Bank of New York Mellon v. Owen

“ORS 86.797 cannot provide finality in a fundamentally flawed nonjudicial foreclosure sale” Troubled Asset Solutions v. Wilcher, 291 Or App 522, 530-31, 422 P3d 314 (2018), rev’d in part on other grounds, 365 OR 397, 445 P3d 881 (2019) (citing DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 490-91, 381 P3d 961 (2016), rev den, 361 Or 100 (2017)).

Defendants appealed a stipulated limited judgment in a forcible entry and detainer (FED) action where Plaintiffs were awarded restitution of real property. Defendants assigned error to the trial court's granting of Plaintiff’s motion in limine precluding Defendants’ presentation of evidence on the validity of the underlying nonjudicial foreclosure and sale of the property. On appeal, Defendants argued the trial court erred when it concluded “the present FED action is not the appropriate forum to challenge the prior foreclosure.” In response, Plaintiff argued challenges to prior foreclosure sales are permitted only when Electronic Mortgage Registration Systems, Inc. (MERS) is named as a beneficiary.  “ORS 86.797 cannot provide finality in a fundamentally flawed nonjudicial foreclosure sale” Troubled Asset Solutions v. Wilcher, 291 Or App 522, 530-31, 422 P3d 314 (2018), rev’d in part on other grounds, 365 OR 397, 445 P3d 881 (2019) (citing DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 490-91, 381 P3d 961 (2016), rev den, 361 Or 100 (2017)). The Court rejected Plaintiff's argument and reasoned post-sale challenges are allowed in certain circumstances under the Oregon Trust Deed Act (OTDA) in an FED action. Reversed and remanded.