Legal Case Summary

Good morning, honours. My name is Jeffrey Long. I'm the attorney for plaintiff appellant in this case, Big Blue Capital Partners. If you don't mind, I'd like to reserve five minutes for rebuttal. All right, please watch your time. This case comes before the court on a plaintiff's appeal of the trial court's decision to dismiss the case for lack of jurisdiction and lack a failure to state a claim for relief. We now know from hindsight in this Oregon Supreme Court's decision in brand up that the trial court's decision which hints upon his determination that murder if it was a beneficiary under the trust deed that that decision was erroneous. Therefore, I think the real issue before the court today is the defendant's other arguments regarding jurisdiction. This case involves two parties who were not original parties to the transaction. The plaintiff comes to this case as a successor in interest to the original owner of the property, Mr. Olivas. He transferred his interest to a company called Clunus Funding which then transferred it to a person named Ashley Elliott and the plaintiff bought that interest from Miss Elliott in February of 2012. We're plenty aware of the facts, I think, this panel of what's happened here. Do you dispute that the notion, the notice of defaults started the lawsuit? No, the notice of default is the event which triggered the lawsuit

. And you don't dispute that that's been rescinded? I do agree that it has been rescinded by the case. But you're not currently subject to any foreclosure proceeding? As far as I know that is correct. Well, then, how wide do we have an injury? Well, I think the issue that your honor is bringing up is the issue of mootness which has been raised by the defendant in this case. That doctrine would not apply to this case because of the doctrine that this is a case that's an injury that's capable of repetition. Well, the issue is speculating that a foreclosure proceeding would be initiated in the future. Well, I can guarantee it. There is a default by the original lender. There is a trustee that secures the payment of the obligation at some point. I can expect the recontruster some other party to come forward and do that. That's quite reasonable. But if that happens, don't you think that the defendants will simply have whoever is the beneficiary read the law, look at Vandrup, look at Neede and a point of valid trustee, and then we won't have this case? Well, it's possible. But I analyze the mootness argument. I just go back to this question

. The opposing side says, that is what we will do. We will read the law. We will identify a beneficiary. The beneficiary will appoint the correct trustee, and then the foreclosure proceedings will go from there. And so that would be a completely different case than what we have before us. It may be. You know, why doesn't that just make this case moot at this point? It's not this particular chain of events is not likely to happen again. What happened again, correct? Well, I believe that this chain of events will happen and does happen daily with other homeowners. They would continue with the same chain of parties that they had that led to this particularness of default. Yes, because most of the mayor's assignments have been done. They're their years in the past. So these are things that are already in the case. And as each foreclosure goes forward, these same issues are likely to present to themselves

. That's why this is not the beneficiary by operation of Oregon State Law Act for Zoom. So they would have to identify who the correct beneficiary is, who the Oregon Supreme Court said would be the lender who ever held the note. Why, I mean, the opposing side says, we will do that. So why doesn't that just eliminate the mayor's issue? Well, there's a long line of cases in which the party that voluntarily ceases to do the challenge or activity. But I want to analyze this case similar to the Roe v. Wade case and the other cases in which the court has declined to render cases moot and still heard them. Because like that case, a non-judicial foreclosure is a very short window. It's never going to be a case come before this court in which that sale hasn't either been postponed or taken place. So mootness is going to be a common issue in every case. And this is one of those inherently short lived cases like the abortion cases in which states have sought to restrict a woman's right to those things. But the pregnancy is going to be over. Except that the difference is in this case, which you can't do it in a abortion case, you can get a stay possibly right from the trial court to stay the foreclosure while the case is pending. But you can't do it, you know, obviously when somebody's pregnant, can't stay the pregnancy

. Absolutely, that's correct from a factual. And that's what we saw in this case was an injunction postponing or invalidating the proposed sale. And the statutory framework under the Oregon trustee act is such that it allows this abbreviated procedure if strict compliance with the statute is done, then and only after the notice of sale does sound as a window, there's a notice period that allows agreed parties then to come before the court and present their agreed to the very short window there in which to do that. So what arguments, let's say for example, they've resided the notice of default, so there's nothing pending. So let's say that the parties, the credit of parties, I guess, go back and say, okay, the last lender we can find is Greenwich capital capital acceptance. So that is the lender in the beneficiary and now appoint a trustee under the interest and issue a notice of default. So what arguments, so let's assume that that's the next time that they attempt to foreclose on Fig Blue's property, what arguments that you're currently making would still be applicable to that case? Under this current case, which was brought to enjoying the nonjudicial foreclosure, the arguments would not be the same. My client purchased this property, understanding that there was going to be a foreclosure that noticed, it was already noticed by the improper trustee. In this case, the trustee was fidelity national title. No valid substitution of trustee was ever recorded. For that reason alone, the sale was invalid, it did not fulfill the procedures required by the Oregon Court. And without what you wanted, right, the notice of default was rescinded, so that particular sale is dissolved. There's nothing there

. That is true. And mud, if the court decides to use the Mootanist Doctrine in this case, then no litigation is ever going to be able to get this matter decided. Because in each case, the sale will have already been postponed or canceled. And there's a line of cases in which the party creating the problem says they won't do it anymore. That's not necessarily to be believed. But they're not really saying we won't do this anymore. They're saying we won't do it the wrong way anymore. Now the Supreme Court has told us how to do it, and we'll go back and do it the way we ought to do it, which makes it a little bit different than even the abortion cases. This is not a procedure where they're just going to go back and do the same thing again. This is a case where they're going to take a different procedure, which is the right procedure, as outlined by the Supreme Court, and do it right the next time. That's why this seems more moot than any case. One could imagine in this area. It's possible if you take the defendant's word as to what they're going to do

. Quite frankly, I'll tell you from experience that what's likely to happen is that a judicial foreclosure is likely to follow if that has been the practice. Well, that could be something you would want. It would. It would give us an opportunity to actually challenge the transgressions. I don't know that you're really going to be too hard to heart about that argument. That seems like a tough argument to make if what they're going to do is what you want to do. I'm struggling with a reason for this moot, and that's why I wanted to ask you the question. And my colleagues have asked you exactly where I was going. It's something that I spent a considerable amount of time thinking about, because I knew that was going to be the first question I was going to get here. If why isn't this moot? And really, in looking at that, at that, first of all, mootness is not a jurisdictional issue in my opinion. It's a issue that courts have given discretion and prudence is applied. So as in Roe v Wade and those other cases, there are situations where between the actual parties, the issue is moot. But because this involves an issue of involving the public and that these are inherently short-lived cases, it's important to have a determination of the issues in this case

