*1 PILGERAM TROY A. PILGERAM, A.
TERESA wife, husband Appellants,
Plаintiffs and
INC.,
FUNDING,
MORTGAGE
GREENPOINT
corporation; COUNTRYWIDE
a California
corporation;
a Texas
LOANS, INC.,
HOME
limited
LLC, a Montana
MORTGAGE,
MANN
liability company; and MORTGAGE
SYSTEMS,
ELECTRONIC REGISTRATION
Corporation,
an Iowa
INC.,
Appellees.
Defendants
No. DA 12-0629.
September
2013.
Submitted on Briefs
November
Decided
For Smith, Poore, Charles K. Robinson, Roth P.C.; & Butte; Robert J. Pratte (argued), Lindahl, Brent R. Fulbright & Jaworski, L.L.P.; Minneapolis, Minnesota.
JUSTICE WHEAT delivered the Opinion of the Court. Troy (the A. Pilgeram ¶1 A. Pilgeram Teresa Pilgerams) appeal from the orders of the Eleventh Judicial Court, District Flathead County, granting GreenPoint Mortgage Inc., Funding, Countrywide Loans, Home Inc., and Mortgage Electronic Registration Systems, (the Lenders’) Inc.’s motion for summary judgment and denying the Pilgerams’ motion to judgment. amend We reverse. dispositive
¶2 appeal issue on is: Did the District Court err in granting the Lenders’ motion for summary judgment ?
BACKGROUND On September Pilgerams obtained a fixed rate home (Mann) loan from Mann Mortgage $512,000 and executed a deed of (DOT) trust naming Citizen’s Title &Escrow trustee and Mann lender. Also on September 2006, the Pilgerams signed a promissory note, which Mann endorsed to GreenPoint Mortgage Funding, Inc., (GreenPoint) on the same day. provided The DOT promissory note could be sold without
advance notice to the borrower. Thе DOT provided also that the loan entity services could be changed with written notice to the borrower. note, rights their Pilgerams waived promissory Pursuant to the Registration Electronic Mortgage of dishonor. notice presentment (MERS) note but was Inc., promissory named in the was not Systems, Security Instrument beneficiary of this “[t]he DOT as identified assigns.” Lender’s successors for Lender and solely ... as a nominee promissory in the DOT and of the interest After several transfers July On April 2008. note, defaulted on the note Pilgerams GreenPoint, which in the DOT to assigned its interest note and promissory interests in both the subsequently held the appointed and substitutеd July GreenPoint DOT. Also on (Peterson) In November as the successor trustee. J. Peterson Charles assigning received notice that GreenPoint Pilgerams early In December Countrywide effective servicing rights that it was December, Countrywide Pilgerams received notice to be payments and that future were servicing entity the loan now They also received notice made in the manner indicated the notice. been accelerated and/or was that the loan was in default and had they manner in which could They were informed of the foreclosure. bring the note current. sales, Pilgerams foreclosure Fоllowing a series of cancelled *3 Court, the Lenders lacked the alleging in the District complaint
filed a summary judgment,1 Lenders moved for authority to foreclose. The 13, 2011, the motion on December granted and the District Court qualified “beneficiary” that as a under Montana’s reasoning MERS (STFA). 2012, 25, January On Financing Small Tract Act Court judgment. filed a motion to amend The District Pilgerams 20, 2012, ruling because “the time for April denied this motion on days Pilgerams 60 after the motion was filed.” expired in October 2012. subsequently appeal filed an in this Court failed to meet appeal, Pilgerams argue On that the Lenders ¶7 summary judgment, complicated and thаt their burden for MERS, GreenPoint, assignments among between and fact. The Lenders Countrywide genuine create issues of material supposedly facts are Pilgerams explain that the “fail to what counter why they (emphasis original). are material” dispute, there was correctly that the District Court concluded argue Lenders the loan and Countrywide foreclosing from impediment prohibiting “no trustee, Peterson, property instructing” the successor “to sell summary judgment. party Mann was not a to the motion for satisfy to the default.” not, The Pilgerams argue not, further
¶8 “is and could ‘beneficiary’ Thus, never be the of the DOT.” it “had no authоrity to endorse note which it never owned” or assign Pilgerams’ “to deed According Lenders, of trust.” to the specifically the DOT provided that beneficiary, allowing MERS was a MERS to act as the lender and of the lender’s successors and assigns.
