                                                                                             November 25 2013


                                            DA 12-0629

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 354


TROY A. PILGERAM and TERESA A. PILGERAM,
husband and wife,

              Plaintiffs and Appellants,

         v.

GREENPOINT MORTGAGE FUNDING, INC.,
a California corporation; COUNTRYWIDE
HOME LOANS, INC., a Texas corporation;
MANN MORTGAGE, LLC, a Montana limited
liability company; and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., an Iowa Corporation,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 09-948A
                        Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                        Eric Hummel, Attorney at Law, PLLC; Kalispell, Montana

                        W. Jeff Barnes (argued), W.J. Barnes, P.A.; Boca Raton, Florida

                For Appellee:

                        Charles K. Smith, Poore, Roth & Robinson, P.C.; Butte, Montana

                        Robert J. Pratte (argued), Brent R. Lindahl, Fulbright & Jaworski, L.L.P.;
                        Minneapolis, Minnesota

                                                      Argued and Submitted: September 25, 2013
                                                                   Decided: November 25, 2013
Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Troy A. Pilgeram and Teresa A. Pilgeram (the Pilgerams) appeal from the orders of

the Eleventh Judicial District Court, Flathead County, granting GreenPoint Mortgage

Funding, Inc., Countrywide Home Loans, Inc., and Mortgage Electronic Registration

Systems, Inc.’s (the Lenders’) motion for summary judgment and denying the Pilgerams’

motion to amend judgment. We reverse.

¶2     The dispositive issue on appeal is:

       Did the District Court err in granting the Lenders’ motion for summary judgment?

                                    BACKGROUND

¶3     On September 7, 2006, the Pilgerams obtained a fixed rate home loan from Mann

Mortgage (Mann) for $512,000 and executed a deed of trust (DOT) naming Citizen’s Title &

Escrow trustee and Mann lender. Also on September 7, 2006, the Pilgerams signed a

promissory note, which Mann endorsed to GreenPoint Mortgage Funding, Inc., (GreenPoint)

on the same day.

¶4     The DOT provided that the promissory note could be sold without advance notice to

the borrower. The DOT also provided that the loan services entity could be changed with

written notice to the borrower. Pursuant to the promissory note, the Pilgerams waived their

rights of presentment and notice of dishonor. Mortgage Electronic Registration Systems,

Inc., (MERS) was not named in the promissory note but was identified in the DOT as “[t]he

beneficiary of this Security Instrument . . . solely as a nominee for Lender and Lender’s

successors and assigns.”



                                             2
¶5     After several transfers of the interest in the DOT and promissory note, the Pilgerams

defaulted on the note in April 2008. On July 29, 2008, MERS assigned its interest in the

DOT to GreenPoint, which subsequently held the interests in both the promissory note and

the DOT. Also on July 29, 2008, GreenPoint appointed and substituted Charles J. Peterson

(Peterson) as the successor trustee. In November 2008, the Pilgerams received notice that

GreenPoint was assigning the servicing rights to Countrywide effective December 1, 2008.

In early December, the Pilgerams received notice from Countrywide that it was now the loan

servicing entity and that future payments were to be made in the manner indicated in the

notice. They also received notice that the loan was in default and had been accelerated

and/or was in foreclosure. They were informed of the manner in which they could bring the

note current.

¶6     Following a series of cancelled foreclosure sales, the Pilgerams filed a complaint in

the District Court, alleging the Lenders lacked the authority to foreclose. The Lenders

moved for summary judgment,1 and the District Court granted the motion on December 13,

2011, reasoning that MERS qualified as a “beneficiary” under Montana’s Small Tract

Financing Act (STFA). On January 25, 2012, the Pilgerams filed a motion to amend

judgment. The District Court denied this motion on April 20, 2012, because “the time for

ruling expired 60 days after the motion was filed.” The Pilgerams subsequently filed an

appeal in this Court in October 2012.

¶7     On appeal, the Pilgerams argue that the Lenders failed to meet their burden for

summary judgment, and that the complicated assignments between and among MERS,

       1
           Mann was not a party to the motion for summary judgment.

                                               3
GreenPoint, and Countrywide create genuine issues of material fact. The Lenders counter

that the Pilgerams “fail to explain what facts are supposedly in dispute, and why they are

material” (emphasis in original). The Lenders argue that the District Court correctly

concluded there was “no impediment prohibiting Countrywide from foreclosing the loan and

from instructing” Peterson, the successor trustee, “to sell the property to satisfy the default.”

