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).

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Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1

Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1

By Daniel Edstrom
DTC Systems, Inc.

The Oregon Supreme Court was asked four questions, and answered as follows:

We accepted the district court’s certification and allowed the parties in the federal cases to
present their views. We answer those questions — in two instances as reframed — as

(1) “No.” For purposes of ORS 86.735(1), the “beneficiary” is the lender to whom the obligation that the trust deed secures is owed or the lender’s successor in interest. Thus, an entity like MERS, which is not a lender, may not be a trust deed’s “beneficiary,” unless it is a lender’s successor in interest.

(2) We reframe the second question as follows:
Is MERS eligible to serve as beneficiary under the Oregon Trust DeedAct where the trust deed provides that MERS “holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests”?

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Oregon Does it to MERS Again

Oregon Does it to MERS Again

By Daniel Edstrom
DTC Systems, Inc.

Once again MERS is hammered, this time in Federal District Court by the Honorable Owen M. Panner.  This judge understands clearly what is going on and has some serious questions.  Read this case to understand securitization and foreclosures.  Here are some highlights (there are many others):

Should the beneficiary choose to initiate non-judicial foreclosure proceedings, the Act’s recording requirements mandate the recording of any assignments of the beneficial interest in the trust deed.

Nobody held a gun to the head of the servicers and required them to use non-judicial foreclosure.  They have the right to choose which action they wish to use – non-judicial or judicial.  The problem in this case (and almost all other cases), is that the servicers are making the wrong choices.  Why?  Money, what else?.  It is not their concern that they don’t qualify to use non-judicial foreclosures.  It is not their concern that they have to strictly comply with statutes.  In 90% or more of all cases the homeowners are walking away so nobody will know anyway right?  Oops, now the titles have to be cleaned up because of the mess left behind by the servicers, which have all but destroyed the title records for foreclosed properties.  This means that in the future, somebody else will have to file a judicial lawsuit to clean up the title for a property because the servicer made the wrong choice and failed to strictly comply with non-judicial statutes.  By the way this problem is understated and far worse than anyone actually imagines or understands at this point.

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