The recent passage of Senate Act 1552 on March 5, 2012 strengthens the Oregon legislature`s definition of beneficiary. [74] Senate Bill 1552 introduced mandatory pre-execution mediation to seek a „foreclosure avoidance measure.“ [75] „Avoidance of Performance“ means „an agreement between a beneficiary and a settlor to modify an obligation secured by a trust indenture.“ [76] The bill requires the beneficiary or their representative to appear in person for mediation and bring the following documents: After the collapse of subprime mortgages, our country was in the midst of a foreclosure crisis. [54] Issues related to MERS` legal claims became clearer as more and more Oregans lost their homes as a result of the extrajudicial execution procedure. The main problem with MERS is that it claims to be the beneficiary of Oregon trust deeds and acts as a beneficiary in extrajudicial seizure proceedings, but MERS does not meet the legal definition of a beneficiary in Section 86.705(2) of the revised Oregon Articles of Association. [55] The result of this monumental oversight during the creation of MERS has had a profound impact on today`s home loans and foreclosures. The rest of this article explores in detail why MERS cannot be a beneficiary of Oregon Trust Deeds and whether MERS can still meet the seizure requirements of the Oregon Trust Deed Act. If a trust deed is issued to secure the obligation of a promissory note, the beneficiary of the trust deed is the person to whom the redemption of the bill of exchange is due or the legal successor of that person. This conclusion is supported by the fact that Parliament has not defined the terms „lender“ or „bondholder“ in the OTA. [67] If Parliament had intended the beneficiary to be an entity separate from the bondholder and separate from the bondholder, it would have defined the bondholder in the articles.
[68] Beneficiaries may elect to enforce a trust indenture in court as if it were a hypothec. In doing so, the mortgage enforcement process must be followed, which means that the process takes place in court and there is a 180-day right to redeem. However, there is no right to obtain a defect against the borrower if the property is a residential trust within the meaning of subsection 86.705(5) of the ORS. When the grantor (landowner) pays the debt to the beneficiary (the lender), the trustee transfers ownership to the grantor. However, if the settlor is in default, the beneficiary may elect that the trustee exclude the trust indenture. When this happens, foreclosure is carried out through the out-of-court procedures set forth in the Oregon Trust Deed Act. In 1959, the Oregon legislature passed the Oregon Trust Deed Act (OTDA) to simplify and expedite the foreclosure process. [46] Unlike a hypothec involving a hypothecary debtor (borrower) and a mortgagee (lender), a trust indenture consists of three parts: a settlor (borrower), a „beneficiary“ and a trustee. [47] The trustee holds title in favour of the beneficiary until the loan is repaid in full or the house is purchased in a foreclosure sale.
[48] The ETA simplified the enforcement procedure for lenders by creating a private right of sale and a legal framework for enforcement outside the jurisdiction of the court. The deed of transfer escrow has traditionally been registered in local land registries in order to make public a bondholder`s secured interest in the property. Whether a trust deed is a „residential trust indenture“ is determined at the time of execution and can therefore change depending on who occupies the property. Thus, what started as a residential trust deed can become a non-residential trust deed. This may expose the grantor to a judgment of defects. For this reason, real estate licensees should never make statements about whether or not a particular owner is subject to a default judgment in a particular extrajudicial foreclosure. Back to top A review of subsection 86.705(2) in the context of the entire ETA leaves no room for ambiguity. It is obvious that „the advantage of a trust deed is that it guarantees the refund of the ticket“. [65] A „trust indenture“ is defined as follows: If the mortgagee is late in payment, the mortgagee accelerates the amount owing and brings a foreclosure action. In this process, commonly referred to as foreclosure, the mortgagee takes legal action against the mortgagee and asks the court to determine the priority of rights between the mortgagee and subordinated lien holders. [41] The court ordered the sheriff to sell the property at public auction and distribute the proceeds on a priority basis of privilege.
[42] However, prior to the sale, the owner and all subordinated lien holders have a repayment period during which they can exercise their fair redemption right. [43] The property remains non-transferable during this period. [44] If the proceeds paid are insufficient to fully satisfy a lien, the secured creditor may sue the borrower for the defect.