STANDARD OF REVIEW We review de novo a grant district court’s or denial summary judgment, applying the same criteria of M. R. Civ. P. 56 as a district court. Fisher v. State Farm 208, 11, Mut. Auto. Ins. 2013 MT Mont. P.3d 861. We review a district court’s conclusions oflaw they determine whether are correct and findings its of fact to they determine whether clearly Mote, are erroneous. Brookins v. (internal omitted). MT 367 Mont. P.3d 347 citation
DISCUSSION Did the District Court err in granting thе Lenders’ motion for summary judgment ? The District granted Court summary judgment in favor of MERS
solely
grounds
on the
qualified
as a beneficiary under the
STFA. Although
Court,
never addressed
the District
MERS asserts
on appeal
they
special
are
agent of the lender. We find that
theory
neither
summary
warrants
judgment in favor of MERS.
Summary judgment
“should be rendered if the pleadings, the
discovery and disclosure
file,
materials on
any
affidavits show
genuine
there is no
issue as to material fact and that the movant is
entitled to judgment as a matter of law.” Feller v. First Interstate
Bancsystem, Inc.,
2013 MT
1010. If the movant demonstrates the absence of material issue of fact and entitlement judgment, the non-movant must establish with *4 substantial evidence that a genuine issue ofmaterial fact does exist or that the movant is not prevail entitled to under the law. Semenza v. Kniss, 238, 18, 2008 MT 344 1188; Mont. 189 P.3d Prindel v. County, 62, 19, 331 Ravalli 338, 133 Mont. P.3d 165.Where undisputed the evidence concerning the relationship parties of reasonably susceptible inference, to but a single the question of their
5 Co., 153 Husky of law. Elkins v. Oil relationship purely is one legal (1969); Milliron Estates of Semenza, (1990); P.2d Francke, STFA. beneficiary not a under Montana’s MERS is the assign argue that MERS had no Pilgerams The that jurisdictions and that we follow other Pilgerams’ request DOT under their qualify beneficiary not as a have MERS did determined ignore express argue Pilgerams trust deed acts. Lenders of of the definition plain language trust deed and the language of the 71-1-303(1), They argue MCA. further beneficiary under § may serve disregard authority holding MERS Pilgerams Montana authority. have out-of-state beneficiary “cherry-picked” a and instead addressed, namely yet case raises an issue we have not This designated to be permits whether STFA MERS Montana’s this area of law in a trust indenture.2 We are mindful is an in different develoрing, that with state and federal courts still court in the jurisdictions reaching different results. Federal decisions instructive, are decisions District Montana on these issues are the of jurisdictions. courts We note of state district courts and state in other that the Court in this case not the Montana state District that district court to consider similar trust and conclude Assn., beneficiary. as a See v. U.S. Bank Natl. qualified Waide Ct., (Watters, J., DV-10-1763, County at Dist. slip op. Yellowstone 1-17). 2011) (Court June Doc. 8-5 “beneficiary”as person 15 The STFA defines “the named or otherwise
designated in trust a trust a indenture whose benefit interest, may or given person’s indenture is successor in 71-1-303(1), a interpreting be trustee.” Section MCA. “When private by MERSCORP, Inc., database, operated “MERS is a electronic loans, any changes tracks transfer of the ‘beneficial interest’ home as well as loan, original may loan out a all servicers. After borrower takes home lender sell portion change or a of its beneficial interest in the loan loan The owner servicers. repayment simplicity, of the interest For we will beneficial entitled to of the loan. refer to interest as the loan the owner beneficial the ‘lender.’ servicer of borrower, lender, payments payments сollects from the sends to the handles Many aspects companies participate in the administrative the loan. mortgage industry-by loans, buying investing originating interest beneficial loans, pay tracking servicing members of a fee loans-are to use ** (D. America, system.” N.A., Joseph v. Bank Dist. LEXIS 10-11 U.S. Mont., (citing Mortg. Sys., April23,2013) Registration Inc., 770 N.W.2d Jackson v. Elec. (Minn. 2009)).
