397 P.3d 68
Or. Ct. App.2017Background
- In 2004 Vettrus executed a promissory note secured by a deed of trust and later defaulted; Nationstar serviced the loan and U.S. Bank held the note.
- U.S. Bank moved for summary judgment seeking judicial foreclosure and asserted acceleration after default.
- The deed of trust required written notice before acceleration: Section 22 required a notice specifying default, cure actions, a date not less than 30 days to cure, and statements of the right to reinstate after acceleration and to sue to contest the default; Section 20 barred commencing suit until notice and a reasonable cure period.
- U.S. Bank submitted a Nationstar employee declaration and, in reply, a supplemental declaration attaching a September 12, 2013 demand letter that gave 14 days’ notice and omitted the reinstatement and court-action language.
- The trial court accepted the declarations and the single attached letter as sufficient and granted summary judgment; Vettrus appealed, arguing plaintiff failed to prove compliance with the deed’s notice conditions precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff met its initial summary-judgment burden to show it complied with deed-of-trust notice conditions before accelerating and foreclosing | Braune’s declarations plus a sample letter and statement that "multiple demand letters" were sent suffice to establish compliance; burden then shifts to Vettrus to dispute receipt | Plaintiff failed to produce evidence of a compliant Section 22 notice (30-day cure period and required language); the attached letter was noncompliant and the generic declaration is insufficient | Reversed: plaintiff did not meet its prima facie burden because the record lacks evidence of the specific 30-day and statutory-language notices required by the deed |
Key Cases Cited
- Jones v. General Motors Corp., 325 Or. 404, 939 P.2d 608 (summary-judgment review draws all reasonable inferences for the nonmoving party)
- Zygar v. Johnson, 169 Or. App. 638, 10 P.3d 326 (materiality defined by potential to affect case outcome)
- Wieck v. Hostetter, 274 Or. App. 457, 362 P.3d 254 (moving party who bears trial burden must produce evidence at summary judgment)
- Wall Street Mgmt. & Capital, Inc. v. Crites, 274 Or. App. 347, 360 P.3d 673 (if inferences permit more than one reasonable conclusion, summary judgment is improper)
- Hampton Tree Farms, Inc. v. Jewett, 320 Or. 599, 892 P.2d 683 (appellate review of summary-judgment record limited to materials submitted below)