BANK OF NEW YORK MELLON, fka Bank of New York as Trustee for the Certifcate Holders of CWALT, Inc. Alternative Loan Trust 2007-3T1, Mortgage Pass-Through Certifcates 2007-3T1 and Recontrust Company, N. A., its successors in interest and or assigns, Plaintiff-Respondent,
Tammie M. DELANEY and Michael E. Delaney, as tenants by the entirety, Defendants-Appellants, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation, et al., Defendants.
and submitted December 11, 2017.
County Circuit Court 12CV0099; Gary Lee Williams, Judge.
Barnes, Florida, argued the cause for appellants. Also on the
briefs was Philip Anderson.
J. Haynie argued the cause for respondent. On the brief were
Tony Kullen and RCO Legal, P.S.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendants appeal a general judgment of judicial
foreclosure of a residential deed of trust, arguing that the
trial court erred in concluding that plaintiff was entitled
to enforce the promissory note that was secured by the [299
Or.App. 2] deed of trust. Defendants make multiple arguments
on appeal, primarily based on their contention that the
promissory note was not properly indorsed by the named
lender. Held: Evidence in the record supported the
trial court's factual fending that plaintiff was the
holder of the promissory note indorsed in blank. Defendants
did not raise any arguments on appeal that could provide a
basis for the conclusion that plaintiff was not entitled to
enforce the note as the holder of it.
Or.App. 3] ARMSTRONG, P. J.
appeal a general judgment of judicial foreclosure of a
residential deed of trust, arguing that the trial court erred
in concluding that plaintiff was entitled to enforce the
note. We conclude that defendants have not raised any issues
on appeal that provide a basis on which we could conclude
that plaintiff was not entitled to enforce the note.
Accordingly, we affirm.
foreclosure is an equitable proceeding that we may exercise
our discretion to review de novo. Blunier v. Staggs,
250 Or.App. 215, 217, 279 P.3d 826 (2012); ORS 19.415(3).
However, we decline to do that because neither party presents
an argument in favor of our taking de novo review,
and this is not an exceptional case justifying such review.
ORAP 5.40(8)(c). Thus, we review the trial court's
findings to determine whether there is any evidence in the
record to support them, and its legal conclusions for legal
error. See, e.g., Frontgate Properties, LLC v.
Bennett, 261 Or.App. 810, 812, 324 P.3d 483, rev
den, 356 Or. 400 (2014). In so doing, "we view the
evidence, as supplemented and buttressed by permissible
derivative inferences, in the light most favorable to the
trial court's disposition and assess whether, when so
viewed, the record was legally sufficient to permit that
outcome." Dept. of Human Services v. N. P., 257
Or.App. 633, 639, 307 P.3d 444 (2013).
executed a promissory note dated January 16, 2007, payable to
"America's Wholesale Lender," in the principal
amount of $577, 054. The note identified America's
Wholesale Lender as "lender" and provided that
"I understand that the Lender may transfer this Note.
The Lender or anyone who takes this Note by transfer and who
is entitled to receive payments under this Note is called the
'Note Holder.'" The original note, which was
admitted into evidence at trial, was indorsed in blank by
"Countrywide Home Loans, Inc., a New York Corporation
doing business as America's Wholesale Lender."
Defendants also executed a deed of trust securing that note,
which identified the "lender" as
"America's Wholesale Lender" and as a
corporation organized under the laws of New York.
Or.App. 4] In 2012, plaintiff brought this action for
judicial foreclosure of the deed of trust as security for the
note. Plaintiff moved for summary judgment. Defendants
opposed that motion and also filed a cross-motion for summary
judgment on their counterclaim for declaratory relief.
Defendants sought a declaration that the note and deed of
trust are invalid and void because America's Wholesale
Lender was not incorporated and did not have a lender license
in Oregon, plaintiff had not obtained a proper assignment of
the deed of trust, and the indorsement of the note included
with plaintiffs summary judgment motion was of "dubious
authenticity." Plaintiff responded that, among other
things, defendants could not seek a declaration that the note
and deed of trust were void because they did not set out such
a defense or claim in their pleadings.
trial court granted plaintiffs motion in part and denied
defendants' motion. On plaintiffs motion for summary
judgment, the trial court concluded that it was undisputed
that the deed of trust authorized judicial foreclosure, that
defendants were in default under the terms of the note, and
that, despite notice and an opportunity to cure the default,
defendants had not done so. However, the trial court
concluded that genuine issues of material fact existed as to
whether plaintiff was entitled to enforce the note, and the
trial court conducted a bench trial on that issue.
trial, plaintiff presented testimony from Gerardo Trueba, the
custodian of records for Bayview Loan Servicing, LLC, the
servicer of the loan to defendants. Trueba testified that
business records showed that the prior loan servicer, Bank of
America, had received the indorsed note in 2007, and that
Bayview became the servicer for the loan in October 2012,
with plaintiff as the owner of the loan. Trueba also
testified that Bank of America had acquired Countrywide Home
presented an expert witness, Richard Kahn. Kahn testified
that a New York corporation called "America's
Wholesale Lender" does not exist and that America's
Wholesale Lender did not have an Oregon lending license. He
did testify, however, that Countrywide Home [299 Or.App. 5]
Loans, Inc. dba America's Wholesale Lender did have a
license in Oregon and that the license was cancelled in 2001.
Kahn also questioned the legitimacy of the indorsement on the
note because it was not dated, it was in the name of
Countrywide Home Loans, Inc. dba America's Wholesale
Lender and not America's Wholesale Lender, Inc., and the
signature in the stamp was small in ...