statute, Legislature.” we seek to the implement intention Commn., Mont. Williamson v. Pub. Serv. 364 Mont. MCA). 1-2-102, 71 (citing plain 272 P.3d first look to the § We Williamson, meaning language of the statute’s words. 36. If the is unambiguous, clear and we will not to resort other means of Williamson, interpretation. Stuart, 36 (citing RockyMt. Bank v. (1996)). Mont. P.2d 246-47 If the unclеar however, ambiguous, statutory we resort rules of to construction to give legislature. discern and effect to the intention of the 392, 394, 715 v.Dept. of Hwys., Contractors Assn. P.2d (1986) (internal omitted). citations “beneficiary” We find that the of definition is clear and unambiguous. only The section interpretation, lends itself to one namely beneficiary the person “the named ... a trust indenture whose a given trust indenture is for benefit added). person’s 71-1-303, the (emphasis successor in interest” Section MCA. The Lenders argue that MERS received a “benefit” the though DOT even money MERS did not right lend the no has repayment. alleged benefit is title to the the property in event of However, foreclosure. the DOT not given was for the of benefit MERS but the benefit of lender. may ultimately the obtain some benefit based on its relationship with the Lenders but that benefit is (Idaho granted by not the MERS, DOT.See Edwards 2013) (“The deed of trust was not given for the benefit MERS of or to obligation owing secure an to MERS. It given for the benefit of Lehman Brothers to secure the obligation owing Although to it. may obtain upon a benefit based its relationship with Lehman Brothers, the deed of was not granted trust in order to provide MERS benefit.”). with that The question statutory ofthe meaning “beneficiary” of does not
depend partiеs’ on the intent or application common principles law Rather, of contract to the DOT. “beneficiary” interpreted must be legislative the context of intent and the whether STFA authorizes nonjudicial foreclosure when statutory certain conditions are met. meaning “beneficiary” is determined statute and is thus incorporated into the parties’ agreement may not be otherwise (4th 1999) See, Lord, altered. R. 11 Williston on 30:24 Contracts ed. § (“[ijncorporation may of existing supersede law act to inconsistent purporting instance, clauses to define the terms ofthe agreement. For regulates where statute government pay amount the tois for a service, particular the statute despite controls a contract between agreeing lay a lower of the service provider and the government rate.”). the STFA make it clear “beneficiary” throughout References to obligation the secured flows. beneficiary entity to whom that the (“For 71-1-305, applying mortgage purpose MCA Section mortgagor laws, in a trust indenture is deemed grantor (providing MCA mortgagee.”); beneficiary is deemed 71-1-312(1), stated); to the that a title insurer is liable Here, the (3), beneficiary)). made to the (referencing payments MCA lender, MERS, entity obligation the secured flows. is the to whom STFA, beneficiary “may not be the trustee.” Under the *6 71-1-303(1), legal A is “a to whom the MCA. “trustee” Section conveyed by a trust indenture ....” Section 71-1- property title to real trustee, 303(7), Peterson as the and the appointed MCA. GreenPoint undisputed that MERS is not Pilgerams acknowledge “[i]t However, entity legal an holding trustee.” the DOT identifies MERS as party “[a] A nominee is property title to real and as the “nominee.” title the benefit of others or who receives and legal holds bare for Dictionary distributes funds for the benefit of others.” Black’s Law 2009). ed., ed., (Bryan only legal A. Garner West MERS holds 1149 9th оbligation benefit or secured property title to real and receives no 71-1-303(1), MCA, title from prohibits legal the DOT. Since holders of role, meet assuming we conclude that MERS does not “beneficiary.” Pilgerams argue, the STFA’s definition of As the “MERS lender, credit, any nothing did not extend and is more than was not entity.” tracking electronic sufficiently with agency relationship MERS’ lenders summary judgment. to warrant established argument that even if MERS is not We next address Lenders’ beneficiary, may properly question it execute the documents it the lender under MCA. special agent because is a argument, by Appellants appeal, That rаised for the first time on is not sufficiently satisfy exacting standards of grounded the record summary judgment. new arguments It is well established that we do not consider law
legal appeal, agency theories for the first time on even 103, 126 343, 38, P.3d Ferguson, context. State v. 2005 MT 330 Mont. ¶ Peterson, 65, 24, 199, 463; 499; MT 309 Mont. 44 P.3d State v. 2002 ¶ 256, 22, 203, MT Schlemmer v. N. Cent. Ins. 2001 307 Mont. ¶ Life Indus., 145, 15-17, 63; Easley, Inc. v. 1998 MT 289 37 P.3d ¶¶ Unified 255, 390, MT 100; Snetsinger Sys., Mont. 961 P.2d v. Mont. Univ. 2004 C.J., 120, (Rice, Gray, dissenting). 325 Mont. P.3d 445 J. & 8 434, 431, 1131,
In Service Funding Craft,
v.
