Bill Text: OR HB3489 | 2013 | Regular Session | Enrolled
Bill Title: Relating to licensed escrow agents that provide assistance in debt management services; and declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-06-18 - Chapter 444, (2013 Laws): Effective date June 18, 2013. [HB3489 Detail]
Download: Oregon-2013-HB3489-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
House Bill 3489
Sponsored by Representative HOLVEY
CHAPTER ................
AN ACT
Relating to licensed escrow agents that provide assistance in
debt management services; creating new provisions; amending ORS
697.005, 697.612 and 717.210; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 697.005 is amended to read:
697.005. As used in ORS 697.005 to 697.095:
(1)(a) 'Collection agency' means:
(A) A person directly or indirectly engaged in soliciting a
claim for collection, or collecting or attempting to collect a
claim that is owed, due or asserted to be owed or due to another
person or to a public body at the time the person solicits,
collects or attempts to collect the claim;
(B) A person that directly or indirectly furnishes, attempts to
furnish, sells or offers to sell forms represented to be a
collection system even if the forms direct the debtor to make
payment to the creditor and even if the forms may be or are
actually used by the creditor in the creditor's own name;
(C) A person that, in attempting to collect or in collecting
the person's own claim, uses a fictitious name or any name other
than the person's own that indicates to the debtor that a third
person is collecting or attempting to collect the claim;
(D) A person in the business of engaging in the solicitation of
the right to repossess or in { - the repossession of - } { +
repossessing + } collateral security due or asserted to be due to
another person; or
(E) A person that, in the collection of claims from another
person:
(i) Uses any name other than the name regularly used in the
conduct of the business out of which the claim arose; and
(ii) Engages in any action or conduct that tends to convey the
impression that a third party has been employed or engaged to
collect the claim.
(b) 'Collection agency' does not include:
(A) An individual engaged in soliciting claims for collection,
or collecting or attempting to collect claims on behalf of a
registrant under ORS 697.005 to 697.095, if the individual is an
employee of the registrant.
(B) An individual collecting or attempting to collect claims
for not more than three employers, if { + the individual carries
on + } all collection efforts { - are carried on - } in the
name of the employer and the individual is an employee of the
employer.
Enrolled House Bill 3489 (HB 3489-A) Page 1
(C) A person that prepares or mails monthly or periodic
statements of accounts due on behalf of another person if all
payments are made to the other person and { - no other
collection efforts are made by the person preparing - } { + the
person that prepares + } the statements of accounts { + does not
make other collection efforts + }.
(D) An attorney-at-law rendering services in the performance of
the duties of an attorney-at-law.
(E) A licensed certified public accountant or public accountant
rendering services in the performance of the duties of a licensed
certified public accountant or public accountant.
(F) A bank, mutual savings bank, consumer finance company,
trust company, savings and loan association, credit union or debt
consolidation agency.
{ - (G) A real estate licensee or escrow agent licensed under
the provisions of ORS chapter 696, as to any collection or
billing activity involving a real estate transaction or
collection escrow transaction of the licensee or escrow
agent. - }
{ + (G) A principal real estate broker licensed under ORS
696.020, as to any collection or billing activity that involves a
real estate closing escrow, as defined in ORS 696.505.
(H) An escrow agent licensed under ORS 696.511, with respect to
the escrow agent's:
(i) Collection or billing activities involved in closing an
escrow, as defined in ORS 696.505, or related to a collection
escrow, as defined in ORS 696.505; or
(ii) Service as a trustee of a trust deed in accordance with
ORS 86.790. + }
{ - (H) - } { + (I) + } An individual regularly employed as
a credit person or in a similar capacity by one person, firm or
corporation that is not a collection agency as defined in this
section.
{ - (I) - } { + (J) + } A public officer or a person acting
under order of a court.
{ - (J) - } { + (K) + } A person acting as a property
manager in collecting or billing for rent, fees, deposits or
other sums due landlords of managed units.
