## Facts

- A 67-year-old homeowner, recovering from heart surgery and living in her home for decades, was approached multiple times by a real estate agent representing a buyer of distressed properties.
- The agent told the homeowner she could lose the home if property taxes were not paid.
- The homeowner sold the property to the buyer for $7,000 cash plus assumption of liens totaling about $17,600 (about $24,600–$25,000 total).
- The buyer later listed the property for resale at $67,500.
- The homeowner sued seeking rescission or, alternatively, a constructive trust over the buyer’s resale profits, alleging statutory elder abuse and violations of the Unlawful Trade Practices Act (UTPA).
- The homeowner later acknowledged that, before the sale, the property had been condemned and was subject to tax foreclosure, and that she knowingly sold below market value.

## Issues

1. Whether evidence created a triable issue that the buyer wrongfully took an elderly person’s property in a statutorily required fiduciary or “position of trust” relationship under ORS chapter 124.
2. Whether the buyer’s conduct constituted an unlawful trade practice “in the course of [his] business, vocation, or occupation” under the UTPA, and whether the alleged statements were actionable misrepresentations on this record.
3. Whether, viewing the record and reasonable inferences in the nonmovant’s favor, the buyer was entitled to summary judgment as a matter of law.

## Decision

- The Court of Appeals affirmed summary judgment for the buyer on both claims.
- On the elder-abuse claim, the court held the record lacked evidence of a fiduciary or “position of trust” relationship; the transaction was arm’s-length.
- On the UTPA claim, the court held the homeowner failed to produce evidence that the buyer acted “in the course of [his] business, vocation, or occupation” for this purchase.
- The court also relied on the homeowner’s admissions that the condemnation and tax-foreclosure risk were real, undermining the asserted falsity of the agent’s statements.

## Legal Principles

- Summary judgment is proper when the movant is entitled to judgment as a matter of law, viewing the record and reasonable inferences in the light most favorable to the nonmovant.
- Liability under Oregon’s elder-abuse provisions for wrongful taking requires proof of a fiduciary-type or “position of trust” relationship; a buyer in an arm’s-length sale does not satisfy that element without evidence of special confidence and a duty to act primarily for the seller’s benefit.
- The UTPA applies only to unlawful practices committed “in the course of” the defendant’s business, vocation, or occupation; isolated private transactions fall outside the statute absent proof of a qualifying business context.
- Alleged misrepresentations are not actionable on summary judgment where the plaintiff’s own evidence establishes the challenged statements were materially true.

## Conclusion

The court affirmed dismissal of statutory elder-abuse and UTPA claims arising from a below-market sale by an elderly seller because the record showed no fiduciary or trust-based relationship and did not establish that the buyer’s conduct occurred in the course of a business covered by the UTPA, particularly given admissions confirming the property’s distressed status.


White v. McCabe, 159 Or. App. 189, 979 P.2d 289 (Or. Ct. App. 1999)