By Thomas Hillier
Real property development reveiew
Davis Dwight & Tremaine LLP
Oregon business law firm
A little context is in order.
In 1959, to remain competitive for loan dollars, Oregon adopted the Oregon Trust Deed Act to establish trust deeds as a real estate security instrument. For lenders needing to foreclose, the act created a summary, nonjudicial procedure that bypassed the courts and allowed no redemption rights for borrowers. Foreclosure previously was a judicial process taking two years or more to complete; now it could be done in six months with the summary procedure.
Lenders were happy because the time to liquidate a non-performing loan was substantially reduced. Borrowers benefited because there was no right to a deficiency if the debt exceeded the value of the property and borrowers could cure defaults during the foreclosure process by paying only the amount in arrears rather than the full loan balance.
Trust deeds quickly became the favored real estate security instrument.
In 1993, in part to respond to a growing practice wherein lenders were bundling loans secured by trust deeds and selling them in secondary markets, a group of mortgage industry participants formed MERS and the MERS system.
Anytime a loan is sold from one member of the MERS system to another, the sale is tracked using the MERS system. MERS, the named beneficiary as nominee for the original lender and its assigns, remains the beneficiary as the loan is sold and becomes an agent of the new note owner. With no change to the named beneficiary, there is nothing to publicly record, an administrative convenience accomplishing a central purpose of MERS.
As MERS grew in acceptance, so did its popularity. Nationwide, there are more than 3,000 lender members of MERS that account for approximately 60 percent of all real estate secured loans nationwide.
The onslaught of the Great Recession resulted in a tremendous spike in foreclosure activity. To defend foreclosure proceedings, borrowers challenged the authority of MERS, in its own name, to foreclose non-judicially.
Because the trust deed is a creature of statute, the statutory elements allowing a nonjudicial foreclosure must be followed strictly. One such element is the requirement that the name of the beneficiary and any assignee be in the public record. Niday argued that the lender, not MERS, was the beneficiary. MERS countered that it was the named beneficiary in the trust deed and had the contractual right to foreclose as nominee of the lender and its assigns.
The court sided with Niday, holding that MERS is not a “beneficiary” as defined by the act. The court wrote that the beneficiary is “the person to whom the underlying, secured obligation is owed.” It reasoned that because the lender is owed the money, that party is the beneficiary. Only the person to whom the obligation is owed and whose interest is of record may legally prosecute a nonjudicial foreclosure.
What does all of this mean? Maybe nothing if the Supreme Court finds that the Court of Appeals defined “beneficiary” too narrowly.
Short of that, many issues arise. What is the effect on completed nonjudicial foreclosures of MERS trust deeds? Such sales may be void, in which case the ownership and right to possession of thousands of foreclosed properties fall into legal limbo. Perhaps the sales are only voidable, requiring a lawsuit by the borrower within a limited time to challenge the foreclosure sale.
Titles may now be in doubt for people who bought properties either at a foreclosure sale or further along the line. Also, no market may exist for these properties if title insurers choose not to insure titles until there is some clarity.
Going forward, will MERS lenders do business in Oregon? And if so, at what cost? Loans may be more expensive to administer because they either require that all assignments be documented and recorded or foreclosure via the more expensive judicial method. As such, loans in Oregon could demand higher interest rates.
Courts will see a sharp increase in the number of judicial foreclosure filings; it’s happening in Multnomah County already. An already overcrowded judicial system will gain additional burdens.
The Legislature could step in to fix the issue by clarifying the definition of “beneficiary” to include a nominee of the lender, such as MERS. But is there political will to legislate a solution that, on the surface, seems to benefit lenders?
A practice that for many years roamed freely under the radar has suddenly exploded to the surface, leaving the mortgage industry in limbo. Quick answers to the numerous issues now pending are imperative to restore certainty to real estate markets.