McConnell v. Sutherland

De MUNIZ, J.,

dissenting.

I respectfully dissent, because I disagree with the majority’s conclusion that defendant’s loan did not “finance the acquisition of real property.” Nothing in the plain language of ORS 82.025(3) requires that the loan be made directly to the purchaser of the real property. The buyer’s purchase of plaintiffs home was contingent upon satisfaction of plaintiffs ex-husband’s judgment lien on the property. Defendant’s loan allowed plaintiff to satisfy that lien, which in turn allowed the buyer to purchase the property. Therefore, defendant’s loan was ‘ ‘made to finance the acquisition of real property” under ORS 82.025(3). As I explain below, the loan was also secured by a lien on the property. Accordingly, I conclude that defendant’s loan to plaintiff is exempt, under ORS 82.025(3), from the interest rate limitations contained in ORS 82.010.

ORS 82.025 provides:

“ORS 82.010 (3) and (4) and 82.020 do not apply to:
" * * * * *
“ (3) Any loan secured by a first lien on real property or made to finance the acquisition of real property and secured by any lien on that property.”

It is undisputed that defendant made a loan to plaintiff. The questions are (1) whether that loan was “made to finance the acquisition of real property” and, if so, (2) whether the loan *488was “secured by any lien on that property.” To answer those questions, we first examine the text and context of ORS 82.025(3). See PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). We give words of common usage their plain, natural and ordinary meaning. Griffin v. Tri-Met, 318 Or 500, 508, 870 P2d 808 (1994).

The majority errs by analyzing the words disposition, purchase and sale, words that are not contained in the text of the statute. Instead, I begin with the words “to finance” in the statute. “To finance” is to provide with necessary funds in order to achieve a desired end. Webster’s Third New Int’l Dictionary 851 (unabridged 1993). Nothing in the meaning of finance indicates that it pertains only to purchasers. Nor does anything in the meaning of acquisition, the object of the infinitive to finance. Acquisition means an act or action of acquiring. Id. at 19. To acquire means to come into possession, control or power of disposal of, often by some uncertain or unspecified means. Id. at 18. We can combine the meanings of finance and acquisition to infer the meaning of a loan made to finance the acquisition of real property. See Hogan v. Gridelli, 129 Or App 539, 542, 879 P2d 896 (1994) (combining common meanings of related words to discern meaning of words in statute). It means funds provided to gain possession or control of real property. Nothing in ORS 82.025(3) limits its applicability to loans made directly to purchasers of real property.

Next, I address plaintiffs argument that defendant’s loan was secured by a lien on plaintiffs vendor’s interest, not a lien on the real property. The Supreme Court examined the nature of a vendor’s interest in a land sale contract in Security Bank v. Chiapuzio, 304 Or 438, 747 P2d 335 (1987). Security Bank involved competing claims to a vendor’s interest in a land sale contract and the land subject to the contract. The court said that, when the vendor transferred his interests in the contract and the land to the bank as security for the bank’s loan to him, ‘ ‘the [b]ank became equivalent to a holder of a mortgage on real property.” 304 Or at 442; see also Braunstein v. Trottier, 54 Or App 687, 692, 635 P2d 1379 (1981), rev den 292 Or 568 (1982) (“[I]f the owner of real property executes and delivers a deed, absolute on its face, to another to secure a debt, * * * the transaction is treated as a *489secured transaction, and the deed is treated as a mortgage.”). The court also said that “an assignment of an interest in a land sale contract does not automatically include the transfer of an interest in the land.” Security Bank, 304 Or at 443. See Abercrombie v. Hayden Corp., 320 Or 279, 290, 883 P2d 845 (1994) (vendor’s interests in land sale contract and the land itself are separable). Here, however, the fact that plaintiff gave defendant a deed to the house indicates that she transferred her interest in the house as well as her interest in the land sale contract. See Bedortha v. Sunridge Land Co., Inc., 312 Or 307, 314, 822 P2d 694 (1991) (vendor’s right to receive contract payments considered severed from vendor’s legal title to land only when there is clear indication that severance was intended). The situation is analogous to that of Security Bank. Defendant’s loan was secured by an interest in the real property.1 The trial court did not err in granting defendant’s motion for summary judgment on plaintiffs claim of usury.

Defendant argues on cross-appeal that he was entitled to an award of reasonable attorney fees and costs, because he was the prevailing party. Plaintiffs only argument in response is that “[defendant’s claim for attorney fees was properly denied because, for the reasons argued in connection with the appeal, plaintiff prevailed in this action. ’ ’ I conclude that defendant was the prevailing party, because the court properly granted his motion for summary judgment on plaintiffs claim of usury. Accordingly, I would affirm on appeal and reverse on cross-appeal.

Plaintiffs argument that the buyer did not acquire an interest in real property is without merit. Plaintiff cites Security Bank v. Chiapuzio, 84 Or App 35, 733 P2d 80, aff'd 304 Or 438, 747 P2d 335 (1987), Pedersen v. Barkhurst, 139 Or 483, 10 P2d 347 (1932), May v. Emerson, 52 Or 262, 96 P 454, 96 P 1065 (1908), and Panushka v. Panushka, 221 Or 145, 349 P2d 450 (1960), as authority for that argument. Those cases do not provide authority that a vendee’s equitable interest under a land sale contract is not an interest in real property.