Plaintiff Alan Chen received notice of a nonjudicial foreclosure sale but did not file a legal challenge until after the sale was complete and the trustee’s deed recorded. Judge Owen Panner dismissed the complaint with prejudice, again holding that ORS 86.770 bars all post-sale challenges of nonjudicial foreclosures.
Plaintiff waited until after the sale to assert that the notice of default should have been notarized and assignments of the MERS trust deed were never recorded. Since the Oregon Supreme Court recently held in Brandrup v. ReconTrust that trust deed assignments that occur by operation of law need not be recorded, plaintiff’s claims were likely doomed to fail on substantive grounds but the court instead relied solely on its earlier decision in Mikityuk v. NW Trustee Services.
Whatever the ultimate fate of post-sale challenges under the OTDA, many foreclosure defense attorneys believe the reasoning in Mikityuk and the sweeping conclusions it draws will not stand for long. In the meanwhile, those who choose to travel these treacherous waters may first want to don a life preserver or, like Diana Nyad’s predecessors, swim in a shark cage.
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