Hucke v. BAC Home Loans Servicing, LP, et al. Or. App. A153582
Aug 05, 2014
OUTCOME: Reversed and remanded.
Plaintiff-Respondent Scott M. Hucke (“Hucke”) filed an action for declaratory relief against Defendants Federal National Mortgage Association (“Fannie Mae”) and Mortgage Electronic Registration Systems..., Inc. (“MERS”). Hucke alleged that
MERS and Fannie Mae failed to comply with the Oregon Trust Deed Act (“OTDA”) during the process of selling his property and that the non-judicial foreclosure and sale of his home should be declared invalid and voided. (ER-3). A trial on the merits was held before the Hon. Judge Leslie Roberts. (ER-172). The Court entered a general judgment declaring the non-judicial foreclosure void,
reinstating the Trust Deed and Promissory Note, restoring the parties to the status quo ante that existed prior to the invalid sale, and awarding attorney fees and costs in favor of Hucke. (ER-173). Plaintiff-Respondent asked that the general judgment of the trial court be affirmed.
Foreclosure
Brandrup v. ReconTrust, United States District Court 311CV1390HZ
Jan 10, 2013
OUTCOME: Prevailed. Oregon Supreme Court held that MERS is not a beneficiary under the Oregon Trust Deed Act. Furthermore, a non-judicial foreclosure Notice of Sale must identify the beneficiary and the use of MERS as the beneficiary is insufficient.
Certification of four cases from U.S. District Court to the Oregon Supreme Court related to the requirements necessary to non-judicially foreclose a security interest under ORS 86.705 to 86.795 as it r...elates to the use of the entity known as Mortgage Electronic Registration Systems, Inc. ("MERS").
Foreclosure
Digregorio v. Bayview Loan Servicing LLC, et al. Or. App. A157399
N/A
OUTCOME: Decision pending.
Plaintiff-Appellant and Defendant-Appellant Janine Digregorio (“Homeowner”) filed an action for declaratory relief against Defendants Bayview Loan Servicing, LLC (“Bayview”) and Quality Loan Service Co...rporation of Washington (“QLS”). Homeowner alleged that Defendants failed to comply with the Oregon Trust Deed Act (“OTDA”) during the process of selling her property by failing to provide definitive documentation of the beneficiary’s interest and right to foreclose as required by the Oregon Trust Deed Act and that the non-judicial foreclosure and sale of her home should be declared invalid and voided. Plaintiff’s Complaint against Bayview under Case No. CV13050403 was consolidated with Bayview’s Forcible Entry and Detainer action against Homeowner filed under Case No. FE130611. Defendants filed a Motion for Summary Judgment on the grounds that completed non-judicial foreclosure sales may not be challenged and that Plaintiff failed to join Mortgage Electronic Registration Systems, Inc., (“MERS”) as a party Defendant. See Bayview’s Motion for Summary Judgment. The Trial Court agreed with Defendants argument under ORS 86.770 and dismissed Plaintiff’s Complaint on June 26, 2014 and granted restitution to Bayview on its FED Claim. Plaintiff filed the Notice of Appeal on July 24, 2014.
Landlord or tenant
Urban Housing Development, LLC. v. Gurcharan Singh Or. App. A156459
N/A
OUTCOME: Decision Affirmed on Appeal Without Opinion by Oregon Supreme Court
Plaintiff-Appellant Urban Housing Development, LLC filed a Forcible Entry and Detainer (“FED”) action against Defendant Gurcharan Singh (“Singh”). Appellant’s Complaint sought possession of certain rea...l property located at 6729 SE 162nd Ave, Portland, Oregon 97236 (the “Property”). Plaintiff’s Complaint is in the statutory form of a Residential Eviction Complaint provided in ORS 105.124 for a tenancy covered by ORS Chapter 90, repeatedly refers to Singh as a “tenant” and specifically seeks fees pursuant to ORS 90.255. Singh answered asserting, among other defenses, that Plaintiff’s Complaint failed to name an indispensable party, specifically the Brar Family Trust, which owned the Property and from which Singh leased the Property. Defendants asserted no counterclaims. At Trial, Plaintiff failed to make his prima facie case because Plaintiff Urban Housing Development LLC had previously sold the property to a 3rd party (Sky Holdings, LLC) and no longer held any interest in the property. After trial, the Trial Court entered a General Judgment providing “Judgment against plaintiff after trial. Defendant shall have judgment for cost and disbursements. Defendants may submit a supplemental judgment and money award.” The General Judgment further provided for “Dismissal without prejudice.” The General Judgment finally provided that the action was for a Tenancy Covered by ORS Chapter 90. The Judgment was never appealed by Appellant. Pursuant to the General Judgment of the Trial Court, Singh submitted his Motion for Attorney Fees pursuant to both his lease agreement and ORS 90.255. Appellant objected claiming that Appellant was the prevailing party and was entitled to fees under ORS 90.255. The Trial Court agreed with Singh and awarded fees to Singh on the basis that the Singh was the prevailing party because Singh defeated Appellant’s claims and because Appellant’s Complaint clearly arises under ORS Chapter 90. Appellant requested a New Trial pursuant to ORCP 64 and when the time for a decision on Appellant’s ORCP 64 Motion elapsed, Appellant then appealed.
