and submitted May 11, 2016
County Circuit Court C130656EV;
R. Heard argued the cause for appellant. With him on the
brief was Thomas Cutler.
Thomas argued the cause for respondent. With him on the brief
was RCO Legal, P. S
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
appeals from a judgment that awarded restitution of the
premises to plaintiff, Federal Home Loan Mortgage
Corporation, after plaintiff brought a forcible entry and
detainer (FED) action against defendant. Defendant argues
that the trial court erred in determining that plaintiff was
entitled to possession because there is no evidence in the
record that the sale of the premises was conducted by a
validly appointed "trustee." Held: Because
there is no evidence in the record that a valid foreclosure
sale was conducted by a duly appointed "trustee"
within the meaning of the Oregon Trust Deed Act (OTDA), and
in light of the Court of Appeals' decisions in Wolf
v. GMAC Mortgage, LLC, 276 Or.App. 541, 370 P.3d 1254
(2016), and Bank of America, N. A. v. Payne, 279
Or.App. 239, 379 P.3d 816 (2016), the trial court erred when
it determined that plaintiff was entitled to possession of
case is yet another in a series of lawsuits pertaining to the
nonjudicial foreclosure of trust deeds naming Mortgage
Electronic Registration Systems, Inc. (MERS), rather than the
lender, as the beneficiary, and purporting to authorize MERS
to exercise the rights of the lender. Because there is no
evidence in the record that a valid foreclosure sale was
conducted by a duly appointed "trustee" within the
meaning of the Oregon Trust Deed Act (OTDA), and in light of
our decisions in Wolf v. GMAC Mortgage. LLC. 276
Or.App. 541, 370 P.3d 1254 (2016), and Bank of America.
N.A. v. Pavne. 279 Or.App. 239, 379 P.3d 816 (2016), we
agree with defendant that the trial court erred when it
determined that plaintiff was entitled to possession of the
premises. Accordingly, we reverse.
facts pertinent to this appeal are not in dispute. Defendant
took out a loan from Edgewater Lending Group Inc. (Edgewater)
that was secured by a trust deed for real property located in
Beaverton. The trust deed identified MERS as the beneficiary,
acting "solely as nominee" for the lender,
Edgewater, and listed Pacific Northwest Title as the trustee.
13, 2010, MERS executed an "Assignment of Deed of
Trust" which purported to assign "all beneficial
interest" under the trust deed to BAC Home Loans
Servicing, LP (BAC). On that same date, BAC, acting as
"the present beneficiary" under the trust deed,
appointed ReconTrust Company, N.A. (ReconTrust) as
"successor trustee." Defendant subsequently
defaulted on his loan obligation, and ReconTrust issued a
"Notice of Default and Election to Sell" the
Beaverton property. ReconTrust then conducted a sale at which
plaintiff, Federal Home Loan Mortgage Corporation, was the
highest bidder. ReconTrust executed a trustee's deed
conveying the property to plaintiff.
brought the underlying forcible entry and detainer (FED)
action against defendant for possession of the property.
Defendant, who appeared pro se, responded that
plaintiff was not entitled to possession because the
foreclosure was "invalid." Citing our opinion in
Niday [287 Or.App. 44] v. GMAC Mortgage.
LLC. 251 Or.App. 278, 284 P.3d 1157 (2012),
affd. 353 Or. 648, 302 P.3d 444 (2013), defendant
argued that MERS was not a valid trust deed beneficiary under
the OTDA, and that, consequently, its July 13, 2010,
assignment of the trust deed to BAC was also invalid.
Defendant further argued that there was no evidence that
Edgewater, the lender and true beneficiary under the trust
deed, had ever assigned its interest to BAC. Thus, defendant
contended that there were "missing assignments" of
the trust deed and that the ensuing sale-which was conducted
by ReconTrust, the "successor trustee" appointed by
trial court ruled in favor of plaintiff, explaining that
"the MERS issue, even though it's a compelling one,
doesn't control what happened in this case and I do find
that *** [plaintiff] has proven [its] case." The trial
court then ...