¶8     The Pilgerams further argue MERS “is not, was not, and could never be the

‘beneficiary’ of the DOT.” Thus, it “had no authority to endorse a note which it never

owned” or “to assign the Pilgerams’ deed of trust.” According to the Lenders, the DOT

specifically provided that MERS was a beneficiary, allowing MERS to act as the agent of the

lender and of the lender’s successors and assigns.

                                STANDARD OF REVIEW

¶9     We review de novo a district court’s grant or denial of summary judgment, applying

the same criteria of M. R. Civ. P. 56 as a district court. Fisher v. State Farm Mut. Auto. Ins.

Co., 2013 MT 208, ¶ 11, 371 Mont. 147, 305 P.3d 861. We review a district court’s

conclusions of law to determine whether they are correct and its findings of fact to determine

whether they are clearly erroneous. Brookins v. Mote, 2012 MT 283, ¶ 22, 367 Mont. 193,

292 P.3d 347 (internal citation omitted).

                                        DISCUSSION

¶10    Did the District Court err in granting the Lenders’ motion for summary judgment?

¶11    The District Court granted summary judgment in favor of MERS solely on the

grounds that MERS qualified as a beneficiary under the STFA. Although never addressed



                                               4
by the District Court, MERS asserts on appeal that they are special agent of the lender. We

find that neither theory warrants summary judgment in favor of MERS.

¶12    Summary judgment “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show there is no genuine issue as to material fact and

that the movant is entitled to judgment as a matter of law.” Feller v. First Interstate

Bancsystem, Inc., 2013 MT 90, ¶ 16, 369 Mont. 444, 299 P.3d 338 (citing M. R. Civ. P.

56(c)(3)). We construe all facts in favor of the non-movant in determining whether an issue

of material fact exists. LaTray v. City of Havre, 2000 MT 119, ¶ 15, 299 Mont. 449, 999

P.2d 1010. If the movant demonstrates the absence of any material issue of fact and

entitlement to judgment, the non-movant must establish with substantial evidence that a

genuine issue of material fact does exist or that the movant is not entitled to prevail under the

law. Semenza v. Kniss, 2008 MT 238, ¶ 18, 344 Mont. 427, 189 P.3d 1188; Prindel v.

Ravalli County, 2006 MT 62, ¶ 19, 331 Mont. 338, 133 P.3d 165. Where the undisputed

evidence concerning the relationship of parties is reasonably susceptible to but a single

inference, the question of their legal relationship is one purely of law. Elkins v. Husky Oil

Co., 153 Mont. 159, 166, 455 P.2d 329, 332 (1969); Estates of Milliron v. Francke, 243

Mont. 200, 204, 793 P.2d 824, 827 (1990); Semenza, ¶ 19.

       MERS is not a beneficiary under Montana’s STFA.

¶13    The Pilgerams argue that MERS had no authority to assign the Pilgerams’ DOT and

request that we follow other jurisdictions that have determined MERS did not qualify as a

beneficiary under their trust deed acts. The Lenders argue the Pilgerams ignore the express

language of the trust deed and the plain language of the definition of beneficiary under § 71-

                                               5
1-303(1), MCA. They further argue the Pilgerams disregard Montana authority holding

MERS may serve as a beneficiary and have instead “cherry-picked” out-of-state authority.

¶14    This case raises an issue we have not yet addressed, namely whether Montana’s STFA

permits MERS to be the designated beneficiary in a trust indenture.2 We are mindful this is

an area of law that is still developing, with state and federal courts in different jurisdictions

reaching different results. Federal court decisions in the District of Montana on these issues

are instructive, as are the decisions of state district courts and state courts in other

jurisdictions. We note that the District Court in this case was not the only Montana state

district court to consider similar trust language and conclude that MERS qualified as a

beneficiary. See Waide v. U.S. Bank Natl. Assn., DV-10-1763, slip op. at 10 (Watters, J.,

Yellowstone County Dist. Ct., June 28, 2011) (Court Doc. 8-5 at 1-17).

