Tuesday, June 11, 2013

Oregon Supremes Issue Split Decision In MERS Foreclosure Cases

In Salem, Oregon, The Oregonian reports:

  • The Oregon Supreme Court on Thursday cleared the way for banks to return to their preferred out-of-court method of foreclosure.

    The high court found that Mortgage Electronic Registration Systems Inc., a lending industry cooperative for cataloging loan ownership, can't foreclose on mortgages itself -- as was common in the early years of the foreclosure crisis -- because it's not the beneficiary of a deed of trust.

    The court did rule in favor of MERS and lenders, however, by ruling that not all transfers in ownership of a loan need to be recorded in county records before out-of-court foreclosures can proceed. With those ownership records now considered complete, foreclosures can proceed outside the court system at a lower cost to lenders.

    The recording decision reverses part of a ruling by the Oregon Court of Appeals, a lower court, that had been the final word in state law until Thursday. After the appellate court issued its decision in July 2012, most lenders diverted their foreclosures into the court system to avoid possible legal challenges.
  • The rulings came in the form of two opinions. The decision in Brandrup v. ReconTrust Co. (PDF), written by Justice David V. Brewer, answers four questions sent to the state's high court by the U.S. District Court in Portland, which was considering several foreclosure challenges. As a federal court, it defers to state law in foreclosure matters.

    In the other, Niday v. GMAC Mortgage LLC (PDF), Brewer wrote an opinion that applied the answers it set out in Brandrup and affirmed the appellate court's finding. The Supreme Court ruled MERS didn't prove it has authority to foreclose non-judicially, and it remanded real estate agent Rebecca Niday's foreclosure case back to the circuit court that had granted summary judgement against her.

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