. Because that doesn't it seem really that, given what the Supreme Court of Oregon has said, that there won't be any case like this again? They'll do what the Supreme Court of Oregon tells them to do. Well, perhaps. No, they're out to lunch. They don't know they can't go forward. But if this case ends up being, with the dismissal being upheld now that it's smooth, there's nothing stopping the defendant from again issuing another, and we have now the case where the plaintiff has been determined not to have standing to even challenge. A little tough to argue that it's the law, the case, that the District Court of Oregon will provide in every situation hereafter when the Supreme Court has said very definitely there just wrong. On the decision of the beneficiary, the issue really in this case was a court's decision to dismiss my clients claim as not being cognizable under the Oregon Trustee Act, and the jurisdictional issues that revolve around that, those are not resolved and they'll be back. And so we'll likely have to be back as little other homeowners dealing with the same issues. I have three little over three minutes left so I might reserve that time. Good morning, Your Honors. Stephen Ellis, on behalf of the Epoly's. Let me just jump into the Mootness point, which Your Honors is asked a series of questions about. The reason that the capable of repetition yet evading review exception to the Mootness doctrine does not apply is exactly what Your Honors have indicated

. The law has changed since this non-judicial foreclosure began. We have now the benefit of the brand-druck decision. The statutory framework has changed. If and the notice of default that started this case has been rescinded. There is still an unpaid loan that is outstanding, and there is still a security interest, a valid security interest that will be enforced at some point. It will be a valid security interest that will be adopted in the future. But the... There's one thing that worries me about that argument. And that's your argument that MERS and VAC acted properly as agents of the trustee beneficiary. If that is so, which is your argument, and I assume that it is for my question, then as of today, Recon, the trustee.

.. Recon is the trustee under Oregon law, correct? That's correct, Your Honor. And if that's so, Recon could legally issue a new notice of default, correct? It could, Your Honor. And if that's so, how can we say that this appeal is moot? Because it seems to me that's exactly what he's suggesting. That if you're not going to do something different, and you're going to say Recon is still the trustee and Recon can issue the notice, I don't see how you can get the moot. Let me back up one step, Your Honor. The capable repetition yet evading review doctrine applies when it is certain or virtually certain that the same conduct is going to reacquire. Well, and if Recon is legally the trustee, and if Recon can legally issue the notice of default, then I have a trouble saying that it's moot when Recon can do the very same thing it did now. The reason that the exception does not apply is that we are here speculating about what the defendants might do. It is certainly possible, Your Honor, although I will tell you I believe it's quite unlikely, but it's possible that the defendants could ask. Rose Brock versus Math says, and I quote, because a dismissal for mootness would permit a resumption of the challenge conduct as soon as the case is dismissed, is what I should avoid. And therefore I should decide the issue. So if you're really going to keep the same argument, I'm having a tough time

. Even though I said exactly what I did to him, I'm still having a tough time with your argument. If you said, oh, well, we'll back off, Mersenback shouldn't have been agents. Then I'd say you got a pretty good way, but you won't back off on that issue. Well, and the reason your Honor is that we're dealing with a case that comes to this court on a motion to dismiss. And there are things that I know that we can ultimately prove that are not before this court and can't be part of the record. But what is clear in the record is the notice of the defaults rescinded, and we're writing on a clean slate under a new legislative framework. Is it part of your case that one reason this doesn't fall into the doctrine is because, although it's likely a new notice that default will be issued, because what's the name of that case, the brand-up case where it is, the case law and the statute, this time the law has changed so that the notice will be in compliance with the law. That's a different circumstance than the circumstance that obtained when the first it was filed. Is that part of your case? Yes, that's exactly right, Your Honor. But it seems to me, if that's really part of your case, then one has to determine whether MERS and back the AC could properly act as agents under the trustee beneficiary. That's the part of the case that is definitely in front of us, which if you suggest it says you've put it, then I don't know how it can be moved. Your Honor, I don't think that case is before you because the notice of the false have been rescinded, and there's no, today there's no harm that's either actually been experienced by the plaintiff, or that's imminently threatened. We would have to start again, and we might start again by a judicial foreclosure procedure. Well, let me ask you about this agency issue because the Oregon Supreme Court's, I read the couple of cases on the day and brand-up said, well MERS could be an agent and could act on behalf of the beneficiary slash lender, whoever had the note, but there would have to be some significant evidence of that. So I didn't read those cases as saying MERS and I guess back could never act as agents as just, it would be, they could act as agents as if they were to prove. That's exactly right, Your Honor. Brand-up came to the Court to the Oregon Supreme Court on certified questions from the district court on where a motion to dismiss was pending, and so there was no factual development. And night A came to the Oregon Supreme Court on a motion for summary judgment, where there had been some facts introduced, but the Court concluded that the proof of agency was not sufficient to establish that as an undisputed fact that would support a summary judgment motion, but neither brand-rapped nor night A for a closed, in this case we MERS or BAC from presenting proof of agency. However, in this case we have a motion to dismiss. The plaintiff has suggested and they're their pleadings that they're not agents. And if it's on a motion to dismiss, I have to assume they're not agents. And so therefore I'm back in the same vote. And I don't mean to quibble with your premise, Your Honor, but I don't think they actually alleged that we're not agents. They've alleged that BAC appointed the trustee and we don't know anything about BAC. They didn't say BAC was not the agent, which they could have alleged, but they didn't. But again, I don't mean to quibble, but I think your question is a broader one

