                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 12 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

IVAN HOOKER and KATHERINE                        No. 11-35534
HOOKER,
                                                 D.C. No. 1:10-cv-03111-PA
              Plaintiffs - Appellees,

  v.                                             MEMORANDUM*

NORTHWEST TRUSTEE SERVICES,
INC.,

              Defendant,

  and

BANK OF AMERICA, NA and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,

              Defendants - Appellants.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                       Argued and Submitted March 3, 2014
                                Portland, Oregon



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Withdrawn from Submission March 10, 2014
                            Resubmitted May 5, 2014


Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge.**

      Defendant-Appellant Bank of America (“BOA”) appeals the district court’s

grant of sua sponte summary judgment to plaintiffs Ivan and Katherine Hooker.

The district court set aside BOA’s nonjudicial foreclosure on plaintiffs’ home,

stating that BOA had failed to comply with the recording requirements of Oregon

Rev. Stat. § 86.735(1), current version at Or. Rev. Stat. § 86.752(1). We reverse

and remand for further proceedings in light of the Oregon Supreme Court’s ruling

in Brandrup v. ReconTrust Co., 303 P.3d 301 (Or. 2013), issued after the district

court’s decision in this case.

      As Brandrup makes clear, the district court correctly held that MERS was

not the beneficiary under plaintiffs’ deed of trust, because it is neither the lender

nor the lender’s successor in interest. See id. at 304, 309–12. Nor is MERS

eligible to serve as the beneficiary simply by being designated as such in the trust

deed. Id. at 313–15. Brandrup also clarifies, however, that the transfers between

the true beneficiaries of the deed of trust (in this case, the assignments from GN

       **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                           2
Mortgage to Wells Fargo and then to BOA), which occurred only by operation of

law through the transfer of the note, were not the type of assignments that must be

recorded under Oregon law. Id. at 318 (concluding that § 86.735(1) requires

recordation of only “written assignments that are executed and acknowledged with

[the formalities of an assignment by a written instrument], not a post hoc

memorialization of a transfer of the secured obligation created solely for the

purpose of recording”). Because the district court’s decision was erroneous under

Brandrup, we reverse.

      Brandrup requires BOA to establish with “definitive documentation” that it

is the true beneficiary under plaintiffs’ deed of trust. Id.; see also Niday v. GMAC

Mortg., 302 P.3d 444, 454 & n.8 (Or. 2013) (suggesting that the relevant inquiry

may be whether the foreclosing party is the “person entitled to enforce the note”).

We remand for appropriate proceedings in the district court to determine whether

BOA is entitled to foreclose.



REVERSED and REMANDED.




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