Bill Text: OR HB4140 | 2012 | Regular Session | Introduced
Bill Title: Relating to foreclosures of residential trust deeds; appropriating money; declaring an emergency.
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [HB4140 Detail]
Download: Oregon-2012-HB4140-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 274
House Bill 4140
Sponsored by Representative TOMEI; Representatives BAILEY,
BARNHART, DEMBROW, DOHERTY, FREDERICK, GELSER, HARKER, HOYLE,
HUNT, KENY-GUYER, KOMP, KOTEK, MATTHEWS, NATHANSON, READ, J
SMITH, WITT (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires beneficiary or beneficiary's agent under residential
trust deed to send notice of mediation and enter into mediation
with grantor for purpose of agreeing to foreclosure avoidance
measure. Specifies form and content of notice of mediation, date
by which notice must be sent and method of service.
Specifies duties of beneficiary or beneficiary's agent with
respect to mediation. Requires beneficiary or beneficiary's agent
to record certificate of compliance from mediation service
provider in order to proceed with foreclosure of trust deed.
Establishes Foreclosure Avoidance Mediation Fund. Continuously
appropriates moneys in fund to Attorney General to pay expenses
of coordinating mediation program. Requires trustee or
beneficiary that records notice of default to pay $100 charge in
addition to recording fee unless trustee or beneficiary provides
certain affidavit.
Permits grantor that is at risk of default to request mediation
with beneficiary or beneficiary's agent.
Requires trustee to notify certain persons if trustee postpones
trustee's sale.
Provides that violation of requirement to notify certain
persons of postponed trustee's sale and failure to comply with
requirements for mediation are unlawful practices that are
enforceable under unlawful trade practices law.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to foreclosures of residential trust deeds; creating new
provisions; amending ORS 86.705, 86.735, 86.740, 86.742, 86.755
and 646.608; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3 and 4 of this 2012 Act are added
to and made a part of ORS 86.705 to 86.795. + }
SECTION 2. { + (1) As used in this section and section 3 of
this 2012 Act, 'foreclosure avoidance measure' means an agreement
between a beneficiary and a grantor that uses one or more of the
following methods to modify an obligation that is secured by a
trust deed:
(a) The beneficiary defers or forbears from collecting one or
more payments due on the obligation.
(b) The beneficiary modifies, temporarily or permanently, the
payment terms or other terms of the obligation.
(c) The beneficiary accepts a deed in lieu of foreclosure from
the grantor.
(d) The grantor conducts a short sale.
(e) The beneficiary provides the grantor with other assistance
that enables the grantor to avoid a foreclosure.
(2)(a) Except as provided in paragraph (d) of this subsection,
a beneficiary that seeks to foreclose a residential trust deed
under ORS 86.735 shall enter into mediation with the grantor for
the purpose of negotiating a foreclosure avoidance measure in
accordance with the provisions of this section.
(b) The Attorney General:
(A) Shall establish a price agreement with a mediation service
provider to coordinate a mediation program. The Attorney General
may establish the price agreement by means of an agreement under
ORS chapter 190 or by means of a procurement under ORS 279B.075
or 279B.085 and may pay the mediation service provider for the
mediation service provider's coordination services from the
Foreclosure Avoidance Mediation Fund established in section 4 of
this 2012 Act.
(B) Shall prescribe qualifications, training and experience
requirements for mediators by rule.
(C) Shall set the amount of the fee for the mediation by rule.
(c) The beneficiary and the grantor shall share the cost of the
mediation, except that the grantor's portion of the cost may not
exceed $200.
(d) The requirement to enter into mediation with a grantor does
not apply to a beneficiary if the grantor fails to confirm that
the grantor will enter into mediation by the date specified under
subsection (3)(c) of this section.
(3) Within 30 days after the date on which the beneficiary
caused a notice of mediation to be served or mailed as provided
in ORS 86.740, the mediation service provider shall send a notice
to the grantor and the beneficiary that:
(a) Schedules a date, time and location for the mediation. The
date must be not earlier than 45 days and not later than 90 days
after the date on which the notice of mediation was served or
mailed as provided in ORS 86.740.
(b) Identifies and provides contact information for the
mediation service provider.
(c) Specifies a date at least 15 days before the scheduled date
of the mediation by which the grantor must contact the mediation
service provider to confirm that the grantor will enter into
mediation. The notice must state that the mediation service
provider will deem the grantor to have declined to enter into
mediation if the grantor fails to confirm by the specified date.
(d) Lists the costs of the mediation and specifies the portion
of the costs for which the grantor is responsible.
(e) Provides any other information that the Attorney General
requires by rule.
(4)(a) If the grantor confirms by the date specified under
subsection (3)(c) of this section that the grantor will enter
into mediation, the beneficiary or the beneficiary's agent shall
appear at the time and the location identified in the mediation
service provider's notice under subsection (3) of this section
with the documentation described in paragraph (b) of this
subsection.
(b) The beneficiary or the beneficiary's agent must appear at
the location for the mediation with:
(A) The grantor's complete payment history for the obligation
that is secured by the residential trust deed that the
beneficiary seeks to foreclose;
(B) Evidence that the beneficiary is the real party in interest
with respect to the obligation, including but not limited to:
(i) A true copy of the original debt instrument that is the
basis for the right the beneficiary claims to foreclose the trust
deed; and
(ii) Documents that show the chain of title for the property
that is subject to the residential trust deed from the date of
the original loan for which the beneficiary seeks foreclosure to
the date of the notices given under ORS 86.740, including
conveyances, endorsements and assignments of the residential
trust deed, the note and the security instrument, whether
recorded or unrecorded;
(C) A copy of the authorization from the beneficiary to the
beneficiary's agent, if the beneficiary's agent appears at the
mediation;
(D) A copy of any of the following documents that apply to the
note or obligation that is secured by the trust deed:
(i) A servicing agreement the beneficiary entered into with
another person; or
(ii) An agreement by means of which the beneficiary pledged as
collateral for a security the beneficiary issued or sold all or a
portion of the ownership interest in the note or other
obligation; and
(E) Other documentation the Attorney General specifies by rule.