Foreclosure
Graham v. ReconTrust Company, N.A. et al United States Court of Appeals for the Ninth Circuit No. 12-35327
N/A
OUTCOME: Settled
Graham’s original complaint was filed in Clackamas County Circuit Court for the State of Oregon under Case No. CV11100087. (2-ER.030). On November
8, 2011, this matter was removed to United States ...District Court for the District of Oregon on the basis of diversity pursuant to 28 U.S.C. § 1332 and assigned Case
No. 3:11-CV-1339-BR. Defendants moved to dismiss pursuant to
Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Judge Anna
Brown dismissed Graham’s claims pursuant to the Judgment of Dismissal dated April 23, 2012. Graham timely appealed the Judgment of Dismissal
from United States District Court to the Ninth Circuit Court of Appeals on April 25, 2012. The facts in this matter were largely undisputed and turned on questions of statutory interpretation that were recently decided by the Oregon Court of Appeals in Niday v. GMAC Mortgage, LLC, No. A147430 CV10020001 (Or. App. July 18,
2012).
Landlord or tenant
Federal National Mortgage Association v. Robert Bellamy, et al. Or. App. A152173
N/A
OUTCOME: Reversed.
Plaintiff-Appellant Federal National Mortgage Association (“Fannie Mae”) sought possession of Defendant-Respondent Robert Bellamy’s (“Bellamy”) property pursuant to a forcible entry and detainer action... (“FED”) under ORS 86.755(6)(a) and ORS 105.123. At trial, Fannie Mae introduced a single piece of evidence, a trustee’s deed recorded on February 29, 2012 under Clackamas County Recording No. 2012-011858. The Circuit Court held that Fannie Mae had failed to produce evidence to support its case in chief, awarding Bellamy with a judgment of possession as well as statutory prevailing party fees and costs. Fannie Mae sought review of the General Judgment entered on July 12, 2012 in favor of Bellamy and against Fannie Mae.
Foreclosure
Federal National Mortgage Association v. Moon et al. Or. App. A153374
N/A
OUTCOME: Settled
Plaintiff Federal National Mortgage Association (Fannie) filed for judicial foreclosure of Defendant Moon's property. Fannie moved for summary judgment. Moon responded alleging that Fannie, during the ...course of litigation had given Moon three different versions of the promissory note, all of which purported to be true and correct copies of the original. At oral argument Moon argued that due to the discrepancies in the versions of the notes provided to Moon by Fannie that there was a material question of fact whether the note being presented as original was in fact the original. The trial court judge held that the note appeared genuine and granted Fannie's motion for summary judgment. Moon appeal said ruling on the basis that the multiple versions of the note provided by Fannie and submitted by Moon raises a genuine issue of material fact as to the authenticity of the note and that it was error to grant Fannie's motion for summary judgment.
Landlord or tenant
Bank of America, N.A. et al. v. Woods et al. Or. App. A156999
N/A
OUTCOME: Reversed.
Plaintiff-Respondent Bank of America, N.A., Successor by merger to BAC Home Loan Servicing, LP, fka Countrywide Home Loan Servicing, LP for the
Benefit of Harborview 2006-4 Trust Fund, its successors... and/or assigns (“BOA”) sought possession of Wood's property located at 19100 SE Highway 212, Clackamas, Oregon 97015 pursuant to a forcible entry and detainer action (“FED”) from
Defendants-Appellants Dennis W. Woods and Golda J. Woods (“Woods”) under ORS 86.755(6)(a) and ORS 105.123. Woods are concurrently contesting the validity of the non-judicial foreclosure underlying Plaintiff’s claim for
possession in the 9th Circuit Court of Appeals, Case No. 13-36037. The 9th Circuit Court of
Appeals in Case No. 13-36037. At the FED trial, Woods testified and produced evidence that Woods do not reside at 19100 SE
Highway 212, were not in possession of said property, nor are they holding said
property by force. The Trial Court held that the Complaint
described the property with convenient certainty and awarded possession in favor
of Plaintiff via general judgment dated May 21, 2014. Defendants-
Appellants appealed the FED trial court decision on May 30, 2014.
