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The Bank of New York Mellon Trust Co., N.A. v. Sulejmanagic

Court of Appeals of Oregon

September 5, 2019

THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, fka The Bank of New York Trust Company, N. A. as successor to JPMorgan Chase Bank, as Trustee for Residential Asset Mortgage Product, Inc., Mortgage Asset-Backed Pass Through Certifcates, Series 2003-RS5, Plaintiff-Respondent,
v.
Zahid SULEJMANAGIC, et al, Defendants, and TANGLEWOOD HILLS CONDOMINIUM ASSOCIATION, Defendant-Appellant.

          Argued and submitted December 5, 2017

          Clackamas County Circuit Court CV13071012; Michael C. Wetzel, Judge.

          Ryan D. Harris argued the cause for appellant. Also on the briefs was Vial Fotheringham LLP.

          Shannon K. Calt argued the cause for respondent. On the brief was Peter J. Salmon.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [299 Or.App. 262] Case Summary:

         Defendant appeals from a general judgment of foreclosure, asserting that its lien jumped priority over plaintiff's deed of trust under ORS 100.450(7)(c) when plaintiff failed to act within 90 days following defendant's notice of lien. On cross-motions for summary judgment, the issue before the trial court was whether a judicial foreclosure action, initiated before a condominium association gives notice of lien for unpaid assessments, must remain active to maintain its priority under the statutory framework of ORS 100.450(7)(c). The trial court granted plaintiff's motion for summary judgment and denied defendant's cross-motion, concluding that plaintiff's deed of trust was superior to defendant's lien and that the deed of trust was foreclosed. On appeal, defendant assigns error to those dispositions, arguing, in part, that the statute establishes a window of time within which a party must act. Held: The trial court did not err. ORS 100.450(7)(c) creates a deadline, rather than a window of time, by which a lender must act to maintain its priority. Nothing in the plain language of the statute requires a foreclosure action to be pending at the time a condominium association sends notice of lien.

         Affirmed.

         [299 Or.App. 263] POWERS, J.

         In this foreclosure action, defendant Tanglewood Hills Condominium Association appeals from a general judgment of foreclosure, asserting that its lien was superior to plaintiffs deed of trust. Plaintiff Bank of New York Mellon (BONY) filed the underlying action to foreclose a trust deed recorded against a condominium unit within the Association. At the time of the foreclosure, the unit owner owed unpaid assessments that by operation of law placed a lien against the unit. On cross-motions for summary judgment, the issue was whether a judicial foreclosure action initiated before a condominium association gives notice of its lien for unpaid assessments must remain active to maintain its priority under the statutory framework. As explained below, we conclude that the trial court correctly granted BONY's motion for summary judgment and denied the Association's cross-motion and, therefore, affirm.

         STANDARD OF REVIEW

         We review a judgment disposing of cross motions for summary judgment to determine whether there are any disputed issues of material facts and whether either party was entitled to judgment as a matter of law. Vision Realty, Inc. v. Kohler, 214 Or.App. 220, 222, 164 P.3d 330 (2007); see also ORCP 47 C (setting out standards for summary judgment).

         BACKGROUND

         The relevant facts are undisputed. In 2003, Zahid Sulejmanagic obtained a loan from Aegis Wholesale Corporation to purchase a unit in the Tanglewood Hills Condominiums. The loan was secured by a promissory note and deed of trust, which was later endorsed to BONY. In 2011, Sulejmanagic defaulted on his loan. When Sulejmanagic also stopped paying assessments to the Association in 2013, which funded maintenance and other obligations, the Association filed a continuing claim of ...


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