June 7, 2013In a 23-page opinion issued yesterday, the Supreme Court of Oregon has affirmed the decision of the Oregon Court of Appeals in Niday v. GMAC, which held that MERS is not the “beneficiary” for purposes of the Oregon Trust Deed Act (OTDA, which governs non-judicial foreclosures), and that there are numerous genuine issues of material fact which are present when MERS purports to execute documents such as an appointment of a successor trustee in its alleged (but incorrect) capacity of claimed “beneficiary”.Jeff Barnes, Esq. argued the case before both the Court of Appeals and the Supreme Court and wrote all of the briefs for the homeowner, who prevailed at both the Court of Appeals levels and in the Supreme Court. MERS had appealed the COA decision.
The Supreme Court also decided four certified questions as to MERS in the case of Brandrup v. ReconTrust, which was argued the same day as the Niday case before the Supreme Court.Significantly, the Supreme Court rejected all of MERS’ arguments as to its alleged status as “beneficiary”, even through MERS so claimed in the Deed of Trust. The Supreme Court specifically held that the Oregon statute provides that the beneficiary is the person named or otherwise designated in the trust deed for whose benefit the trust deed is given, noting that MERS attempted to split the statutory language by focusing on the “named or otherwise designated” portion while ignoring the “for whose benefit the trust deed is given” portion. The Supreme Court specifically held that the “person for whose benefit the trust deed is given” is the Lender, not MERS, as that person is the person who is entitled to payment on the promissory note, which is not MERS.
The opinion states that “the fact that MERS was identified in the trust deed as the ‘beneficiary’ does not make it so” for purposes of the OTDA. We have been arguing this across the United States for years: that just because MERS says it is the beneficiary does not render that statement true. However, as our readers are aware, too many courts have blindly accepted that language without delving into the true meaning of “beneficiary”. The Supreme Court of Oregon has finally done what needed to be done.
As such, the Court called into question (and found issues of material fact) as to the initiation and furtherance of a foreclosure when it involves actions of MERS, and set forth specific evidentiary and authority requirements which must be satisfied proven in a foreclosure involving MERS’ actions.
The Supreme Courts of Washington and Oregon are now in accord, even through they have different foreclosure statutes, that MERS is not the beneficiary. The full opinion is available upon request by going to our “Contact Us” link.
Jeff Barnes, Esq., ForeclosureDefenseNationwide.com