Foreclosure
Randy Liu et al. v. Northwest Trustee Services, Inc. et al. United States Court of Appeals for the Ninth Circuit 14-35202
N/A
OUTCOME: Arguments Pending
Plaintiffs' Complaint and Proposed Amended Complaint, which are the subject
of this appeal, were filed in United States District Court for the District of Oregon,
Portland Division under Case No. 3...:12-CV-00484-BR. After the Oregon Supreme Court’s ruling in Brandrup v. ReconTrust et al, Plaintiffs sought leave to
amend its complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 15(a)(2). The Trial Court denied Plaintiffs' Motion to
Amend on the ground that such amendment was “futile” due to the fact that the sale had been completed and any such claims are purportedly barred by ORS
86.770. Defendants moved for Summary Judgment pursuant to Federal Rule of Civil Procedure (“FRCP”) 56(a). The Honorable Judge Anna Brown again denied Plaintiffs' leave to Amend the Complaint and dismissed
Plaintiffs' claims pursuant to the Opinion and Order dated February 19, 2014 and
Judgment of Dismissal also dated February 19, 2014. Plaintiffs appealed from the United States District Court to the Ninth Circuit Court of
Appeals on March 17, 2014.
Foreclosure
Hoa Tran v. BAC Home Loans Servicing LP, et al. Or. App. A155976
N/A
OUTCOME: Settled
Plaintiff Hoa Tran (“Tran”) disputed Defendants’ interpretation and application of ORS 86.770, ORS 86.739 and whether a completed sale forecloses any claims of improper notice pursuant to the Oregon Tr...ust Deed Act (the “OTDA”). On May 12, 2014, the 9th Circuit Court of Appeals ruled in the case of Hooker v. Northwest Trustee Services, Inc., Appeal No. 11-35534 (9th Cir May 12, 2014), validating Tran’s primary argument. Tran asked the Court to do the same. In Hooker, the 9th Circuit issued an unpublished ruling that held that “Brandrup requires [foreclosing entity] to establish with ‘definitive documentation’ that it is the true beneficiary under plaintiffs’ deed of trust.” Id. This Court concurred in Niday v. GMAC Mortg., 302 P3d 444, 454 & n. 8 (Or 2013) (suggesting that the relevant inquiry may be whether the foreclosing party is the person entitled to enforce the note). Tran advanced this exact argument – that the Defendants failed to produce “definitive documentation” in the Trustee’s Notice of Sale that fails to identify the true beneficiary as required by ORS 86.745(1). Apparent on the face of this Trustee’s Notice of Sale, the only party identified as the beneficiary is Mortgage Electronic Registration Systems, Inc. (“MERS”), an entity the Oregon Supreme Court has flatly stated is not a “beneficiary” for purposes of the Oregon Trust Deed Act. Brandrup v. ReconTrust, 353 Or 668 (2013). In Brandrup, the Oregon Supreme Court held that MERS is not a valid beneficiary as defined in ORS 86.705(2) because MERS is not a party to the obligation and has no interest in the Loan and because MERS has no interest in the property that secures the Loan. Id. In Hooker, the 9th Circuit remanded the matter to the district court “to determine whether BOA is entitled to foreclose.” Hooker, Appeal No. 11-35535, slip op. at 3. This Court should do the same in this matter because here, as discussed in Tran’s Opening Brief, it is clear that the Trustee’s Notice of Sale does not identify the beneficiary as required by ORS 86.745(1) and that the “definitive documentation” required by Brandrup, Hooker and ORS 86.745(1) is nowhere in evidence. Moreover, as the Oregon Supreme Court pointed out in Brandrup:
Neither can the statutory meaning of ‘beneficiary’ yield to an obligee’s decision to use another party as its agent or nominee. Although the cases and statutes cited by defendants show that a lawful agent can have broad authority to act on a trust deed beneficiary’s behalf in regard to the exercise of rights under the trust deed, even to the point of appearing on documents in the beneficiary’s stead, the agent cannot become the ‘beneficiary’ for purposes of a statutory requirement that is defined, in part, by the status of the ‘beneficiary." Brandrup, 353 Or. As clearly articulated by the Oregon Supreme Court, agency is not co-extensive with the status of “beneficiary.”
The Trustee’s Notice of Sale at issue in this case fails to do so, only identifying MERS as the beneficiary – and MERS is manifestly not the beneficiary as defined in ORS 86.705(2). As The Trustee’s Notice of Sale in this case fails to satisfy the content requirements of ORS 86.745(1), the Defendants Notice of Sale is defective and Defendants have failed to provide “definitive documentation” of their right to foreclose under the OTDA. For purposes of ORS 86.745, improper identification of the “beneficiary” is legally indistinguishable from improperly identifying the property address, the amount of the default or the time and place of the sale. Such a defective notice simply cannot constitute valid or effective Notice of Sale or definitive documentation of the right to foreclose.
As such, in accordance with ORS 86.745(1), the Oregon Supreme Court’s holding in Brandrup, this Court’s decision in Niday and the 9th Circuit’s holding in Hooker, it is clear that Tran has stated a legally cognizable claim for relief and that this matter should be remanded to the Trial Court so that it can determine whether Defendants are entitled to foreclose.
