Oregon Supreme Court Hearing Certified Questions Regarding Oregon’s Statutory Definition of Beneficiary and MERS

On April 2, 2012, this Court certified the following four questions to the Oregon Supreme Court pursuant to Or.Rev.Stat. § 28.200 and LU. 8345(a):
1. May an entity such as MERS, that is neither a lender nor successor to a lender, be a “beneficiary” as that term is used in the Oregon Trust Deed Act?
2. May MERS be designated as beneficiary under the Oregon Trust Deed Act 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”?
3. Does the transfer of a promissory note from the lender to a successor result in an automatic assignment of the securing trust deed that must be recorded prior to the commencement of nonjudicial foreclosure proceedings under ORS 86.735(1)?
4. Does the Oregon Trust Deed Act allow MERS to retain and transfer legal title to a trust deed as nominee for the lender, after the note secured by the trust deed is transferred from the lender to a successor or series of successors?
See Brandrup v. ReconTrust Co., Civ, No. 3:11–cv–1390–HZ (D.Or. Apr. 2, 2012) (doc. 20). To date, the Oregon Supreme Court has not issued a decision regarding the certified questions.

However, it is precisely these requirements, and others under the OTDA, that are designed to protect the borrower from the “unauthorized foreclosure and wrongful sale of property.” Staffordshire, 209 Or.App. at 542, 149 P.3d 150 (emphasis added). I do not find that Oregon statutory requirements should be disregarded so easily. Thus, I proceed to the merits of plaintiff’s claims.

Celestino v. Recontrust Co., N.A., 6:11-CV-6367-AA, 2012 WL 1805495 (D. Or. May 16, 2012)


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