{ - (K) - } { + (L) + } A person that is providing billing
services. A person is providing billing services for the purposes
of this subparagraph if the person engages, directly or
indirectly, in the business or pursuit of collection of claims
for another person, whether in the other person's name or any
other name, by any means that:
(i) Is an accounting procedure, preparation of mail billing or
any other means intended to accelerate cash flow to the other
person's bank account or to any separate trust account; and
(ii) Does not include any personal contact or contact by
telephone with the person from whom the claim is sought to be
collected.
{ - (L) - } { + (M) + } A person that is providing
factoring services. A person is providing factoring services for
the purposes of this subparagraph if the person engages, directly
or indirectly, in the business or pursuit of:
(i) Lending or advancing money to commercial clients on the
security of merchandise or accounts receivable and then enforcing
collection actions or procedures on such accounts; or
(ii) Soliciting or collecting on accounts that have been
purchased from commercial clients under an agreement whether or
not the agreement:
Enrolled House Bill 3489 (HB 3489-A) Page 2
(I) Allows recourse against the commercial client;
(II) Requires the commercial client to provide any form of
guarantee of payment of the purchased account; or
(III) Requires the commercial client to establish or maintain a
reserve account in any form.
{ - (M) - } { + (N) + } An individual employed by another
person that operates as a collection agency if the person does
not operate as a collection agency independent of that
employment.
{ - (N) - } { + (O) + } A mortgage banker as defined in ORS
86A.100.
{ - (O) - } { + (P) + } A public utility, as defined in ORS
757.005, a telecommunications utility, as defined in ORS 759.005,
a people's utility district, as defined in ORS 261.010, and a
cooperative corporation engaged in furnishing electric or
communication service to consumers.
{ - (P) - } { + (Q) + } A public body or an individual
collecting or attempting to collect claims owed, due or asserted
to be owed or due to a public body, if the individual is an
employee of the public body.
{ - (Q) - } { + (R) + } A person that receives an
assignment of debt in any form without an obligation to pay the
assignor any of the proceeds resulting from a collection of all
or a portion of the debt.
{ - (R) - } { + (S) + } A person for whom the Director of
the Department of Consumer and Business Services determines by
order or by rule that the protection of the public health, safety
and welfare does not require registration with the department as
a collection agency.
(2) 'Collection system' means a scheme intended or calculated
to be used to collect claims sent, prepared or delivered by:
(a) A person who in collecting or attempting to collect the
person's own claim uses a fictitious name or any name other than
the person's own that indicates to the debtor that a third person
is collecting or attempting to collect the claim; or
(b) A person directly or indirectly engaged in soliciting
claims for collection, or collecting or attempting to collect
claims owed or due or asserted to be owed or due another person.
(3) 'Claim' means an obligation for the payment of money or
thing of value arising out of an agreement or contract, express
or implied.
(4) 'Client' or 'customer' means a person authorizing or
employing a collection agency to collect a claim.
(5) 'Debtor' means a person owing or alleged to owe a claim.
(6) 'Debts incurred outside this state' means an action or
proceeding that:
(a) Arises out of a promise, made anywhere to the plaintiff or
a third party for the plaintiff's benefit, by the defendant to
perform services outside of this state or to pay for services to
be performed outside of this state by the plaintiff;
(b) Arises out of services actually performed for the plaintiff
by the defendant outside of this state or services actually
performed for the defendant by the plaintiff outside of this
state, if the performance outside of this state was authorized or
ratified by the defendant;
(c) Arises out of a promise, made anywhere to the plaintiff or
a third party for the plaintiff's benefit, by the defendant to
deliver or receive outside of this state or to send from outside
of this state goods, documents of title or other things of value;
Enrolled House Bill 3489 (HB 3489-A) Page 3
(d) Relates to goods, documents of title or other things of
value sent from outside of this state by the defendant to the
plaintiff or a third person on the plaintiff's order or
direction;
(e) Relates to goods, documents of title or other things of
value actually received outside of this state by the plaintiff
from the defendant or by the defendant from the plaintiff,
without regard to where delivery to carrier occurred; or
(f) Where jurisdiction at the time the debt was incurred was
outside of this state.