¶15    The STFA defines “beneficiary” as “the person named or otherwise designated in a

trust indenture as the person for whose benefit a trust indenture is given or the person’s

successor in interest, who may not be the trustee.” Section 71-1-303(1), MCA. “When

interpreting a statute, we seek to implement the intention of the Legislature.” Williamson v.

Mont. Pub. Serv. Commn., 2012 MT 32, ¶ 36, 364 Mont. 128, 272 P.3d 71 (citing § 1-2-102,


       2
           “MERS is a private electronic database, operated by MERSCORP, Inc., that tracks the
transfer of the ‘beneficial interest’ in home loans, as well as any changes in loan servicers. After a
borrower takes out a home loan, the original lender may sell all or a portion of its beneficial interest
in the loan and change loan servicers. The owner of the beneficial interest is entitled to repayment of
the loan. For simplicity, we will refer to the owner of the beneficial interest as the ‘lender.’ The
servicer of the loan collects payments from the borrower, sends payments to the lender, and handles
administrative aspects of the loan. Many of the companies that participate in the mortgage
industry—by originating loans, buying or investing in the beneficial interest in loans, or servicing
loans—are members of MERS and pay a fee to use the tracking system.” Joseph v. Bank of
America, N.A., 2012 U.S. Dist. LEXIS 97869, ** 10-11 (D. Mont., April 23, 2013) (citing Jackson v.
Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 490 (Minn. 2009)).

                                                   6
MCA). We first look to the plain meaning of the statute’s words. Williamson, ¶ 36. If the

language is clear and unambiguous, we will not resort to other means of interpretation.

Williamson, ¶ 36 (citing Rocky Mt. Bank v. Stuart, 280 Mont. 74, 80, 928 P.2d 243, 246-47

(1996)). If the language is unclear or ambiguous, however, we resort to rules of statutory

construction to discern and give effect to the intention of the legislature. Mont. Contractors

Assn. v. Dept. of Hwys., 220 Mont. 392, 394, 715 P.2d 1056, 1058 (1986) (internal citations

omitted).

¶16    We find that the definition of “beneficiary” is clear and unambiguous. The section

lends itself to only one interpretation, namely that the beneficiary is “the person named . . . in

a trust indenture as the person for whose benefit a trust indenture is given or the person’s

successor in interest” (emphasis added). Section 71-1-303, MCA. The Lenders argue that

MERS received a “benefit” from the DOT even though MERS did not lend the money and

has no right to repayment. The alleged benefit is title to the property in the event of

foreclosure. However, the DOT was not given for the benefit of MERS but for the benefit of

the lender. MERS may ultimately obtain some benefit based on its relationship with the

Lenders but that benefit is not granted by the DOT. See Edwards v. MERS, 300 P.3d 43, 49

(Idaho 2013) (“The deed of trust was not given for the benefit of MERS or to secure an

obligation owing to MERS. It was given for the benefit of Lehman Brothers to secure the

obligation owing to it. Although MERS may obtain a benefit based upon its relationship

with Lehman Brothers, the deed of trust was not granted in order to provide MERS with that

benefit.”).



                                                7
¶17    The question of the statutory meaning of “beneficiary” does not depend on the parties’

intent or application of common law principles of contract to the DOT.                    Rather,

“beneficiary” must be interpreted in the context of legislative intent and whether the STFA

authorizes nonjudicial foreclosure only when certain statutory conditions are met. The

meaning of “beneficiary” is determined by statute and is thus incorporated into the parties’

agreement and may not be otherwise altered. See, R. Lord, 11 Williston on Contracts §

30:24 (4th ed. 1999) (“[i]ncorporation of existing law may act to supersede inconsistent

clauses purporting to define the terms of the agreement. For instance, where a statute

regulates the amount the government is to pay for a particular service, the statute controls

despite a contract between the government and the provider of the service agreeing to lay a

lower rate.”). References to “beneficiary” throughout the STFA make it clear that the

beneficiary is the entity to whom the secured obligation flows. Section 71-1-305, MCA

(“For the purpose of applying the mortgage laws, the grantor in a trust indenture is deemed

the mortgagor and the beneficiary is deemed the mortgagee.”); § 71-1-310, MCA (providing

that a title insurer is liable to the beneficiary as stated); § 71-1-312(1), (3), MCA (referencing

payments made to the beneficiary)). Here, the lender, not MERS, is the entity to whom the

secured obligation flows.

