In Chen v. Bank of America, N.A., Judge Owen M. Panner dismissed the complaint with prejudice and found that, in accordance with the Oregon Trust Deed Act, the plaintiff received proper notice of the sale, which barred his post-sale challenges to the foreclosure.
"Although plaintiff here had sufficient time to raise any of the current challenges before the sale, he
chose instead to raise such challenges after the trustee's sale and recording of the trustee's deed," Judge Panner
Citing Mikityuk v. Northwest Trustee Services, the court further held that, "plaintiff's challenges to the trustee's sale are barred, as plaintiff's interest in the property was 'foreclosed and terminated.'"
The plaintiff asked the court's permission to amend his
complaint to align his
allegations with the recent Brandrup v. Recontrust and Niday v. GMAC decisions from the Oregon Supreme Court
, in which the Oregon Supreme Court
did not meet the statutory definition of trust deed "beneficiary" under Oregon law.
denied plaintiff's request, finding "an amended complaint, however, would be futile" because Brandrup and Niday dealt with pre-sale challenges to non-judicial foreclosure sales as opposed to plaintiff's post-sale challenges which are barred under Oregon law.
"As Judge Panner made clear here, and in his Mikityuk decision, when a borrower is properly notified of the foreclosure sale of their property and they fail to stop the sale, they cannot seek to void a completed sale with allegations against MERS and its role in the borrower's trust deed," MERSCORP Holdings' Vice President for Corporate Communications Janis Smith said.