Thompson
Thompson v. Cantwell
Opinion
Lead Opinion
MEMORANDUM *
Brent Thompson, on behalf of the Thompson Family Trust (collectively “Thompson”), purchased property in Med-ford, Oregon, from defendants subject to a preexisting note and trust deed and pursuant to an agreement that defendants would pay off the debt. After defendants failed to pay, Thompson paid off the debt and took an assignment of the trust deed and note. Thompson now appeals the district court’s entry of summary judgment against him, arguing that the district court improperly found a merger because a dispute of fact remained regarding whether he received a discount on the property’s purchase price in consideration of it being taken subject to the preexisting debt. Thompson also argues that the district court erred by failing to apply the anti-merger clause in the deed of trust, by finding that the debt had been extinguished through payment prior to the assignment and by awarding attorney’s fees. Reviewing de novo, see ‘Ilio ‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083 , 1093-94 (9th Cir.2006); Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059-60 (9th Cir.2006), we hold that there was a merger under Oregon law and that because the merger did not void the…
Dissenting Opinion
Ferguson, J.
dissenting:
The majority holds that a merger has occurred as a matter of law regardless of the parties’ intentions. I respectfully dissent.
In Baxter v. Redevco, Inc., 279 Or. 117 , 566 P.2d 501, 504 (1977) (citation omitted), the case upon which the majority relies, the Supreme Court of Oregon reiterated the following general rule: “Where the owner of premises acquires an outstanding mortgage thereon, his intention is the controlling factor as to whether there is a merger.” See also South Beach Lumber Corp. v. Swank, 210 Or. 383 , 311 P.2d 1018, 1023 (1957); Lothstein v. Fitzpatrick, 171 Or. 648 , 138 P.2d 919, 924 (1943); Barber v. Hartley, 136 Or. 210 , 298 P. 226, 229-30 (1931); Katz v. Obenchain, 48 Or. 352 , 85 P. 617, 620 (1906); Watson v. Dundee Mortgage & Trust Inv. Co., 12 Or. 474 , 8 P. 548, 552-53 (1885). The court carved out an exception where the mortgagor had sold the property at a discount 1 and the purchaser-owner had assumed payment of the mortgage; in that case, when the purchaser-owner later acquired the mortgage, the debt and security interest merged, regardless of the purchaser-owner’s intent. Baxter, 566 P.2d at 504 & n. 2.