Streater v. Federal National Mortgage Association et al

Filing 29

OPINION and ORDER: Granting Motion for Summary Judgment 16 ; Granting Motion for Summary Judgment 23 . The request for oral argument is denied as unnecessary. Signed on 8/16/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KENNETH STREATER, an individual,

Case No. 6:16-cv-01611-AA
OPINION AND ORDER

Plaintiff,

v.
FEDERAL NATI ONAL MORTGAGE
ASSOCIATION and FIRST
AMERICAN TITLE COMPANY, as
Successor Trustee,
Defendants.

AIKEN, District Judge:
Defendants, Federal National Mortgage Association ("Fannie Mae") and First American
Title Company ("FATC"), each separately move this Court for orders of summary judgment on
claims filed by plaintiff, Kenneth Streater.

(Docs. 16 and 23).

defendants' Motions for Summary Judgment are GRANTED.

Page 1 - Opinion and Order

For the following reasons,

BACKGROUND
This case arises from a non-judicial foreclosure of a deed of trust on land owned by
Plaintiff situated at 49687 and 49701 McKenzie Highway, Vida, OR 97488 ("the McKenzie
Property"). Pl. 's Comp!. if 1. Plaintiff alleges that he purchased the McKenzie Property in 2002
under a promissory note issued by lender, Homecomings Financial Network, Inc., and that this
note was secured by a deed of trust that identified Mmigage Electronic Registration Systems,
Inc. ("MERS"), as the beneficiary. Id. at 2-3. Plaintiff alleges he then experienced financial
difficulties between 2011 and 2012 that resulted in several missed monthly payments on the
mortgage note. Id. at 7-8. These missed mortgage payments gave rise to judicial foreclosure
proceedings with non-patiy GMAC Mortgage, LCC ("GMAC"), which ultimately led to a
settlement agreement in 2012 in lieu of foreclosure. Id. at 9, Ex. 1. Plaintiff alleges by this time
the agreement was made on behalf of another beneficiary, Fannie Mae. Id.
Despite these efforts, in August 2015 the McKenzie Property again went into foreclosure.

Id. at 11, Ex. 2. This time, FATC initiated non-judicial foreclosure proceedings, acting on behalf
of beneficiary Fannie Mae as the successor trustee. Id. FATC initiated these proceedings by
recording a Notice of Default and Election to Sale and sending a copy of the notice to several
addresses associated with plaintiff. Specifically, FATC sent copies of the notice to plaintiff's
physical address in Redmond -

2606 SW 58th St., Redmond, OR 97556-95551 -

as well as

both addresses associated the McKenzie Property, and a separate P .0. Box located in Sisters,
Oregon, which was listed on the second priority Deed of Trust and particular tax records
identifying plaintiff.

1

1

Id. at 7. Plaintiff complains, however, that FATC did not send a copy to

The Sisters, OR address is as follows: Kenneth Streater, PO Box 1965, Sisters, OR

97759.
Page 2 - Opinion and Order

P.O. Box 1716, Redmond, OR, which was referenced in the 2012 settlement agreement. Id. at
13, Ex. 2. Plaintiff avers that this was his only mailing address and defendants knew it to be so.
These facts form the basis of plaintiffs complaint, where he alleges that defendants failed
to comply with the requirements of the Oregon Trust Deed Act ("ODTA") by not adequately
providing notice of the sale. Plaintiff requests that this Court grant declaratory judgment in his
favor "setting aside, voiding, and invalidating the non-judicial foreclosure" and restoring his
interest in the McKenzie Prope1ty based on the inadequate notice. PJ's. Comp!.

if 10. Defendants

subsequently filed timely motions for summary judgment now before this Court.
STANDARD

Summary judgment must be granted where the moving party demonstrates there is "no
genuine dispute as to any material fact." FRCP 56(a). Specifically, a "genuine issue" of material
fact arises where "the evidence is such that a reasonable jury could return a verdict for the
nomnoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510,
(1986). If the moving party shows the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings and identify facts which show a genuine issue
for trial. Celotex Corp. v. Cartrett, 477 U.S. 317, 324 (1986).
DISCUSSION

