Niday v. GMAC Mortgage, LLC
251 Or. App. 278
| Or. Ct. App. | 2012Background
- Oregon OTDA allows nonjudicial foreclosure if statutory requirements are met (ORS 86.735).
- ORS 86.735(1) requires trust deed, assignments, and successor trustee be recorded in the mortgage records where the property is located.
- MERS was created to track and transfer interests in mortgages without public recording; it acts as a nominee and beneficiary in many trust deeds.
- Plaintiff-defaulted on a loan originated with GreenPoint Mortgage Funding, Inc., a MERS member; GreenPoint was the lender, not MERS, in the trust deed.
- The trust deed designated MERS as beneficiary (nominee for lender); GreenPoint later assigned its interest in the note, but no recorded assignment of the trust deed’s beneficiary was shown.
- Trial court granted summary judgment to defendants; court later reversed and remanded to determine proper beneficiary and whether ORS 86.735(1) requirements were satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is the beneficiary under ORS 86.705(1)? | Plaintiff argues beneficiary is the lender, not MERS. | Defendants argue MERS is the beneficiary per the trust deed. | Beneficiary is the party to whom the secured obligation is owed (the lender) under OTDA. |
| Are there genuine issues about nonjudicial foreclosure due to unrecorded assignments? | Unrecorded assignment by beneficiary bars nonjudicial foreclosure. | MERS as beneficiary can foreclose if statutory requirements are met; recording rules apply to assignments. | Summary judgment inappropriate; genuine issues exist as to whether GreenPoint’s or other assignments were recorded. |
Key Cases Cited
- State v. Gaines, 346 Or 160 (2009) (legislative interpretation and defined terms in statutes)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (statutory construction methodology)
- Kerr v. Miller, 159 Or App 613 (1999) (trust deeds treated as mortgages; lien theory)
- Barringer v. Loder, 47 Or 223 (1905) (records and assignment of mortgages history)
- Beauchamp v. Jordan, 176 Or 320 (1945) (mortgage as incident to debt; transfer of debt and mortgage)