Oregon Statutes 86.767 – Failure to give notice of sale; action by omitted person; defense; pleading and proving knowledge of sale; attorney fees; exclusive remedy
(1) If the trustee fails to give notice of the sale to a person entitled to notice under ORS § 86.764 (2)(c), and the person did not have actual notice of the sale at least 25 days before the date on which the trustee conducted the sale, the omitted person has the same rights that the holder of a junior lien or interest who was omitted as a party defendant in a judicial foreclosure proceeding possesses, and the purchaser at the trustee’s sale or the purchaser’s heirs, assigns or transferees, have the same rights that a purchaser at a sheriff’s sale following a judicial foreclosure possesses.
Terms Used In Oregon Statutes 86.767
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Grantor: The person who establishes a trust and places property into it.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Person: includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. See Oregon Statutes 174.100
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Trustee: A person or institution holding and administering property in trust.
(2) The omitted person may also commence an action against the trustee in the circuit court in the county where the real property is located. In an action against the trustee, the omitted person is entitled to damages if the omitted person proves that:
(a) The trustee did not give notice of the sale to the omitted person in the manner required by ORS § 86.764 (2)(c) and 86.774;
(b) A search of the record under the name of the grantor as the grantor’s name appears on the trust deed, or as the name of the grantor’s successor in interest appears, would have revealed the omitted person’s interest;
(c) The omitted person could and would have cured the default under ORS § 86.778; and
(d) The omitted person sustained actual damages as a result of the person’s loss of the opportunity to cure the default under ORS § 86.778 (1).
(3) In an action against the trustee under subsection (2) of this section, a defendant or third party defendant may move for dismissal on the ground that the omitted person would not or could not have cured the default and reinstated the trust deed if the omitted person had received the notice required by ORS § 86.764 (2)(c). The court shall hold a hearing on the motion before a hearing on a motion for summary judgment, and before trying the action. The court shall deny the motion only if the omitted person produces affidavits or other evidence sufficient for a reasonable jury to find, applying a standard of clear and convincing evidence, that the omitted person had the financial ability to cure the default under ORS § 86.778 before the date of the trustee’s sale, and that the omitted person would have done so had the omitted person received the notice required by ORS § 86.764 (2)(c). If the court grants the motion to dismiss, the court shall award attorney fees under subsection (5) of this section.
(4) In an action against the trustee or another party under this section the omitted person shall plead that the omitted person did not have actual knowledge of the sale at least 25 days prior to the date the trustee conducted the sale, but thereafter the defendant has the burden of proving that the omitted person did have notice.
(5) In an action brought under this section, the applicable court may, upon entering judgment, allow to the prevailing party as a part of the costs a reasonable amount for attorney fees at trial and on appeal.
(6) The remedies described in subsections (1) to (5) of this section are the sole remedies available to a person entitled to notice of foreclosure by advertisement and sale under ORS § 86.764 (2)(c), who failed to receive notice. The person’s failure to redeem or to commence an action against the trustee within five years of the date of a trustee’s sale under ORS § 86.782 bars any action under this section or any other applicable law. [Formerly 86.742]
[1959 c.625 12,13; 1965 c.457 § 9; 1981 c.811 § 1; 1983 c.719 § 8; 1985 c.817 § 7; 1989 c.190 § 6; 1997 c.786 § 1; 2007 c.166 § 16; 2009 c.883 § 2; 2010 c.48 § 1; renumbered 86.797 in 2013]