Plaintiffs first two claims for relief against FATC were previously dismissed by this
Comt. See Streater v. Fed. Nat'! Mortg. Ass'n, 224 F. Supp. 3d 1113, (D. Or. 2016). Based on
that decision, plaintiff submits that he voluntarily withdraws his first and second claim for relief
against Fannie Mae as well. Pl. Resp. in Opp'n 1. Thus, the only remaining issue before this
Court on summary judgment is whether defendants adequately complied with OTDA's notice
requirements.

Page 3 - Opinion and Order

FATC 's Motion for Summwy Judgment
FATC moves for summary judgment against plaintiffs claim for relief based on
inadequate notice under the OTDA. Specifically, plaintiff argues the Notice of Sale distributed
by FATC was deficient because a copy was never mailed to the Redmond P.O. Box address
listed in the 2012 settlement agreement. FATC counters that it was not required to send a copy
of the notice to that address and that it adequately complied with notice requirements of the
OTDA. For the following reasons, FATC is correct.
FATC acts as a trustee under Oregon law and, as such, is bound by notice provisions in
the OTDA. Oregon Revised Statute ("ORS") 86.764. That provision is as follows: "[a]fter
recording a notice of default as provided in ORS 86.752, and at least 120 days before the day the
trustee conducts the sale, notice of the sale with the contents described in ORS 86.771 must be
served pursuant to [Oregon Rules of Civil Procedure] 7 D(2) and 7 D(3) or mailed by both first
class and certified mail with retum receipt requested." 2 OR 86. 764(1 ). To be clear, the notice of
default is not at issue here, nor is the content ofFATC's notice of sale.
Rather, plaintiff argues that he simply never received the notice of sale. This argument
hinges on the claim that FATC failed to provide notice at plaintiffs "last-known address." 3 ORS
86.764(2). The question of what a trustee knows is, at least initially, one of fact. Plaintiff during
2

This section of the OTDA has been amended by the Oregon Legislature. S.B. 381, 79th
Leg. (Or. 2017). However, these changes apply only to notices mailed on or after the
amendments' enactment.
3
ORS 86.764(2) provides that:
The notice described in subsection (1) of this section must be served or mailed to the lastknown address of the following persons or the legal representatives of the persons, if any:
(a) The grantor in the trust deed.
(b) Any successor in interest to the grantor whose interest appears of record, or of whose
interest the trustee or the beneficiary has actual notice.
(c) Any person, including the Depatiment of Revenue or another state agency, that has a
lien or interest subsequent to the trust deed if the lien or interest appears of record or the
beneficiary has actual notice of the lien or interest.
(d) A person that requests notice as provided in ORS 86.806.
Page 4 ~ Opinion and Order

discovery sought to demonstrate that FATC leamed of the Redmond P.O. Box address through
its interactions with the beneficiary, Fannie Mae, which plaintiff alleges was the beneficiary at
the time of the 2012 settlement.
The results of these efforts are inadequate to produce a genuine issue of material fact for
trial. First, the mere existence of the 2012 settlement agreement does not establish that Fannie
Mae received notice that the Redmond P.O. Box address was plaintiff's only mailing address or
that it knew that plaintiff did not reside at either McKenzie Propeiiy. 4 Rather, the record merely
shows that MERS was the beneficiary in 2002, and that Fannie Mae eventually became the
beneficiary. In between those dates is the 2012 settlement agreement, which lists neither Fannie
Mae nor MERS as the beneficiary.
Plaintiff has failed to produce any other documentation to show that Fannie Mae indeed
was a party to that agreement. The only pmiies mentioned in the agreement are plaintiff and
GMAC. 5