. Well, let me ask you about this agency issue because the Oregon Supreme Court's, I read the couple of cases on the day and brand-up said, well MERS could be an agent and could act on behalf of the beneficiary slash lender, whoever had the note, but there would have to be some significant evidence of that. So I didn't read those cases as saying MERS and I guess back could never act as agents as just, it would be, they could act as agents as if they were to prove. That's exactly right, Your Honor. Brand-up came to the Court to the Oregon Supreme Court on certified questions from the district court on where a motion to dismiss was pending, and so there was no factual development. And night A came to the Oregon Supreme Court on a motion for summary judgment, where there had been some facts introduced, but the Court concluded that the proof of agency was not sufficient to establish that as an undisputed fact that would support a summary judgment motion, but neither brand-rapped nor night A for a closed, in this case we MERS or BAC from presenting proof of agency. However, in this case we have a motion to dismiss. The plaintiff has suggested and they're their pleadings that they're not agents. And if it's on a motion to dismiss, I have to assume they're not agents. And so therefore I'm back in the same vote. And I don't mean to quibble with your premise, Your Honor, but I don't think they actually alleged that we're not agents. They've alleged that BAC appointed the trustee and we don't know anything about BAC. They didn't say BAC was not the agent, which they could have alleged, but they didn't. But again, I don't mean to quibble, but I think your question is a broader one. And I think what it gets back to is there is no notice of default that's pending against these plaintiffs. This plaintiff at this time or the property at this time I should say. There's no notice of default that is pending. And if this process is going to restart, there might be new documents or might be a new appointment of a successor trustee. The beneficiary has the power at any time to appoint a successor trustee. The beneficiary could do that tomorrow. And if the beneficiary appointed a new successor trustee and the new successor trustee issued a new notice of default, none of the issues that are raised in the complaint would recur at all. We would start on fresh documents. I understood from reading the complaint that they played even if MERS were an agent, they were merely an agent, and therefore they had no authority to assign the trustee because it had already been assigned no later than October 4, 2006. Yes, Your Honor. There's a difference here between the actions that were taken by MERS and the actions that were taken by BAC. I understand that. And what is significant to their claim for relief as I read their complaint is that the notice of default was invalid because the successor trustee had not been validly appointed because the entity that appointed the successor trustee, which was BAC, was not acting on behalf of the beneficiary, it was not the beneficiary, but they only led that last piece

. And I think what it gets back to is there is no notice of default that's pending against these plaintiffs. This plaintiff at this time or the property at this time I should say. There's no notice of default that is pending. And if this process is going to restart, there might be new documents or might be a new appointment of a successor trustee. The beneficiary has the power at any time to appoint a successor trustee. The beneficiary could do that tomorrow. And if the beneficiary appointed a new successor trustee and the new successor trustee issued a new notice of default, none of the issues that are raised in the complaint would recur at all. We would start on fresh documents. I understood from reading the complaint that they played even if MERS were an agent, they were merely an agent, and therefore they had no authority to assign the trustee because it had already been assigned no later than October 4, 2006. Yes, Your Honor. There's a difference here between the actions that were taken by MERS and the actions that were taken by BAC. I understand that. And what is significant to their claim for relief as I read their complaint is that the notice of default was invalid because the successor trustee had not been validly appointed because the entity that appointed the successor trustee, which was BAC, was not acting on behalf of the beneficiary, it was not the beneficiary, but they only led that last piece. Now MERS is different. The MERS assignment in 2011, which is an assignment of the deed of trust, it's not an action to appoint a successor trustee, that act, we know having now had the benefit of having brand-drup and nightay to review, I think it's fair to say that that act turns out to be either a nullity or a post-hoc memorialization that's unnecessary. That was an assignment of the deed of trust, but in 2006, five years before the piece of paper was executed, we know from the allegations of the complaint that the beneficial interest was transferred to Deutsche Bank as trustee of the Harborview Trust. So I agree that the 2011 piece of paper, which at the time was executed in good faith and based on what MERS understood a lot to be at that time, looking at a post-brand-drup and nightay, that document loses its legal significance. As to the assignment to Deutsche Bank, they also raised an argument that I'm wondering if that one survives the rescission of the notice of default, which is that the purported assignment to Deutsche Bank was void because the Harborview Trust had already closed relying on glass key. Yes, Your Honor. The glass key decision came out of the California Court of Appeals, not decided under Oregon law, and it is to be kind, it is an outlier, it's an extreme outlier. The reasoning of glass key has been rejected repeatedly both before and then specifically after glass key by name, the glass key decision has been rejected, including by a panel of this court in an unpublished decision about a month or two ago. That's the in-rate Davies case. The reason that glass key is wrongly decided is that when you are looking at the validity of an assignment from party A to party B, even if there's something about that assignment that perhaps was not done exactly how it should have been, party A and party B can agree that the assignment was valid. And an outsider has no right to say, well, you are supposed to follow these rules. If party A and party B treat the assignment as valid, that's despositive and conclusive as between them. And that's the point that glass key frankly got wrong, and that's the point that court after court looking at the same issue has in fact gotten correct

. Now MERS is different. The MERS assignment in 2011, which is an assignment of the deed of trust, it's not an action to appoint a successor trustee, that act, we know having now had the benefit of having brand-drup and nightay to review, I think it's fair to say that that act turns out to be either a nullity or a post-hoc memorialization that's unnecessary. That was an assignment of the deed of trust, but in 2006, five years before the piece of paper was executed, we know from the allegations of the complaint that the beneficial interest was transferred to Deutsche Bank as trustee of the Harborview Trust. So I agree that the 2011 piece of paper, which at the time was executed in good faith and based on what MERS understood a lot to be at that time, looking at a post-brand-drup and nightay, that document loses its legal significance. As to the assignment to Deutsche Bank, they also raised an argument that I'm wondering if that one survives the rescission of the notice of default, which is that the purported assignment to Deutsche Bank was void because the Harborview Trust had already closed relying on glass key. Yes, Your Honor. The glass key decision came out of the California Court of Appeals, not decided under Oregon law, and it is to be kind, it is an outlier, it's an extreme outlier. The reasoning of glass key has been rejected repeatedly both before and then specifically after glass key by name, the glass key decision has been rejected, including by a panel of this court in an unpublished decision about a month or two ago. That's the in-rate Davies case. The reason that glass key is wrongly decided is that when you are looking at the validity of an assignment from party A to party B, even if there's something about that assignment that perhaps was not done exactly how it should have been, party A and party B can agree that the assignment was valid. And an outsider has no right to say, well, you are supposed to follow these rules. If party A and party B treat the assignment as valid, that's despositive and conclusive as between them. And that's the point that glass key frankly got wrong, and that's the point that court after court looking at the same issue has in fact gotten correct. So is that something though that under the theory that Big Blue raises of the capable of repetition, or et cetera, that things are going to stay with the with Deutsche Bank having acquired the loan or the note after Harborview Trust closed, and was not taking new notes. And so is there going to be, is it likely that that's going to be the same structure for the next round of foreclosure proceedings? I think that issue could come up again. I think we are speculating a little bit because we don't know the other what that, you know, the subsequent lawsuit is going to look like. You know, the note could be transferred again. Later, lots of things could happen before another proceeding, whether it's a judicial proceeding or non judicial foreclosure proceeding where to go forward. But, you know, there's certainly a possibility that that same issue could come up again, yes. You're on, if I could just briefly turn to the question that was the court request, the supplemental briefing on the Lexmark issue. The, this relates to the zone of interest test, which in Lexmark, the court essentially took a doctrine, the zone of interest doctrine, and moved it from potential standing into some different area, some area that doesn't implicate Article III or standing. But the substance of the test still was preserved. And the question is, you know, did the legislature grant the particular class of person are right to sue under the statute? And this, it persists as a 12-by-6 motion, doesn't it? Yes, Your Honor. I believe it does. I understand it. No one has raised that below nor in the briefing before us