(c) The beneficiary or the beneficiary's agent that enters into
mediation with the grantor must have or be able to obtain, before
the initial mediation session concludes, authority to accept or
reject a proposal for a foreclosure avoidance measure and
authority to enter with the grantor into an agreement for a
foreclosure avoidance measure.
(5)(a) The beneficiary or the beneficiary's agent must
negotiate with the grantor in good faith under the supervision of
the mediation service provider in accordance with mediation
guidelines the mediation service provider establishes and with
the objective of reaching an agreement on a foreclosure avoidance
measure.
(b) If the beneficiary or the beneficiary's agent agrees with
the grantor on a foreclosure avoidance measure, the beneficiary
or beneficiary's agent and the grantor shall set forth the terms
of the foreclosure avoidance measure in a written agreement, a
copy of which the beneficiary or beneficiary's agent shall
provide to the Attorney General. The beneficiary may elect to pay
the grantor's portion of the cost of the mediation or the grantor
and the beneficiary may agree to include the cost of the
mediation as part of and in accordance with any payment plan that
is part of the foreclosure avoidance measure.
(c) If the beneficiary or the beneficiary's agent and the
grantor do not agree on a foreclosure avoidance measure, the
mediation service provider shall notify the Attorney General that
the mediation did not result in an agreement.
(6)(a) At the conclusion of the mediation, the mediation
service provider shall provide the beneficiary or the
beneficiary's agent with a certificate of compliance in a form
and with contents that the Attorney General specifies by rule.
The certificate must state that the beneficiary has complied with
the requirements of this section.
(b) If the grantor does not confirm by the date specified under
subsection (3)(c) of this section that the grantor will enter
into mediation, the mediation service provider shall provide the
beneficiary or the beneficiary's agent with a certificate of
compliance in a form and with contents that the Attorney General
specifies by rule. The certificate must state that the grantor
declined to enter into mediation with the beneficiary.
(c) The mediation service provider shall provide a copy of the
certificate the mediation service provider issues under paragraph
(a) or (b) of this subsection to the grantor and to the Attorney
General.
(7)(a) A grantor that is at risk of default before the
beneficiary or the trustee has filed a notice of default for
recording under ORS 86.735 may notify the beneficiary or trustee
in the trust deed or the beneficiary's or trustee's agent that
the grantor wants to enter into mediation. Within 10 days after
receiving the request, the beneficiary or trustee or the
beneficiary's or trustee's agent shall respond to the grantor's
request and shall notify the Attorney General and the mediation
service provider identified in subsection (2)(b) of this section.
The response to the grantor must include contact information for
the Attorney General and the mediation service provider.
(b) A grantor that requests mediation under paragraph (a) of
this subsection may also notify the Attorney General and the
mediation service provider of the request. The Attorney General
shall post on the Department of Justice website contact
information for the mediation service provider and an address or
method by which the grantor may notify the Attorney General.
(c) Within 10 days after receiving notice of the request under
paragraph (a) of this subsection, the mediation service provider
shall send a notice to the grantor and the beneficiary that,
except with respect to the date by which the mediation service
provider must send the notice, is otherwise in accordance with
the provisions of subsection (3) of this section.
(d) A beneficiary or beneficiary's agent that receives a
request under paragraph (a) of this subsection is subject to the
same duties as are described in subsections (2), (4) and (5) of
this section.
(e) A grantor that is at risk of default because the amount the
grantor owes on the obligation that is secured by the residential
trust deed is greater than the value of the property that is
subject to the residential trust deed by a ratio of 110 percent
or more shall establish the value of the property at the
mediation with documentation that consists of one or more of the
following:
(A) The most recent property tax statement for the property.
(B) An appraisal of the property prepared by an appraiser
certified or licensed under ORS chapter 674. The appraisal must
have been prepared within 90 days preceding the date on which the
grantor made a request under paragraph (a) of this subsection.
(C) A written broker's price opinion signed by an individual
that is licensed under ORS chapter 696.
(8) A beneficiary's failure to comply with the requirements set
forth for the beneficiary under subsections (2), (4), (5) and (7)
of this section is an unlawful practice under ORS 646.608 that is
enforceable under ORS 646.632 and 646.638. + }
SECTION 3. { + The notice of mediation required under ORS
86.740 (1)(b) must be in a form and with the contents the
Attorney General specifies by rule and must:
(1) List the name, address, telephone number and other contact
information for the grantor or other person named in the
residential trust deed.
(2) Specify the account number or other means by which the
beneficiary or trustee or an agent of the beneficiary or trustee
identifies the obligation that is secured by the residential
trust deed.
(3) Provide the address, telephone number and other contact
information for:
(a) The beneficiary or an agent of the beneficiary that the
beneficiary authorizes to negotiate on the beneficiary's behalf;
(b) The Oregon State Bar's Lawyer Referral Service;
(c) Service agencies or other providers that offer free or
low-cost legal services from a list of agencies or providers that
the Attorney General adopts by rule; and
(d) A list of not-for-profit housing counselors approved by the
United States Department of Housing and Urban Development or an
agency of this state.
