January 9, 2014

As those of you who follow this website know, Mr. Barnes previously brought to the appellate courts of Oregon the issue of whether MERS was a “beneficiary” under the Oregon Trust Deed Act (“OTDA”, Oregon’s non-judicial foreclosure statute). As those of you who follow this website know, Mr. Barnes prevailed at both the Court of Appeals level and in the Supreme Court of Oregon in the Niday v. MERS litigation that MERS is not the beneficiary under the OTDA, with the Supreme Court imposing proof requirements on MERS as to any claim of any alleged “agency” relationship with anyone.

As those of you who follow this website also know, Mr. Barnes prevailed on the very same issue in the Supreme Court of Montana, which also likewise declared that MERS is not the “beneficiary” under Montana’s Small Tract Financing Act (Montana’s non-judicial foreclosure statute), and also imposed proof of agency requirements on MERS as well. That case is now the law of the land in Montana.

Now, for the second time in 18 months, Mr. Barnes is bringing another set of issues of statewide importance in foreclosure litigation to the Oregon Court of Appeals for the first time, as there is no Oregon appellate law on the issues. On February 5, 2014, the Court of Appeals will hear arguments as to the discovery and admissibility of securitization documents and issues in judicial foreclosure cases, including the relevance of the PSA and loan transfer requirements related to transfers of mortgage loans to securitization trusts. The argument includes the recent body of law permitting attacks on alleged transfers of mortgage loans to securitization trusts as set forth and explained in the recent Glaski (CA Court of Appeals), Erobobo (New York), Saldivar (Texas bankruptcy Court), and Cosajay (Rhode Island Federal court) decisions on these issues.

In the case on appeal, the motion Judge in the trial court case had compelled the production of securitization documents from Deutsche Bank prior to trial. Deutsche Bank did not comply with the motion judge’s order. The different Judge who conducted the trial stated, on the record, that she was unfamiliar with the issues but would discuss the matter with fellow Judges over lunch. After lunch, the trial Judge decided that the ruling by the Motion Judge was not essential to trial and did not permit the introduction of the securitization issues; waffled on the limited admissibility of the PSA; and precluded cross-examination on several issues related to the alleged transfer of the loan to the securitization trust.

These issues, like those as to MERS in the Niday case, are those of “first impression” in Oregon, meaning that there is currently no Oregon appellate-level law on the issues, and thus the decision will be one of statewide importance.

Jeff Barnes, Esq.,