(S060655) Niday v. GMAC, MERS | Oregon Supreme Court Decision 6/6/2013 – MERS is not the "beneficiary" for purposes of the Oregon Trust Deed Act (OTDA, which governs non-judicial foreclosures)

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(S060655) Niday v. GMAC, MERS | Oregon Supreme Court Decision 6/6/2013 – MERS is not the “beneficiary” for purposes of the Oregon Trust Deed Act (OTDA, which governs non-judicial foreclosures)

(S060655) Niday v. GMAC, MERS | Oregon Supreme Court Decision 6/6/2013 – MERS is not the “beneficiary” for purposes of the Oregon Trust Deed Act (OTDA, which governs non-judicial foreclosures)

Filed: June 6, 2013

IN THE SUPREME COURT OF THE STATE OF OREGON

REBECCA NIDAY,
fka Rebecca Lewis,
Respondent on Review,

v.

GMAC MORTGAGE, LLC,
a foreign limited liability company;
and EXECUTIVE TRUSTEE SERVICES, INC.,
a California corporation,
Defendants-Respondents,

and

MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.,
a Delaware corporation,
Petitioner on Review.

(CC CV10020001; CA A147430; SC S060655)

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.
BREWER, J.

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).

1 BREWER, J.
2 This is the second of two cases this court decides today that is concerned
3 with the nonjudicial foreclosure of trust deeds under the Oregon Trust Deed Act (OTDA)
4 and the mortgage finance industry’s practice of naming the Mortgage Electronic
5 Recording System, Inc., (MERS), rather than the lender, as a trust deed’s “beneficiary.”
6 In Brandrup v. ReconTrust Co., __ Or __, ___ P3d ___ (June 6, 2013), we answered
7 questions certified to us by a United States District Court about whether and how that
8 practice comports with the OTDA’s nonjudicial foreclosure requirements. In the present
9 case, we apply our answers in Brandrup to a dispute that comes to this court through a
10 petition for review of a decision of the Court of Appeals.
11 The underlying case is an action for declaratory and injunctive relief,
12 brought by a home loan borrower against MERS and other entities that were attempting
13 to utilize the OTDA’s “advertisement and sale” procedure, ORS 86.710, to foreclose the
14 trust deed that secured her promise to repay. Plaintiff argued that, although the trust deed
15 identified MERS as the beneficiary of the trust deed, neither MERS nor any of the other
16 entities involved in the foreclosure had any legal or beneficial interest in the trust deed
17 that would allow them to proceed under the OTDA. The trial court granted summary
18 judgment to defendants, but the Court of Appeals reversed that decision, holding that a
19 genuine issue of material fact existed as to whether all of the requirements for nonjudicial
20 foreclosure set out in the OTDA had been satisfied. Niday v. GMAC Mortgage, LLC, 251
21 Or App 278, 300, 284 P3d 1157 (2012). We also conclude that a genuine issue of
22 material fact exists, albeit a different one than the one the Court of Appeals identified.

[…]

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