. So is that something though that under the theory that Big Blue raises of the capable of repetition, or et cetera, that things are going to stay with the with Deutsche Bank having acquired the loan or the note after Harborview Trust closed, and was not taking new notes. And so is there going to be, is it likely that that's going to be the same structure for the next round of foreclosure proceedings? I think that issue could come up again. I think we are speculating a little bit because we don't know the other what that, you know, the subsequent lawsuit is going to look like. You know, the note could be transferred again. Later, lots of things could happen before another proceeding, whether it's a judicial proceeding or non judicial foreclosure proceeding where to go forward. But, you know, there's certainly a possibility that that same issue could come up again, yes. You're on, if I could just briefly turn to the question that was the court request, the supplemental briefing on the Lexmark issue. The, this relates to the zone of interest test, which in Lexmark, the court essentially took a doctrine, the zone of interest doctrine, and moved it from potential standing into some different area, some area that doesn't implicate Article III or standing. But the substance of the test still was preserved. And the question is, you know, did the legislature grant the particular class of person are right to sue under the statute? And this, it persists as a 12-by-6 motion, doesn't it? Yes, Your Honor. I believe it does. I understand it. No one has raised that below nor in the briefing before us. No, we raised that from day one. That was our lead argument in the district court. In the district court of justice? Yes, the district court did, the district court dismissed the case on other grounds, and so did not reach that issue. So, should I send it back to them since it's 12-by-6? I think the court could, if it gets past the Article III issues that we've raised, not only the Mootness question, but also the self-inflicted injury issue. The problem that I have is the district court did not address it. And when I read your brief, it didn't seem to me that you addressed it coming up here, and it didn't seem like they addressed it either. Your Honor, we did address it in our opening, and I'm sorry, not our opening brief, in our appellis brief. Oh, in the appellis brief? Yes, Your Honor. Let me go. Where was that? Your Honor, we raised it under the heading of prudential standing because, free Lexmark, that was where it was, that's where it sat, that's finally starting out page 13. So, that was your understanding of the 12-by-6 motion we should think about now? Yes, Your Honor, but it was raised and provides an alternative grounds for affirmance, and it was raised again. Third page is 13 to 19 of our brief on appeal. And just the only other point I just wish to make, I don't want it to be lost in the other discussions, is that we also made the argument about a self-inflicted injury that, you know, here, Big Blue bought this property two weeks before for closure, knowing that the loan hadn't been paid, that it was facing for closure, that paid $3,500 for $600,000 property

. No, we raised that from day one. That was our lead argument in the district court. In the district court of justice? Yes, the district court did, the district court dismissed the case on other grounds, and so did not reach that issue. So, should I send it back to them since it's 12-by-6? I think the court could, if it gets past the Article III issues that we've raised, not only the Mootness question, but also the self-inflicted injury issue. The problem that I have is the district court did not address it. And when I read your brief, it didn't seem to me that you addressed it coming up here, and it didn't seem like they addressed it either. Your Honor, we did address it in our opening, and I'm sorry, not our opening brief, in our appellis brief. Oh, in the appellis brief? Yes, Your Honor. Let me go. Where was that? Your Honor, we raised it under the heading of prudential standing because, free Lexmark, that was where it was, that's where it sat, that's finally starting out page 13. So, that was your understanding of the 12-by-6 motion we should think about now? Yes, Your Honor, but it was raised and provides an alternative grounds for affirmance, and it was raised again. Third page is 13 to 19 of our brief on appeal. And just the only other point I just wish to make, I don't want it to be lost in the other discussions, is that we also made the argument about a self-inflicted injury that, you know, here, Big Blue bought this property two weeks before for closure, knowing that the loan hadn't been paid, that it was facing for closure, that paid $3,500 for $600,000 property. This is not a situation in which any harm was anything other than self-inflicted, Big Blue knowingly stepped into the situation, taking its chances, and this is not the injury that they claim to have suffered, is not traceable, not fairly traceable, to the conduct of the defendants. Thank you. Thank you. You have some time for re-battle. Thank you. I'd like to address that last argument first, and I think the defense, missing, I'm missing a sense of nature of the injury alerts. The injury is the imminent termination of the plaintiffs' right to use some possession of the property, which is one of those rights that is inherent in their title hold. So the loss of use and possession of the property was a result of defendants wrongful initiation of foreclosure proceedings, that they noticed a sale, which would terminate those possession of rights, when they were not legally authorized to do so. So that's the injury. Yes, did the plaintiffs take risk when purchasing the property they did, every business owner does when they enter into an agreement. However, the injury doesn't arise from the purchase of the property, the injury arises. The alleged injury arises from the wrongful initiation of the foreclosure proceedings. So in that respect, it is not self-inflicted

