Nelson v. Am. Home Mortg. Servicing, Inc., 09P10840

• Citation: 249 Or.App. 555,278 P.3d 89
• Decision Date: 02 May 2012
• Docket Number: 09P10840,A146919.
• Parties: Bruce R. NELSON, in propria persona, Plaintiff–Respondent, v. AMERICAN HOME MORTGAGE SERVICING, INC., a Delaware corporation, Defendant–Appellant, and Option One Mortgage, Inc., a California corporation, Defendant.
• Court: Oregon Court of Appeals

249 Or.App. 555

278 P.3d 89

Bruce R. NELSON, in propria persona, Plaintiff–Respondent,

v.AMERICAN HOME MORTGAGE SERVICING, INC., a Delaware corporation, Defendant–Appellant,andOption One Mortgage, Inc., a California corporation, Defendant.

09P10840; A146919.

Court of Appeals of Oregon.

Submitted July 5, 2011.

Decided May 2, 2012.

Teresa M. Shill and Routh Crabtree Olsen, P.C., filed the briefs for appellant.

Bruce R. Nelson filed the brief pro se.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

ARMSTRONG, P.J.

Defendant American Home Mortgage Servicing, Inc., appeals a trial court order that denied its ORCP 71 B motion to set aside a default judgment that the court had entered against it. Defendant contends that it is entitled to relief under that rule on a number of grounds, including that the judgment is void because plaintiff failed to serve a summons on it and, hence, the court did not acquire personal jurisdiction over it. SeeORCP 4. We agree with defendant that the judgment is void as a result of plaintiff's failure to serve a summons on defendant, and, accordingly, we reverse and remand.

On appeal of a court order on an ORCP 71 B motion to set aside a default judgment, we view the facts in the light most favorable to the party seeking relief from the judgment, which, in this case, is defendant. See, e.g., Terlyuk v. Krasnogorov, 237 Or.App. 546, 553, 240 P.3d 740 (2010), rev. den.,349 Or. 603, 249 P.3d 124 (2011). We state the facts accordingly.

Plaintiff is the personal representative of his son's estate. The son granted a trust deed on real property in Polk County to Option One Mortgage, Inc. (Option One) to secure a 2006 loan that he obtained from Option One. The loan that the trust deed secured was serviced by defendant.

After plaintiff's son's death in 2009, and at a point at which the loan that the trust deed secured was in default, the trust deed's trustee recorded a notice of default and election to sell the property. Plaintiff ultimately responded to the notice by filing an action in Polk County Circuit Court against defendant and Option One that, among other things, sought a court order “dismissing” the notice.

Plaintiff attempted to serve defendant and Option One in the action by serving a copy of the complaint and its accompanying exhibits on CSC Lawyers Incorporating Service Company (CSC), which plaintiff believed to be the registered agent for defendant and Option One. Plaintiff did not include a summons among the documents that were served on CSC.

When defendant and Option One failed to file a response to plaintiff's complaint, plaintiff filed a document that sought entry of a default judgment against them and that included a motion for an order declaring the trust deed to be void. The court granted the motion and signed a document prepared by plaintiff that voided the trust deed, which the clerk entered in the court register as a judgment.¹ Plaintiff subsequently deeded the property to himself and obtained a loan that he secured by granting a mortgage on the property.

Roughly two months later, the trustee for the 2006 trust deed conducted a nonjudicial foreclosure sale of the property and issued a trustee's deed to the purchaser at the sale, HSBC Bank USA, NA, as trustee for ACE Securities Corp. Home Equity Loan Trust, Series 2006–OP2 Asset Backed Pass–Through Certificates, which deed was recorded in Polk County. When plaintiff thereafter sought to obtain a second loan using the property as security, he learned about the intervening trustee's deed. He then filed an ex parte motion with the court seeking an order declaring the trustee's deed to be void, which the court granted by an order that was entered on June 10, 2010.²

On July 6, 2010, defendant filed a motion that sought a variety of relief, including an order pursuant to ORCP 71 B setting the judgment aside. Among other things, defendant contended that the judgment should be set aside on the ground that it is void because plaintiff had failed to serve a summons on defendant and, hence, the court had not acquired personal jurisdiction over it. The court conducted a hearing on the motion at which the parties and the court focused much of their attention on whether the entity that plaintiff had served with his complaint was a registered agent for defendant. However, plaintiff submitted no evidence in response to defendant's motion, and there is no evidence in the record that would support a finding that plaintiff served a summons in the case on defendant or anyone else. Nonetheless, the court entered an order on October 22, 2010, denying defendant's ORCP 71 B motion, which defendant appeals.

ORCP 71 B(1)(d) provides that a court may relieve a party from a void judgment. A judgment entered against a party over which the court...