Niday v. GMAC Mortgage, LLC
302 P.3d 444
| Or. | 2013Background
- OTDA governs nonjudicial foreclosure of trust deeds; MERS listed as beneficiary “solely as nominee” for lender; Brandrup v. ReconTrust answered certified questions about MERS and OTDA; plaintiff seeks to halt foreclosure and obtain declarations about lack of valid interest; trial court granted summary judgment to defendants; Court of Appeals reversed finding a genuine issue of material fact; record shows transfer of note but not clear assignments of the trust deed; issue centers on who is true beneficiary and whether recording requirements were satisfied; Supreme Court reverses/remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MERS can be the trust deed beneficiary under OTDA | Niday argues Greenpoint is the true beneficiary; MERS lacks authority to foreclose | MERS designated beneficiary; ETS as trustee; GMACM as servicer; authority to foreclose | MERS cannot be the OTDA beneficiary; Greenpoint remains the beneficiary. |
| Whether ORS 86.735(1) recording requirement was satisfied | Note transfer creates assignment of the trust deed; requires recording | Assignments must be written instruments of the trust deed; note transfer by operation of law not an assignment | Note transfers do not constitute a recorded assignment of the trust deed; no triable issue on recording requirement. |
| Whether ETS’s appointment and MERS’s involvement affect foreclose authority | Lack of evidence of valid beneficiary and agency; foreclosure lacks proper authority | ETS valid successor trustee; MERS may act as agent if authorized | There is a genuine issue of fact about ETS’s authority and agency relationships; remand for further proceedings. |
Key Cases Cited
- Brandrup v. ReconTrust Co., 353 Or 668 (Oregon Supreme Court 2013) (key ruling on MERS status and OTDA foreclosure framework)
- Barringer v. Loder, 47 Or 223 (Or. 1905) (assignment of mortgage by indorsement; recording formality)
- United States Nat. Bank v. Holton, 99 Or 419 (Or. 1921) (mortgage follows the note; PETE/ownership distinctions)
- Edelstein v. NY Mellon, 286 P.3d 249 (Nev. 2012) (PETE status and foreclosure authority distinctions)
- Hampton Tree Farms, Inc. v. Jewett, 320 Or 599 (Or. 1995) (agency principles in MERS context)