363 P.3d 529
Or. Ct. App.2015Background
- GreenPoint obtained a stipulated general judgment of foreclosure and money award in 2004 against Steven Harris for a residential trust deed; a supplemental judgment for fees/costs was entered in 2005.
- The 2004 stipulated judgment expressly allowed GreenPoint to recover advances (e.g., taxes) either by including them in a credit bid or by obtaining a supplemental judgment.
- Partition delays postponed the sheriff’s sale until April 2011. GreenPoint credit-bid $914,332.81 at the sale; the bid included $97,692.59 of advances (mostly taxes) not listed in the 2004/2005 money awards or in the writ issued in 2011.
- Harris objected, arguing ORS 18.936 limited credit bids to the money award plus specified costs, so the $97,692.59 excess should have been paid in cash and distributed as sale proceeds.
- The trial court confirmed the sale, sustained the objection to the sheriff’s return (saying the writ controlled what could be credit-bid), but nonetheless entered a “second supplemental general judgment” awarding the advances and applied the excess credit-bid amount to that judgment; Harris appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could enter a post-sale “second supplemental general judgment” awarding advances payable from sale proceeds | GreenPoint: court could supplement judgment post-sale under ORS 18.954 or the 2004 stipulation authorized inclusion of advances | Harris: after sale, anti-deficiency rule and judgment rules preclude entry of a new money award; cannot supplement after sale to reach proceeds already realized | Court vacated the second supplemental general judgment: trial court lacked authority to enter such a judgment after the sheriff’s sale and no permissible form "supplemental general judgment" exists under Oregon law |
| Whether GreenPoint properly included advances in its 2011 credit bid and whether the excess $97,692.59 must be distributed as sale proceeds | GreenPoint: 2004 stipulated judgment authorized inclusion of advances in credit bid; alternatively, court could later supplement and apply proceeds | Harris: ORS 18.936 (effective 2006) limits credit bids to the full amount owing on the money award plus certain costs; excess must be tendered to sheriff and distributed | Court held that ORS 18.936 governs sales after its effective date, the excess constitutes proceeds of sale and should have been distributed by order of distribution; trial court erred in denying distribution |
Key Cases Cited
- Brandrup v. ReconTrust Co., 353 Or 668 (discussion of the Oregon Trust Deed Act and beneficiary concept)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (description of credit-bidding practice)
- Hucke v. BAC Home Loans Servicing, L.P., 272 Or App 94 (treatment of beneficiary and lien principles under OTDA)
- Cottage Grove Apartment Investors v. Brandenfels, 69 Or App 192 (application of anti-deficiency rule post-foreclosure)
- Robinson v. Lamb’s Wilsonville Thiftway, 332 Or 453 (statutory amendments applying to actions pending in trial courts vs. appeals)