State Codes and Statutes

State Codes and Statutes

Statutes > Oregon > Vol2 > 088

Chapter 88 — Foreclosureof Mortgages and Other Liens

 

2009 EDITION

 

 

FORECLOSUREOF MORTGAGES AND OTHER LIENS

 

MORTGAGESAND LIENS

 

88.010       Foreclosureof liens by suit; judgment for amount of debt; other remedies

 

88.020       Joinderof foreclosure suit involving real property with suit to quiet title

 

88.030       Otherlienholders and debtors as defendants; effect of failure to redeem

 

88.040       Foreclosuresuit during and after action for debt

 

88.050       Judgmentforeclosing more than one lien on same property

 

88.060       Enforcementof judgment

 

88.070       Saleof real property after mortgage foreclosure

 

88.080       Saleand redemption; effect of sheriff’s deed

 

88.090       Judgmentwhen debt payable in installments

 

88.100       Paymentof amount due before foreclosure sale; judgment for payment of installment notdue

 

88.110       Durationof real property mortgage lien; when suit for foreclosure barred

 

88.120       Whenforeclosure not barred by ORS 88.110

 

88.710       “Lien”defined

 

88.720       Acquisition,administration and disposal by state of property subject to lien held by state

 

88.740       Investmentof surplus moneys in Oregon War Veterans’ Bond Sinking Account

 

      88.010Foreclosure of liens by suit; judgment for amount of debt; other remedies. Except asotherwise provided by law, a lien upon real or personal property, other thanthat of a judgment, whether created by mortgage or otherwise, shall beforeclosed, and the property adjudged to be sold to satisfy the debt securedthereby by a suit. Except as provided in ORS 88.070, in addition to thejudgment of foreclosure and sale, if a promissory note or other personalobligation for the payment of the debt has been given by the lien debtor or anyother person as principal or otherwise, the court also shall enter a judgmentfor the amount of the debt against the person or persons. The provisions ofthis chapter as to liens upon personal property are not intended to exclude aperson having such lien from any other remedy or right in regard to suchproperty. [Amended by 2003 c.576 §345]

 

      88.020Joinder of foreclosure suit involving real property with suit to quiet title. Any cause ofsuit involving real property provided for in ORS 88.010 may be joined with anycause of suit provided for in ORS 105.605 in the same complaint orcross-complaint, if both causes of suit involve the same real property or somepart thereof and are separately stated. Any person may be joined as a party whois a proper party to either cause of suit. The court, in event of such joinder,may render a judgment that will, among other things, determine the paramounttitle to the real property involved or any part thereof. [Amended by 2003 c.576§346]

 

      88.030Other lienholders and debtors as defendants; effect of failure to redeem. Any personhaving a lien subsequent to the plaintiff upon the same property or any partthereof, or who has given a promissory note or other personal obligation forthe payment of the debt, or any part thereof, secured by the mortgage or otherlien which is the subject of the suit, shall be made a defendant in the suit,and any person having a prior lien may be made defendant at the option of theplaintiff, or by the order of the court when deemed necessary. The failure ofany junior lien or interest holder who is omitted as a party defendant in thesuit to redeem within five years of the date of a sheriff’s sale under ORS88.080 shall bar such junior lien or interest holder from any other action orproceeding against the property by the person on account of such person’s lienor interest. [Amended by 1985 c.817 §10]

 

      88.040Foreclosure suit during and after action for debt. During thependency of an action for the recovery of a debt secured by any lien mentionedin ORS 88.010, a suit cannot be maintained for the foreclosure of the lien, northereafter, unless judgment is given in such action that the plaintiff recoverthe debt or some part thereof, and an execution thereon against the property ofthe defendant is returned unsatisfied in whole or in part.

 

      88.050Judgment foreclosing more than one lien on same property. When it isadjudged that any of the defendants have a lien upon the property, the courtshall make a like judgment in relation thereto, and the debt secured thereby,as if such defendant were a plaintiff in the suit. When a judgment is givenforeclosing two or more liens upon the same property or any portion thereof infavor of different persons not united in interest, the judgment shall specifythe order, according to their priority, in which the debts secured by suchliens shall be satisfied out of the proceeds of the sale of the property. [Amendedby 2003 c.576 §347]

 

      88.060Enforcement of judgment. The judgment may be enforced by execution as anordinary judgment for the recovery of money, except as in this sectionotherwise provided:

      (1)When a judgment of foreclosure and sale is given, an execution may issuethereon against the property adjudged to be sold. If the judgment is in favorof the plaintiff only, the execution may issue as in ordinary cases, but if itis in favor of different persons, not united in interest, it shall issue uponthe joint request of such persons or upon the order of the court or judgethereof on the motion of any of them.

