NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IVAN HOOKER and KATHERINE No. 11-35534
HOOKER,
D.C. No. 1:10-cv-03111-PA
Plaintiffs - Appellees,
v. MEMORANDUM*
NORTHWEST TRUSTEE SERVICES,
INC.,
Defendant,
and
BANK OF AMERICA, NA and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted March 3, 2014
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Withdrawn from Submission March 10, 2014
Resubmitted May 5, 2014
Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge.**
Defendant-Appellant Bank of America (“BOA”) appeals the district court’s
grant of sua sponte summary judgment to plaintiffs Ivan and Katherine Hooker.
The district court set aside BOA’s nonjudicial foreclosure on plaintiffs’ home,
stating that BOA had failed to comply with the recording requirements of Oregon
Rev. Stat. § 86.735(1), current version at Or. Rev. Stat. § 86.752(1). We reverse
and remand for further proceedings in light of the Oregon Supreme Court’s ruling
in Brandrup v. ReconTrust Co., 303 P.3d 301 (Or. 2013), issued after the district
court’s decision in this case.
As Brandrup makes clear, the district court correctly held that MERS was
not the beneficiary under plaintiffs’ deed of trust, because it is neither the lender
nor the lender’s successor in interest. See id. at 304, 309–12. Nor is MERS
eligible to serve as the beneficiary simply by being designated as such in the trust
deed. Id. at 313–15. Brandrup also clarifies, however, that the transfers between
the true beneficiaries of the deed of trust (in this case, the assignments from GN
**
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
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Mortgage to Wells Fargo and then to BOA), which occurred only by operation of
law through the transfer of the note, were not the type of assignments that must be
recorded under Oregon law. Id. at 318 (concluding that § 86.735(1) requires
recordation of only “written assignments that are executed and acknowledged with
[the formalities of an assignment by a written instrument], not a post hoc
memorialization of a transfer of the secured obligation created solely for the
purpose of recording”). Because the district court’s decision was erroneous under
Brandrup, we reverse.
Brandrup requires BOA to establish with “definitive documentation” that it
is the true beneficiary under plaintiffs’ deed of trust. Id.; see also Niday v. GMAC
Mortg., 302 P.3d 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”).
We remand for appropriate proceedings in the district court to determine whether
BOA is entitled to foreclose.
REVERSED and REMANDED.
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