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Schroeder v. Clackamas County Bank

Court of Appeals of Oregon

March 28, 2018

Donald SCHROEDER and Janet Schroeder, Plaintiffs-Appellants,
v.
CLACKAMAS COUNTY BANK; Michelle Bertolino; and JVV Investments, LLC, Defendants-Respondents.

          Argued and submitted March 31, 2016

          Clackamas County Circuit Court CV13110353 Henry C. Breithaupt, Judge pro tempore.

          Terrance J. Slominski argued the cause for appellants. With him on the briefs were David W. Venables and Slominski and Associates.

          Kimberley Hanks McGair argued the cause for respondent Clackamas County Bank. With her on the brief was Farleigh Wada Witt.

          Jean M. McCoy and Landerholm, P.S., for respondent JVV Investments, LLC, joined the brief of respondent Clackamas County Bank.

          No appearance for respondent Michelle Bertolino.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Plaintiffs brought a declaratory judgment action asking that the trial court declare their rights in the property and declare two foreclosure sales of their home invalid. After a summary judgment hearing, the court granted defendants' motion for summary judgment and entered a judgment dismissing plaintiffs' claims, including the declaratory judgment action. Subsequently, the court entered a supplemental judgment awarding attorney fees under ORS 20.105 to Clackamas County Bank (CCB). On appeal, plaintiffs assert that the trial court [291 Or. 17] erred in granting defendants' motion for summary judgment and awarding attorney fees to CCB.

         Held:

         The trial court did not err in granting defendants' motion for summary judgment and awarding of attorney fees in favor of CCB. However, because it is error to dismiss a claim for declaratory relief unless there is no justiciable controversy, the Court of Appeals vacated the judgment and remanded for entry of a judgment declaring the validity of the second foreclosure sale and declaring that plaintiffs' rights in the property were extinguished.

         Vacated and remanded with instructions

         [291 Or. 18] ORTEGA, P.J.

         Plaintiffs, Donald and Janet Schroeder, brought declaratory judgment action asking that the trial court declare their rights in the property and declare two foreclosure sales of their home invalid. After a summary judgment hearing, the court granted defendants'[1] motion for summary judgment concluding that the second foreclosure sale on plaintiffs' home was valid and that their rights in the home were extinguished. The court entered a judgment dismissing plaintiffs' claims, ...


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