January 9, 2014
Oregon Court Dismisses Plaintiff’s Oregon Revised Statute § 86.745(1) Claim
The court in Woods v. United States Bank N.A., 2013 U.S. Dist. LEXIS 146485 (D. Or. 2013) ultimately granted the defendants’ motion to dismiss, and dismissed with prejudice.
Plaintiffs sought a declaratory judgment voiding and setting aside the foreclosure of their property on the ground that the May 25, 2011, notice of default and election to sell listed only MERS as the beneficiary and did not identify USB as beneficiary, and, therefore, the Notice of Default did not comply with the requirements of Oregon Revised Statute §86.745(1).
Defendants asserted that plaintiffs’ claim was barred by Oregon Revised Statute § 86.770 because plaintiffs did not and could not allege they did not receive the notice required under Oregon Revised Statute §86.740, the foreclosure sale was completed, and the property was sold to a bona fide purchaser.
The court noted that this court, other courts in this district, and Oregon state courts have held §86.770 bars rescission of a foreclosure sale when a borrower has received the notice required under §86.740 and the property is sold to a bona fide purchaser.
Here, Plaintiffs admitted they received notice of the foreclosure sale within the time required under the OTDA, that the property was sold to a bona fide purchaser, and that the sale of the property was recorded.
The court thus concluded that plaintiff’s claim was barred under §86.770(1) and, therefore, granted defendants’ motion to dismiss.
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