(4) State that section 2 of this 2012 Act requires the
beneficiary to enter into mediation with the grantor for the
purpose of negotiating a foreclosure avoidance measure.
(5) List the documents the grantor must bring to the mediation.
The Attorney General by rule shall specify the documents the
grantor must bring.
(6) State that the grantor may choose to have an attorney or a
housing counselor approved by the United States Department of
Housing and Urban Development represent the grantor at the
mediation.
(7) State that the grantor must pay a portion of the costs of
the mediation and specify the maximum cost for which the grantor
will be responsible.
(8) State that the mediation and mediation communications, as
defined in ORS 36.110, are confidential in accordance with and to
the extent provided in ORS 36.220 to 36.238.
(9) State that within 30 days after the date of the notice a
mediation service provider will send another notice to the
grantor with a date, time and location for the mediation and with
the other information specified in section 2 (3) of this 2012
Act. + }
SECTION 4. { + (1) The Foreclosure Avoidance Mediation Fund is
established in the State Treasury, separate and distinct from the
General Fund. The fund consists of moneys the Attorney General
collects or receives for the purpose of paying the expenses of
coordinating a mediation program under section 2 of this 2012 Act
and related expenses. The moneys in the fund are continuously
appropriated to the Attorney General for the purposes of paying
the expenses of coordinating the mediation program and related
expenses.
(2) The Attorney General may receive moneys for the purposes
set forth in subsection (1) of this section from any public or
private source.
(3)(a) Except as provided in paragraph (b) of this subsection,
a trustee or beneficiary that files a notice of default under ORS
86.735 shall pay to the county clerk that records the notice $100
in addition to and not in lieu of any fee that the county clerk
charges for recording the notice of default. The county clerk at
the end of each month shall forward the proceeds of the $100
charge to the Attorney General for deposit into the fund
described in subsection (1) of this section.
(b) A trustee or beneficiary is not subject to the $100 charge
described in paragraph (a) of this subsection if the trustee or
beneficiary provides to the county clerk a sworn affidavit that
states that, during a period of one year that includes and
precedes the date on which the trustee or beneficiary presents
the notice of default for recording, the trustee or beneficiary
or an affiliate of the trustee or beneficiary has not commenced
more than a total of 250 actions to foreclose a residential trust
deed by advertisement and sale under ORS 86.735 or a residential
mortgage by suit under ORS 88.010. + }
SECTION 5. ORS 86.705 is amended to read:
86.705. As used in ORS 86.705 to 86.795:
(1) 'Affordable housing covenant' has the meaning given that
term in ORS 456.270.
(2) 'Beneficiary' means a person named or otherwise designated
in a trust deed as the person for whose benefit a trust deed is
given, or the person's successor in interest, and who is not the
trustee unless the beneficiary is qualified to be a trustee under
ORS 86.790 (1)(d).
(3) 'Eligible covenant holder' has the meaning given that term
in ORS 456.270.
(4) 'Grantor' means the person that conveys an interest in real
property by a trust deed as security for the performance of an
obligation.
(5) 'Residential trust deed' means a trust deed on property
upon which are situated four or fewer residential units, one of
which the grantor, the grantor's spouse or the grantor's minor or
dependent child occupies as a principal residence at the time a
{ - trust deed foreclosure is commenced - } { + default on
the obligation secured by the trust deed first occurs + }.
(6) 'Residential unit' means an improvement designed for
residential use.
(7) 'Trust deed' means a deed executed in conformity with ORS
86.705 to 86.795 that conveys an interest in real property to a
trustee in trust to secure the performance of an obligation the
grantor or other person named in the deed owes to a beneficiary.
(8) 'Trustee' means a person, other than the beneficiary, to
whom a trust deed conveys an interest in real property, or the
person's successor in interest, or an employee of the
beneficiary, if the employee is qualified to be a trustee under
ORS 86.790.
SECTION 6. ORS 86.735 is amended to read:
86.735. { - The - } { + A + } trustee may foreclose a trust
deed by advertisement and sale in the manner provided in ORS
86.740 to 86.755 if:
(1) The trust deed, any assignments of the trust deed by the
trustee or the beneficiary and any appointment of a successor
trustee are recorded in the mortgage records in the counties in
which the property described in the deed is situated;
{ - and - }
(2) There is a default by the grantor or other person
{ - owing - } { + that owes + } an obligation, the performance
of which is secured by the trust deed, or by { - their - }
{ + the grantor's or other person's + } successors in interest
with respect to { - any - } { + a + } provision in the deed
{ - which - } { + that + } authorizes sale in the event of
default of
{ - such - } { + the + } provision; { - and - }
(3) The trustee or beneficiary has filed for record in the
county clerk's office in each county where the trust property, or
some part of { - it - } { + the trust property + }, is
situated, a notice of default containing the information required
by ORS 86.745 and containing the trustee's or beneficiary's
election to sell the property to satisfy the obligation;
{ - and - }
{ + (4) The beneficiary or the beneficiary's agent has filed
for recording in the official records of the county or counties
in which the property that is subject to the residential trust
deed is located the certificate of compliance the beneficiary
received under section 2 of this 2012 Act; and + }
{ - (4) - } { + (5) + } { - No - } { + An + } action
has { + not + } been { - instituted - } { + commenced + } to
recover the debt or any part of { - it - } { + the debt + }
then remaining secured by the trust deed, or, if { - such - }
{ + an + } action has been
{ - instituted - } { + commenced + }, the action has been
dismissed, except that:
(a) Subject to ORS 86.010 and the procedural requirements of
ORCP 79 and 80, an action may be { - instituted - } { +
commenced + } to appoint a receiver or to obtain a temporary
restraining order during foreclosure of a trust deed by
advertisement and sale, except that a receiver { - shall - }
{ + may + } not be appointed with respect to a single-family
residence { - which is occupied as the principal residence
of - } { + that + } the grantor, the grantor's spouse or the
grantor's minor or dependent child { + occupies as a principal
residence + }.