. This is not a situation in which any harm was anything other than self-inflicted, Big Blue knowingly stepped into the situation, taking its chances, and this is not the injury that they claim to have suffered, is not traceable, not fairly traceable, to the conduct of the defendants. Thank you. Thank you. You have some time for re-battle. Thank you. I'd like to address that last argument first, and I think the defense, missing, I'm missing a sense of nature of the injury alerts. The injury is the imminent termination of the plaintiffs' right to use some possession of the property, which is one of those rights that is inherent in their title hold. So the loss of use and possession of the property was a result of defendants wrongful initiation of foreclosure proceedings, that they noticed a sale, which would terminate those possession of rights, when they were not legally authorized to do so. So that's the injury. Yes, did the plaintiffs take risk when purchasing the property they did, every business owner does when they enter into an agreement. However, the injury doesn't arise from the purchase of the property, the injury arises. The alleged injury arises from the wrongful initiation of the foreclosure proceedings. So in that respect, it is not self-inflicted. I really liked what Mr. Myers put in his brief to the trial court, which is he said, it's 10 amount to the saying that a secret service agent that takes a bullet for the President has inflicted his own injury. Big loose stepped into the shoes of the borrower to assert these very rights and defenses into and gained the use and possession of the premises while it was doing that. The actions of the recontrust were designed to deprive them of the rights and that was the injury that was alleged. I would like to talk briefly about the credential-standing issues. It seemed that just a Scalia and the Lexmark decision changed the framework somewhat, but it certainly needed to be clarified. And the way it seems to read now is we would look directly to the statute itself to see if it authorizes suits by the class of persons of which the plaintiff is. The class of persons of the plaintiff belongs to, and this is somebody who is not the direct borrower, but is an assenee or purchaser of the borrower. Ask a question that was confusing me a little bit. Does the Oregon Trust Act, or I just forgot the name slightly wrong, trustee act. Does that give any cause of action to the debtor? Is there a statutory provision in that act? There are some direct causes of action relating to claims that can be made if you do not receive notice of sale. However, it's the statutory framework that sets up a mechanism by which a property owner can seek judicial review of the notice of sale. And that's why there's a statutory framework

. I really liked what Mr. Myers put in his brief to the trial court, which is he said, it's 10 amount to the saying that a secret service agent that takes a bullet for the President has inflicted his own injury. Big loose stepped into the shoes of the borrower to assert these very rights and defenses into and gained the use and possession of the premises while it was doing that. The actions of the recontrust were designed to deprive them of the rights and that was the injury that was alleged. I would like to talk briefly about the credential-standing issues. It seemed that just a Scalia and the Lexmark decision changed the framework somewhat, but it certainly needed to be clarified. And the way it seems to read now is we would look directly to the statute itself to see if it authorizes suits by the class of persons of which the plaintiff is. The class of persons of the plaintiff belongs to, and this is somebody who is not the direct borrower, but is an assenee or purchaser of the borrower. Ask a question that was confusing me a little bit. Does the Oregon Trust Act, or I just forgot the name slightly wrong, trustee act. Does that give any cause of action to the debtor? Is there a statutory provision in that act? There are some direct causes of action relating to claims that can be made if you do not receive notice of sale. However, it's the statutory framework that sets up a mechanism by which a property owner can seek judicial review of the notice of sale. And that's why there's a statutory framework. Did you bring your action a common law basis as it were? I mean, you saw the injunction for failure to comply with the act. There wasn't, you weren't bringing a act under some provision in the act, isn't that right? I would agree that the complaint is somewhat unclear on that. There certainly is a claim brought under the act and also a claim for injunctive relief through the course equitable powers. Okay. Because I was just, I guess confused because the Lexmark decision indicates that we, it's a question of statutory intent. And there didn't seem to be any intent in the statute indirectly at your cause of action. So it was seemed like a mismatch, but thank you. There is no expression of legislative intent in the statute like there was in Lexmark with the, the, the, the, In case of any of the state, the act had that directly in there. But if you look at the text and context of the statute, it clearly applies to more than just the borrowers. It also applies to their successors and interest. Thank you. Thank you. Okay

. Did you bring your action a common law basis as it were? I mean, you saw the injunction for failure to comply with the act. There wasn't, you weren't bringing a act under some provision in the act, isn't that right? I would agree that the complaint is somewhat unclear on that. There certainly is a claim brought under the act and also a claim for injunctive relief through the course equitable powers. Okay. Because I was just, I guess confused because the Lexmark decision indicates that we, it's a question of statutory intent. And there didn't seem to be any intent in the statute indirectly at your cause of action. So it was seemed like a mismatch, but thank you. There is no expression of legislative intent in the statute like there was in Lexmark with the, the, the, the, In case of any of the state, the act had that directly in there. But if you look at the text and context of the statute, it clearly applies to more than just the borrowers. It also applies to their successors and interest. Thank you. Thank you. Okay. We will, this case. Big Blue Viconfrest is submitted.

