Bertrand et al v. Suntrust Mortgage, Inc. et al

Filing 52

Opinion and Order: I decline to resolve the pending motions for summary judgment and defer the motions to permit the parties to submit supplemental briefing to explain how the issues in the present case may be distinguished from those before the court in Rinegard-Guirma. Accordingly, defendants may file a supplemental brief as described, not to exceed 15 pages, within 30 days. Plaintiffs have an additional 30 days to file a response, not to exceed 15 pages. No further briefing will be accepted without leave of court. Related: Motion for Summary Judgment 27 , and Motion for Summary Judgment 33 . Signed on 11/1/2010 by Judge Robert E. Jones. (mr)

Bertrand et al v. Suntrust Mortgage, Inc. et al

Doc. 52

IN THE UNITED STATES DISTRICT COURT
F O R THE DISTRICT OF OREGON
SHELTON R. BERTRAND; ET AL., Plaintiffs, v. SUNTRUST MORTGAGE, INC., a Virginia corporation; ET AL., Defendants. Terrance J. Slominski SLOMINSKI & ASSOCIATES Commerce Plaza 7150 S.W. Hampton Street, Suite 201 Tigard, OR 97223 Attorney for Plaintiffs "_ Robert D. Newell Blake J. Robinson DAVIS WRIGHT TREMAINE, LLP 1300 S.W. Fifth Avenue, Suite 2300 Portland, OR 97201-5630
) ) ) ) ) ) ) ) ) )

Civil No. 09-857-JO

OPINION AND ORDER

Dockets.Justia.com

Rochelle L. Stanford
P I T E DUNCAN, LLP
4375 Jutland Drive, Suite 200
P o s t Office Box 17935
S a n Diego, CA 92177-0935
Attorneys for Defendants JONES, Judge: Plaintiffs Shelton and Rebecca Bertrand bring this action against defendants SunTrust Mortgage, Inc., First American Title Insurance Company, and Federal National Mortgage Association, seeking to void a foreclosure sale of their home in September 2009, and recover damages. The case is before the court on defendants' motions for summary judgment (## 27,33). Defendants filed their motions in mid-July 2010. While the motions were being briefed, a veritable tsunami of investigation into and litigation over mortgage foreclosure practices broke loose on a national scale. Federal banking regulators are involved. 1 All 50 states have launched ajoint investigation into the mortgage industry's "alleged use of faulty or fraudulent documents to complete tens ofthousands o{foreclosures." Stephanie Annour, All 50 States Launch Joint

Investigation into Foreclosures, USA Today (Oct. 13,2010, 11 :12 AM).2
Recently, in Rinegard-Guirma v. Band of America, et ai., Civil No.1 0-1 065-PK, Magistrate Judge Papak enjoined a mortgage foreclosure, finding that plaintiff has a likelihood of

Jeannine Aversa, Fed Boss: Regulators Looking into Foreclosure Mess, Yahoo News (Oct. 25,2010,5:10 PM) (http://new.yahoo.comls/ap/20 10 I 025/ap_ on_bi _ge/us_ bernanke_housing). Found at: http://Wo/W.usatoday.comlmoney/economylhousing/201 0-1 0-13-states foreclosures-N .htm.
2

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success on the merits of h e r claim that Mortgage Electronic Registration Systems, Inc. ("MERS "), a defendant in that case and a significant player in this case, lacked authority to transfer her promissory note eveQ,if it had authority to transfer the trust deed. Rinegard-Guirma, (Opinion and Order, Oct. 6, 2010) (# 39), pp. 7-9. In so ruling, Judge Papak questioned whether MERS qualifies as a "beneficiary of the trust deed" within the meaning of Oregon law, specifically ORS 86.705(1). Rinegard-Guirmg, p. 8. Plaintiffs in this case similarly challenge MERS' role in the foreclosure of their home. In view of the present controversy affecting the entire mortgage foreclosure industry, and acknowledging that the defendants in this case and in Rinegard-Guirma are not the same, I decline to resolve the pending motions for summary judgment and defer the motions to permit

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the parties to submit supplemental briefing to explain how the issues in the present case may be distinguished from those before the court in Rinegard-Guirma. Accordingly, defendants may file a supplemental brief as described, not to exceed 15 pages, within 30 days. Plaintiffs have an additional 30 days to file a response, not to exceed 15 pages. No further briefing will be accepted without leave of court. IT IS SO ORDERED. DATED this pt day of N o v e m b e r , 2010.

3 - OPINION AND ORDER