¶18    Under the STFA, the beneficiary “may not be the trustee.” Section 71-1-303(1),

MCA. A “trustee” is “a person to whom the legal title to real property is conveyed by a trust

indenture . . . .” Section 71-1-303(7), MCA. GreenPoint appointed Peterson as the trustee,

and the Pilgerams acknowledge “[i]t is undisputed that MERS is not the trustee.” However,

the DOT identifies MERS as an entity holding legal title to real property and as the

                                                8
“nominee.” A nominee is “[a] party who holds bare legal title for the benefit of others or

who receives and distributes funds for the benefit of others.” Black’s Law Dictionary 1149

(Bryan A. Garner ed., 9th ed., West 2009). MERS holds only legal title to real property and

receives no benefit or secured obligation from the DOT. Since § 71-1-303(1), MCA,

prohibits holders of legal title from assuming the beneficiary role, we conclude that MERS

does not meet the STFA’s definition of “beneficiary.” As the Pilgerams argue, “MERS was

not the lender, did not extend any credit, and is nothing more than an electronic tracking

entity.”

       MERS’ agency relationship with lenders is not sufficiently established to warrant
       summary judgment.

¶19    We next address the Lenders’ argument that even if MERS is not a beneficiary, it may

properly execute the documents in question because it is a special agent of the lender under

§ 28-10-102, MCA. That argument, raised by Appellants for the first time on appeal, is not

sufficiently grounded in the record to satisfy the exacting standards of summary judgment.

¶20    It is well established that we do not consider new arguments or legal theories for the

first time on appeal, even in the agency law context. State v. Ferguson, 2005 MT 343, ¶ 38,

330 Mont. 103, 126 P.3d 463; State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, 44 P.3d

499; Schlemmer v. N. Cent. Life Ins. Co., 2001 MT 256, ¶ 22, 307 Mont. 203, 37 P.3d 63;

Unified Indus., Inc. v. Easley, 1998 MT 145, ¶¶ 15-17, 289 Mont. 255, 961 P.2d 100;

Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶ 120, 325 Mont. 148, 104 P.3d 445 (Rice, J.

& Gray, C.J., dissenting). In Service Funding v. Craft, 234 Mont. 431, 434, 763 P.2d 1131,

1133 (1988), appellants asserted the existence of a principle-agent relationship for the first


                                              9
time on appeal. This Court refused to “apply the law of agency in addition to that which was

presented to the District Court.” Service Funding, 234 Mont. at 434, 763 P.2d at 1133. We

further held that we are “unwilling to determine the existence of an agency relationship for

the first time on appeal.” Service Funding, 234 Mont. at 434, 763 P.2d at 1133.

¶21    This restraint is “rooted in fundamental fairness to the parties . . . .” Gary & Leo’s

Fresh Foods, Inc. v. State, 2012 MT 219, ¶ 16, 366 Mont. 313, 286 P.3d 1218; See also,

Brookins, ¶ 24; Day v. Payne, 280 Mont. 273, 276-77, 929 P.2d 864, 866 (1996); Payne v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1144 (5th Cir. 1981). It is

fundamentally unfair for a party to withhold an argument at trial, take a chance on a

favorable outcome, and then assert a separate legal theory when the trial strategy fails. Day,

280 Mont. at 276-77, 929 P.2d at 866. New issues should only be reviewed on appeal if

extenuating circumstances justify the party’s failure to assert their legal theory at trial, such

as the emergence of new precedent on the issue. Marcus Daly Memorial Hosp. Corp. v.

Borkoski, 191 Mont. 366, 369, 624 P.2d 997, 999 (1981); State v. Carter, 2005 MT 87, ¶ 13,

326 Mont. 427, 114 P.3d 1001.

¶22    Appellees make no mention of an agency theory in any of their answers to the

complaint or in their motions for summary judgment and the District Court made no finding

of fact or conclusion of law concerning an agent-principal relationship. MERS submitted no

evidence to support the agency relationship, nor have the Pilgerams been afforded an

opportunity to refute that relationship with evidence of their own. Put simply, the record has

not been developed to determine whether agency existed. This fact is especially troubling on

summary judgment because a finding of agency requires consideration of all facts and

                                               10
circumstances between the parties, not merely the plain language of the document in

question. Dick Anderson Constr., Inc., v. Monroe Prop. Co., 2011 MT 138, ¶ 22, 361 Mont.