(7) 'Out-of-state collection agency' means a collection agency
located outside of this state whose activities within this state
are limited to collecting debts incurred outside of this state
from debtors located in this state. As used in this subsection,
'collecting debts' means collecting by means of interstate
communications, including telephone, mail or facsimile
transmission from the collection agency location in another state
on behalf of clients located outside of this state.
(8) 'Person' means an individual, firm, partnership, trust,
joint venture, association, limited liability company or
corporation.
(9) 'Public body' means:
(a) The state and any branch, department, agency, board or
commission of the state;
(b) A city, county, district or other political subdivision or
municipal or public corporation or an instrumentality thereof;
and
(c) An intergovernmental agency, department, council, joint
board of control created under ORS 190.125 or other like entity
that is created under ORS 190.003 to 190.130 and that does not
act under the direction and control of any single member
government.
(10) 'Registered' or 'registrant' means a person registered
under ORS 697.005 to 697.095 or registered or licensed as a
collection agency under the laws of another state.
(11) 'Statement of account' means a report setting forth
amounts billed, invoices, credits allowed or aged balance due.
SECTION 2. ORS 697.612 is amended to read:
697.612. (1) A person that has not registered with the Director
of the Department of Consumer and Business Services under ORS
697.632 may not engage in business in this state in the course of
which the person:
(a) Performs a debt management service; or
(b) Receives money or other valuable consideration or expects
to receive money or other valuable consideration for:
(A) Soliciting or receiving an application from a consumer for
a debt management service;
(B) Forwarding or providing a completed application for a debt
management service to a debt management service provider;
(C) Referring a consumer to another debt management service
provider, if the person is a debt management service provider;
(D) Providing a consumer's name, address or other information
that identifies the consumer to a debt management service
provider for the purpose of arranging the provision of a debt
management service; or
(E) Providing advice, assistance, instruction or instructional
material concerning a debt management service to a consumer.
(2) A debt management service provider registered under ORS
697.632 may negotiate on a consumer's behalf for a reasonable
alternative repayment schedule or to reduce a claim described in
Enrolled House Bill 3489 (HB 3489-A) Page 4
11 U.S.C. 502 if the debt management service provider is a
nonprofit budget and credit counseling agency approved in
accordance with 11 U.S.C. 111.
(3) Subsection (1) of this section does not apply to:
(a) An employee of a debt management service provider, if the
debt management service provider is registered under ORS 697.632.
(b) An attorney licensed or authorized to practice law in this
state, if the attorney provides a debt management service only
incidentally in the practice of law.
(c) A financial institution or a trust company, both as defined
in ORS 706.008.
(d) A consumer finance company licensed under ORS chapter 725.
{ - (e) An escrow agent licensed under ORS 696.505 to
696.590. - }
{ + (e) An escrow agent licensed under ORS 696.505 to 696.590
to the extent that the escrow agent is acting to close an escrow,
as defined in ORS 696.505, is engaging in activity related to a
collection escrow, as defined in ORS 696.505, or is serving as a
trustee of a trust deed in accordance with ORS 86.790. This
paragraph does not apply if the escrow agent:
(A) Assists an unregistered debt management service provider
that is not exempt from registration under this subsection in
performing a debt management service; or
(B) Provides escrow services to a consumer in accordance with a
debt management services plan executed by an unregistered debt
management services provider that is not exempt from registration
under this subsection. + }
(f) A mortgage banker or mortgage broker licensed under ORS
86A.095 to 86A.198 or a mortgage loan originator, as defined in
ORS 86A.100.
(g) A broker-dealer registered with the United States
Securities and Exchange Commission or the United States Commodity
Futures Trading Commission, if the broker-dealer is subject to
and acts in accordance with regulations promulgated by either
commission.
(h) A consumer reporting agency, as defined in 15 U.S.C.
1681a(f).
(i) A public body, as defined in ORS 174.109.
(j) A person that is obeying or acting in accordance with a
court order.
(k) An accredited educational institution or program that
offers or performs a debt management service without receiving
money or other valuable consideration, if the institution or
program performs the debt management service as an incidental
part of a class or a duty the institution or program provides
regularly.
