August 15, 2013

The Supreme Court of Montana has granted and ordered oral argument on an appeal by an homeowner concerning whether MERS is a “beneficiary” under Montana’s non-judicial foreclosure statute. Jeff Barnes, Esq. represents the homeowner. He is assisted by local Montana counsel Eric Hummel, Esq. Mr. Barnes wrote the briefs and will be arguing the case before the full 7 justice panel on September 25, 2013.

We have been advised that by setting the case for oral argument, the Supreme Court of Montana considers the case to be of statewide importance, and that oral argument is very rarely set, with the Court only setting approximately twenty (20) cases per year to be argued orally. Most appeals to the Court are decided on the papers alone.

The Montana statute is almost identical to the Oregon non-judicial foreclosure statute which defines “beneficiary”, which matter was argued by Mr. Barnes before the Supreme Court of Oregon. As those who follow this website know, the homeowner prevailed in that appeal, with the Oregon Supreme Court holding that MERS is not a beneficiary under the Oregon Trust Deed Act.

MERS has take the position, in its briefs in the Montana appeal, that Montana should follow decisions in Nevada and Utah, which hold that MERS is a beneficiary. There is currently no appellate case law in Montana on the issue, so the decision will set the law for the entire state of Montana.

Jeff Barnes, Esq.,