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.

and

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.

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).

Continue reading “Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2” »

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
follows:

(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”?

Continue reading “Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1” »

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

By Daniel Edstrom
DTC Systems, Inc.

Following two previous rulings favorable to homeowners, the Supreme Court of Oklahoma rules against another foreclosing bank.  This ruling is short and fully excerpted here (or download a PDF at the end of this article).

NTEX REALTY, LP v. TACKER
2012 OK 26
NTEX REALTY, LP, Plaintiff/Appellee,v.CINDY A. TACKER and THERON TACKER, WIFE AND HUSBAND, Defendants/Appellants,
No. 109824.
Supreme Court of Oklahoma.

April 3, 2012.

Phillip A. Taylor, TAYLOR AND ASSOCIATES, Broken Arrow, Oklahoma, for Defendants/Appellants.
Charles C. Ward, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
——————————————————————————–
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
COMBS, J.
FACTUAL BACKGROUND & PROCEDURAL HISTORY.
¶ 1. On January 26, 2007, Appellants executed a promissory note (hereinafter “Note”) payable to Home Funds Direct, Inc. (hereinafter “Lender”). To secure payment of the Note, Appellants executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lender, as mortgagee, a certain mortgage (hereinafter “Mortgage”), which conveyed and mortgaged to the mortgagee certain real property located in Rogers County, Oklahoma. In both the Note and Mortgage, Home Funds Direct, Inc., is named as the Lender and Payee. Appellants defaulted on the Note on July 1, 2010. Appellee initiated foreclosure proceedings on October, 27, 2010. A copy of the non-indorsed Note and Mortgage was included with the petition.
¶ 2. In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment on March 3, 2011. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee’s motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a “full, true, and correct copy of said Note,” the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding. Continue reading “NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks” »

New York vs the MERS Scheme

New York vs the MERS Scheme

By Daniel Edstrom
DTC Systems, Inc.

New York Attorney General Eric T. Schneiderman filed a complaint today against JPMorgan Chase Bank, NA, Chase Home Finance, LLC, EMC Mortgage Corporation, Bank of America, NA, BAC Home Loans Servicing, LP, Wells Fargo Bank, NA, Wells Fargo Home Mortgage, Inc., MERSCORP Inc., and Mortgage Electronic Registration Systems, Inc.

Neil Garfield reports:

“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages. Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law,” Continue reading “New York vs the MERS Scheme” »