Statutory Liens

ORS 87.060
Foreclosure

  • right to jury trial
  • distribution of proceeds of foreclosure sale


(1)

A suit to enforce a lien perfected under ORS 87.035 (Perfecting lien) shall be brought in circuit court, and the pleadings, process, practice and other proceedings shall be the same as in other cases.

(2)

In a suit to enforce a lien perfected under ORS 87.035 (Perfecting lien), evidence of the actual costs of the labor, equipment, services and material provided by the lien claimant establishes a rebuttable presumption that those costs are the reasonable value of that labor, equipment, services and material.

(3)

In a suit to enforce a lien perfected under ORS 87.035 (Perfecting lien), the court shall allow or disallow the lien. If the lien is allowed, the court shall proceed with the foreclosure of the lien and resolve all other pleaded issues. If the lien is disallowed, and a party has made a demand for a jury trial as provided for in subsection (4) of this section, the court shall impanel a jury to decide any issues triable of right by a jury. All other issues in the suit shall be tried by the court.

(4)

A party may demand a trial by jury of any issue triable of right by a jury after the lien is disallowed, if that party serves a demand therefor in writing upon the other parties at any time prior to commencement of the trial to foreclose the lien. The demand shall be filed with the court. The failure of a party to serve a demand as required by this subsection shall constitute a waiver by the party of trial by jury. A demand for trial by jury made as provided in this subsection may not be withdrawn without the consent of the parties.

(5)

When notice of intent to foreclose the lien has been given, pleaded and proven as provided for in ORS 87.057 (Notice of intent to foreclose), the court, upon entering judgment for the lien claimant, shall allow as part of the costs all moneys paid for the filing or recording of the lien and all moneys paid for title reports required for preparing and foreclosing the lien. In a suit to enforce a lien perfected under ORS 87.035 (Perfecting lien) the court shall allow a reasonable amount as attorney fees at trial and on appeal to the party who prevails on the issues of the validity and foreclosure of the lien.

(6)

In case the proceeds of any sale under ORS 87.001 (Short title) to 87.060 (Foreclosure) and 87.075 (Exemption of building materials from attachment by third persons) to 87.093 (Information Notice to Owner) are insufficient to pay all lienholders claiming under such statutes, the liens of all persons shall be paid pro rata. Each claimant is entitled to execution for any balance due the claimant after the distribution of the proceeds, and that execution shall be issued by the clerk of the court, upon demand, after the return of the sheriff or other officer making the sale showing the balance due.

(7)

All suits to enforce any lien perfected under ORS 87.035 (Perfecting lien) shall have preference on the calendar of the court over every civil suit, except suits to which the state is a party, and shall be tried by the court without unnecessary delay. In such a suit, all persons personally liable, and all lienholders whose claims have been filed for record pursuant to ORS 87.035 (Perfecting lien), shall, and all other persons interested in the matter in controversy, or in the property sought to be charged with the lien, may be made parties; but persons not made parties are not bound by the proceedings. The proceedings upon the foreclosure of the liens perfected under ORS 87.035 (Perfecting lien) shall, as nearly as possible, conform to the proceedings of a foreclosure of a mortgage lien upon real property. [Amended by 1975 c.466 §16; 1981 c.897 §20; 1981 c.898 §44; 1983 c.517 §2; 1987 c.662 §13]

Notes of Decisions

In General

This section did not apply where the case was filed prior to the effective date of this section. Harder Mechanical Contractors, Inc. v. Fairfield Erectors, Inc., 278 Or 613, 564 P2d 1356 (1977)

Failure to serve notice does not waive right to have action proceed with court sitting as trier of fact in place of jury. B & D Investment Corp. v. Petticord, 48 Or App 345, 617 P2d 276 (1980), Sup Ct review denied

Where this section required claims to be tried to two different factfinders, res judicata and law of case did not preclude judge and jury from making different findings concerning same fact on different claims in one action. Westwood Corp. v. Bowen, 108 Or App 310, 815 P2d 1282 (1991)

