Bank of New York Mellon v. Lash ( 2020 )

658
Argued and submitted May 7, 2019; reversed January 2; respondent’s petition
for reconsideration filed February 5, and appellant’s response to petition for
reconsideration filed February 11, allowed by opinion April 8, 2020
See 303 Or App 456, ___ P3d ___ (2020)
THE BANK OF NEW YORK MELLON,
fks The Bank of New York
on behalf of Certificateholders of the CWALT Inc.
Alternative Loan Trust 2006-OA10,
Plaintiff-Respondent,
v.
Anthony LASH,
and all other occupants,
Defendant-Appellant.
Washington County Circuit Court
18LT07750; A168204
457 P3d 345
Plaintiff brought a forcible entry and wrongful detainer (FED) action to obtain
possession of property it purchased at a sheriff’s sale following judicial foreclosure
of defendant’s legal interest in the property. Defendant claimed no title interest
in the property. The parties agreed that they were not in a landlord-tenant rela-
tionship. The trial court entered a judgment of eviction for plaintiff. Held: The
trial court lacked authority to award possession to plaintiff in an FED action.
The use of ORS 105.115 to establish a plaintiff’s right to possession of property is
limited to circumstances following a defendant’s forcible entry onto or unlawful
holding of that property. A defendant who entered property as an owner entered
peacefully and not by force. An “unlawful holding” refers only to circumstances
where a landlord-tenant relationship exists. Plaintiff’s purchase of defendant’s
property following judicial foreclosure did not create the landlord-tenant relation-
ship required to maintain plaintiff’s FED action under ORS 105.115.
Reversed.
Janelle F. Wipper, Judge.
Caleb S. Leonard argued the cause for appellant. Also on
the briefs was Tyler Smith and Associates, PC.
Katrina E. Glogowski argued the cause and filed the
brief for respondent.
Before Powers, Presiding Judge, and Mooney, Judge, and
Linder, Senior Judge.*
MOONEY, J.
Reversed.
______________
* Mooney, J., vice Ortega, P. J.
Cite as 301 Or App 658 (2020) 659
MOONEY, J.
Defendant appeals from a judgment of eviction in
favor of plaintiff in this forcible entry and detainer (FED)
action to recover possession of real property. Defendant
argues, first, that the complaint lacked an essential statu-
tory element and, therefore, should have been dismissed as
a pleading matter and, second, that plaintiff may not main-
tain an FED action against him in any event because there
is no landlord-tenant relationship between the parties. We
need not reach defendant’s first assignment of error1 because
we conclude that the trial court lacked authority to award
possession to plaintiff through an FED action. Accordingly,
we reverse.
The following facts are not in dispute. The property
in question had been defendant’s home, occupied by him as
owner for over 40 years. Plaintiff purchased the property at
a sheriff’s sale following judicial foreclosure of defendant’s
legal interest in that property. Defendant does not claim a
title interest in the property. Plaintiff does not claim that it
is in a landlord-tenant relationship with defendant.
ORS 105.110 provides for an FED action as follows:
“When a forcible entry is made upon any premises, or
when an entry is made in a peaceable manner and posses-
sion is held by force, the person entitled to the premises
may maintain in the county where the property is situated
an action to recover the possession of the premises in the
circuit court or before any justice of the peace of the county.”
An FED action may, therefore, be used to establish a plain-
tiff’s right to possession of the property following a defen-
dant’s forcible entry or an unlawful holding. It is a statutory
cause of action designed to allow quick resolution of a sin-
gle issue between a landlord and tenant: Who is entitled to
1
Plaintiff used the complaint form set forth in ORS 105.124 specifically
designed for FED actions subject to ORS chapter 90, the Residential Landlord
Tenant Act. Plaintiff does not argue that the Residential Landlord Tenant Act
applies to this case. Instead, it argues that its selection and use of that form
and, in particular, the way it filled it out is in substantial compliance with ORS
105.123 concerning FED complaints where ORS chapter 90 does not apply.
