Borrower eventually defaulted on the loan, and a successor trustee was appointed under the trust deed. Borrower later received a notice of trustee's sale that identified MERS as Lender's nominee and as the beneficiary under the deed of trust with the power of sale. Borrower allegedly contacted the trustee's agent, demanding among other things cancellation of the sale and a chain of title to the trust deed and note. Although Borrower claimed that she never received a response to her communications, the trustee's sale was apparently rescheduled.
As you may recall, the OTDA provides: "As used in [the OTDA], unless the context requires otherwise: . . . (1)'Beneficiary' means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or the person's successor in interest. . . ." ORS 86.705.
Thus identifying Lender as the "beneficiary" under the trust deed, the Appellate Court rejected Defendants' argument that the parties had contractually agreed that MERS would be the beneficiary under the trust deed. The Court stated, "the fact that plaintiff 'contractually agreed that MERS was the beneficiary in its capacity as agent (nominee) for the lender, its successors and assigns' does not determine whether MERS is the beneficiary for purposes of the OTDA."
Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
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