Where overstatement of lien amount is not result of fraud or gross negligence, lien remains enforceable to extent of proper amount. Stricker v. Taylor, 158 Or App 608, 975 P2d 930 (1999)

Surety on release of lien bond need not be made party to underlying action to foreclose lien against bond. Valencich v. TMT Homes of Oregon, Inc., 193 Or App 47, 88 P3d 300 (2004)

Attorney Fees

In suit to foreclose mechanic's lien where trial court denied foreclosure of lien but awarded plaintiff $200 and also awarded $1000 in attorney fees to defendant as "prevailing party" and on day of trial defendant paid into court sum of $200 for "extra" work, defendant was prevailing party entitled to recover costs under ORS 20.180, including attorney fees as provided by this section. Cloyd v. McPherson, 283 Or 137, 582 P2d 423 (1978)

Where third-party defendant stipulated that it was responsible for any damages defendant might be awarded for unmerchantable pipe, attorney fees awarded to defendant under lien foreclosure statute were properly transferred to third-party defendant when it failed to object to award of attorney fees on counterclaim and conceded its primary liability for defect which gave rise to counterclaim. Davison v. Parker, 50 Or App 129, 622 P2d 1113 (1981), Sup Ct review denied

In absence of express waiver by contractor of right to file construction lien, agreement to arbitrate disputes did not prevent filing of lien and thereafter foreclosing to recover unpaid amounts and costs and attorney fees incurred in preparation, filing and foreclosure of lien claim. Harris v. Dyer, 50 Or App 223, 623 P2d 662 (1981), as modified by 292 Or 233, 637 P2d 918 (1981)

Where notice of filing of lien was given by regular mail instead of by registered or certified mail and defendant admitted receipt of notice, there was substantial compliance with statutory notice requirements and denial of attorney fees and costs was improper. Laro Lumber Company v. Patrick, 52 Or App 1035, 630 P2d 400 (1981)

Where plaintiffs recovered $180 more than total of defendant's tender and successful counterclaim, plaintiff was prevailing party, but since plaintiffs' foreclosure suit failed they were not entitled to attorney fees under this section. King v. Suniga, 54 Or App 267, 634 P2d 812 (1981)

Where plaintiff voluntarily dismissed construction lien foreclosure action pursuant to ORCP 54A as to some defendants, those defendants could recover costs and attorney fees pursuant to this section. Precision Roof Trusses, Inc. v. Devitt, 59 Or App 4, 650 P2d 152 (1982)

Where defendants did not object to plaintiff's failure to give notice required by ORS 87.039, they could not complain of failure to give statutory notice. Minter-Wilson Drilling Co. v. Richins, 60 Or App 702, 655 P2d 1060 (1982), Sup Ct review denied

Bank that successfully moved to dismiss claim by construction lienor to foreclose its lien was not entitled to attorney fees where court found that bank's trust deed was prior to construction lien and not that construction lien was invalid. Bones Construction Co. v. En Stone I, Ltd., 89 Or App 530, 749 P2d 1217 (1988)

Where arbitrator refused to award attorney fees and reservation of rights clause made arbitration nonexclusive remedy, court could award attorney fees incurred in arbitration. ASB Construction v. Bateman, 124 Or App 638, 863 P2d 516 (1993)

Where contract provides that contractual remedies are in addition to remedies at law, court may include attorney fees incurred through contractual remedies as part of reasonable amount of attorney fees at trial. Westwood Construction Company v. Hallmark Inns & Resorts, Inc., 182 Or App 624, 50 P3d 238 (2002), Sup Ct review denied

Law Review Citations

9 WLJ 361 (1973)

§§ 87.001 to 87.060

Notes of Decisions

In absence of express waiver by contractor of right to file construction lien, agreement to arbitrate disputes did not prevent filing of lien and thereafter foreclosing to recover unpaid amounts and costs and attorney fees incurred in preparation, filing and foreclosure of lien claim. Harris v. Dyer, 50 Or App 223, 623 P2d 662 (1981), as modified by 292 Or 233, 637 P2d 918 (1981)


Source

Last accessed
Jun. 26, 2021