2017 ORS 86.752¹
Foreclosure by advertisement and sale

A trustee may not foreclose a trust deed by advertisement and sale in the manner provided in ORS 86.764 (Notice of sale for certain persons) to 86.782 (Sale of property) unless:

(1) The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated;

(2) There is a default by the grantor or other person that owes an obligation, the performance of which is secured by the trust deed, or by the grantor’s or other person’s successors in interest with respect to a provision in the deed that authorizes sale in the event of default of the provision;

(3) The trustee or beneficiary has filed for recording in the county clerk’s office in each county in which the trust property, or some part of the trust property, is situated, a notice of default containing the information required by ORS 86.771 (Contents of notice of sale) and containing the trustee’s or beneficiary’s election to sell the property to satisfy the obligation;

(4) The beneficiary has filed for recording in the official records of the county or counties in which the property that is subject to the residential trust deed is located:

(a) A certificate of compliance that a service provider issued to the beneficiary under ORS 86.736 (Certificate of compliance) that is valid and unexpired at the time the notice of default is recorded;

(b) A copy of the affidavit with which the beneficiary claimed, under ORS 86.726 (Resolution conference for foreclosure) (1)(b), an exemption that has not expired; or

(c) A signed affidavit from the Director of Veterans’ Affairs that states that the Department of Veterans’ Affairs, in the department’s capacity as a beneficiary of loans made under ORS 407.125 (Loans to qualified person), is exempt from the requirement under ORS 86.726 (Resolution conference for foreclosure) to request or participate in a resolution conference with a grantor;

(5) The beneficiary has complied with the provisions of ORS 86.748 (Determination of ineligibility for foreclosure avoidance measure);

(6) The grantor has not complied with the terms of any foreclosure avoidance measure upon which the beneficiary and the grantor have agreed; and

(7) An action has not been commenced to recover the debt or any part of the debt then remaining secured by the trust deed, or, if an action has been commenced, the action has been dismissed, except that:

(a) Subject to ORS 86.010 (Nature of mortgagee’s interest) and the procedural requirements of ORCP 79 and 80 and the Oregon Receivership Code, as applicable, an action may be commenced to appoint a receiver or to obtain a temporary restraining order during foreclosure of a trust deed by advertisement and sale, except that a receiver may not be appointed with respect to a single-family residence that the grantor, the grantor’s spouse or the grantor’s minor or dependent child occupies as a principal residence.

(b) An action may be commenced to foreclose, judicially or nonjudicially, the same trust deed as to any other property covered by the trust deed, or any other trust deeds, mortgages, security agreements or other consensual or nonconsensual security interests or liens that secure repayment of the debt. [Formerly 86.735; 2017 c.236 §1; 2017 c.358 §48]

(formerly 86.735)

Notes of Decisions

Where default no longer existed at time prop­erty was sold at auc­tion, sale of prop­erty was void. Staffordshire Invest­ments, Inc., v. Cal-Western Reconveyance Corp., 209 Or App 528, 149 P3d 150 (2006), Sup Ct review denied

For purposes of statute, beneficiary of trust deed is per­son named or otherwise designated in trust deed as per­son to whom secured obliga­tion is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

Assign­ment of note transferring security interest for protec­tion of beneficiary does not implicate this sec­tion. Reeves v. ReconTrust Company, N.A., 846 F. Supp. 2d 1149 (D. Or. 2012)

Security interest embodied in trust deed follows any transfer of promissory note for that security interest. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

For purposes of sec­tion, “beneficiary” is lender to whom obliga­tion that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

Provision of sec­tion does not require recorda­tion of “assign­ments” of trust deed by opera­tion of law that result from transfer of secured obliga­tion. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013); Hucke v. BAC Home Loans Servicing, L.P., 272 Or App 94, 355 P3d 154 (2015)

Law Review Cita­tions

49 WLR 77 (2012)

§§ 86.735 to 86.755

Law Review Cita­tions

69 OLR 847 (1990)

Notes of Decisions

For purposes of Oregon Trust Deed Act, beneficiary of trust deed is per­son named or otherwise designated in trust deed as per­son to whom secured obliga­tion is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

Statutes regulating trust deeds do not regulate transfers of promissory notes. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

Statutes regulating trust deeds are not preempted by federal Home Owner’s Loan Act. Higley v. Flagstar Bank, FSB, 910 F. Supp. 2d 1249 (D. Or. 2012)

For purposes of Oregon Trust Deed Act, “beneficiary” is lender to whom obliga­tion that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

For purposes of Oregon Trust Deed Act, only pertinent interests in trust deed are beneficial interest of beneficiary and legal interest of trustee. Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

Law Review Cita­tions

23 WLR 37, 55 (1987); 67 OLR 306 (1988); 69 OLR 851 (1990)

1 Legislative Counsel Committee, CHAPTER 86—Mortgages; Trust Deeds, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors086.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 86, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano086.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.