Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2


Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2

By Daniel Edstrom
DTC Systems, Inc.

Two Oregon Supreme Court Rulings came out yesterday relating to Mortgage Electronic Registration Systems, Inc.  The first was Brandrup v. ReconTrust Co. (June 6, 2013), and the subject of this post, which is Niday v. GMAC Mortgage LLC, et al. (June 6, 2013).

Note the following quotes from this ruling:

That is so because, on the present record, MERS’ involvement in the appointment of the current trustee casts doubt on the trustee’s status.

and

But, appointments of a successor trustee may only be made by the trust deed beneficiary, ORS 86.790(3), and, as discussed, MERS is not, and never has been, the beneficiary of the trust deed for purposes of the OTDA.

The ruling is listed in part as follows:

          En Banc

          On review from the Court of Appeals.*

         Argued and submitted on January 8, 2013.

         Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, argued the cause for
petitioner on review Mortgage Electronic Registration Systems, Inc. With him on the
brief were Frederick B. Burnside and Kevin H. Kono.

         W. Jeffrey Barnes, pro hac vice, W. J. Barnes, PA, Beverly Hills, argued the cause
for respondent on review. With him on the brief was Elizabeth Lemoine, Makler
Lemoine & Goldberg, PC, Portland.

         Hope A. Del Carlo, Portland, filed a brief on behalf of amicus curiae Oregon Trial
Lawyers Association.
         Rolf C. Moan, Assistant Attorney General, Salem, filed a brief on behalf of
amicus curiae State of Oregon.

BREWER, J.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to that court for further proceedings.

         Kistler, J., concurred in part and specially concurred in part and wrote an opinion
in which Balmer, C.J. joined.
         *Appeal from Clackamas County Circuit Court, Henry C. Breithaupt, Judge. 251
Or App 278, 284 P3d 1157 (2012).

Continue reading “Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2”

In RE Androes – World Savings Bank lien avoided in Kansas Bankruptcy in February 2008

Seal_of_KSIn RE Androes – World Savings Bank lien avoided in Kansas Bankruptcy in February 2008

By Daniel Edstrom
DTC Systems, Inc.

In this Chapter 7 bankruptcy the trustee was able to avoid the lien from a World Savings Bank loan because the mortgage acknowledgement was missing a date.  As such the lien was never perfected.

Excerpt 1

Trustee Carl B. Davis seeks summary judgment on his complaint against debtor Mark Androes and World Savings Bank (“World Bank”).1 Trustee’s complaint seeks (1) to avoid World Bank’s mortgage on Androes’ homestead as unperfected because the acknowledgment of the debtor’s signature is undated and (2) to avoid as preferential World Bank’s lis pendens to the extent it attached to the home. World Bank filed a response to the Trustee’s motion and a counter motion for summary judgment.2 The Trustee filed a reply to World Bank’s response, which also served as his response to World Bank’s motion for summary judgment.3 World Bank filed a reply to the Trustee’s response to its motion for summary judgment.4 Debtor filed no response. Continue reading “In RE Androes – World Savings Bank lien avoided in Kansas Bankruptcy in February 2008”

Idaho Takes a Big Bite Out of MERS

Idaho Takes a Big Bite Out of MERS

By Daniel Edstrom
DTC Systems, Inc.

Idaho takes a big bite out of MERS in this ruling.  Summary judgment for the homeowner is granted, summary judgment for the MetLife Home Loans is denied.  Check out this (rather long) excerpt:

B. Defendant Lacks Statutory Authority to Maintain a Non-Judicial Foreclosure Under I.C. 45-1505(1) the trustee may foreclose a trust deed if “The trust deed, any assignments of the trust deed by … the beneficiary … are recorded in mortgage records in counties in which the property described in the deed is situated”. The only recorded assignment of the trust deed is by Mortgage Electronic Registration Systems, Inc. (MERS) to MetLife Bank, N.A. dated February 23, 2009. That document purports to transfer all beneficial interest MERS had to MetLife. Continue reading “Idaho Takes a Big Bite Out of MERS”

Ben Ezra Order to Show Cause Why Ben Ezra & Katz Should Not be Held in Contempt of Court on Feb 11, 2011

Ben Ezra Order to Show Cause Why Ben Ezra & Katz Should Not be Held in Contempt of Court on Feb 11, 2011

From LivingLies, which posted it from 4ClosureFraud.org …

How is this for some timing.

Last night Fannie Mae announced they are dumping this firm and today we get this…

CENTRAL MORTGAGE COMPANY,
PLAINTIFF,

VS.

EDUARDO GONZALEZ DELREAL
ETAL,
DEFENDANTS,

ORDER TO SHOW CAUSE WHY BEN-EZRA &  KATZ SHOULD NOT BE
HELD IN CONTEMPT OF COURT ON FEBRUARY 11, 2011 AT 9:00A.M.

From the order to show cause…

Counsel  for  the Plaintiff, Ben-Ezra &  Katz were properly noticed  to  appear for  hearing  on  January 21,  2011  and  failed  to  do  so.  The Court attempted to  contact Ben-Ezra &  Katz  to  address  this matter  during hearing,  but was unable  to get anyone on  the  telephone.

In  the  instant Case,  Plaintiff filed  an  action  of foreclosure  on Defendant’s property located at 1301  SW 2601 h  Terrace, Homestead, FL 33032.

Continue reading “Ben Ezra Order to Show Cause Why Ben Ezra & Katz Should Not be Held in Contempt of Court on Feb 11, 2011”