Bank of America, NA v. Wilson

Under former ORS 86.755(6)(b), an interest “voluntarily created” includes any property interest that a grantor voluntarily creates after granting the deed of trust, including an ownership interest.

Defendant Sylvester Wilson executed a promissory note and granted a deed of trust for a home loan from Plaintiff Bank of America in 2006. In 2010, Wilson conveyed an interest in the property to his daughter, Defendant Sylvia Wilson, and recorded a bargain and sale deed showing they were tenants in common. Sylvester defaulted on the loan, and Plaintiff provided notice of its intent to foreclose, after which Defendants failed to take steps to oppose the trustee’s sale. Plaintiff purchased the property at the trustee’s sale and notified Defendants they were obligated to surrender possession with a ten day notice to quit. After Defendants failed to surrender the property, Plaintiff instituted an FED action 28 days after providing notice to Defendants. At the FED trial, Defendants argued Plaintiff was not entitled to possession because it had commenced the FED action without providing Defendants sufficient notice because Sylvia held possession under an interest that had been “voluntarily created” by Sylvester, entitling her to 30 days’ notice under former ORS 86.755(6)(b). The trial court rejected that argument because, it reasoned, Defendants were tenants at sufferance following the foreclosure, and because Sylvia held legal title to the property she was not a tenant who would have been entitled to more than the ten day notice to quit. On appeal, Defendants argued the trial court erred in construing “interest” in former ORS 86.755(6)(b) to narrowly apply to landlord-tenant relationships. The Court held “an interest that the grantor * * * created voluntarily” includes any property interest that a grantor voluntarily creates after granting the deed of trust, including an ownership interest, and that the interest Sylvester created was voluntary; therefore, the trial court erred in finding Sylvia was a tenant at sufferance following Plaintiff’s foreclosure. Reversed and remanded.