(b) An action may be commenced { - for the judicial or
nonjudicial foreclosure of - } { + to foreclose, judicially or
nonjudicially, + } the same trust deed as to any other property
covered { - thereby - } { + by the trust deed + }, or any
other trust deeds, mortgages, security agreements or other
consensual or nonconsensual security interests or liens
{ - securing - } { + that secure + } repayment of the debt.
SECTION 7. ORS 86.740 is amended to read:
86.740. (1) { + (a) Except as provided in paragraph (b) of this
subsection, + } subsequent to recording notice of default as
provided in ORS 86.735 and at least 120 days before the day the
trustee conducts the sale, notice of the sale { - shall - }
{ + with the contents described in ORS 86.745 must + } be
served pursuant to ORCP 7 D(2) and 7 D(3) or mailed by both first
class and certified mail with return receipt requested { - , - }
{ + .
(b) If the sale is for the purpose of foreclosing a residential
trust deed, the notice of sale must be served or mailed in the
manner provided in paragraph (a) of this subsection at least 180
days before the date of the sale. A separate notice of mediation,
in the form and with the contents described in section 3 of this
2012 Act, must accompany the notice of sale.
(2) The notices described in subsection (1) of this section
must be served or mailed + } to the last-known address of the
following persons or { - their - } { + the + } legal
representatives { + of the persons + }, if any:
(a) The grantor in the trust deed.
(b) Any successor in interest to the grantor whose interest
appears of record, or of whose interest the trustee or the
beneficiary has actual notice.
(c) Any person, including the Department of Revenue or
{ - any other - } { + another + } state agency,
{ - having - } { + that has + } a lien or interest subsequent
to the trust deed if the lien or interest appears of record or
the beneficiary has actual notice of the lien or interest.
(d) { - Any - } { + A + } person { - requesting - } { +
that requests + } notice as provided in ORS 86.785.
{ + (e) The mediation service provider with whom the Attorney
General establishes a price agreement under section 2 (2)(b) of
this 2012 Act, if the notices are served or mailed under
subsection (1)(b) of this section. + }
{ - (2) - } { + (3) + } A notice served by mail under
subsection (1) of this section is effective when the notice is
mailed.
{ - (3)(a) - } { + (4)(a) + } The disability, insanity or
death of { - any - } { + a + } person to whom { - notice of
sale - } { + the notices required under this section + } must
be given { - under this section - } does not delay or impair
in any way the trustee's right under a trust deed to foreclose
under the deed. If the disability, insanity or death occurs
{ - prior to the recording of - } { + before the + } notice of
default { + is recorded + }, the { - notice shall - } { +
notices required under this section must + } be given instead to
the guardian, the conservator of the estate of the person or the
administrator or personal representative of the person { - , as
the case may be, - } in the manner and by the time set forth in
this section.
(b) If the disability, insanity or death of { - any - } { +
a + } person to whom { - notice of sale - } { + the notices
required under this section + } must be given { - under this
section - } occurs on or after the { - recording of - }
notice of default { + is recorded + }, the trustee shall, if and
when the trustee has knowledge of the disability, insanity or
death, promptly give the guardian, { + the + } conservator of
the estate or the administrator or personal representative { - ,
as the case may be, the notice provided in ORS 86.745. This
notice shall be given - } { + required notices by sending the
notices + } by first class and certified mail with return receipt
requested { - , - } to the last-known address of the guardian,
conservator or administrator or personal representative.
(c) { - In the event - } { + If + } there is no
administrator or personal representative of the estate of the
person to whom { - notice of sale must be given - } { + the
notices required + } under this section { + must be given + },
the { - notice - } { + notices + } may be given instead to
the heirs at law or devisees of the deceased person in the manner
and by the time set forth in this section.
{ - (4) - } { + (5) + } If the owner of real property
subject to foreclosure dies and the real property is also subject
to a transfer on death deed, as provided by ORS 93.948 to 93.979,
{ - notice of sale - } { + the notices required under this
section + } must be given { - under this section - } to the
beneficiary designated under the transfer on death deed.
SECTION 8. ORS 86.742 is amended to read:
86.742. (1) If the trustee fails to give notice of the sale to
{ - any - } { + a + } person entitled to notice under ORS
86.740 { - (1)(c) - } { + (2)(c) + }, and { - such - }
{ + the + } person did not have actual notice of the sale at
least 25 days { - prior to - } { + before + } the date { +
on which + } the trustee conducted the sale, { - such - } { +
the + } omitted person { - shall have - } { + has + } the
same rights { - possessed by - } { + that + } the holder of a
junior lien or interest who was omitted as a party defendant in a
judicial foreclosure proceeding { + possesses + }, and the
purchaser at the trustee's sale or the purchaser's heirs, assigns
or transferees, { - shall have - } { + have + } the same
rights { - possessed by - } { + that + } a purchaser at a
sheriff's sale following a judicial foreclosure { +
possesses + }.
