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.


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.


         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”

Lona vs Citibank: Decision from Court of Appeals of California

Edstrom_MortgageSecuritization_POSTER_17_x_22_v4_1Lona vs Citibank: Decision from Court of Appeals of California

By Daniel Edstrom
DTC Systems, Inc.

Here is this summary judgment reversal from an original ruling against a homeowner.   Download the PDF at the end.


JONAS Z. LONA, Plaintiff and Appellant,


CITIBANK, N.A., as Trustee, etc. et al., Defendants and Respondents. 

No. H036140.

Court of Appeals of California, Sixth District.

Filed December 21, 2011.

Law Office of Adlore V. Clarambeau, Adlore V. Clarambeau, Attorneys for Appellant Jonas Z. Lona.

Alvarado Smith, John M. Sorich, S. Christopher Yoo, Geoffrey C. Brethen, Attorneys for Respondent Citibank, N.A.



Responding to a mortgage broker’s “marketing enticement,” a homeowner agreed in January 2007 to refinance his home for $1.5 million. With a monthly income of only $3,333, the homeowner quickly fell behind in his monthly payments of $12,381.36. In August 2008, the home was sold at a nonjudicial foreclosure sale. The homeowner filed an action against the lender, the loan servicer, and others to set aside the trustee’s sale claiming that he was a victim of predatory lending. He claimed the transaction was invalid because the loan broker ignored his inability to repay the loan, and, as a person with limited English fluency, little education, and modest income, he did not understand many of the details of the transaction which was conducted entirely in English.

In response to the homeowner’s claim, the lender and the loan servicer moved for summary judgment, arguing: that the homeowner had failed to tender the amounts due on the loans, which was required to set aside the sale; that none of the exceptions to the tender requirement applied; and that the homeowner voluntarily entered into the loan agreements and was personally responsible for the loss of his home. The trial court granted summary judgment to the lender and loan servicer.

We will reverse the summary judgment. In doing so, we define the elements of an equitable cause of action to set aside a foreclosure sale and exceptions to the requirement that the borrower tender any amounts due under the loan. We hold that summary judgment was improper because: the homeowner presented sufficient evidence of triable issues of material fact with regard to the alleged unconscionability of the transaction; and the motion did not address a pertinent exception to the tender requirement, which the homeowner had raised in his complaint. Continue reading “Lona vs Citibank: Decision from Court of Appeals of California”

Update on Foreclosures in Oregon

Update on Foreclosures in Oregon

David Ambrose
Ambrose Law Group, LLC

Here is the latest, which while limited to Oregon, certainly can be applicable to any other states permitting nonjudicial foreclosure actions but requiring the recording of assignments of the mortgage or trust deed. 

You may recall the postings about the decision of Judge Alley in U.S Bankruptcy Court in Oregon (McCoy v BNC Mortgage), finding that in to proceed with nonjudicial foreclosures in Oregon, the applicable statute requires that there be a chain of recorded assignments (which, by the way, in Oregon you cannot record a document unless it is notarized), from the original beneficiary to the current beneficiary, and that MERS is not the beneficiary.

Continue reading “Update on Foreclosures in Oregon”