Even assuming, however, that Fannie Mae was the beneficiary at that time, plaintiff

fails to establish additional factual connections that would link FATC to the address in 2012
settlement agreement. First, plaintiff offers no evidence that Fannie Mae ever received a copy of
the settlement agreement from GMAC. Second, plaintiff offers no evidence that Fannie Mae
ever provided F ATC with the address information listed on that settlement agreement.
Plaintiff's argument is based on the notion that that Fannie Mae obtained a document
with plaintiff's Redmond P.O. Box address on it from GMAC in 2012 and that it would have

4

While the settlement agreement lists plaintiff as a party and the Redmond P.O. Box
Address, the settlement agreement does not contain an express declaration that it is plaintiff's
sole mailing address.
5
The settlement agreement provides, in pe1iinent pmi, that "THIS SETTLEMENT
AGREEMENT (this "Agreement") is dated as of July 12, 2013 (the "Effective Date"), and is
made by and among GMAC, LLC, a Delaware limited liability company ("Lender") and
Kenneth Streater ("Borrower")." Pl. Comp!. Ex. 1 at 1.
Page 5 - Opinion and Order

then passed this info1mation on to GMAC's successor, FATC, in 2015. This is an attenuated
argument at best, without any evidence to link together the necessary chain of events.
In his responses to the motions for summary judgment, plaintiff does asse1i that he
"specifically and explicitly both the servicer (non-patty GMAC) and the beneficiary (Fannie Mae)"
that his sole mailing address was the Redmond P.O. Box address and that he did not reside at the
McKenzie Property. Pl.'s Resp. in Opp'n 10. While all inferences should be drawn in favor of the
non-moving patty, the mere existence of some alleged factual dispute will not defeat an otherwise
properly supported motion for summary judgment. Anderson, 477 U.S. at 247--48, 106 S.Ct. 2505.
Plaintiffs allegation finds no evidentiary supp01i in the summary judgment record. He fails to
raise any significant contradictory evidence showing that the Redmond P.O. Box was objectively
his last known address which F ATC was required to use. Plaintiff simply has not met his burden
to raise a genuine issue of fact. This argument fails because, based on the available evidence, no
reasonable jury could find a verdict in favor of plaintiff.
Finally, even if plaintiff offered sufficient evidence that FATC knew of the address, his
argument fails as a matter oflaw. The term "last-known address" on its face suggests that it
means the most recent address known to the trustee. Opining on the meaning of the te1m lastknown address, outside of the context the OTDA, Justice David Brewer of the Oregon Supreme
Court noted that "[i]n sum, the last known address of a party ... is the most recent place at
which another party knows that the paiiy can be found or communicated with." Union Lumber

Co. v. i\!filler, 360 Or. 767,785-786, (2017). Here, plaintiff argues that a P.O. Box listed only
once, on a document that was three years old at the time and to which FATC was not a party,
ought to have been recognized as plaintiffs "last-known address." Clearly, it is possible that
FATC could have chosen to rely on a more recent address known to it, even had it known of the
Redmond P.O. Box address. The term "last-known address" has in the past been interpreted in
Page 6 - Opinion and Order

the context of a complaint against the Oregon Department of Revenue to mean "the address
provided on the last Oregon income tax return filed by the taxpayer." lvforris v. Department of
Revenue, 320 Or. 579, 583-84 (1995). FATC correctly points out that in the present case, the

address provided on plaintiffs 2014 and 2015 federal and state tax returns was not the Redmond
P.0 Box address but rather the second Redmond address -

