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Bank of New York Mellon v. Owen

Court of Appeals of Oregon

September 11, 2019

BANK OF NEW YORK MELLON, fka The Bank of New York, as Trustee for the holders of the Certifcates, First Horizon Mortgage Pass-Through Certifcates Series FH04-FA1, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent for the trustee under the Pooling and Servicing Agreement, Plaintiff-Respondent,
v.
Thomas M. OWEN, Theresa M. Owen, and all other occupants, Defendants-Appellants.

          Submitted October 31, 2018

          Jackson County Circuit Court 15LT11669 David G. Hoppe, Judge.

          Thomas Cutler fled the brief for appellants.

          Peter J. Salmon fled the brief for respondent.

          Before Ortega, Presiding Judge, and Tookey, Judge, and Powers, Judge. [*]

         Case Summary:

         Defendants appeal a stipulated limited judgment that awarded restitution of real property to plaintiff in this forcible entry and detainer (FED) action. On appeal, defendants contend that the trial court erred when it granted plaintiff's motion in limine, which precluded defendant from presenting any evidence regarding the validity of the underlying nonjudicial foreclosure and sale of the subject property to plaintiff. Defendants argue that the trial court erred when it concluded that "the present FED action is not the appropriate forum to challenge the prior foreclosure."

         Held:

         The trial court erred when it concluded that an FED action "is not the appropriate forum" to challenge any aspect of the underlying nonjudicial foreclosure.

         [299 Or.App. 349] TOOKEY, J.

         In this forcible entry and detainer (FED) action, defendants appeal a stipulated limited judgment that awarded restitution of real property to plaintiff. On appeal, defendants contend that the trial court erred when it granted plaintiffs motion in limine, which precluded defendants from presenting any evidence regarding the validity of the underlying nonjudicial foreclosure and sale of the subject property to plaintiff. Defendants argue that the trial court erred when it concluded that "the present FED action is not the appropriate forum to challenge the prior foreclosure." For the reasons that follow, we conclude that the trial court erred when it concluded that an FED action "is not the appropriate forum" to challenge any aspect of the underlying nonjudicial foreclosure. Accordingly, we reverse and remand.

         We review a trial court's grant of a pretrial motion in limine "in light of the record made before the trial court when it issued the order." State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012). The following facts are undisputed. In 2004, defendants took out a loan from First Horizon Loan Corporation (First Horizon) that was secured by a trust deed for real property located in Eagle Point, Oregon. First Horizon was the original beneficiary of the trust deed, and Lawyers Title Insurance Corporation (Lawyers Title) was appointed as the original trustee. In addition, both parties asserted that there were subsequent transfers of the trust deed to other beneficiaries and appointments of successor trustees.[1] Ultimately, in 2010, the trust deed was purportedly transferred to plaintiff, Bank of New York Mellon, and, as the new beneficiary, plaintiff appointed First American Title Company (First American) as the successor trustee.[2]

         [299 Or.App. 350] In 2011, after defendants defaulted on their loan secured by the subject property, First American sold the property to plaintiff at a nonjudicial foreclosure sale. First American executed a "Trustee's Deed Upon Sale" conveying all interests in the subject property to plaintiff.

         In 2015, plaintiff brought this FED action to recover the property from defendants. In its complaint, plaintiff alleged that it was "entitled to possession based on the issuance of a Trustee's Deed Upon Sale following a nonjudicial foreclosure sale." In response, defendants filed an answer, asserting several defenses to plaintiffs claimed right of possession. Defendants argued that plaintiff was not "entitled to possession based on the deed attached to the complaint" and that the trustee had no "authority to conduct the sale or issue any deed in this matter" because, among other things, ...


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