(2) The omitted person may also commence an action against the trustee in the circuit court in the county where the real property is located. In an action against the trustee, the omitted person is entitled to damages if the omitted person proves that:
(a) The trustee did not give notice of the sale to the omitted person in the manner required by ORS 86.764 (2)(c) and 86.774;
(b) A search of the record under the name of the grantor as the grantor’s name appears on the trust deed, or as the name of the grantor’s successor in interest appears, would have revealed the omitted person’s interest;
(c) The omitted person could and would have cured the default under ORS 86.778; and
(d) The omitted person sustained actual damages as a result of the person’s loss of the opportunity to cure the default under ORS 86.778 (1).
(3) In an action against the trustee under subsection (2) of this section, a defendant or third party defendant may move for dismissal on the ground that the omitted person would not or could not have cured the default and reinstated the trust deed if the omitted person had received the notice required by ORS 86.764 (2)(c). The court shall hold a hearing on the motion before a hearing on a motion for summary judgment, and before trying the action. The court shall deny the motion only if the omitted person produces affidavits or other evidence sufficient for a reasonable jury to find, applying a standard of clear and convincing evidence, that the omitted person had the financial ability to cure the default under ORS 86.778 before the date of the trustee’s sale, and that the omitted person would have done so had the omitted person received the notice required by ORS 86.764 (2)(c). If the court grants the motion to dismiss, the court shall award attorney fees under subsection (5) of this section.
(4) In an action against the trustee or another party under this section the omitted person shall plead that the omitted person did not have actual knowledge of the sale at least 25 days prior to the date the trustee conducted the sale, but thereafter the defendant has the burden of proving that the omitted person did have notice.
(5) In an action brought under this section, the applicable court may, upon entering judgment, allow to the prevailing party as a part of the costs a reasonable amount for attorney fees at trial and on appeal.
(6) The remedies described in subsections (1) to (5) of this section are the sole remedies available to a person entitled to notice of foreclosure by advertisement and sale under ORS 86.764 (2)(c), who failed to receive notice. The person’s failure to redeem or to commence an action against the trustee within five years of the date of a trustee’s sale under ORS 86.782 bars any action under this section or any other applicable law. [Formerly 86.742]