Nationstar Mortgage, LLC v. Richard Niday

Defendants Richard Niday and Rebecca Lewis

appeal a general judgment of judicial foreclosure of a residential

deed of trust. The trial court granted summary

judgment to plaintiff on its claim of judicial foreclosure after

determining that there was no genuine issue of material fact

that plaintiff was the holder of the promissory note signed

by defendants and that defendants were in default of their

obligations under the promissory note and deed of trust.

The trial court, however, held a bench trial on defendants’

affirmative defense of “failure to mitigate.” After defendants

rested their case, the trial court granted plaintiff’s motion

for directed verdict on the affirmative defense. Accordingly,

the court entered a general judgment of judicial foreclosure.

On appeal, defendants claim that the trial court

erred by granting summary judgment to plaintiff and by

granting plaintiff’s motion for directed verdict on their affirmative

defense. We reject without written discussion their

assignment of error directed at the trial court’s grant of

a directed verdict, and we also reject without written discussion

a separate assignment of error that challenges the

competency of an affidavit introduced by plaintiff to support

summary judgment.

As for defendants’ assertion that summary judgment

was improper because there were genuine issues of

material fact as to “unresolved issues of transfer and ownership”

of the promissory note and deed of trust, their assertion

is foreclosed by two of our recent decisions. In Deutsche

Bank Trust Co. Americas v. Walmsley, 277 Or App 690, 696,

374 P3d 937 (2016), we held that the plaintiff

“proved that it was the ‘holder’ of the note, and therefore

entitled to enforce it in the event of a default, by establishing

that it possessed the note at the time of the foreclosure

action and that the note was indorsed to plaintiff. That is

all plaintiff was required to prove with respect to its right

to enforce the note, and defendant presented no evidence

from which a reasonable juror could conclude otherwise.”

Likewise, in Nationstar Mortgage, LLC v. Peper, 278 Or App

594, 596, 377 P3d 678 (2016), we held that, under the Uniform

Commercial Code, “the current holder of a promissory note,

666 Nationstar Mortgage, LLC v. Niday

indorsed in blank, gives [the current holder] the right to

enforce the note.” In that case, we upheld the grant of summary

judgment to the plaintiff because it

“presented evidence that it was in possession of the note,

that defendant was in default, and that plaintiff was entitled

to foreclose under those circumstances [and] defendant

failed to introduce evidence that would have raised any

genuine issues of material fact with respect to plaintiff’s

right to foreclose[.]”

Id. at 598. Similarly here, the summary judgment record

contained undisputed evidence that, at the time of the foreclosure

action, plaintiff was in possession of the promissory

note indorsed in blank and defendants were in default of

their obligations under the promissory note and deed of

trust. Accordingly, plaintiff established the requisites for

judicial foreclosure of a trust deed and defendants failed to

introduce evidence that raised any genuine issue of material

fact with respect to plaintiff’s right to foreclose. Thus, we

affirm the judgment of foreclosure.

After oral argument, defendants filed a motion for

review and relief of a trial court order that set the amount of

the supersedeas undertaking to stay the judgment pending

appeal at $2,500 per month. Previously, on de novo review

under ORS 19.360, the Appellate Commissioner had vacated

a trial court order that set the supersedeas undertaking at

$4,500 per month based on the trial court’s conclusion that

the gross annual revenue of $55,000 for short-term rental

of the property equated to the annual fair market rental

value of the property. In his order, the commissioner concluded

that there was no evidence in the record regarding

the amount that a reasonable person would be willing to pay

to rent the property for use as a short-term vacation rental,

which is how the property was being used. Accordingly, the

commissioner vacated and remanded the order to the trial

court with instructions to take additional evidence to determine

the “fair market rental value of the property” related

to its use as a short-term vacation rental. On remand to

the trial court, plaintiff presented a declaration of a real

estate broker who attested that as a short-term rental, the

property could reasonably be expected to generate between

$2,620 and $2,980 in net income per month depending on

Cite as 283 Or App 663 (2017) 667

the manner in which it was leased. Defendants presented

competing testimony that they would receive very little in

net income for leasing the property as a short-term rental.

The court set the supersedeas undertaking at $2,500 per

month. Defendants seek review of that order under ORS

19.360, which provides that we shall review the decision “de

novo upon the record.” Having reviewed the record, including

the evidence presented by the parties to the trial court,

we affirm the trial court’s order setting the supersedeas

undertaking at $2,500 per month.

Motion for review of order on supersedeas undertaking

granted; judgment of foreclosure and order on supersedeas

undertaking affirmed.