Good morning, honours. My name is Jeffrey Long. I'm the attorney for plaintiff appellant in this case, Big Blue Capital Partners. If you don't mind, I'd like to reserve five minutes for rebuttal. All right, please watch your time. This case comes before the court on a plaintiff's appeal of the trial court's decision to dismiss the case for lack of jurisdiction and lack a failure to state a claim for relief. We now know from hindsight in this Oregon Supreme Court's decision in brand up that the trial court's decision which hints upon his determination that murder if it was a beneficiary under the trust deed that that decision was erroneous. Therefore, I think the real issue before the court today is the defendant's other arguments regarding jurisdiction. This case involves two parties who were not original parties to the transaction. The plaintiff comes to this case as a successor in interest to the original owner of the property, Mr. Olivas. He transferred his interest to a company called Clunus Funding which then transferred it to a person named Ashley Elliott and the plaintiff bought that interest from Miss Elliott in February of 2012. We're plenty aware of the facts, I think, this panel of what's happened here. Do you dispute that the notion, the notice of defaults started the lawsuit? No, the notice of default is the event which triggered the lawsuit. And you don't dispute that that's been rescinded? I do agree that it has been rescinded by the case. But you're not currently subject to any foreclosure proceeding? As far as I know that is correct. Well, then, how wide do we have an injury? Well, I think the issue that your honor is bringing up is the issue of mootness which has been raised by the defendant in this case. That doctrine would not apply to this case because of the doctrine that this is a case that's an injury that's capable of repetition. Well, the issue is speculating that a foreclosure proceeding would be initiated in the future. Well, I can guarantee it. There is a default by the original lender. There is a trustee that secures the payment of the obligation at some point. I can expect the recontruster some other party to come forward and do that. That's quite reasonable. But if that happens, don't you think that the defendants will simply have whoever is the beneficiary read the law, look at Vandrup, look at Neede and a point of valid trustee, and then we won't have this case? Well, it's possible. But I analyze the mootness argument. I just go back to this question. The opposing side says, that is what we will do. We will read the law. We will identify a beneficiary. The beneficiary will appoint the correct trustee, and then the foreclosure proceedings will go from there. And so that would be a completely different case than what we have before us. It may be. You know, why doesn't that just make this case moot at this point? It's not this particular chain of events is not likely to happen again. What happened again, correct? Well, I believe that this chain of events will happen and does happen daily with other homeowners. They would continue with the same chain of parties that they had that led to this particularness of default. Yes, because most of the mayor's assignments have been done. They're their years in the past. So these are things that are already in the case. And as each foreclosure goes forward, these same issues are likely to present to themselves. That's why this is not the beneficiary by operation of Oregon State Law Act for Zoom. So they would have to identify who the correct beneficiary is, who the Oregon Supreme Court said would be the lender who ever held the note. Why, I mean, the opposing side says, we will do that. So why doesn't that just eliminate the mayor's issue? Well, there's a long line of cases in which the party that voluntarily ceases to do the challenge or activity. But I want to analyze this case similar to the Roe v. Wade case and the other cases in which the court has declined to render cases moot and still heard them. Because like that case, a non-judicial foreclosure is a very short window. It's never going to be a case come before this court in which that sale hasn't either been postponed or taken place. So mootness is going to be a common issue in every case. And this is one of those inherently short lived cases like the abortion cases in which states have sought to restrict a woman's right to those things. But the pregnancy is going to be over. Except that the difference is in this case, which you can't do it in a abortion case, you can get a stay possibly right from the trial court to stay the foreclosure while the case is pending. But you can't do it, you know, obviously when somebody's pregnant, can't stay the pregnancy. Absolutely, that's correct from a factual. And that's what we saw in this case was an injunction postponing or invalidating the proposed sale. And the statutory framework under the Oregon trustee act is such that it allows this abbreviated procedure if strict compliance with the statute is done, then and only after the notice of sale does sound as a window, there's a notice period that allows agreed parties then to come before the court and present their agreed to the very short window there in which to do that. So what arguments, let's say for example, they've resided the notice of default, so there's nothing pending. So let's say that the parties, the credit of parties, I guess, go back and say, okay, the last lender we can find is Greenwich capital capital acceptance. So that is the lender in the beneficiary and now appoint a trustee under the interest and issue a notice of default. So what arguments, so let's assume that that's the next time that they attempt to foreclose on Fig Blue's property, what arguments that you're currently making would still be applicable to that case? Under this current case, which was brought to enjoying the nonjudicial foreclosure, the arguments would not be the same. My client purchased this property, understanding that there was going to be a foreclosure that noticed, it was already noticed by the improper trustee. In this case, the trustee was fidelity national title. No valid substitution of trustee was ever recorded. For that reason alone, the sale was invalid, it did not fulfill the procedures required by the Oregon Court. And without what you wanted, right, the notice of default was rescinded, so that particular sale is dissolved. There's nothing there. That is true. And mud, if the court decides to use the Mootanist Doctrine in this case, then no litigation is ever going to be able to get this matter decided. Because in each case, the sale will have already been postponed or canceled. And there's a line of cases in which the party creating the problem says they won't do it anymore. That's not necessarily to be believed. But they're not really saying we won't do this anymore. They're saying we won't do it the wrong way anymore. Now the Supreme Court has told us how to do it, and we'll go back and do it the way we ought to do it, which makes it a little bit different than even the abortion cases. This is not a procedure where they're just going to go back and do the same thing again. This is a case where they're going to take a different procedure, which is the right procedure, as outlined by the Supreme Court, and do it right the next time. That's why this seems more moot than any case. One could imagine in this area. It's possible if you take the defendant's word as to what they're going to do. Quite frankly, I'll tell you from experience that what's likely to happen is that a judicial foreclosure is likely to follow if that has been the practice. Well, that could be something you would want. It would. It would give us an opportunity to actually challenge the transgressions. I don't know that you're really going to be too hard to heart about that argument. That seems like a tough argument to make if what they're going to do is what you want to do. I'm struggling with a reason for this moot, and that's why I wanted to ask you the question. And my colleagues have asked you exactly where I was going. It's something that I spent a considerable amount of time thinking about, because I knew that was going to be the first question I was going to get here. If why isn't this moot? And really, in looking at that, at that, first of all, mootness is not a jurisdictional issue in my opinion. It's a issue that courts have given discretion and prudence is applied. So as in Roe v Wade and those other cases, there are situations where between the actual parties, the issue is moot. But because this involves an issue of involving the public and that these are inherently short-lived cases, it's important to have a determination of the issues in this case. Because that doesn't it seem really that, given what the Supreme Court