30, 255 P.3d 1257. We cannot fault the Pilgerams for mishandling the agency argument in

their reply brief and failing to raise sufficient evidence to defeat summary judgment on the

agency issue. Instead, we find that these omissions demonstrate the patent unfairness that

results when a party is ambushed with a new legal argument on appeal. We refuse to punish

the Pilgerams for failing to raise a material fact concerning an issue that never existed in this

litigation.

¶23    Nor do extenuating circumstances or new developments in the law justify MERS’

complacency in asserting an agency theory at the trial level. In March 2009, the Supreme

Court of Arkansas determined that MERS was the “mere agent” of a lender. Mortgage Elec.

Registration Sys. v. Southwest Homes of Ark., 301 S.W.3d 1, 3 (Ark. 2009). The Supreme

Court of Kansas considered MERS’ agency relationship with lenders in August 2009.

Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 166 (Kan. 2009). Prior to either of those

decisions, MERS’ agent status was evaluated by the bankruptcy courts of California and

Idaho. In re Vargas, 396 B.R. 511, 516 (Bankr. C.D. Cal. 2008); In re Sheridan, 2009

Bankr. LEXIS 552, 14 (Bankr. D. Idaho 2009). After all of this litigation concerning MERS’

agent status, MERS’ motion for summary judgment in July 2010, makes no mention of an

agency theory. MERS remained silent about this legal theory at the summary judgment

hearing and, correctly predicting that the Court would disagree with the District Court’s

reasoning, now asserts a new legal theory where its first one failed. This surprise appeal

unfairly prejudices the Pilgerams’ position and is prohibited by precedent.

                                               11
¶24    We are especially wary of new arguments in the context of summary judgment. We

construe all facts in favor of the non-movant in determining whether an issue of material fact

exists. LaTray, ¶ 15. If the movant demonstrates the absence of any material issue of fact

and entitlement to judgment, the non-movant must establish with substantial evidence that a

genuine issue of material fact does exist or that the movant is not entitled to prevail under the

law. Semenza, ¶ 18; Prindel, ¶ 19. Because the issue was never raised at the trial level, the

movant never demonstrated an absence of fact and entitlement to judgment on this issue, nor

did the non-movant have a chance to present substantial evidence refuting that absence or

entitlement.

¶25    With a more complete record, other courts have refused to recognize MERS’ agent

status on summary judgment. A New York Bankruptcy Court refused to grant MERS agent

status because its membership agreement with lenders contained no grant of authority to

MERS. In re Agard, 444 B.R. 231, 252 (Bankr. E.D.N.Y. 2011). That membership

agreement is notably absent from this record, even though a principal-agent relationship

requires consideration of all facts and circumstances between the parties. Dick Anderson

Constr., Inc., ¶ 22. The membership agreement could be dispositive in this case as actual

authority requires the principal’s manifestation of assent to the agent’s action. Restatement

(Third) of Agency § 3.01; § 28-10-201, MCA. The Supreme Court of Oregon also found that

MERS had not sufficiently established its agency theory because no evidence showed “who

ultimately holds the relevant interest in the notes and trust deeds, and whether that person

and each of its predecessors in interest conferred authority on MERS to act on their behalves

in the necessary respects.” Brandrup v. Recontrust, Co., 303 P.3d 301, 323 (Or. 2013). That

                                               12
evidence is missing here as well; the DOT only states that “Borrower understands and

agrees” that MERS’ was a nominee of the lenders, not that the lenders themselves granted

MERS authority.

¶26    But even if we decided the agency issue using only the language of the DOT, that

evidence is reasonably susceptible to more than one inference, therefore, the legal

relationship between MERS and the Lenders is not purely a question of law. Elkins, 153

Mont. at 166, 455 P.2d at 332; Estates of Milliron, 243 Mont. at 204, 793 P.2d at 827.

