John Hancock Mutual Life Insurance v. Arnold

VAN HOOMISSEN, J.

In this foreclosure action, defendants appeal from a summary judgment. They contend that, because the property consists of several parcels and because they have substantial equity in it, there was a factual question regarding partition of the property. They argue that the trial court should have partitioned the parcels, setting aside sufficient property to satisfy the mortgage and allowing defendants to keep the rest. We affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and when the moving party is entitled to a judgment as a matter of law. ORCP 47; Stanfield v. Laccoarce, 288 Or 659, 665, 607 P2d 177 (1980). Defendants’ contention that the property should have been partitioned is not a fact question. Foreclosure is governed by statutes, see ORS 88.010 et seq, which do not require the court to partition property before sale. Defendants have cited no authority in support of mandatory partition on these facts, and we are aware of none.

ORS 23.460(1) provides, in relevant part:

“After sufficient property has been sold to satisfy the execution, no more shall be sold. * * * When the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately, or otherwise, as is likely to bring the highest price.”

That procedure sufficiently protects defendants’ equity in the property. Further, if defendants’ equity is substantial, they may redeem the property. ORS 23.530 et seq. The trial court did not err in granting summary judgment.

Affirmed.