      (2)When the judgment is also against the defendants or any one of them in person,and the proceeds of the sale of the property upon which the lien is foreclosedare not sufficient to satisfy the judgment as to the sum remaining unsatisfied,the judgment may be enforced by execution as in ordinary cases. When in suchcase the judgment is in favor of different persons not united in interest, itshall be deemed a separate judgment as to such persons, and may be enforcedaccordingly. [Amended by 2003 c.576 §348]

 

      88.070Sale of real property after mortgage foreclosure. (1) When realproperty is sold pursuant to a judgment foreclosing a mortgage and the proceedsof the sale are not adequate to satisfy the amounts secured by the mortgage,all judgment remedies for collection of the unsatisfied amounts expire when thesale is made if:

      (a)The mortgage was given to a seller to secure the unpaid balance of the purchaseprice of real property; or

      (b)The mortgage was given after September 13, 1975, to a person other than aseller to secure not more than $50,000 of the unpaid balance of the purchaseprice of real property used by the purchaser as the primary or secondary singlefamily residence of the purchaser.

      (2)If a purchaser gives more than one mortgage to a seller or a single lender tofinance the purchase of real property that the purchaser uses as the purchaser’sprimary single family residence and the seller or lender or a subsidiary,affiliate or successor of the seller or lender continues to hold the mortgagesat the time of foreclosure, judgment remedies for the collection of unsatisfiedamounts that the grantor owes to the seller or lender or the subsidiary,affiliate or successor of the seller or lender on notes secured by themortgages expire when the real property is sold in accordance with theforeclosure. [Amended by 2003 c.576 §349; 2007 c.166 §15; 2009 c.883 §3]

 

      88.075 [1975 c.618 §6;repealed by 2007 c.166 §17]

 

      88.080Sale and redemption; effect of sheriff’s deed. A judgment offoreclosure shall order the mortgaged property sold. Property sold on executionissued upon a judgment may be redeemed in like manner and with like effect asproperty sold at an execution sale pursuant to ORS 18.860 to 18.993, and nototherwise. A sheriff’s deed for property sold on execution issued upon ajudgment shall have the same force and effect as a sheriff’s deed issued forproperty sold at an execution sale pursuant to ORS 18.860 to 18.993. [Amendedby 1979 c.284 §91; 2003 c.576 §350; 2005 c.22 §56; 2005 c.542 §§68a,68b; 2005c.568 §39]

 

      88.090Judgment when debt payable in installments. When a suit is commenced toforeclose a lien securing a debt payable in installments, either of interest orprincipal, and any of such installments is not then due, the court shall entera judgment for the foreclosure of the lien, and may also include in thejudgment a requirement that the property be sold for the satisfaction of thewhole debt, or so much thereof as may be necessary to satisfy the installmentthen due, with costs of suit. In the latter case, the judgment of foreclosureas to the remainder of the property may be enforced by an order of sale, inwhole or in part, whenever default occurs in the payment of the installmentsnot then due. [Amended by 2003 c.576 §351]

 

      88.100Payment of amount due before foreclosure sale; judgment for payment ofinstallment not due.If, before a judgment is given, the amount then due with the costs of suit isbrought into court and paid to the clerk, the suit shall be dismissed. If thesame is done after judgment and before sale, the effect of the judgment as tothe amount then due and paid shall be terminated, and the execution, if any hasissued, shall be recalled by the clerk. When an installment not due is adjudgedto be paid, the court shall determine and specify in the judgment what sumshall be received in satisfaction thereof, which sum may be equal to suchinstallment, or otherwise, according to the present value thereof. [Amended by2003 c.576 §352]

 

      88.110Duration of real property mortgage lien; when suit for foreclosure barred. Except asprovided in ORS 88.120, no mortgage upon real property shall be a lien uponsuch property after the expiration of 10 years from the later of the date ofmaturity of the mortgage debt, the expiration of the term of the mortgage debtor the date to which the payment thereof has been extended by agreement ofrecord; and after such 10 years the mortgage shall be conclusively presumedpaid and discharged, and no suit shall be maintainable for its foreclosure. Ifneither the date of maturity nor the term of the debt is disclosed by therecorded mortgage or recorded memorandum thereof, then the date of theexecution of the recorded mortgage or recorded memorandum thereof shall bedeemed the date of maturity and expiration of the term of the mortgage debt forpurposes of this section. If the mortgage and a memorandum or memoranda thereofare of record and no date of maturity or statement of the term of the mortgageis contained in the mortgage or memoranda, then the date of execution of theearliest document of record shall be used to determine the date of maturity andthe expiration of the term of the debt. [Amended by 1997 c.143 §1]

 

      88.120When foreclosure not barred by ORS 88.110. (1) Foreclosure of a mortgage onreal property is not barred by ORS 88.110 when the mortgage is held of recordby the State of Oregon or when all the following facts exist at the time theforeclosure suit is commenced:

      (a)Any portion of the mortgage debt, or any interest thereon, has been voluntarilypaid within the 10 years immediately preceding commencement of the suit.