MERS relies on the Supreme Court of Idaho’s conclusion that since MERS was identified as

the nominee in the DOT, and one definition of nominee is “agent,” then MERS was

indisputably an agent as a matter of fact and law. But “nominee” is subject to more than one

interpretation based on the context of its use. Landmark Nat’l Bank, 216 P.3d at 166. While

“nominee” may mean “agent,” another definition is the one discussed above; “a party who

holds bare legal title for the benefit of others or who receives and distributes funds for the

benefit of others.” Black’s Law Dictionary at 1149. This definition does not necessitate an

agent-principal relationship as a matter of law. MERS appears to fit this definition, as the

DOT itself states that “MERS holds only legal title to the interest granted by Borrower”

(emphasis added) and MERS presumably holds this title for the benefit of the

mortgagee/lender. Further, the Supreme Court of Oregon found that the deed of trust only

obfuscated MERS’ agent status by first granting the narrow designation of “nominee”

holding “only legal title” but then also granting the right to “exercise any or all” interests of

the lender “as necessary.” Brandrup, 303 P.3d at 323. MERS relies on the same vague and

confusing claim of authority as dispositive for the agency issue in this case. Especially when

                                               13
construed in the Pilgerams’ favor, the facts of this case are susceptible to a determination that

MERS was the kind of nominee that is not an agent.

¶27    We refuse to grant a motion for summary judgment based on an issue never raised

below and against a party that never had an opportunity to rebut the facts and law of the

issue. We reverse and remand this case to the District Court for further findings of fact

regarding MERS’ principal-agent relationship with the lenders.

                                                    /S/ MICHAEL E WHEAT
We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS
Justice Patricia Cotter, dissenting.

¶28    I concur in the Court’s Opinion through ¶ 18. I dissent from the remainder of the

Court’s Opinion with respect to the role of MERS as an agent of the lender, and would

affirm the decision of the District Court.

¶29    I would conclude that even though MERS does not qualify as a beneficiary, it may

properly execute the documents in question because it is a special agent of the lender.

Section 28-10-102, MCA, provides: “An agent for a particular act or transaction is called a

special agent. All others are general agents.”

¶30    The Pilgerams’ DOT provided that “MERS is a separate corporation that is acting

solely as a nominee for Lender and Lender’s successors and assigns.” The DOT described

the nominee’s authority as follows: “if necessary to comply with law or custom, MERS (as

nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all

of those interests [granted by the borrower in the Deed of Trust], including, but not limited


                                               14
to, the right to foreclose and sell the Property; and to take any action required of Lender

including, but not limited to, releasing and cancelling this Security Instrument.” As noted, §

28-10-102, MCA, specifically contemplates that one may act as an agent for a particular act

or transaction. This is precisely the role that MERS fills under the DOT.

¶31    A nominee is “[a] person designated to act in place of another, usu. in a very limited

way.” Black’s Law Dictionary at 1149. An agent is one who represents another. Section

28-10-101, MCA. A nominee is a form of agent. See Edwards, 300 P.3d at 49 (“As the

definitions indicate, a nominee is merely a form of agent.”).

¶32    Given the language of the DOT naming MERS a nominee and listing the actions it is

authorized to take, I would conclude that MERS was the lender’s agent. Several other courts

have reached the same conclusion. See Joseph, 2012 U.S. Dist. LEXIS 97869 at * 33

(“MERS was Countrywide’s agent, cloaked with authority to act on the lender’s behalf under

the Deed of Trust.”); Heffner v. Bank of Am., 2012 U.S. Dist. LEXIS 64668, * 12 (D. Mont.,

May 8, 2012); (“As in Joseph, the Deed of Trust here reflects that America designated

MERS as its agent and gave it full authority to act as a nominee for America and its

successors and assigns.”); Edwards, 300 P.3d at 49 (“The lender, Lehman Brothers, had the

authority to designate an agent to act in its behalf, and the actions of its agent, MERS, were

the actions of Lehman Brothers.”). MERS could, as the lender’s agent, assign the beneficial

interest in the deed of trust to GreenPoint, who could in turn appoint a successor trustee. See

Joseph, 2012 U.S. Dist. LEXIS 97869 at * 36 (“The Court thus concludes that MERS could

and did, as Countrywide’s nominee/agent, assign the beneficial interest in the deed of trust to

BOA-HLS.”); Heffner, 2012 U.S. Dist. LEXIS 64668 at * 12 (The STFA does not permit

                                              15
MERS to be the beneficiary in a trust indenture as the lender’s nominee, but MERS could

assign the beneficial interest in the deed of trust.); Restatement (Third) of Agency § 1.04(2)