(2) The omitted person may also commence an action against the
trustee in the circuit court in the county where the real
property is located. In an action against the trustee, the
omitted person { - shall be - } { + is + } entitled to
damages { - upon proof - } { + if the omitted person
proves + } that:
(a) The trustee did not give notice of the sale to the omitted
person in the manner required by ORS 86.740 { - (1)(c) - }
{ + (2)(c) + } and 86.750;
(b) A search of the record under the name of the grantor as
{ - it - } { + the grantor's name + } appears on the trust
deed, or { + as + } the name of the grantor's successor in
interest { + appears + }, would have revealed the omitted
person's interest;
(c) The omitted person could and would have cured the default
under ORS 86.753; and
(d) The omitted person sustained actual damages as a result of
{ - such - } { + the + } person's loss of the opportunity to
cure the default under ORS 86.753 (1).
(3) In an action against the trustee under subsection (2) of
this section, { - any - } { + a + } defendant or third party
defendant may move for dismissal on the ground that the omitted
person would not or could not have cured the default and
reinstated the trust deed if the omitted person had received the
notice required by ORS 86.740
{ - (1)(c) - } { + (2)(c) + }. The court shall hold a hearing
on { - such - } { + the + } motion { - prior to any - }
{ + before a + } hearing on { - any - } { + a + } motion
for summary judgment, and { - prior to trial of - } { +
before trying + } the action. The court shall deny the motion
only if the omitted person produces affidavits or other evidence
sufficient for a reasonable jury to find, applying a standard of
clear and convincing evidence, that the omitted person had the
financial ability to cure the default under ORS 86.753
{ - prior to - } { + before + } the date of the trustee's
sale, and that the omitted person would have done so had the
omitted person received the notice required by ORS 86.740
{ - (1)(c) - } { + (2)(c) + }. If the court grants the motion
to dismiss { - it - } { + , the court + } shall award attorney
fees { - pursuant to - } { + under + } subsection (5) of this
section.
(4) In { - any - } { + an + } action against the trustee or
{ - any other - } { + another + } party under this section the
omitted person shall plead that the omitted person did not have
actual knowledge of the sale at least 25 days prior to the date
the trustee conducted the sale, but thereafter the defendant
{ - shall have - } { + has + } the burden of proving that the
omitted person did have { - such - } notice.
(5) In { - all suits - } { + an action + } brought under
this section, the applicable court may, upon entering judgment,
allow to the prevailing party as a part of the costs a reasonable
amount for attorney fees at trial and on appeal.
(6) The remedies described in subsections (1) to (5) of this
section { - shall be - } { + are + } the sole remedies
available to a person entitled to notice of foreclosure by
advertisement and sale under ORS 86.740 { - (1)(c) - } { +
(2)(c) + }, who failed to receive { - such - } notice.
{ - Such a - } { + The + } person's failure to redeem or to
commence an action against the trustee within five years of the
date of a trustee's sale under ORS 86.755 { - shall bar - }
{ + bars + } any action under this section or any other
applicable law.
SECTION 9. ORS 86.755 is amended to read:
86.755. (1)(a) A trustee shall hold a trustee's sale on the
date and at the time and place designated in the notice of sale
given under ORS 86.740. The designated time of the trustee's sale
must be after 9 a.m. and before 4 p.m., based on the standard of
time set forth in ORS 187.110, and the designated place of the
trustee's sale must be in the county or one of the counties in
which the property is situated. Except as provided in paragraph
(b) of this subsection, the trustee may sell the property in one
parcel or in separate parcels and shall sell the parcel or
parcels at auction to the highest bidder for cash. Any person,
including the beneficiary under the trust deed, but excluding the
trustee, may bid at the trustee's sale. An attorney for the
trustee, or an agent that the trustee or the attorney designates,
may conduct the sale and act in the sale as the trustee's
auctioneer.
(b) If the trustee sells property upon which a single
residential unit that is subject to an affordable housing
covenant is situated, the eligible covenant holder may purchase
the property from the trustee at the trustee's sale for cash or
cash equivalent in an amount that is the lesser of:
(A) The sum of the amounts payable under ORS 86.765 (1) and
(2); or
(B) The highest bid received for the property other than a bid
from the eligible covenant holder.
(c)(A) Except as provided in subparagraph (B) of this
paragraph, if an eligible covenant holder purchases the property
in accordance with paragraph (b) of this subsection, the sale
forecloses and terminates all other interests in the property as
provided in ORS 86.770 (1).
(B) If an interest in the property exists that is prior to the
eligible covenant holder's interest, other than the interest set
forth in the trust deed that was the subject of the foreclosure
proceeding under ORS 86.735, notwithstanding the provisions of
ORS 86.770 (1) the sale does not foreclose and terminate the
prior interest and the eligible covenant holder's title to the
property is subject to the prior interest.
(2) { + (a) + } The trustee or the attorney for the trustee, or
an agent that the trustee or the attorney conducting the sale
designates, may postpone the sale for one or more periods that
total not more than 180 days from the original sale date, giving
notice of each { - adjournment - } { + postponement + } by
public proclamation made at the time and place set for sale. The
trustee, the attorney or an agent that the trustee or the
attorney designates may make the proclamation.
{ + (b) If a person postpones the sale date as provided in
paragraph (a) of this subsection, the trustee, in the manner
provided for service of the notice of sale under ORS 86.740 (1),
shall cause notice of the new time, date and place for the sale
to be served on the grantor and on any person to whom notice of
the sale was given under ORS 86.745. The notice must be given at
least 30 days before the new sale date. A failure to serve notice
under this paragraph is an unlawful practice under ORS 646.608
that is enforceable under ORS 646.632 and 646.638. + }
(3) The purchaser shall pay at the time of sale the price bid
or the price determined in accordance with subsection (1)(b) of
this section, and, within 10 days following payment, the trustee
shall execute and deliver the trustee's deed to the purchaser.