234 Mont.
763 P.2d
1133
(1988), appellants asserted the existence of a principle-agent
relationship
appeal.
“apply
the first time on
This Court refused to
presented
law of
in addition to that which was
District Court.”
Funding,
Service
... & Leo’sFresh Inc. v. 2012 MT 1218; also, Brookins, 24; Mont. 286 P.3d Day Payne, See 273, 276-77, (1996); Payne 929 P.2d v. McLemore’s (5th 1981). Stores, Wholesale & Retail 654 F.2d Cir. It is fundamentally unfair party argument trial, for a to withhold an outcome, take a chance on a favorable and then a separate legal assert theory when the strategy Day, 276-77, 929 trial fails. 280 Mont. at P.2d at 866. New issues should appeal be reviewed on if extenuating justify circumstances party’s failure to assеrt their legal theory at trial, such emergence precedent of new on the issue. Marcus Daly Hosp. Borkoski, 366, 369, Memorial Corp. v. 191 Mont. (1981); Carter, State v. P.3d 1001. Appellees make no agency theory mention of an of their to the complaint
answers or in their summary motions for judgment and the District Court made finding no of fact or conclusion of law *7 an concerning agent-principal relationship. MERS submitted no evidence support agency relationship, nor have Pilgerams been opportunity afforded an to refute that relationship with evidence of their simply, own. Put the record has not been dеveloped to determine whether agency existed. This fact especially troubling on summary judgment finding agency because a requires consideration ofall facts and parties, circumstances between the not merely plain Constr., question. Inc., document in Dick Anderson v. Prop. 138, 22, 361 30, 255 Monroe P.3d 1257. ¶ We cannot fault the Pilgerams mishandling for agency argument in reply their brief failing to raise sufficient evidence to defeat summary judgment agency Instead, on the issue. we find that these omissions patent demonstrate the that party unfairness results when a is ambushed with a legal argument new on appeal. We refuse to punish Pilgerams failing for to raise a material fact concerning an issue never existed in litigation. this in the law developments or new extenuating Nor do circumstances theory at the trial asserting agency in complacency MERS’ justify determined that Court ofArkansas Supreme level. In March Registration Elec. agent” Mortgage of a lender. MERS was the “mere (Ark. 2009). Ark., Sys. v. Homes S.W.3d Southwest relationship with agency ofKansas considered MERS’ Supreme Court Kesler, August 2009. Landmark Nat’l Bank lenders (Kan. 2009). decisions, agent MERS’ status Prior to either ofthose and Idaho. In re bankruptcy courts of California was evaluated (Bankr. Sheridan, 2008); B.R. C.D. Cal. In re Vаrgas, 396 (Bankr. 2009). D. After all of this 2009 Bankr. LEXIS Idaho status, summary concerning agent MERS’ MERS’motion litigation theory. MERS July makes no mention of an judgment summary legal theory judgment silent about this at the remained and, correctly disagree the Court would with hearing predicting .that theory where reasoning, legal the District Court’s now asserts a new surprise appeal unfairly prejudices its first one failed. This Pilgerams’ position prohibited by precedent. and is especially wary arguments We are of new the context of summary all in favor of the non-movant judgment. We construe facts determining LaTray, whether an issue of material fact exists. If the movant the absence of material issue of fact demonstrates judgment, and entitlement the non-movant must establish with genuine substantial evidence that a issue of material fact does exist or Semenza, prevail that the movant is not entitled to under the law. 18; Prindel, 19. Because the never raised at the trial issue was level, the movant never fact demonstrated an absence of issue, judgment entitlement to on nor did the a this non-movant have present chance to substantial evidence refuting absence entitlement. record, a complete With more other courts have refused to
