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,
Albert T. JASPER, Defendant-Appellant, and Michi JASPER, et al., Defendants.
Submitted August 4, 2017
County Circuit Court C134903CV; Eric Butterfield, Judge.
T. Jasper fled the brief pro se.
K. Edling and Houser & Allison, APC, fled the brief for
Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
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.
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
Or.App. 611] AOYAGI, J.
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
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.
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 ...