Petix v. Gillingham

"Declaratory judgement actions are generally not the proper subject of a motion to dismiss, unless there is 'want of a justiciable controversy'." Doe v. Medford School District, 549C, 232 Or App 38 at 45 (2009)

Plaintiff appealed and assigned error to the trial court’s dismissal of her actions under ORCP 21 A(8) motions for (1) declaratory relief because it was not justiciable, and (2) fraudulent transfer because plaintiff’s allegations failed to have merit. Plaintiff had a judgement secured by a lien against real property, and following a subsequent foreclosure sale, sought to claim redemption rights of her interest in the property.   On appeal, Plaintiff asserted a public policy argument that, under the statutory redemption elements of ORS 18.952(1) and McKinnon, an “equitable redemption” of her lien interest was restored when Defendant Aries had the certificate of sale and redemption rights.  Further, Plaintiff argued the transfers of redemption rights in the property constituted a “redemption identity theft scheme” to defraud her under the Uniform Fraudulent Transfer Act (UFTA), ORS 95.200 to 95.310.  In response, Defendants claimed the Plaintiff’s novel application of equitable redemption and its merits under Oregon law was the substance of argument, not the justiciability of Plaintiff’s claims.  Declaratory judgement actions are generally not the proper subject of a motion to dismiss, unless there is “want of a justiciable controversy.”  Doe v. Medford School District, 549C, 232 Or App 38 at 45 (2009) The Court found Plaintiff had a justiciable claim because her complaint alleged facts that were current and in dispute between the parties.  Upon further examination of Plaintiff’s claims, the Court held that Plaintiff’s arguments lacked merit, because McKinnon did not change court precedent that affirmed equitable redemption is only achieved before a foreclosure sale.  Additionally, Plaintiff’s facts failed to support her claim of fraudulent transfer according to factors defined under UFTA. Plaintiff’s claim for declaratory relief is VACATED and REMANDED for judgement that describes rights of the parties; otherwise AFFIRMED.