(4) The trustee's deed shall convey to the purchaser the
interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed,
together with any interest the grantor or the grantor's
successors in interest acquire after the execution of the trust
deed.
(5)(a) If property purchased at the trustee's sale includes one
or more dwelling units that are subject to ORS chapter 90, the
purchaser must provide written notice of change in ownership to
the occupants of each unit within 30 days after the date of sale
and before or concurrently with service of a written termination
notice authorized by subsection (6)(c)(B) of this section.
(b) The notice required by this subsection must:
(A) Explain that the dwelling unit has been sold at a
foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the foreclosure sale took place.
(C) Include the name, contact address and contact telephone
number of the purchaser or the purchaser's representative.
(D) Provide information about the rights of bona fide
residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) Include contact information for the Oregon State Bar and a
person or organization that provides legal help to individuals at
no charge to the individual.
(c) The notice must be served by one or more of the following
methods:
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the dwelling unit.
(C) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(D) If the names of the tenants are not known to the purchaser,
the notice may be addressed to 'occupants. '
(d) A notice that contains the information required under
paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is
in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS OF
CHANGE IN OWNERSHIP
The property in which you are living has gone through
foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner's
representative is ______________ (name, address, telephone
number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS PROPERTY AS A
RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o THE REMAINDER OF YOUR FIXED TERM LEASE, IF YOU HAVE A FIXED
TERM LEASE; OR
o AT LEAST 90 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN
TERMINATION NOTICE.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after 90 days, even though you have a
fixed term lease with more than 90 days left.
You must be provided with at least 90 days' written notice
after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE OWNER'S REPRESENTATIVE
AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE TO LET
THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD
PROVIDE WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL
AGREEMENT, ESPECIALLY IF YOU HAVE A FIXED TERM RENTAL AGREEMENT
OR LEASE WITH MORE THAN 90 DAYS LEFT. Written evidence of your
rental agreement can be a copy of your lease or rental agreement,
or other documentation of the existence of your rental agreement.
Keep your original documents and a record of any information you
give to the new owner.
YOUR TENANCY
BETWEEN NOW
AND THE MOVE-OUT DATE
The new owner may be willing to allow you to stay as a tenant
instead of requiring you to move out after 90 days or at the end
of your fixed term lease. You should contact the new owner if you
would like to stay. If the new owner accepts rent from you, signs
a new residential rental agreement with you or does not notify
you in writing within 30 days after the date of the foreclosure
sale that you must move out, the new owner becomes your new
landlord and must maintain the property. Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than 90 days or
before your fixed term lease expires. You should speak with a
lawyer to fully understand your rights before making any
decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
assistance, contact the Oregon State Bar and ask for the lawyer
referral service. Contact information for the Oregon State Bar is
included with this notice. If you do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice.
_________________________________________________________________
(6)(a) Except as provided in paragraph (b) or (c) of this
subsection, the purchaser at the trustee's sale is entitled to
possession of the property on the 10th day after the sale. A
person that remains in possession after the 10th day under any
interest, except an interest prior to the trust deed, or an
interest the grantor or a successor of the grantor created
voluntarily, is a tenant at sufferance. The purchaser may obtain
possession of the property from a tenant at sufferance by
following the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure.
(b) Except as provided in paragraph (c) of this subsection, at
any time after the trustee's sale the purchaser may follow the
procedures set forth in ORS 105.105 to 105.168 or other
applicable judicial procedure to obtain possession of the
property from a person that holds possession under an interest
that the grantor or a successor of the grantor created
voluntarily if, not earlier than 30 days before the date first
set for the sale, the person was served with not less than 30
days' written notice of the requirement to surrender or deliver
possession of the property.
(c) If the property purchased at the trustee's sale includes a
dwelling unit that is subject to ORS chapter 90 and an individual
occupies the unit under a bona fide tenancy, the purchaser may
obtain possession by following the procedures set forth in ORS
105.105 to 105.168 and by using the complaint form provided in
ORS 105.124 or 105.126:
(A) Upon expiration of the fixed term of the tenancy, if the
bona fide tenancy is a fixed term tenancy as defined in ORS
90.100; or
(B) At least 90 days after service of a written termination
notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser intends to occupy,
as the purchaser's primary residence, the dwelling unit that is
subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or week-to-week tenancy, as those
terms are defined in ORS 90.100.
(d) If a purchaser gives a 90-day written termination notice
pursuant to paragraph (c) of this subsection, the purchaser may
include in the notice a request that a tenant with a fixed term
tenancy provide written evidence of the existence of the tenancy
to the purchaser at an address described in the notice. Written
evidence includes a copy of the rental agreement or another
document that shows the existence of the fixed term tenancy.
Failure of the tenant to provide the requested written evidence
before the purchaser files an action for possession based on a
90-day notice:
(A) Does not prevent the tenant from asserting the existence of
the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering prevailing party
attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The 90-day notice must describe the
provisions of this paragraph.
(e) A purchaser may not commence a proceeding under ORS 105.105
to 105.168 that is authorized under this subsection before the
later of:
(A) The 10th day after the trustee's sale;
(B) The date specified in a written notice of the requirement
to surrender or deliver possession of the property if the notice
is required by and is given to the person in accordance with
paragraph (b) of this subsection;
(C) The date specified in a written notice of the purchaser's
intent to terminate a tenancy if the notice is required by and is
given to the person in accordance with paragraph (c) of this
subsection; or
(D) The date on which the term of a fixed term tenancy ends, if
the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
(f) A purchaser seeking to obtain possession pursuant to ORS
105.105 to 105.168 must attach proof of service of a written
termination notice required by paragraph (c) of this subsection
to the pleadings.