of Oregon has said, that there won't be any case like this again? They'll do what the Supreme Court of Oregon tells them to do. Well, perhaps. No, they're out to lunch. They don't know they can't go forward. But if this case ends up being, with the dismissal being upheld now that it's smooth, there's nothing stopping the defendant from again issuing another, and we have now the case where the plaintiff has been determined not to have standing to even challenge. A little tough to argue that it's the law, the case, that the District Court of Oregon will provide in every situation hereafter when the Supreme Court has said very definitely there just wrong. On the decision of the beneficiary, the issue really in this case was a court's decision to dismiss my clients claim as not being cognizable under the Oregon Trustee Act, and the jurisdictional issues that revolve around that, those are not resolved and they'll be back. And so we'll likely have to be back as little other homeowners dealing with the same issues. I have three little over three minutes left so I might reserve that time. Good morning, Your Honors. Stephen Ellis, on behalf of the Epoly's. Let me just jump into the Mootness point, which Your Honors is asked a series of questions about. The reason that the capable of repetition yet evading review exception to the Mootness doctrine does not apply is exactly what Your Honors have indicated. The law has changed since this non-judicial foreclosure began. We have now the benefit of the brand-druck decision. The statutory framework has changed. If and the notice of default that started this case has been rescinded. There is still an unpaid loan that is outstanding, and there is still a security interest, a valid security interest that will be enforced at some point. It will be a valid security interest that will be adopted in the future. But the... There's one thing that worries me about that argument. And that's your argument that MERS and VAC acted properly as agents of the trustee beneficiary. If that is so, which is your argument, and I assume that it is for my question, then as of today, Recon, the trustee... Recon is the trustee under Oregon law, correct? That's correct, Your Honor. And if that's so, Recon could legally issue a new notice of default, correct? It could, Your Honor. And if that's so, how can we say that this appeal is moot? Because it seems to me that's exactly what he's suggesting. That if you're not going to do something different, and you're going to say Recon is still the trustee and Recon can issue the notice, I don't see how you can get the moot. Let me back up one step, Your Honor. The capable repetition yet evading review doctrine applies when it is certain or virtually certain that the same conduct is going to reacquire. Well, and if Recon is legally the trustee, and if Recon can legally issue the notice of default, then I have a trouble saying that it's moot when Recon can do the very same thing it did now. The reason that the exception does not apply is that we are here speculating about what the defendants might do. It is certainly possible, Your Honor, although I will tell you I believe it's quite unlikely, but it's possible that the defendants could ask. Rose Brock versus Math says, and I quote, because a dismissal for mootness would permit a resumption of the challenge conduct as soon as the case is dismissed, is what I should avoid. And therefore I should decide the issue. So if you're really going to keep the same argument, I'm having a tough time. Even though I said exactly what I did to him, I'm still having a tough time with your argument. If you said, oh, well, we'll back off, Mersenback shouldn't have been agents. Then I'd say you got a pretty good way, but you won't back off on that issue. Well, and the reason your Honor is that we're dealing with a case that comes to this court on a motion to dismiss. And there are things that I know that we can ultimately prove that are not before this court and can't be part of the record. But what is clear in the record is the notice of the defaults rescinded, and we're writing on a clean slate under a new legislative framework. Is it part of your case that one reason this doesn't fall into the doctrine is because, although it's likely a new notice that default will be issued, because what's the name of that case, the brand-up case where it is, the case law and the statute, this time the law has changed so that the notice will be in compliance with the law. That's a different circumstance than the circumstance that obtained when the first it was filed. Is that part of your case? Yes, that's exactly right, Your Honor. But it seems to me, if that's really part of your case, then one has to determine whether MERS and back the AC could properly act as agents under the trustee beneficiary. That's the part of the case that is definitely in front of us, which if you suggest it says you've put it, then I don't know how it can be moved. Your Honor, I don't think that case is before you because the notice of the false have been rescinded, and there's no, today there's no harm that's either actually been experienced by the plaintiff, or that's imminently threatened. We would have to start again, and we might start again by a judicial foreclosure procedure. Well, let me ask you about this agency issue because the Oregon Supreme Court's, I read the couple of cases on the day and brand-up said, well MERS could be an agent and could act on behalf of the beneficiary slash lender, whoever had the note, but there would have to be some significant evidence of that. So I didn't read those cases as saying MERS and I guess back could never act as agents as just, it would be, they could act as agents as if they were to prove. That's exactly right, Your Honor. Brand-up came to the Court to the Oregon Supreme Court on certified questions from the district court on where a motion to dismiss was pending, and so there was no factual development. And night A came to the Oregon Supreme Court on a motion for summary judgment, where there had been some facts introduced, but the Court concluded that the proof of agency was not sufficient to establish that as an undisputed fact that would support a summary judgment motion, but neither brand-rapped nor night A for a closed, in this case we MERS or BAC from presenting proof of agency. However, in this case we have a motion to dismiss. The plaintiff has suggested and they're their pleadings that they're not agents. And if it's on a motion to dismiss, I have to assume they're not agents. And so therefore I'm back in the same vote. And I don't mean to quibble with your premise, Your Honor, but I don't think they actually alleged that we're not agents. They've alleged that BAC appointed the trustee and we don't know anything about BAC. They didn't say BAC was not the agent, which they could have alleged, but they didn't. But again, I don't mean to quibble, but I think your question is a broader one. And I think what it gets back to is there is no notice of default that's pending against these plaintiffs. This plaintiff at this time or the property at this time I should say. There's no notice of default that is pending. And if this process is going to restart, there might be new documents or might be a new appointment of a successor trustee. The beneficiary has the power at any time to appoint a successor trustee. The beneficiary could do that tomorrow. And if the beneficiary appointed a new successor trustee and the new successor trustee issued a new notice of default, none of the issues that are raised in the complaint would recur at all. We would start on fresh documents. I understood from reading the complaint that they played even if MERS were an agent, they were merely an agent, and therefore they had no authority to assign the trustee because it had already been assigned no later than October 4, 2006. Yes, Your Honor. There's a difference here between the actions that were taken by MERS and the actions that were taken by BAC. I understand that. And what is significant to their claim for relief as I read their complaint is that the notice of default was invalid because the successor trustee had not been validly appointed because the entity that appointed the successor trustee, which was BAC, was not acting on behalf of the beneficiary, it was not the beneficiary, but they only led that last piece. Now MERS is different. The MERS assignment in 2011, which is an assignment of the deed of trust, it's not an action to appoint a successor trustee, that act, we know having now had the benefit of having brand-drup and nightay to review, I think it's fair to say that that act turns out to be either a nullity or a post-hoc memorialization that's unnecessary. That was an assignment of the deed of trust, but in 2006, five years before