Because an FED action was not the proper action to file in this case, it does not
matter which form plaintiff selected; both forms were wrong.
660 Bank of New York Mellon v. Lash
possession of the property? Aldrich v. Forbes, 237 Or 559,
567, 391 P2d 748 (1964).
Plaintiff does not maintain that defendant entered
the property forcibly. Indeed, because he entered as a prop-
erty owner, he did not enter by force. Plaintiff instead main-
tains that defendant holds the property by force because he
continues to occupy it following a sheriff’s sale. It is well
established, however, that the statutory definition of an
“unlawful holding by force” refers only to circumstances
where a landlord-tenant relationship exists. Bunch v. Pearson,
186 Or App 138, 142, 62 P3d 878, rev den, 335 Or 422 (2003)
(citing Aldrich, 237 Or 559).
Plaintiff argues that this case is distinguishable
from Aldrich and Bunch because, although the parties in
those cases were not in landlord-tenant relationships, the
defendants in those cases also claimed some title interest in
the property. Defendant in this case does not claim any such
interest in the property. We disagree with plaintiff that
the absence of a title dispute requires a different outcome
in this case. In both Bunch and Aldrich, the absence of the
landlord-tenant relationship was the stated rationale for the
conclusion that the defendants in each case were not holding
the property by force under ORS 105.110. Id. at 142; Aldrich,
237 Or at 572.
Kerr v. Jones, 193 Or App 682, 91 P3d 828 (2004),
is consistent on that point and is instructive because it
involved an FED action filed by a successful bidder at a pub-
lic sale. In that case, the defendant disputed title because
his appeal from the judgment of partition was still pending.
Id. at 684. But, more importantly, he was not in a landlord-
tenant relationship with the successful bidder who filed the
FED action. Id. Because the defendant originally occupied
the property as a co-owner (entry made in a peaceable man-
ner) and was not in a landlord-tenant relationship with the
plaintiff (not capable of holding by force), we held that the
plaintiff could not obtain restitution of the property in an
FED action. Id. at 687. The same is true here. Defendant
was not plaintiff’s tenant and he therefore cannot be said to
have been holding the property by force within the mean-
ing of ORS 105.110. Because defendant in this case neither
Cite as 301 Or App 658 (2020) 661
took nor held possession of the property by force within the
meaning of ORS 105.110 and ORS 105.115, plaintiff cannot
obtain restitution of the property in this FED action.
Plaintiff nevertheless urges us to decide whether a
purchaser at a judicial foreclosure sale may obtain posses-
sion of the property by filing an FED action notwithstanding
the lack of a landlord-tenant relationship. Plaintiff argues
that requiring such a purchaser to complete an ejectment
action is “simply untenable,” asserting that post-foreclosure
FED actions are filed in Oregon circuit courts “every single
day,” including post-judicial foreclosure actions. In essence,
plaintiff argues that a purchaser at a sale following judi-
cial foreclosure should be permitted to file an FED action
to obtain possession in the same manner as a purchaser
at a sale following nonjudicial foreclosure. The difference,
however, is that ORS 86.782(6) expressly authorizes use of
an FED action to obtain possession following nonjudicial
foreclosure of a trust deed. In such cases, a landlord-tenant
relationship exists because the statute expressly defines one
who remains in possession after such a sale as a tenant at
sufferance. ORS 86.782(6)(a). No comparable statutory pro-
vision exists for purchasers of property following judicial
foreclosure.2 Our case law, as previously cited and discussed,
is clear: Without a landlord-tenant relationship, there is no
holding by force within the meaning of the FED statutes.
The legislature has not extended the use of FED actions to
purchasers following judicial foreclosures.3
Reversed.
2
Although ORS 18.946 provides that the purchaser is entitled to posses-
sion following an execution sale, it does not address the mechanism for obtaining
possession.
3
Our conclusion that the use of FED actions is not available under the cir-
cumstances of this case does not foreclose other potential remedies such as an
ejectment action under ORS 105.005.