(g) In an action to obtain possession, violation of the
procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide
tenant seeking to retain possession.
(h) As used in this subsection, 'bona fide tenancy' means
tenancy of a dwelling unit that is subject to ORS chapter 90 that
results from an arm's-length transaction that occurred before the
date of a foreclosure sale in which:
(A) The mortgagor or the child, spouse or parent of the
mortgagor under the contract is not the tenant; and
(B) The rent required is not substantially less than fair
market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy.
(7) A purchaser shall serve a notice under subsection (6) of
this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the dwelling unit.
(c) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(8) If the notice under subsection (6) of this section is
served by mail pursuant to subsection (7)(b) of this section, the
minimum period for compliance must be extended by three days and
the notice must include the extension in the period stated in the
notice.
(9)(a) Notwithstanding the provisions of subsection (6)(c) of
this section and except as provided in paragraph (b) of this
subsection, the purchaser is not a landlord subject to the
provisions of ORS chapter 90 unless the purchaser:
(A) Accepts rent from the individual who possesses the property
under a tenancy described in subsection (6)(c) of this section;
(B) Enters into a new rental agreement with the individual who
possesses the property under a tenancy described in subsection
(6)(c) of this section; or
(C) Fails to terminate the tenancy as provided in subsection
(6)(c) of this section within 30 days after the date of the sale.
(b) The purchaser may act as a landlord for purposes of
terminating a tenancy in accordance with the provisions of ORS
90.396.
(c) The purchaser is subject to the provisions of ORS 90.322,
90.375, 105.165, 659A.421 and 659A.425. The application of ORS
90.375 to a purchaser that does not become a landlord does not
impose an affirmative duty to pay for or provide services. For
the purpose of damages pursuant to this paragraph, 'rent' refers
to the amount paid by the tenant to the landlord for the right to
occupy the unit before the foreclosure.
(10)(a) Except as provided in paragraph (b) of this subsection,
the purchaser is not liable to the individual who possesses the
property under a tenancy described in subsection (6)(c) of this
section for:
(A) Damage to the property or diminution in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under the provisions of
subsection (9)(a) of this section is liable to the individual who
possesses the property under a tenancy described in subsection
(6)(c) of this section for:
(A) Damage to the property or diminution in rental value that
occurs after the date of the trustee's sale; or
(B) Returning a security deposit the individual pays after the
date of the trustee's sale.
(11)(a) Except as provided in paragraph (b) of this subsection
and notwithstanding an agreement to the contrary, in an action or
defense arising pursuant to subsection (6)(c), (d), (f) or (g),
(7) or (9)(c) of this section, reasonable attorney fees at trial
and on appeal may be awarded to the prevailing party together
with costs and disbursements.
(b) If a tenant asserts a successful defense to an action for
possession pursuant to subsection (6)(c), (d), (f) or (g) of this
section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable cause to know, of
the existence of a fixed term tenancy when commencing the action
for possession; and
(B) Promptly dismissed the action upon becoming aware of the
existence of a fixed term tenancy.
(c) As used in this subsection, 'prevailing party' means the
party in whose favor final judgment is rendered.
(12)(a) Notwithstanding subsection (2) of this section, except
when a beneficiary has participated in obtaining a stay,
foreclosure proceedings that are stayed by order of the court, by
proceedings in bankruptcy or for any other lawful reason shall,
after release from the stay, continue as if uninterrupted, if
within 30 days after release the trustee sends amended notice of
sale by registered or certified mail to the last-known address of
the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
(A) By registered or certified mail to:
(i) The address provided by each person who was present at the
time and place set for the sale that was stayed; and
(ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
(13) The amended notice of sale must:
(a) Be given at least 20 days before the amended date of sale;
(b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 are satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS 86.745; and
(e) State that the original sale proceedings were stayed and
the date the stay terminated.
(14) If the publication of the notice of sale was not completed
before the date the foreclosure proceedings were stayed by order
of the court, by proceedings in bankruptcy or for any other
lawful reason, after release from the stay, in addition to
complying with the provisions of subsections (12) and (13) of
this section, the trustee shall complete the publication by
publishing an amended notice of sale that states that the notice
has been amended following release from the stay and that
contains the amended date of sale. The amended notice must be
published in a newspaper of general circulation in each of the
counties in which the property is situated once a week for four
successive weeks, except that the required number of publications
must be reduced by the number of publications that were completed
before the effective date of the stay. The last publication must
be made more than 20 days before the date the trustee conducts
the sale.
SECTION 10. ORS 86.755, as amended by section 7, chapter 510,
Oregon Laws 2011, is amended to read:
86.755. (1)(a) A trustee shall hold a trustee's sale on the
date and at the time and place designated in the notice of sale
given under ORS 86.740. The designated time of the trustee's sale
must be after 9 a.m. and before 4 p.m., based on the standard of
time set forth in ORS 187.110, and the designated place of the
trustee's sale must be in the county or one of the counties in
which the property is situated. Except as provided in paragraph
(b) of this subsection, the trustee may sell the property in one
parcel or in separate parcels and shall sell the parcel or
parcels at auction to the highest bidder for cash. Any person,
including the beneficiary under the trust deed, but excluding the
trustee, may bid at the trustee's sale. An attorney for the
trustee, or an agent that the trustee or the attorney designates,
may conduct the sale and act in the sale as the trustee's
auctioneer.
