Cascade Management, Inc. v. Rodriguez

288                 November 26, 2025              No. 1031

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

           CASCADE MANAGEMENT, INC.,
       and Gateway Commons Apartments, LLC,
       a limited liability company of Washington,
                   Plaintiff-Respondent,
                             v.
                Patrick R. RODRIGUEZ,
       Natalie N. Sunnaa, and all other occupants,
                 Defendants-Appellants.
            Washington County Circuit Court
                   23LT13804; A182782

  Erik M. Buchér, Judge.
  Argued and submitted October 15, 2025.
   Patrick R. Rodriguez argued the cause pro se. Also on the
brief was Natalie N. Sunnaa.
  No appearance for respondent.
  Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)           289

        HELLMAN, J.
         Landlord brought an action against tenants for
forcible entry and wrongful detainer (FED) based on a
10-day notice of termination for nonpayment of rent. ORS
90.394(2). Landlord subsequently moved for summary judg-
ment, arguing that there were no genuine issues of material
fact. Tenants objected to the summary judgment motion,
arguing that issues of fact existed on whether they paid rent
and whether they in fact needed to pay rent for the month in
question. After a hearing, the trial court granted summary
judgment in favor of landlord.
         On appeal from the general judgment, tenants
raise two assignments of error. The first presents several
ways that tenants assert that the trial court erred in its
legal analysis of the summary judgment motion. Having
reviewed the arguments presented in the opening brief and
the record, we are unpersuaded that the trial court commit-
ted any legal error in the summary judgment analysis, as
alleged by tenants. Below, it was undisputed that tenants
did not pay rent through any traditional means, such as
cash, a check, money order, or use of a credit card. Instead,
tenants made “offers of tender of payment,” relying on
their assertions that the interest accruing on their secu-
rity deposit should be used to cover the rental amount due
for the month in question, that the interest functioned as
prepaid rent, and that their rental agreement operated as
a promissory note, which satisfied their rental obligations.
On the latter point, the trial court disagreed, ruling that
“submission of a promissory note is not lawful tender to pay
an obligation in this case.” The trial court did not commit
legal error in that analysis. A promissory note is not itself
a payment. As its name suggests, it is a “written promise
to pay a sum of money, at a certain definite time.” Adams
v. Rutherford, 

, 

 (1885). In addition, ten-
ants’ pleading in response to the summary judgment motion
did not include any evidence establishing that their secu-
rity deposit was placed in an interest-bearing account, that
it generated sufficient interest to cover their rent, that the
interest amounted to prepaid rent, and that prepaid rent in
that manner was permitted under their lease agreement.
290                 Cascade Management, Inc. v. Rodriguez

Once a party moves for summary judgment, ORCP 47 D
requires that the non-moving party “by affidavits, declara-
tions, or as otherwise provided in this section *** set forth
specific facts showing that there is a genuine issue as to
any material fact for trial.” Under the rule, it is not enough
to rely on “allegations or denials of that party’s pleading.”
Because tenants did not establish a genuine issue of mate-
rial fact on whether the security deposit interest qualified
as a payment of rent, the trial court did not err in granting
summary judgment.
         In their second assignment of error, tenants argue
that the trial court erred in granting summary judgment
because there were genuine issues of material fact on their
alternative defense of an uninhabitable dwelling under the
Oregon Residential Landlord and Tenant Act (ORLTA).
After landlord filed its motion for summary judgment, ten-
ants filed a responsive pleading, which they titled “amended
answer and counterclaim,” and exhibits to that pleading.
Among other issues, those pleadings raised an affirmative
defense that their apartment was uninhabitable, which,
they assert, would have relieved them from the obligation to
pay rent for the month in question.
         The ORLTA provides tenants with an “ ‘implicit
withholding remedy’ that allows the tenant to withhold
rent if the landlord is not in compliance with the habitabil-
ity requirements” set out in ORS 90.320. Jared v. Harmon,

, ___ P3d ___ (2025). In other words, “a
tenant’s obligation to pay rent is ‘reciprocal’ to and thus
dependent upon a landlord’s obligation to maintain rental
properties in a habitable condition.” 

. If a landlord
then commences an FED action for nonpayment of rent, the
tenant can file a counterclaim pursuant to ORS 90.370. 

. “Counterclaims under ORS 90.370 can be based on * * *
any statutory violation” under the ORLTA, Timmermann v.
Herman, 

, 

 (2018), includ-
ing those related to a landlord’s duty to maintain a “dwell-
ing unit in a habitable condition” under ORS 90.320(1), see
Eddy v. Anderson, 

, 

 (2020)
(addressing habitability counterclaim asserted under ORS
90.370)However, a tenant cannot counterclaim based on
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 (2025)             291

habitability concerns unless the landlord “reasonably had
or should have had knowledge or had received actual notice
of the facts that constitute the tenant’s counterclaim.” ORS
90.370(1)(a).
        Here, tenants did not plead that landlord “reason-
ably had or should have had knowledge or had received
actual notice of the facts that constitute [their] counterclaim”
as required under ORS 90.370(1)(a). Nor did tenants submit
any evidence to support such a determination. Because ten-
ants did not establish a genuine issue of material fact as to
habitability as an affirmative defense, the trial court did
not err when it denied summary judgment without further
considering it.
        Affirmed.