Grant County Federal Credit Union v. Hatch
| Decision Date | 09 August 1989 |
| Docket Number | C-11064 |
| Citation | 777 P.2d 1388,98 Or.App. 1 |
| Court | Oregon Court of Appeals |
| Parties | GRANT COUNTY FEDERAL CREDIT UNION, a federal banking institution, Respondent, v. Carl L. HATCH and Wilma Irene Hatch, husband and wife, Appellants, and Montgomery Ward & Co., Incorporated, an Illinois Corporation; Marion County; Thomas Landweer, dba Blue Mountain Well Drilling; Joe Donaldson, dba Donaldson Chevron Service, Defendants. Carl L. HATCH and Wilma Irene Hatch, husband and wife, Third-Party Plaintiffs-Appellants, v. OREGON DEPARTMENT OF VETERANS' AFFAIRS, Third-Party Defendant-Respondent. 87; CA A47951. |
James M. Brown, Salem, argued the cause for appellants. With him on the brief was Enfield, Guimond & Brown, Salem.
Ronald L. Marceau, Bend, argued the cause for respondent Grant County Federal Credit Union. With him on the brief were Martin E. Hansen and Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend.
Meg Reeves, Asst. Atty. Gen., Salem, argued the cause for respondent Oregon Dept. of Veterans' Affairs. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
In this foreclosure proceeding, defendants 1 appeal, assigning error to the trial court's granting summary judgments to plaintiff Grant County Federal Credit Union and to third-party defendant Department of Veterans' Affairs (DVA). 2
Defendants borrowed funds from DVA for the purchase of a farm and home and executed a promissory note secured by a mortgage on the property. They became delinquent in their payments and, on November 13, 1986, DVA notified them that, if they did not bring the loan current by February 13, 1987, the loan balance would be accelerated. Defendants did not cure the default, and DVA accelerated the balance. On April 24, 1987, it assigned the note and mortgage to plaintiff, which filed this action to foreclose the mortgage. Defendants did not deny that they were in default, but alleged as affirmative defenses that (1) ORS 407.095 precludes foreclosure and (2) DVA had no authority to assign the note and mortgage to plaintiff. Defendants also filed a third-party complaint against DVA, claiming that it had breached the loan agreement by assigning the note and mortgage to plaintiff. DVA counterclaimed, seeking a declaration that it had authority to assign the note and mortgage.
The trial court granted summary judgments in favor of plaintiff, permitting it to foreclose, and in favor of DVA on defendants' third-party breach of contract claim and on DVA's counterclaim. On January 21, 1988, it entered an ORCP 67 B judgment on DVA's counterclaim, declaring that DVA had authority to assign the note and mortgage. On March 11, 1988, it entered an ORCP 67 B judgment for plaintiff in the foreclosure action, and on April 18, 1988, it entered a judgment for DVA in the third-party action. Defendants have not appealed from the judgment entered on DVA's counterclaim. 3
Defendants have appealed from the judgment entered against them on their third-party claim against DVA. They assign error to the granting of DVA's motion for summary judgment, arguing, first, that DVA breached the loan agreement in assigning the mortgage. They have not appealed the judgment on DVA's counterclaim, and, therefore, we do not consider the assignment of that issue, because the unappealed final determination of the trial court on the counterclaim resolves the same question against defendants.
The only issue remaining is whether DVA had, and has breached, a duty to avoid foreclosure. ORS 407.095 provides:
Defendants contend that that provision, incorporated by reference in the loan agreement, imposes a contractual duty on DVA to avoid foreclosure and that DVA breached that duty when it assigned the note and mortgage to plaintiff, even though the assignment was made after the loan had been accelerated. That assignment, however, did not alter defendants' rights under the note and mortgage, because the assignee is bound by the constitutional provision, statutes and administrative rules that are incorporated by reference in the mortgage.
As the statute requires, the director has adopted rules to implement the loan payment reduction program. OAR 274-20-386 provides for a temporary reduction of payments when a veteran is unable to pay because of illness, injury, death, involuntary job loss or economic stress due to factors beyond the veteran's control. It provides that such a temporary reduction is a benefit to be extended only in an extreme emergency and is not to be abused and that the maximum number of borrowers that can participate in the program is approximately one percent of the total outstanding borrowers.
DVA has thereby implemented the policy expressed in ORS 407.095 by providing for a program of reduced monthly...
To continue reading
Request your trial
-
Jeffries v. Mills
...Or.App. 198, 201-03, 942 P.2d 807 (1997); Kent v. Lindstedt, 138 Or.App. 316, 319, 908 P.2d 833 (1995); Grant County Federal Credit Union v. Hatch, 98 Or.App. 1, 6 n. 4, 777 P.2d 1388, rev. den. 308 Or. 592, 784 P.2d 1099 (1989). In other words, if the parties with an interest in the judgme......
-
Lovelace v. Morrow
...wrong document. Werline v. Webber, 54 Or.App. 415 (1981)[, rev. den., 292 Or. 450, 644 P.2d 1128 (1982) ]; Grant County Federal Credit Union v. Hatch, 98 Or.App. 1, 6, [777 P.2d 1388, rev. den., 308 Or. 592, 784 P.2d 1099] (1989). The notice of appeal was filed within 30 days of the only va......
-
R. S. R. v. State
..."there must be some intelligible reference in the notice of appeal to the judgment being appealed." Grant County Federal Credit Union v. Hatch , 98 Or. App. 1, 6 n. 4, 777 P.2d 1388, rev. den. , 308 Or. 592, 784 P.2d 1099 (1989). Finally, returning to the statute, ORS 19.270(7) provides tha......
-
Smith v. Koors
...State v. Etchison, 142 Or.App. 396, 921 P.2d 1333 (1996), rev. den. 324 Or. 654, 931 P.2d 796 (1997); Grant County Federal Credit Union v. Hatch, 98 Or.App. 1, 777 P.2d 1388, rev. den. 308 Or. 592, 784 P.2d 1099 (1989); Werline v. Webber, 54 Or.App. 415, 635 P.2d 15 (1981), rev. den. 292 Or......