Wolf v. GMAC Mortgage, LLC
276 Or. App. 541
| Or. Ct. App. | 2016Background
- Wolf borrowed money secured by a trust deed naming MERS as beneficiary; MERS appointed LSI Title Company as successor trustee.
- LSI recorded and served notice of default and, on April 1, 2011, conducted a trustee’s sale where GMAC purchased the property.
- Wolf sued for declaratory relief alleging the sale was invalid because it was not conducted by a lawful “trustee” under the OTDA and raised other OTDA defects; GMAC sued in FED to recover possession.
- The actions were consolidated; GMAC moved for summary judgment solely on statutory grounds, arguing former ORS 86.770(1) barred any post-sale challenge by a person who received pre-sale notice and did nothing to stop the sale.
- Trial court granted summary judgment for GMAC and entered a stipulated restitution judgment; Wolf appealed the statutory interpretation (preserved in the stipulation).
- The court of appeals reversed, holding ORS 86.770(1) applies only to sales actually conducted by a person who qualifies as a “trustee” under the OTDA, so post-sale challenges alleging lack of a valid trustee are not categorically barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former ORS 86.770(1) bars all post-sale challenges by persons who had actual notice of a trustee’s sale | Wolf: No; the statute applies only to a sale conducted by a valid “trustee,” so defects (e.g., no trustee) keep the sale invalid | GMAC: Yes; statute terminates interests of persons given notice to promote finality, regardless of post-sale defects | Held: ORS 86.770(1) does not bar challenges when the sale was not conducted by a person who qualifies as a “trustee” under the OTDA |
| Whether the phrase “under ORS 86.705 to 86.795, a trustee sells” requires strict compliance with all OTDA provisions | Wolf: Yes; sale must comply with OTDA and be by an actual trustee | GMAC: No; statute does not require strict compliance with every OTDA provision to bar challenges | Held: Court did not decide full strict-compliance scope but ruled the statutory reference to a sale “by a trustee” means an actual trustee must have conducted the sale |
| Effect of the statutory presumption in former ORS 86.780 that recitals in a trustee’s deed are prima facie evidence | Wolf: Presumption is rebuttable and does not protect non–bona fide purchasers from proof of defects | GMAC: Presumption supports finality and should bar challenges | Held: The presumption is rebuttable for non–BFPs; it does not show legislative intent to immunize sales conducted by non‑trustees |
| Policy tension between finality of trustee sales and protection against unauthorized sales | Wolf: OTDA balances finality with protections; unauthorized sales should not be final | GMAC: Finality is paramount to preserve OTDA’s purpose | Held: OTDA’s scheme balances both; finality does not extend to sales by persons who are not trustees |
Key Cases Cited
- Brandrup v. ReconTrust Co., 353 Or 668 (2013) (addressed MERS’s authority and related OTDA challenges)
- Niday v. GMAC Mortgage, LLC, 353 Or 648 (2013) (similar treatment of MERS’s authority under OTDA)
- Staffordshire Investments, Inc. v. Cal-Western, 209 Or App 528 (2006) (discusses OTDA balance between protection of grantors and nonjudicial foreclosure finality)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (framework for statutory construction)
- State v. Gaines, 346 Or 160 (2009) (modification of PGE construction framework)
- Mikityuk v. Northwest Trustee Services, Inc., 952 F. Supp. 2d 958 (D. Or. 2013) (federal district court prediction that ORS 86.770(1) bars post‑sale challenges; rejected as persuasive authority by the court)