Bank of America, N.A. v. Payne

Without a validly appointed trustee, there is no “trustee” for purposes of the OTDA, and therefore can be no valid trustee’s sale with the power to foreclose another person’s property interests.

Defendant appealed a judgment in a forcible entry and detainer (FED) action that awarded restitution of the premises to Plaintiff. The trial court found Plaintiff was a “purchaser” of a trustee’s deed to the premises under the Oregon Trust Deed Act (OTDA) (former ORS 86.755(6) (2011), renumbered as ORS 86.782(6) (2013)). Defendant argued the court erred in finding Plaintiff was a purchaser entitled to possession of the premises because there was no evidence that the sale was conducted by a validly appointed trustee under the OTDA. During pendency of these proceedings, Wolf, 276 OR App 541, was decided; the court in Wolf found that, without a validly appointed trustee, a trustee’s sale cannot foreclose property interests under former ORS 86.770(1) (2011). The Court held in the present case that MERS, the beneficiary named under the trust deed, did not have the authority to appoint ReconTrust, who conducted the trustee’s sale, as a validly appointed trustee having the power to foreclose Defendant’s property interests; therefore, the trial court erred in finding Plaintiff was a “purchaser” at a trustee’s sale. Reversed.