recognize agent summаry MERS’ A judgment. status on New York Bankruptcy grant Court refused to status because its membership agreement grant with lenders contained no (Bankr. 2011). re Agard, to MERS. In 444 B.R. E.D.N.Y. That record, membership agreement notably absent from this even though principal-agent relationship requires consideration ofall facts Constr., Inc., parties. circumstances between the Dick Anderson membership agreement 22. The could in this case dispositive be authority requires principal’s actual manifestation of assent to the *8 (Third) agent’s Agency 3.01; action. Restatement MCA. Oregon Court of also found that MERS had not Supreme sufficiently agency theory established its because no evidence showed ultimately “who holds the relevant interest in the notes and trust deeds, predecessors and whether that and each ofits in interest authority necessary MERS act conferred on on their behalves (Or. 2013). Recontrust, Co., respects.” Brandrup v. missing well; only That evidence is here the DOT states that agrees” “Borrower understands and that MERS’was a nominee of the lenders, granted authority. not that the lenders themselves using only But even if we decided the issue the language DOT, reasonably that evidence susceptible to more than one inference, therefore, the legal relationship between MERS and the Elkins, purely question Lenders is not of law. Milliron, 332;
P.2d at
Estates
an issue never against raised below and a party that never had an opportunity to rebut the facts and law of the issue. We reverse and remand this case to the District findings Court for further of fact regarding principal-agent MERS’ with relationship the lenders. *9 and McGRATH, McKINNON JUSTICES JUSTICE CHIEF concur. MORRIS COTTER, dissenting.
JUSTICE from the I dissent through Opinion in the Court’s I concur ¶28 MERS as the role of respect to Opinion with the Court’s remainder of of the District lender, the decision and would affirm agent an of Court. as a qualify does not though MERS that even I would conclude because question the documents execute
beneficiary, may properly it 28-10-102, MCA, provides: Section of the lender. special agent it ais special agent. transaction is called act or agent particular “An for a agents.” general All others are separate “MERS is a provided that Pilgerams’ DOT Lender’s for Lender and solely as a nominee acting that is
corporation authority the nominee’s The DOT described assigns.” and successors (as custom, MERS law or necessary comply to with follows: “if right: assigns) and has and Lender’s successors for Lender nominee in the by the borrower [granted of those interests any to exercise or all to, foreclose and right limited to Trust], including, but not Deed of including, Lender required action of and to take Property; sell the Security Instrument.” to, cancelling this releasing and but not limited may act 28-10-102, MCA, that one noted, specifically contemplates As the role precisely act transaction. This is particular for a agent as an under the DOT. that MERS fills another, usu. place to act in of person designated is “[a] A nominee agent An is one Dictionary Lаw at 1149. very way.” limited Black’s
in a A nominee is a form MCA. another. Section represents (“As indicate, a Edwards, at 49 the definitions agent. See agent.”). merely a form of nominee and naming MERS a nominee language of the DOT Given the take, that MERS to I would conclude actions it is authorized
listing the the same other courts have reached agent. the lender’s Several was * (“MERS 97869 at 33 2012 U.S. Dist. LEXIS Joseph, conclusion. See act on the lender’s authority cloaked with Countrywide’s agent, Am., 2012 U.S. Trust.”); v. Bank under the Deed of behalf Heffner * (“As (D. Mont., 2012); Joseph, May LEXIS Dist. agent MERS as its designated reflects that America