the piece of paper was executed, we know from the allegations of the complaint that the beneficial interest was transferred to Deutsche Bank as trustee of the Harborview Trust. So I agree that the 2011 piece of paper, which at the time was executed in good faith and based on what MERS understood a lot to be at that time, looking at a post-brand-drup and nightay, that document loses its legal significance. As to the assignment to Deutsche Bank, they also raised an argument that I'm wondering if that one survives the rescission of the notice of default, which is that the purported assignment to Deutsche Bank was void because the Harborview Trust had already closed relying on glass key. Yes, Your Honor. The glass key decision came out of the California Court of Appeals, not decided under Oregon law, and it is to be kind, it is an outlier, it's an extreme outlier. The reasoning of glass key has been rejected repeatedly both before and then specifically after glass key by name, the glass key decision has been rejected, including by a panel of this court in an unpublished decision about a month or two ago. That's the in-rate Davies case. The reason that glass key is wrongly decided is that when you are looking at the validity of an assignment from party A to party B, even if there's something about that assignment that perhaps was not done exactly how it should have been, party A and party B can agree that the assignment was valid. And an outsider has no right to say, well, you are supposed to follow these rules. If party A and party B treat the assignment as valid, that's despositive and conclusive as between them. And that's the point that glass key frankly got wrong, and that's the point that court after court looking at the same issue has in fact gotten correct. So is that something though that under the theory that Big Blue raises of the capable of repetition, or et cetera, that things are going to stay with the with Deutsche Bank having acquired the loan or the note after Harborview Trust closed, and was not taking new notes. And so is there going to be, is it likely that that's going to be the same structure for the next round of foreclosure proceedings? I think that issue could come up again. I think we are speculating a little bit because we don't know the other what that, you know, the subsequent lawsuit is going to look like. You know, the note could be transferred again. Later, lots of things could happen before another proceeding, whether it's a judicial proceeding or non judicial foreclosure proceeding where to go forward. But, you know, there's certainly a possibility that that same issue could come up again, yes. You're on, if I could just briefly turn to the question that was the court request, the supplemental briefing on the Lexmark issue. The, this relates to the zone of interest test, which in Lexmark, the court essentially took a doctrine, the zone of interest doctrine, and moved it from potential standing into some different area, some area that doesn't implicate Article III or standing. But the substance of the test still was preserved. And the question is, you know, did the legislature grant the particular class of person are right to sue under the statute? And this, it persists as a 12-by-6 motion, doesn't it? Yes, Your Honor. I believe it does. I understand it. No one has raised that below nor in the briefing before us. No, we raised that from day one. That was our lead argument in the district court. In the district court of justice? Yes, the district court did, the district court dismissed the case on other grounds, and so did not reach that issue. So, should I send it back to them since it's 12-by-6? I think the court could, if it gets past the Article III issues that we've raised, not only the Mootness question, but also the self-inflicted injury issue. The problem that I have is the district court did not address it. And when I read your brief, it didn't seem to me that you addressed it coming up here, and it didn't seem like they addressed it either. Your Honor, we did address it in our opening, and I'm sorry, not our opening brief, in our appellis brief. Oh, in the appellis brief? Yes, Your Honor. Let me go. Where was that? Your Honor, we raised it under the heading of prudential standing because, free Lexmark, that was where it was, that's where it sat, that's finally starting out page 13. So, that was your understanding of the 12-by-6 motion we should think about now? Yes, Your Honor, but it was raised and provides an alternative grounds for affirmance, and it was raised again. Third page is 13 to 19 of our brief on appeal. And just the only other point I just wish to make, I don't want it to be lost in the other discussions, is that we also made the argument about a self-inflicted injury that, you know, here, Big Blue bought this property two weeks before for closure, knowing that the loan hadn't been paid, that it was facing for closure, that paid $3,500 for $600,000 property. This is not a situation in which any harm was anything other than self-inflicted, Big Blue knowingly stepped into the situation, taking its chances, and this is not the injury that they claim to have suffered, is not traceable, not fairly traceable, to the conduct of the defendants. Thank you. Thank you. You have some time for re-battle. Thank you. I'd like to address that last argument first, and I think the defense, missing, I'm missing a sense of nature of the injury alerts. The injury is the imminent termination of the plaintiffs' right to use some possession of the property, which is one of those rights that is inherent in their title hold. So the loss of use and possession of the property was a result of defendants wrongful initiation of foreclosure proceedings, that they noticed a sale, which would terminate those possession of rights, when they were not legally authorized to do so. So that's the injury. Yes, did the plaintiffs take risk when purchasing the property they did, every business owner does when they enter into an agreement. However, the injury doesn't arise from the purchase of the property, the injury arises. The alleged injury arises from the wrongful initiation of the foreclosure proceedings. So in that respect, it is not self-inflicted. I really liked what Mr. Myers put in his brief to the trial court, which is he said, it's 10 amount to the saying that a secret service agent that takes a bullet for the President has inflicted his own injury. Big loose stepped into the shoes of the borrower to assert these very rights and defenses into and gained the use and possession of the premises while it was doing that. The actions of the recontrust were designed to deprive them of the rights and that was the injury that was alleged. I would like to talk briefly about the credential-standing issues. It seemed that just a Scalia and the Lexmark decision changed the framework somewhat, but it certainly needed to be clarified. And the way it seems to read now is we would look directly to the statute itself to see if it authorizes suits by the class of persons of which the plaintiff is. The class of persons of the plaintiff belongs to, and this is somebody who is not the direct borrower, but is an assenee or purchaser of the borrower. Ask a question that was confusing me a little bit. Does the Oregon Trust Act, or I just forgot the name slightly wrong, trustee act. Does that give any cause of action to the debtor? Is there a statutory provision in that act? There are some direct causes of action relating to claims that can be made if you do not receive notice of sale. However, it's the statutory framework that sets up a mechanism by which a property owner can seek judicial review of the notice of sale. And that's why there's a statutory framework. Did you bring your action a common law basis as it were? I mean, you saw the injunction for failure to comply with the act. There wasn't, you weren't bringing a act under some provision in the act, isn't that right? I would agree that the complaint is somewhat unclear on that. There certainly is a claim brought under the act and also a claim for injunctive relief through the course equitable powers. Okay. Because I was just, I guess confused because the Lexmark decision indicates that we, it's a question of statutory intent. And there didn't seem to be any intent in the statute indirectly at your cause of action. So it was seemed like a mismatch, but thank you. There is no expression of legislative intent in the statute like there was in Lexmark with the, the, the, the, In case of any of the state, the act had that directly in there. But if you look at the text and context of the statute, it clearly applies to more than just the borrowers. It also applies to their successors and interest. Thank you. Thank you. Okay. We will, this case. Big Blue Viconfrest is submitted