ORS 88.010
Foreclosure of lien by suit

  • judgment for amount of debt
  • other remedies
  • requirements for complaint in proceeding to foreclose residential trust deed
  • stay

(1)

Intentionally left blank —Ed.

(a)

Except as otherwise provided by law, a lien upon real or personal property, other than that of a judgment, whether created by mortgage or otherwise, must be foreclosed, and the property adjudged to be sold to satisfy the debt the lien secures, by bringing suit. A judgment in the suit must include a declaration of the amount of the debt that the lien secures.

(b)

Except as provided in ORS 86.797 (Effect of sale) or 88.103 (Sale of real property after mortgage foreclosure) or other applicable law, if the lien debtor or another person, as principal or otherwise, has given a promissory note or other personal obligation to pay the debt and if the plaintiff in the complaint asks the court for a money award in the judgment, the court shall include in the judgment a money award against the lien debtor or other person for the amount of the debt.

(c)

The provisions of this chapter as to liens upon personal property do not exclude a person that has a lien from any other remedy or right that the person otherwise has with respect to the property.

(2)

Intentionally left blank —Ed.

(a)

A complaint in a suit to foreclose a residential trust deed on the lien debtor must include as an attachment a copy of a notice to lien debtors, in substantially the following form and printed in at least 14-point type:
WARNING: You may get offers from people who tell you they can help you keep your property. You may get offers from people who want to buy your “redemption rights” or “all rights under ORS chapter 18.” You should be careful about those offers, as a sale of your rights to a property in foreclosure may include your right to claim any surplus funds arising from the foreclosure sale. Make sure you understand any papers you are asked to sign. If you have any questions, talk to a lawyer or one of the organizations mentioned below before signing.
There are government agencies and nonprofit organizations that can give you information about foreclosure and help you decide what to do. For the name and telephone number of an organization near you, please call the statewide telephone contact number at _________. You may also wish to talk to a lawyer. If you need help finding a lawyer, you may call the Oregon State Bar’s Lawyer Referral Service at _________ or toll-free in Oregon at _________ or you may visit its website at: _________. Legal assistance may be available if you have a low income and meet federal poverty guidelines. For more information and a directory of legal aid programs, go to _________.

(b)

The person filing the complaint shall insert in the notice under this subsection the resource telephone contact numbers and website addresses prescribed by the Department of Consumer and Business Services by rule under ORS 86.756 (Notice to grantor).

(3)

Intentionally left blank —Ed.

(a)

A complaint in a suit to foreclose a residential trust deed under this section must include as an attachment a true copy of:

(A)

A valid and unexpired certificate of compliance that a service provider issued to a beneficiary under ORS 86.736 (Certificate of compliance);

(B)

The affidavit the person submitted under ORS 86.726 (Resolution conference for foreclosure) (1)(b), provided that the exemption the person claimed in the affidavit has not expired;

(C)

The notice the beneficiary received under ORS 86.736 (Certificate of compliance) (1)(c); or

(D)

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.

(b)

Intentionally left blank —Ed.

(A)

A court on the court’s own motion or in response to a motion from a defendant may dismiss without prejudice a suit that a person brings under this section to foreclose a residential trust deed, or may stay proceedings on the suit, if the person:
(i)
Fails to file with the court the certificate described in paragraph (a)(A) of this subsection or the affidavit described in paragraph (a)(B) or (D) of this subsection; or
(ii)
Files with the court the notice described in paragraph (a)(C) of this subsection.

(B)

The court may release a stay the court granted under subparagraph (A) of this paragraph if the person files with the court the certificate described in paragraph (a)(A) of this subsection or the affidavit described in paragraph (a)(B) or (D) of this subsection.

(C)

The court may award a defendant that prevails on a motion under this paragraph reasonable costs and attorney fees associated with bringing the motion and any other relief the court deems proper.

(4)

Except as provided in ORS 408.515 (Information to be included with certain documents related to real property) (3), the information required under ORS 408.515 (Information to be included with certain documents related to real property) must be included with a summons in an action under this section to foreclose a lien upon residential real property, as defined in ORS 408.515 (Information to be included with certain documents related to real property). [Amended by 2003 c.576 §345; 2013 c.304 §12; 2015 c.291 §4; 2017 c.236 §2; 2019 c.309 §4; subsection (4) of 2019 edition enacted as 2019 c.405 §6]
Note: 88.010 (Foreclosure of lien by suit) (4) was added to and made a part of ORS chapter 88 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

Source: Section 88.010 — Foreclosure of lien by suit; judgment for amount of debt; other remedies; requirements for complaint in proceeding to foreclose residential trust deed; stay, https://www.­oregonlegislature.­gov/bills_laws/ors/ors088.­html.

Notes of Decisions

Under this section foreclosure of possessory lien on truck was suit in equity. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

As “other personal obligation” within meaning of this section could be anything other than promissory note, awarding deficiency judgment where plaintiff had not shown any evidence of debt was error. Skinner v. Keeley, 47 Or App 751, 615 P2d 382 (1980)

Once a lien has been disallowed, case continues as an action at law for the underlying debt. McDonald v. McFadden, 63 Or App 726, 665 P2d 1255 (1983), Sup Ct review denied

This section does not require entry of money judgment against lien debtor where foreclosure plaintiff does not seek money judgment against lien debtor. Bayview Loan Servicing, LLC v. Reed, 282 Or App 525, 385 P3d 1272 (2016), Sup Ct review denied

Law Review Citations

27 WLR 891 (1991)

Green check means up to date. Up to date

Current through early 2024

§ 88.010’s source at oregon​.gov