      (b)The original mortgagor still owns the mortgaged property.

      (c)No lien or right of a third person has attached to the property after theexpiration of the 10-year period referred to in ORS 88.110.

      (2)A mortgage that is not enforceable by the transferor at the time of transfer tothe State of Oregon does not become enforceable thereafter under this section. [Amendedby 1997 c.298 §1]

 

      88.710“Lien” defined.As used in ORS 88.710 to 88.740, “lien” means any charge upon property for thepayment or discharge of a debt, tax or duty due the State of Oregon or anyagency of the state, including judgment liens, recorded warrants or any noticeor claim of amount due given by the state, or an agency thereof, pursuant tolaw and carried forward on the County Clerk Lien Record or the register of thecircuit court of the county wherein property is located to which a lien of thestate attaches. [1959 c.499 §1; 1963 c.578 §2; 1991 c.111 §8; 2003 c.576 §190;2005 c.625 §67]

 

      88.720Acquisition, administration and disposal by state of property subject to lienheld by state.Whenever in the discretion of the Department of Veterans’ Affairs such aprocedure would appear beneficial to the state, and on advice of the stateagency charged with collection of a tax, duty, debt or any sum owing the statefor which a lien securing such debt, tax or duty is being foreclosed by thestate agency or by third parties, the department may bid in or redeem real orpersonal property ordered sold under foreclosure where such property is subjectto any lien held by the state at a price limited to the sum of the amount ofthe state lien and all other prior liens plus costs but in no event to exceedthe appraised value; acquire title to real property for and in behalf of thestate as a result of such foreclosure; accept deeds from debtors, taxpayers orother persons owing a debt, tax or duty to the state in lieu of foreclosure;make repairs, improvements or alterations; insure against loss or damage; paytaxes, liens and charges of every kind superior to the lien of the state; andsell, transfer, lease or assign such property for and in behalf of the state,or otherwise administer such property in such manner as the department deemsfor the best interest of the state in the same manner the department managesand conveys property pursuant to ORS 407.135; the department shall undertake tosell property after acquiring marketable title thereto, and while holding suchproperty may not engage in any enterprise competitive with private enterpriseother than the renting or leasing of such property or interests therein. Thecontrol of such property while title remains vested in the state shall beexercised by the department. [1959 c.499 §2; 1963 c.578 §3; 1967 c.211 §6; 2005c.625 §68]

 

      88.730 [1959 c.499 §3;1963 c.578 §4; repealed by 1967 c.211 §7 (88.740 enacted in lieu of 88.730)]

 

      88.740Investment of surplus moneys in Oregon War Veterans’ Bond Sinking Account. (1) TheDepartment of Veterans’ Affairs is authorized, in whatever manner thedepartment considers advisable and to the extent necessary to carry out theprovisions of ORS 88.710 to 88.740, to use the surplus moneys in the Oregon WarVeterans’ Bond Sinking Account, other than the moneys therein which are derivedfrom tax levies and sales of refunding bonds, that are earnings in excess ofthe amount required to amortize the bonded indebtedness incurred under theauthority of section 1, Article XI-A of the Oregon Constitution, and ORS407.115, 407.125, 407.165, 407.205, 407.275, 407.415, 407.495, 407.515, 407.555and 407.565.

      (2)The property acquired under ORS 88.710 to 88.740 shall represent an investmentof the Oregon War Veterans’ Bond Sinking Account and all moneys received by thedepartment from the sale, lease or other disposition of any property shall bedeposited in the Oregon War Veterans’ Bond Sinking Account.

      (3)The department may pay to the State Treasurer, to be deposited in the GeneralFund available for general governmental expenses:

      (a)An amount equal to the balance owing on any existing real estate contractarising out of the sale of property by the department which was an investmentof the General Fund pursuant to ORS 88.710 to 88.740, and upon such payment theinterest represented by the real estate contract shall represent an investmentof the Oregon War Veterans’ Bond Sinking Account.

      (b)An amount equal to the General Fund moneys expended for the acquisition ofpresently unsold properties pursuant to ORS 88.710 to 88.740, and upon suchpayment the properties shall represent an investment of the Oregon War Veterans’Bond Sinking Account. [1967 c.211 §8 (enacted in lieu of 88.730); 1987 c.652 §16;2005 c.625 §69]

 

CHAPTER 89 [Reservedfor expansion]

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