(an agent may act on behalf of both a disclosed principal, i.e., the original lender, and a later

unidentified principal, i.e., original lender’s successor and assign). This conclusion is

consistent with Montana law allowing an indenture trustee, performing duties under the

STFA, to delegate those duties to another party. Knucklehead Land Co., Inc. v. Accutitle,

Inc., 2007 MT 301, ¶¶ 12, 15, 340 Mont. 62, 172 P.3d 116; See also Diehl v. Reconstruct

Co., N.A., 2010 U.S. Dist. LEXIS 52404, ** 11, 13 (D. Mont., April 22, 2010) (adopted by

Diehl v. Reconstruct Co., N.A., 2010 U.S. Dist. LEXIS 52403 (D. Mont., May 27, 2010))

(Section 71-1-315(3), MCA, did not prohibit First American and Reconstruct from

designating an agent to conduct the foreclosure sales of the plaintiffs’ real properties, even if

the agent did not separately qualify as a trustee under § 71-1-306, MCA; the agent could

perform any act First American and Reconstruct could perform.); Joseph, 2012 U.S. Dist.

LEXIS 97869 at * 35 (“No ‘contrary intention clearly appears’ in the STFA that would

preclude the lender from designating an agent to act on the lender’s behalf to exercise all

pertinent authority of a beneficiary under the trust indenture.”).

¶33    The Court opines that the question of whether MERS was the agent of the lender was

raised for the first time on appeal and therefore should not be considered. Notably, neither

Pilgerams nor the other parties raised this concern; rather, the Court has done so sua sponte.

In fact, the parties debated the agency question in their appellate briefs and also extensively

addressed agency during oral argument before this Court without ever asserting the issue was

not properly before us. As the issue was thoroughly argued with the consent of the parties,

                                               16
the concerns about unfairness repeatedly voiced by the Court are unfounded. As we have

frequently stated, this Court generally does not resolve a case on grounds not raised or

supported by the parties. Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶ 15, 370

Mont. 410, 303 P.3d 794 (citing State v. Andersen-Conway, 2007 MT 281, ¶ 14, 339 Mont.

439, 171 P.3d 678); Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172

P.3d 1273. It bears noting that while there is no counterpart in the Montana Rules of

Appellate Procedure, M. R. Civ. P. 15(b)(2) provides that “[w]hen an issue not raised by the

pleadings is tried by the parties’ express or implied consent, it must be treated in all respects

as if raised in the pleadings.” The same rationale should apply to arguments presented by

agreement on appeal.

¶34    The Court also concludes that resolution of the agency issue requires a more complete

record and “further findings of fact regarding MERS’ principal-agent relationship with the

lenders.” Opinion, ¶ 27. With due respect, I believe the Court exaggerates the complexity of

the agency issue. The question of whether MERS may properly be deemed the agent of the

lender is driven by the language of the DOT and the law of agency. The question is one of

law, not fact, and therefore remand for further findings of fact is wholly unnecessary. The

DOT language is not complicated or ambiguous, and the law of agency as well as the

precedent cited herein clearly supports a determination that an agency relationship between

MERS and the lender exists under these circumstances. I would therefore affirm the

decision of the District Court. I dissent from our refusal to do so.


                                                    /S/ PATRICIA COTTER


                                               17
Justice Beth Baker joins in the dissenting Opinion of Justice Cotter.


                                                   /S/ BETH BAKER


Justice Jim Rice, dissenting.

¶35    I believe the definition of “beneficiary” under the STFA is broader and more flexible

than the Court concludes. That provision, § 71-1-303(1), MCA, states:

       “Beneficiary” means the person named or otherwise designated in a trust
       indenture as the person for whose benefit a trust indenture is given or the
       person’s successor in interest, who may not be the trustee.

¶36    The flexibility of this statute comes from the words that the Court does not

emphasize: the beneficiary is the person “named or otherwise designated” in the trust

indenture “as the person” for whose benefit the indenture is given. Except for its exclusion

of the trustee, and any other restriction at law, this provision broadly permits any other

person to be “named or designated” in the trust indenture “as the person” for whose benefit

the trust indenture is given. The statute says nothing about limiting the beneficiary to

lenders, or requiring that the beneficiary be “the entity to whom the secured obligation

flows.” Opinion, ¶ 17. This provision is not about lenders; it is about designating someone

“as the person” to hold a beneficial interest in the trust indenture. The provision’s purpose is

to permit flexibility in financial arrangements consistent with the constitutional right of

contract and assignment. Here, the “person” so designated under this broad authority is

MERS.

