concurring in part, dissenting in part.
I agree with the majority’s decision except for its decision to affirm the judgment for the Gemignanis under the Unlawful Trade Practices Act (UTPA). The majority concludes that the Gemignanis suffered an ascertainable loss as a result of their receipt of the warranty deed for their property because they paid $488 in real property taxes on the property after receiving the deed.1 It reasons that they could have avoided paying those taxes if they had received a deed that disclosed .the existence of the bank lien on their property, so the payment of that money constitutes a loss. 187 Or App at 590-91
I respectfully disagree. The $488 tax payment would have constituted a loss to the Gemignanis if the bank had foreclosed its lien on their property. In that event, the $488 is money that they would not have paid if they had received a correct warranty deed and, hence, money that they would not have lost. However, the Gemignanis ultimately decided to keep their property by paying the bank $135,000 to release its lien. Their decision to do that means that they would have had to pay the $488 in taxes if they had not already paid them. Consequently, their tax payment did not constitute a loss that they suffered as a result of the misrepresentation in the warranty deed, because it was a payment that they had to make as owners of the property.
*594The Gemignanis did not submit any evidence or argue that they would have let the bank foreclose its lien if they had not already made the $488 tax payment. In other words, nothing suggests that they would have abandoned their $150,000 investment in their property if they had received a correct warranty deed after making their final payment on the property, so, again, there is no basis on which to find that the Gemignanis suffered an ascertainable loss by making the tax payment. Consequently, the trial court erred by denying defendant’s motion for a directed verdict on the Gemignanis UTPA claim.
ORS 646.638(1) provides that
“any person who suffers any ascertainable loss of money or property, real or personal, as a result of willful use or employment by another person of a method, act or practice declared unlawful by [the UTPA], may bring an individual action in an appropriate court to recover actual damages or $200, whichever is greater.”