By David Koen, Past Chair, Consumer Law Section Executive Committee

On June 6, 2013, the Oregon Supreme Court issued decisions in Brandrup v. ReconTrust Company, N.A. and Niday v. GMAC Mortgage, LLC. In both cases, the court decided that the financial industry creation Mortgage Electronic Registration Systems, Inc. (“MERS”) did not qualify as a “beneficiary” of a trust deed for property pursuant to ORS 86.705(2). The court held that only the actual beneficiary, the lender, could foreclose nonjudicially and only if it was entitled to enforce the loan. The court decided, however, that when foreclosing nonjudicially in Oregon, a lender need not record a transfer of a trust deed that occurs by operation of law upon the transfer of the underlying promissory note.