¶37    This definition of beneficiary, similar to the one in Oregon’s statutes, does not evince

a legislative intent to

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       preclude the parties to a trust deed from designating the agent of the lender
       and its successors as the beneficiary. We should be hesitant to find in that run-
       of-the-mill definition a limitation on the parties’ customary authority to
       structure their transactions as they see fit, unless the text, context, or history of
       that definition requires it. . . . Certainly, nothing in the text of the definition
       expressly forecloses the parties from designating the lender’s agent as the
       beneficiary in the trust deed.

Brandrup v. ReconTrust Co., N.A., 303 P.3d 301, 324 (Or. 2013) (Kistler, J., Balmer, C.J.,

concurring in part and dissenting in part).

¶38    MERS was identified here as the lender’s “nominee” under the DOT and, in the terms

of the statute, could likewise have been identified as the “designee.” The DOT states:

“MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s

successors and assigns. MERS is the beneficiary under this [DOT].” (Emphasis added.)

Under the section entitled “Transfer of Rights in the Property” it states: “[t]he beneficiary of

this [DOT] is MERS (solely as nominee for Lender and Lender’s successors and assigns) and

the successors and assigns of MERS.” It goes on to provide that “Borrower understands and

agrees that MERS holds only legal title to the interests granted by Borrower in this [DOT],

but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s

successors and assigns) has the right: to exercise any or all of those interests, including, but

not limited to, the right to foreclose and sell the Property; and to take any action required of

Lender including, but not limited to, releasing and canceling this [DOT].” (Emphasis

added.) This language clearly demonstrates that at the time the trust indenture was entered

into, the parties designated MERS as the beneficiary of the DOT and granted MERS the

authority to act as the beneficiary.



                                                19
¶39    As noted, the only limitation within the STFA definition of beneficiary is that the

beneficiary “may not be the trustee.” Section 71-1-303(1), MCA. The Court acknowledges

that “[i]t is undisputed that MERS is not the trustee” but nonetheless holds that MERS is

actually the trustee by equating a dictionary definition of “nominee” with a definition of

“trustee” from the STFA. Opinion, ¶ 18. However, this analysis strays from the clear

language of both the STFA and the DOT. Here, MERS is not a trustee for purposes of the

DOT, nor does it claim to be. Rather, Citizens Title & Escrow Co. is specifically designated

as trustee. Thus, the limitation in the STFA does not exclude MERS as beneficiary.1

¶40    When construing a statute,

       the office of the judge is simply to ascertain and declare what is in terms or in
       substance contained therein, not to insert what has been omitted or to omit
       what has been inserted. Where there are several provisions or particulars, such
       a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. Since the definition of “beneficiary” under the STFA does not

preclude designation of MERS as beneficiary, and the STFA, taken as a whole, does not

preclude MERS from serving as a beneficiary if so designated, I would affirm the District

Court’s conclusion that the “undisputed facts reflected in the documents as well as Montana

statutes, [sic] establish that MERS, as beneficiary, had the statutory authority to appoint a

successor trustee and could do so without notice to Plaintiffs as borrowers.” Given the broad
1
 Additionally, § 71-1-306, MCA, requires that a trustee be either an attorney licensed to practice law
in Montana; a bank, trust company, or savings and loan association authorized to do business in
Montana; or a title insurer or title insurance producer or agency authorized to do business in
Montana. MERS is clearly not an attorney, a bank, a savings and loan association, or a title insurer.
Under § 32-1-107, MCA, a “trust company” is defined as “any corporation that is incorporated under
the laws of this state” for one or more of a list of designated purposes. MERS is incorporated under
the laws of Delaware, not Montana; nor is it even registered as an active corporation in this state.
Aside from this issue, MERS does not meet any of the listed purposes for which it must be formed to
be a “trust company.” Thus, MERS could not, even if it wanted to, be a trustee under the DOT.

                                                 20
language of the statute, I would not disregard the parties’ beneficiary designation absent

legislative intent to the contrary.


                                                /S/ JIM RICE




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