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Bank of New York Mellon v. Lash

Court of Appeals of Oregon

January 2, 2020

THE BANK OF NEW YORK MELLON, fks The Bank of New York on behalf of Certifcateholders of the CWALT Inc. Alternative Loan Trust 2006-OA10, Plaintiff-Respondent,
v.
Anthony LASH, and all other occupants, Defendant-Appellant.

          Argued and submitted May 7, 2019

          Washington County Circuit Court 18LT07750 Janelle F. Wipper, Judge.

          Caleb S. Leonard argued the cause for appellant. Also on the briefs was Tyler Smith and Associates, PC.

          Katrina E. Glogowski argued the cause and fled the brief for respondent.

          Before Powers, Presiding Judge, and Mooney, Judge, and Linder, Senior Judge. [*]

         Case Summary: Plaintiff brought a forcible entry and wrongful detainer (FED) action to obtain possession of defendant's former property, which plaintiff purchased following a judicial foreclosure. Pursuant to ORS 105.115, the trial court entered a judgment of eviction for plaintiff, despite no existence of a landlord-tenant relationship between the two parties. Held: The trial court lacked authority to award possession to plaintiff in an FED action. A party may obtain possession of property in an FED action under ORS 105.115 only when a landlord-tenant relationship exists between the two parties. Plaintiff's purchase of defendant's property following judicial foreclosure did not create the landlord-tenant relationship required to maintain plaintiff's FED action under ORS 105.115.

         [301 Or.App. 659] MOONEY, J.

         Defendant appeals from a judgment of eviction in favor of plaintiff in this forcible entry and detainer (FED) action to recover possession of real property. Defendant argues, first, that the complaint lacked an essential statutory element and, therefore, should have been dismissed as a pleading matter and, second, that plaintiff may not maintain an FED action against him in any event because there is no landlord-tenant relationship between the parties. We need not reach defendant's first assignment of error[1] because we conclude that the trial court lacked authority to award possession to plaintiff through an FED action. Accordingly, we reverse.

         The following facts are not in dispute. The property in question had been defendant's home, occupied by him as owner for over 40 years. Plaintiff purchased the property at a sheriffs sale following judicial foreclosure of defendant's legal interest in that property. Defendant does not claim a title interest in the property. Plaintiff does not claim that it is in a landlord-tenant relationship with defendant.

         ORS 105.110 provides for an FED action as follows:

"When a forcible entry is made upon any premises, or when an entry is made in a peaceable manner and possession is held by force, the person entitled to the premises may maintain in the county where the property is situated an action to recover the possession of the premises in the circuit court or before any justice of the peace of the county."

         An FED action may, therefore, be used to establish a plaintiffs right to possession of the property following a defendant's forcible entry or an unlawful holding. It is a statutory cause of action designed to allow quick resolution of a single issue between a landlord and tenant: Who is entitled to [301 Or.App. 660] possession of the property? Aldrich v. Forbes, 237 Or. 559, 567, 391 P.2d 748 (1964).

         Plaintiff does not maintain that defendant entered the property forcibly. Indeed, because he entered as a property owner, he did not enter by force. Plaintiff instead maintains that defendant holds the property by force because he continues to occupy it following a sheriffs sale. It is well established, however, that the statutory definition of an "unlawful holding by force" refers only to circumstances where a landlord-tenant relationship exists. Bunch v. Pearson, 186 Or.App. 138, 142, 62 P.3d 878, rev den, 335 Or. 422 (2003) (citing Aldrich, 237 Or. 559).

         Plaintiff argues that this case is distinguishable from Aldrich and Bunch because, although the parties in those cases were not in landlord-tenant relationships, the defendants in those cases also claimed some title interest in the property. Defendant in this case does not claim any such interest in the property. We disagree with plaintiff that the absence of a title dispute requires a different outcome in this case. In both Bunch and Aldrich, the absence of the landlord-tenant relationship was the stated rationale for ...


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