Bank of New York Mellon Trust Co. v. Sulejmanagic

“[T]here is nothing in the plain language of ORS 100.450(7)(c) that requires such an action to be pending . . . rather the operative language in ORS 100.450(7)(c) turns on whether the lender has or has not ‘initiated judicial action.’”

Petitioner, a condominium association, appealed from a grant of summary judgment in favor of Respondent, a bank lender. Petitioner assigned error to the trial court’s decision that Petitioner’s lien was not superior to Respondent’s deed of trust. On appeal, Petitioner argued that under ORS 100.450 the condominium association’s levy may become superior to a deed of trust if the lender does not initiate judicial foreclosure action within 90 days of receiving notice of the association’s lien. Thus, Petitioner’s levy should be superior to Respondent’s deed of trust, because Respondent did not reinstate its previously dismissed foreclosure action on the condominium until after the 90-day notice period. In response, Respondent argued that ORS 100.450 does not require a lender to take additional action during the 90-day notice period if the lender initiated a foreclosure action before notice of the condominium association’s lien. “[T]here is nothing in the plain language of ORS 100.450(7)(c) that requires such an action to be pending . . . rather the operative language in ORS 100.450(7)(c) turns on whether the lender has or has not ‘initiated judicial action.’” The Court determined that the condominium association’s lien did not become superior to the lender’s deed of trust because the lender initiated a foreclosure action before receiving notice of the condominium association’s lien; therefore, the lender was not required to take additional action after receiving notice of the condominium association’s lien.

Affirmed.