Deed of Trust here and its for America authоrity to act as a nominee gave it full (“The lender, Edwards, 300 P.3d at assigns.”); successors to act its Brothers, designate had the Lehman MERS, Lehman were the actions of behalf, agent, the actions of its Brothers.”). could, agent, assign lender’s the beneficial GreenPoint, interest in the deed of trust to who could in turn appoint * Joseph, a successor trustee. See 2012 U.S. Dist. LEXIS 97869 at 36 (“The did, Court thus concludes that MERS could and Countrywide’s nominee/agent, assign the beneficial interest BOA-HLS.”); deed of trust to * Heffner, 2012 U.S. Dist. LEXIS (The permit STFA does not MERS to be the in a trust nominee, indenture as the assign lender’s but MERS could (Third) beneficial trust.); interest the deed of Agency Restatement 1.04(2) (an agent may i.e., act on behalf of principal, both a disclosed lender, original i.e., and a later unidentified principal, original lender’s assign). successor and This conclusion is consistent with Montana law allowing trustee, an indenture performing duties under STFA, to delegate those duties to party. another Knucklehead Accutitle, Inc., Land Inc. v. *10 2007 MT 340 Mont. ¶¶ Co., 116; 172 P.3d See N.A., also Diehl v. Reconstruct 2010 U.S. Dist. ** (D. 2010) 52404, 11, 13 Mont., 22, LEXIS April (adopted by Diehl v. (D. N.A., Reconstruct 2010 Mont., U.S. Dist. LEXIS 52403 May 2010)) (Section 71-1-315(3),MCA, prohibit did not First American and Reconstruct from designating agent an to conduct the foreclosure sales the plaintiffs’ properties, of real agеnt even if the separately did not qualify as a MCA; trustee under agent perform could any act First American and Reconstruct perform.); could Joseph, 2012 * (“No U.S. Dist. LEXIS 97869 at ‘contrary 35 clearly intention appears’ in the STFA preclude that would the lender from designating agent an to act on the lender’s behalf to exercise all pertinent authority indenture.”). of a under the trust The opines Court that the question of whether MERS was the agent of the lender was raised for the first time appeal on therefore should not be considered. Notably, neither Pilgerams nor the parties concern; rather, other raised this the Court has done so sua sponte. fact, In parties agency debated the question in their appellate briefs and also extensively agency addressed during oral argument before this Court without ever asserting the issue was not properly before us. As the thoroughly issue was argued with the consent ofthe parties, the concerns about unfairness repeatedly voiced by the Court are stated, unfounded. As we frequently have this Court generally does not resolve grounds a case on supported not raised or by parties. Maurier, Citizens Balanced Use v. MT 303 P.3d (citing State v. Andersen-Conway, 678); Pinnow v. Mont. 1273. It bears P.3d 332, 15, Mont. Fund, MT Stаte of Montana Rules in the counterpart is no there noting that while 15(b)(2) “[w]hen provides P. Procedure, M. R. Civ. Appellate express by parties’ is tried by pleadings raised not issue in the if raised respects in all consent, be treated it must implied presented apply arguments rationale should The same pleadings.” appeal. on by agreement issue agency that resolution also concludes The Court findings regarding offact and “further complete more record
requires Opinion, lenders.” relationship with the principal-agent MERS’ ofthe complexity exaggerates the Court I believe respect, due With may properly be deemed whether MERS question of agency issue. the DOT and language of the lender is driven of fact, law, and therefore question is one agency. law unnecessary. The DOT wholly fact is findings further remand for agency and the law of ambiguous, complicated is not a determination clearly supports cited herein precedent as the well exists MERS and the lender relationship between that an ofthe affirm the decision I would therefore under these circumstances. to do so. I from our refusal District Court. dissent of JUSTICE dissenting Opinion joins BAKER JUSTICE COTTER. RICE, dissenting.