2606 SW 58th St., Redmond, OR

97556-95551-where a notice of sale certainly was sent. Def. 's Reply 3. That same physical
address also appeared on tax statements for plaintiff in both Deschutes and Lane County. Def.'s
Mot. For Sunm1. J. 5-6. Moreover, plaintiff admitted in discovery that 2606 SW 58th St.
address was his physical address for at least five years prior to January 1, 2017, and that during
those five years he received mail at that location. 6
It is not necessary to interpret the meaning of"last-known address" with regards to the
OTDA, pmiicularly in light of the Oregon Legislature's decision to change the provision's
language to include all "last-known addresses." See supra note 2. This change eliminates any
need in the future to decide among several known addresses. In the present case, notice of the
sale needed only to be served at Plaintiffs last known address. ORS 86.764(3) expressly states
that service is effective when the notice is mailed. It is not disputed that FATC mailed the
notices by both first class and certified mail with return receipt requested as required by
86.764(1) to the addresses mentioned above. There is no evidence currently in the record, other
plaintiffs bare asse1iion that FATC knew or should have known that the Redmond P. 0. Box
address was plaintiffs alleged sole address for receiving mail or that it should have been

6

Plaintiff maintains that he did not receive any notice of sale documents at this address.

Page 7 - Opinion and Order

considered his last known address. 7 For these reasons stated above, FATC's motion for
summary judgement on plaintiff's third claim for relief is granted.

Fannie lvfae 's iVfotion for Summmy Judgment
Fannie Mae also moves for summary judgment against plaintiff in this case. Plaintiff's
third claim against Fannie Mae is the same as it is against FATC; that is, that Fannie Mae failed
to provide adequate notice to plaintiff under the OTDA. 8 This claim suffers the same evidentiary
deficiencies as the notice claim against FATC. Crucially, Fannie Mae was not a party to the
2012 settlement, and plaintiff has not shown that Fannie Mae ever learned that the Redmond
P.O. Box address was plaintiffs sole mailing address from GMAC. That aside, plaintiff's claim
against Fannie Mae fails more simply as a matter of law.
The OTDA refers exclusively to the duties of the trustee, not the beneficiary, when
stating the proper procedure for notice of sale. The relevant provision provides that "the trustee
conducts the sale," before detailing how and where the notice of sale must be provided. ORS
86.764(1 ). This shows that it is the trustee, here FATC, who is tasked with providing notice.
The section imposes no duty on the beneficiary to assist in this process; on the contrary, it lists
the beneficiary as a pmiy to whom proper notice must be provided. ORS 86.764(2)(b)-(c).
Moreover, the section of the OTDA that addresses remedies for inadequate notice again refers
solely to the efforts of the trustee. See ORS 86.767(1) ("If the trustee fails to give notice of the

7

It is also notew01ihy that in admitting that he did receive some mail at his 2606 SW
58th St. address, plaintiff somewhat belies his claim that the Redmond P.O. Box address was his
only address for receiving mail.
8
Given that plaintiff has represented that he voluntarily withdraws his first and second
claim for relief, summary judgement is granted in favor of Fannie Mae on plaintiffs first and
second claims for relief.

Page 8 - Opinion and Order

sale .... "). The word "beneficiary" does not appear anywhere in this section. Plaintiff attempts
to read into this statute an implied duty on beneficiaries to assist in the notice process, and states
what he believes to be the practice among trnstees and beneficiaries: that "Fannie Mae directed
FATC to send [the notices] and FATC, acting as trustee, could only send such notices at the
request of the beneficiary under the [OTDA]." Pl.'s Resp. in Opp'n 7. But this belief is not
borne out in the OTDA, nor does plaintiff cite any case law to support such a position. The
language of the statute is clear that only trnstees assume responsibility for providing notice.
Whether Fannie Mae was or was not involved in the notice process - facts that again are
absent from the summary judgement record before me -

is irrelevant under the OTDA. For

these reasons, plaintiffs claim against Fannie Mae fails as a matter of law, and the motion for
summary judgment is granted.
CONCLUSION

Defendants' motions for summaiy judgment (docs. 16 and 23) are GRANTED. This
action is dismissed, with prejudice. The request for oral argument is denied as unnecessary.
IT IS SO ORDERED.
Dated this / (p

~1~of August, 2017.

AnnAiken
United States District Judge

Page 9 - Opinion and Order