(L) A nonprofit budget and credit counseling agency approved in
accordance with 11 U.S.C. 111 that:
(i) Provides only an individual or group briefing, as described
in 11 U.S.C. 109(h), or an instructional course concerning
personal financial management, as described in 11 U.S.C. 111; and
(ii) Does not receive or offer to receive funds from a consumer
for the purpose of distributing the funds among the consumer's
creditors in full or partial payment of the consumer's debts.
(m) A nonprofit entity that provides advice, assistance,
instruction or instructional materials to a consumer in return
for a fee that is reasonably calculated to pay the cost of making
the advice, assistance, instruction or instructional materials
available.
Enrolled House Bill 3489 (HB 3489-A) Page 5
(n) An organization or a counselor approved by the United
States Department of Housing and Urban Development under 12
U.S.C. 1701x.
SECTION 3. ORS 717.210 is amended to read:
717.210. (1) ORS 717.200 to 717.320, 717.900 and 717.905 do not
apply to:
(a) Any company that accepts deposits in this state and that is
insured under the Federal Deposit Insurance Act, 12 U.S.C. 1811
et seq., as amended.
(b) Credit unions or trust companies.
(c) The United States Government or any department, agency or
instrumentality thereof.
(d) The United States Postal Service.
(e) Any state or political subdivision of a state.
(f) The provision or electronic transfer of government benefits
for any federal, state or county government or other agency as
defined in the Federal Reserve Board Regulation E (12 C.F.R. part
205), by a contractor for and on behalf of the United States
Government or any department, agency or instrumentality of the
United States, or any state or any political subdivision of a
state.
{ - (g) The provision or handling of electronic or other
transfer of escrowed moneys by an escrow agent licensed under ORS
696.511. - }
{ + (g) The provision or handling of electronic or other
transfer of escrowed moneys by an escrow agent licensed under ORS
696.511 to the extent that the escrow agent is:
(A) Closing an escrow, as defined in ORS 696.505;
(B) Engaging in activity related to a collection escrow, as
defined in ORS 696.505; or
(C) Serving as a trustee of a trust deed in accordance with ORS
86.790. + }
(h) Authorized delegates of a licensee, acting within the scope
of authority conferred by a written contract as described in ORS
717.270.
(i) Any bank holding company as defined in the federal Bank
Holding Company Act of 1956, 12 U.S.C. 1841 et seq., as amended,
or any financial holding company as defined in ORS 706.008.
(j) Any savings and loan holding company as defined in 12
U.S.C. 1467a (a)(1)(D), as amended.
(2) The Director of the Department of Consumer and Business
Services by rule or order may modify or waive the application of
ORS 717.200 to 717.320, 717.900 and 717.905 to any person or
group of persons if the director determines that adequate
regulation of the person or group of persons is provided by law
or by another agency of this state.
(3) The director by rule or order may temporarily suspend the
application of ORS 717.200 to 717.320, 717.900 and 717.905 to any
person or group of persons while the director considers whether
an exemption should be granted and during the pendency of any
rulemaking proceeding proposing to create an exemption.
SECTION 4. { + (1) The amendments to ORS 697.005, 697.612 and
717.210 by sections 1 to 3 of this 2013 Act become operative 60
days after the effective date of this 2013 Act.
(2) The Director of the Department of Consumer and Business
Services and the Real Estate Commissioner may take any action
before the operative date specified in subsection (1) of this
section that is necessary to enable the director or the
commissioner to exercise, on and after the operative date
specified in subsection (1) of this section, all of the duties,
Enrolled House Bill 3489 (HB 3489-A) Page 6
functions and powers conferred on the director or the
commissioner by the amendments to ORS 697.005, 697.612 and
717.210 by sections 1 to 3 of this 2013 Act. + }
SECTION 5. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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Passed by House April 23, 2013
Repassed by House June 11, 2013
.............................................................
Ramona J. Line, Chief Clerk of House
.............................................................
Tina Kotek, Speaker of House
Passed by Senate June 5, 2013
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 3489 (HB 3489-A) Page 7
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 3489 (HB 3489-A) Page 8