JUSTICE “beneficiary” under the STFA is broader I the definition of believe 71-1- provision, the Court concludes. That more flexible than
303(1), MCA, states: designated in person named or otherwise
“Beneficiary”means benefit a trust for whose a trust indenture interest, may successor in given person’s or the indenture not be the trustee. *11 that the Court comes from the words flexibility The ofthis statute beneficiary the “named or otherwise emphasize: the
does not for whose benefit the person” in trust indenture “as the designated” trustee, any Except for its exclusion of given. indenture is law, broadly any other provision permits this other restriction in the trust indenture “as designated” “named or person to be says given. indenture is statute for whose benefit the trust person” lenders, beneficiary requiring limiting the to nothing about flows.” obligation the secured beneficiary entity be “the to whom lenders; it is about is not about provision 17. This Opinion, ¶ interest in the to hold a beneficial person” someone “as the designating trust indenture. provision’s purpose permit flexibility is to arrangements financial consistent with the constitutional right of Here, contract and assignment. the “person” designated so under this broad is MERS. This beneficiary, definition of similar to the one in Oregon’s
statutes, does not evince a legislative intent to
preclude the parties to a trust deed designating the agent of the lender and its succеssors as the beneficiary. We should be hesitant to find in that run-of-the-mill definition limitation on parties’ customary authority to structure their transactions as fit, they text, context, see unless the history of that definition requires it. ... Certainly, nothing the text of the definition expressly forecloses parties from designating the lender’s agent as the beneficiary in the trust deed. (Or.
Brandrup N.A., 2013) ReconTrust (Kistler, J., Balmer, C.J., concurring part and dissenting in part). MERS was identified here as the lender’s “nominee” under the and, DOT statute, terms of the could likewise have been identified as the “designee.” The DOT states: “MERS is a separate corporation that acting solely as a nominee for Lender and Lender’s successors assigns. MERS is under this [DOT].” added.) (Emphasis Under the section entitled Rights “Transfer of the Property” it “[t]he states: beneficiary of [DOT] this (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of goes MERS.” It on provide that “Borrower understands and agrees that MERS holds legal title to the granted by interests [DOT], Borrower in but, this if necessary to (as comply custom, with law or nominee Lender and Lender’s successors and assigns) has the right: to any exercise or all of interests, those to, including, but not right limited foreclose sell Property; and to take action required Lender including, to, but not limited releasing and canceling this [DOT].” (Emphasis added.) This language clearly demonstrates that at the time the trust indenture into, was entered the parties designated MERS as the beneficiary granted DOT and MERS the authority to act as the beneficiary. noted, As the only limitation within the STFA definition of
beneficiary is that the beneficiary “may not be the trustee.” Section 71- 1-303(1),MCA. The Court acknowledges “[i]t is undisputed that MERS is not the trustee” but nonetheless holds that MERS is actually trustee equating a dictionary definition of “nominee” with a *12 However, this Opinion, ¶ the STFA. “trustee” from definition of and the DOT. the STFA language ofboth strays from the clear analysis DOT, does it claim ofthe nor purposes Here, is not a trustee designated as specifically is Rather, Title & Escrow Co. Citizens to be. MERS as does not exclude Thus, limitation in the STFA trustee. beneficiary.1 statute, construing a When and declare what simply to ascertain judge of the office therein, has not to insert what contained
in terms or in substance there are inserted. Where what has been been omitted or to omit is, if such a construction particulars, or provisions several effect to all. adopted give as will possible, be “beneficiary” under the 1-2-101, definition of MCA. Since the Section bеneficiary, and the of MERS as preclude designation does not STFA a whole, serving as STFA, preclude does not taken as a the District Court’s if I would affirm beneficiary designated, so as reflected in the documents “undisputed that the facts conclusion MERS, beneficiary, statutes, [sic] establish well as Montana trustee and could do statutory authority appoint a successor had the the broad Plaintiffs as borrowers.” Given so without notice to statute, disregard parties’ I not would contrary. intent to the designation legislative absent attorney 71-1-306, MCA, Additionally, requires either an that a trustee be Montana; bank, company, savings practice and loan a trust licensed to law in Montana; insurance or a title insurer or title association authorized to do business clearly producer not an to do business in Montana. MERS is authorized bank, association, attorney, savings Under § and loan or'a title insurer. a “any corporation incorporated MCA, company” under the a “trust is defined incorporated designated purposes. MERS is of a list of laws of this state” for one or more Delaware, Montana; registered as an active nor is it even under the laws of issue, corporation not meet of the listed Aside from this MERS does this state. not, Thus, company.” purposes MERS could formed to be a “trust for which it must be to, under the DOT. even if it wanted be a trustee