B. Union Lumber Co. v. Miller. 360 Or. 767, 777-78, 388 P.3d 327 (2017). We view undisputed facts in the light most favorable to the party moving to set aside the judgment, and we are bound by the trial court's express and implicit findings regarding disputed facts if there is evidence in the record to support them. Id. at 778. We state the facts in accordance with the standard of review.

         Defendant purchased a house subject to a mortgage and a note. Plaintiff holds the note. After defendant stopped making mortgage payments, plaintiff filed a foreclosure complaint in July 2013. It served the summons and complaint on defendant personally. Defendant then consulted a lawyer, Rain, who sent a letter to plaintiff in August 2013, stating, "Pursuant to ORCP 69, I am writing to advise you that I intend to appear in this action on behalf of Mr. Jasper. This shall serve as written request that you provide 10 days written notice of your intent to seek an Order of Default with respect to this ...


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