Jeffrey A. Myers, Bowles Fernández Law LLC, Lake Oswego, argued the cause for plaintiffs. With him on the briefs were Jeffrey A. Myers, John Bowles, and Rick Fernández. Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, and Thomas M. Hefferon, Goodwin Proctor LLP, Washington DC, argued the cause for defendants ReconTrust Company, N.A.; Bank of America, N.A.; The Bank of New York Mellon; and Deutsche Bank National Trust Company. With them on the brief were Steven A. Ellis, Thomas W. Sondag, Pilar C. French, and Peter D. Hawkes. Kevin H. Kono, Davis Wright Tremaine LLP, Portland, filed a brief on behalf of defendants Mortgage Electronic Registration Systems, Inc. Rolf C. Moan, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General, filed a brief on behalf of amicus curiae State of Oregon. Nanina D. Takla, Law Office of Phil Goldsmith, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. Sara Kobak, W. Michael Gillette, and Jordan Silk, Schwabe, Williamson & Wyatt, PC, Portland, filed a brief on behalf of amicus curiae Oregon Land Title Association. Thomas W. Brown, Thomas M. Christ, and Robert E. Sabido, Cosgrave Vergeer Kester LLP, Portland, filed a brief on behalf of amici curiae Mortgate Bankers Association, Oregon Bankers Association, and Independent Community Banks of Oregon.
These cases come before this court on four certified questions of law from the United States District Court for the District of Oregon. See Brandrup v. ReconTrust Co., 352 Or 320, 287 P3d 423 (2012) (accepting certified questions); ORS 28.200 to 28.255 (providing procedure for certifying questions to the Oregon Supreme Court and authorizing court to answer certified questions). The questions all are concerned with a practice that has arisen in the home mortgage industry in the last twenty years—that of drafting mortgages and trust deeds so that a certain Delaware corporation, Mortgage Electronic Registration Systems, Inc. (MERS), rather than the lender, is identified as the security instrument's “mortgagee” or “beneficiary.” That practice allows lenders and other entities dealing in home loans to track their transactions in a database maintained by MERS. In Oregon, the practice has come under scrutiny in a number of foreclosure cases arising under the Oregon Trust Deed Act (OTDA), ORS 86.705 to ORS 86.795.
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