ORS 86.752
Foreclosure by advertisement and sale

A trustee may not foreclose a trust deed by advertisement and sale in the manner provided in ORS 86.764 (Notice of sale for certain persons) to 86.782 (Sale of property) unless:

(1)

The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated;

(2)

There is a default by the grantor or other person that owes an obligation, the performance of which is secured by the trust deed, or by the grantor’s or other person’s successors in interest with respect to a provision in the deed that authorizes sale in the event of default of the provision;

(3)

The trustee or beneficiary has filed for recording in the county clerk’s office in each county in which the trust property, or some part of the trust property, is situated, a notice of default containing the information required by ORS 86.771 (Contents of notice of sale) and containing the trustee’s or beneficiary’s election to sell the property to satisfy the obligation;

(4)

The beneficiary has filed for recording in the official records of the county or counties in which the property that is subject to the residential trust deed is located:

(a)

A certificate of compliance that a service provider issued to the beneficiary under ORS 86.736 (Certificate of compliance) that is valid and unexpired at the time the notice of default is recorded;

(b)

A copy of the affidavit with which the beneficiary claimed, under ORS 86.726 (Resolution conference for foreclosure) (1)(b), an exemption that has not expired; or

(c)

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;

(5)

The beneficiary has complied with the provisions of ORS 86.748 (Determination of ineligibility for foreclosure avoidance measure);

(6)

The grantor has not complied with the terms of any foreclosure avoidance measure upon which the beneficiary and the grantor have agreed; and

(7)

An action has not been commenced to recover the debt or any part of the debt then remaining secured by the trust deed, or, if an action has been commenced, the action has been dismissed, except that:

(a)

Subject to ORS 86.010 (Nature of mortgagee’s interest) and the procedural requirements of ORCP 79 and 80 and the Oregon Receivership Code, as applicable, an action may be commenced to appoint a receiver or to obtain a temporary restraining order during foreclosure of a trust deed by advertisement and sale, except that a receiver may not be appointed with respect to a single-family residence that the grantor, the grantor’s spouse or the grantor’s minor or dependent child occupies as a principal residence.

(b)

An action may be commenced to foreclose, judicially or nonjudicially, the same trust deed as to any other property covered by the trust deed, or any other trust deeds, mortgages, security agreements or other consensual or nonconsensual security interests or liens that secure repayment of the debt. [Formerly 86.735; 2017 c.236 §1; 2017 c.358 §48]

Source: Section 86.752 — Foreclosure by advertisement and sale, https://www.­oregonlegislature.­gov/bills_laws/ors/ors086.­html.

Notes of Decisions

Where default no longer existed at time property was sold at auction, sale of property was void. Staffordshire Investments, Inc., v. Cal-Western Reconveyance Corp., 209 Or App 528, 149 P3d 150 (2006), Sup Ct review denied

For purposes of statute, beneficiary of trust deed is person named or otherwise designated in trust deed as person to whom secured obligation is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

Assignment of note transferring security interest for protection of beneficiary does not implicate this section. Reeves v. ReconTrust Company, N.A., 846 F. Supp. 2d 1149 (D. Or. 2012)

Security interest embodied in trust deed follows any transfer of promissory note for that security interest. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

For purposes of section, “beneficiary” is lender to whom obligation that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

Provision of section does not require recordation of “assignments” of trust deed by operation of law that result from transfer of secured obligation. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013); Hucke v. BAC Home Loans Servicing, L.P., 272 Or App 94, 355 P3d 154 (2015)

Law Review Citations

49 WLR 77 (2012)

86.010
Nature of mortgagee’s interest 86.020
Covenant to pay money not implied 86.030
Absolute deed as a mortgage 86.040
Improvements on mortgaged lands 86.050
Payment of taxes and other charges by mortgagee 86.060
Assignment of mortgage 86.080
Record of assignment not notice to mortgagor 86.095
Acts not affecting priority of lien of credit instrument 86.100
Discharge of mortgage 86.110
Discharge of record by owner and holder of mortgage note who is not the mortgagee of record 86.120
Discharge of mortgage on real property 86.130
Discharge by foreign executors, administrators, conservators and guardians 86.140
Liability of mortgagee for failure to discharge mortgage 86.150
Loan agreements and promissory notes to state maximum prepayment privilege penalty 86.155
Priority of line of credit instrument as to certain advances 86.157
Action for residual debt after short sale of residential property 86.160
Definitions for ORS 86.160 to 86.185 86.165
Late charge 86.170
Prohibited mortgage provisions 86.175
Scope 86.180
ORS 86.160 to 86.185 not applicable to certain mortgagees 86.185
ORS 86.160 to 86.185 not applicable to certain loans 86.205
Definitions for ORS 86.205 to 86.275 86.210
Types of lender security protection provisions allowed 86.214
Application of ORS 86.210 and 86.245 to real estate loan agreements 86.240
Limit on amount required in security protection escrow account 86.245
Interest on security protection deposits 86.250
Service charge prohibited where interest required 86.255
Arrangements where security protection provisions not required 86.260
Payment of taxes where security protection provision required 86.265
Effect of lender violation of ORS 86.205 to 86.275 86.270
ORS 86.205 to 86.275 inapplicable to certain loan agreements 86.275
Severability 86.405
Secretary of State to furnish statement of mortgages filed before September 1, 1963 86.440
Discharge of mortgage recorded with county recording officer 86.460
Discharge of mortgage filed with Secretary of State 86.470
Discharge, assignment and foreclosure of mortgages on chattels registered and licensed by Department of Transportation 86.610
Power of financial institutions, fiduciaries and others to make loans secured by property insured by Federal Housing Administration 86.620
Investment of funds of financial institutions, fiduciaries and others in bonds and mortgages accepted by Federal Housing Administration, debentures issued thereby, and obligations of national mortgage associations 86.630
Eligibility of securities described in ORS 86.620 as security for deposits, investment or reserve of securities 86.640
Applicability of other laws requiring security or regulating loans and investments 86.705
Definitions for ORS 86.705 to 86.815 86.707
Additional definitions for ORS 86.726, 86.729, 86.732, 86.736, 86.741, 86.744 and 86.748 86.710
Trust deeds authorized to secure performance of obligation 86.713
Qualifications of trustee 86.715
Trust deed deemed to be mortgage on real property 86.720
Reconveyance upon performance 86.722
Correction of error concerning status or effect of trust deed 86.726
Resolution conference for foreclosure 86.729
Scheduling and notice for resolution conference 86.732
Attendance at resolution conference 86.736
Certificate of compliance 86.741
Attorney General duties and powers 86.744
Foreclosure Avoidance Fund 86.748
Determination of ineligibility for foreclosure avoidance measure 86.752
Foreclosure by advertisement and sale 86.756
Notice to grantor 86.761
Failure to give notice to grantor 86.764
Notice of sale for certain persons 86.767
Failure to give notice of sale 86.771
Contents of notice of sale 86.774
Service and publication of notice 86.778
Discontinuance of foreclosure proceedings after cure of default 86.782
Sale of property 86.786
Request for information from trustee 86.789
Information provided by trustee 86.794
Disposition of proceeds of sale 86.797
Effect of sale 86.800
Contents of trustee’s deed to purchaser 86.803
Recitals in trustee’s deed and certain affidavits as prima facie or conclusive evidence 86.806
Requests for copies of notice of default or notice of sale 86.809
Compensation of trustee 86.812
Impermissible conditions for approving short sale or sale of note 86.815
Time within which foreclosure must be commenced 86.990
Penalties
Green check means up to date. Up to date

Current through early 2024

§ 86.752’s source at oregon​.gov