2017 ORS 88.010¹
Foreclosure of lien by suit
  • judgment for amount of debt
  • other remedies
  • requirements for complaint in proceeding to foreclose residential trust deed
  • stay

(1)(a) Except as otherwise provided by law, a lien upon real or personal property, other than that of a judgment, whether created by mortgage or otherwise, must be foreclosed, and the property adjudged to be sold to satisfy the debt the lien secures, by bringing suit. A judgment in the suit must include a declaration of the amount of the debt that the lien secures.

(b) Except as provided in ORS 86.797 (Effect of sale) or 88.103 (Sale of real property after mortgage foreclosure) or other applicable law, if the lien debtor or another person, as principal or otherwise, has given a promissory note or other personal obligation to pay the debt and if the plaintiff in the complaint asks the court for a money award in the judgment, the court shall include in the judgment a money award against the lien debtor or other person for the amount of the debt.

(c) The provisions of this chapter as to liens upon personal property do not exclude a person that has a lien from any other remedy or right that the person otherwise has with respect to the property.

(2)(a) A complaint in a suit to foreclose a residential trust deed under this section must include as an attachment a true copy of:

(A) A valid and unexpired certificate of compliance that a service provider issued to a beneficiary under ORS 86.736 (Certificate of compliance);

(B) The affidavit the person submitted under ORS 86.726 (Resolution conference for foreclosure) (1)(b), provided that the exemption the person claimed in the affidavit has not expired;

(C) The notice the beneficiary received under ORS 86.736 (Certificate of compliance) (1)(c); or

(D) 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.

(b)(A) A court on the court’s own motion or in response to a motion from a defendant may dismiss without prejudice a suit that a person brings under this section to foreclose a residential trust deed, or may stay proceedings on the suit, if the person:

(i) Fails to file with the court the certificate described in paragraph (a)(A) of this subsection or the affidavit described in paragraph (a)(B) or (D) of this subsection; or

(ii) Files with the court the notice described in paragraph (a)(C) of this subsection.

(B) The court may release a stay the court granted under subparagraph (A) of this paragraph if the person files with the court the certificate described in paragraph (a)(A) of this subsection or the affidavit described in paragraph (a)(B) or (D) of this subsection.

(C) The court may award a defendant that prevails on a motion under this paragraph reasonable costs and attorney fees associated with bringing the motion and any other relief the court deems proper. [Amended by 2003 c.576 §345; 2013 c.304 §12; 2015 c.291 §4; 2017 c.236 §2]

Notes of Decisions

Under this sec­tion foreclosure of possessory lien on truck was suit in equity. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

As “other per­sonal obliga­tion” within meaning of this sec­tion could be anything other than promissory note, awarding deficiency judg­ment where plaintiff had not shown any evidence of debt was error. Skinner v. Keeley, 47 Or App 751, 615 P2d 382 (1980)

Once a lien has been disallowed, case continues as an ac­tion at law for the underlying debt. McDonald v. McFadden, 63 Or App 726, 665 P2d 1255 (1983), Sup Ct review denied

This sec­tion does not require entry of money judg­ment against lien debtor where foreclosure plaintiff does not seek money judg­ment against lien debtor. Bayview Loan Servicing, LLC v. Reed, 282 Or App 525, 385 P3d 1272 (2016)

Law Review Cita­tions

27 WLR 891 (1991)

Chapter 88

Notes of Decisions

Foreclosure is governed by statutes which do not require court to parti­tion prop­erty before sale. John Hancock Mutual Life Ins. Co. v. Arnold, 85 Or App 140, 735 P2d 1270 (1987), Sup Ct review denied

Where mortgagor’s grantee redeems prop­erty, redeemed prop­erty is subject to all junior liens on prop­erty existing prior to foreclosure. Franklin v. Spencer, 309 Or 476, 789 P2d 643 (1990)

Atty. Gen. Opinions

Impair­ment of mortgagee’s remedy of foreclosure where local planning authorities, under local parti­tion ordinance, deny permission to foreclose mortgage, (1978) Vol 38, p 2148

1 Legislative Counsel Committee, CHAPTER 88—Foreclosure of Mortgages and Other Liens, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors088.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 88, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano088.­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.