(b) If the trustee sells property upon which a single
residential unit that is subject to an affordable housing
covenant is situated, the eligible covenant holder may purchase
the property from the trustee at the trustee's sale for cash or
cash equivalent in an amount that is the lesser of:
(A) The sum of the amounts payable under ORS 86.765 (1) and
(2); or
(B) The highest bid received for the property other than a bid
from the eligible covenant holder.
(c)(A) Except as provided in subparagraph (B) of this
paragraph, if an eligible covenant holder purchases the property
in accordance with paragraph (b) of this subsection, the sale
forecloses and terminates all other interests in the property as
provided in ORS 86.770 (1).
(B) If an interest in the property exists that is prior to the
eligible covenant holder's interest, other than the interest set
forth in the trust deed that was the subject of the foreclosure
proceeding under ORS 86.735, notwithstanding the provisions of
ORS 86.770 (1) the sale does not foreclose and terminate the
prior interest and the eligible covenant holder's title to the
property is subject to the prior interest.
(2) { + (a) + } The trustee or the attorney for the trustee, or
an agent that the trustee or the attorney conducting the sale
designates, may postpone the sale for one or more periods that
total not more than 180 days from the original sale date, giving
notice of each { - adjournment - } { + postponement + } by
public proclamation made at the time and place set for sale. The
trustee, the attorney or an agent that the trustee or the
attorney designates may make the proclamation.
{ + (b) If a person postpones the sale date as provided in
paragraph (a) of this subsection, the trustee, in the manner
provided for service of the notice of sale under ORS 86.740 (1),
shall cause notice of the new time, date and place for the sale
to be served on the grantor and on any person to whom notice of
the sale was given under ORS 86.745. The notice must be given at
least 30 days before the new sale date. A failure to serve notice
under this paragraph is an unlawful practice under ORS 646.608
that is enforceable under ORS 646.632 and 646.638. + }
(3) The purchaser shall pay at the time of sale the price bid
or the price determined in accordance with subsection (1)(b) of
this section, and, within 10 days following payment, the trustee
shall execute and deliver the trustee's deed to the purchaser.
(4) The trustee's deed shall convey to the purchaser the
interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed,
together with any interest the grantor or the grantor's
successors in interest acquire after the execution of the trust
deed.
(5)(a) If property purchased at the trustee's sale includes one
or more dwelling units that are subject to ORS chapter 90, the
purchaser must provide written notice of change in ownership to
the occupants of each unit within 30 days after the date of sale
and before or concurrently with service of a written termination
notice authorized by subsection (6)(c)(B) of this section.
(b) The notice required by this subsection must:
(A) Explain that the dwelling unit has been sold at a
foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the foreclosure sale took place.
(C) Include the name, contact address and contact telephone
number of the purchaser or the purchaser's representative.
(D) Provide information about the rights of bona fide
residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) Include contact information for the Oregon State Bar and a
person or organization that provides legal help to individuals at
no charge to the individual.
(c) The notice must be served by one or more of the following
methods:
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the dwelling unit.
(C) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(D) If the names of the tenants are not known to the purchaser,
the notice may be addressed to 'occupants. '
(d) A notice that contains the information required under
paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is
in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS OF
CHANGE IN OWNERSHIP
The property in which you are living has gone through
foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner's
representative is ____________________ (name, address, telephone
number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS PROPERTY AS A
RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o 60 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION
NOTICE, IF YOU HAVE A FIXED TERM LEASE; OR
o AT LEAST 30 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN
TERMINATION NOTICE, IF YOU HAVE A MONTH-TO-MONTH OR WEEK-TO- WEEK
RENTAL AGREEMENT.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after 30 days, even though you have a
fixed term lease with more than 30 days left.
You must be provided with at least 30 days' written notice
after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE OWNER'S REPRESENTATIVE
AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE TO LET
THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD
PROVIDE WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL
AGREEMENT, ESPECIALLY IF YOU HAVE A FIXED TERM RENTAL AGREEMENT
OR LEASE WITH MORE THAN 30 DAYS LEFT. Written evidence of your
rental agreement can be a copy of your lease or rental agreement,
or other documentation of the existence of your rental agreement.
Keep your original documents and a record of any information you
give to the new owner.
YOUR TENANCY
BETWEEN NOW
AND THE MOVE-OUT DATE
The new owner may be willing to allow you to stay as a tenant
instead of requiring you to move out after 30 or 60 days. You
should contact the new owner if you would like to stay. If the
new owner accepts rent from you, signs a new residential rental
agreement with you or does not notify you in writing within 30
days after the date of the foreclosure sale that you must move
out, the new owner becomes your new landlord and must maintain
the property. Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than 30 or 60
days. You should speak with a lawyer to fully understand your
rights before making any decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
assistance, contact the Oregon State Bar and ask for the lawyer
referral service. Contact information for the Oregon State Bar is
included with this notice. If you do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice.
_________________________________________________________________
(6)(a) Except as provided in paragraph (b) or (c) of this
subsection, the purchaser at the trustee's sale is entitled to
possession of the property on the 10th day after the sale. A
person that remains in possession after the 10th day under any
interest, except an interest prior to the trust deed, or an
interest the grantor or a successor of the grantor created
voluntarily, is a tenant at sufferance. The purchaser may obtain
possession of the property from a tenant at sufferance by
following the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure.
(b) Except as provided in paragraph (c) of this subsection, at
any time after the trustee's sale the purchaser may follow the
procedures set forth in ORS 105.105 to 105.168 or other
applicable judicial procedure to obtain possession of the
property from a person that holds possession under an interest
that the grantor or a successor of the grantor created
voluntarily if, not earlier than 30 days before the date first
set for the sale, the person was served with not less than 30
days' written notice of the requirement to surrender or deliver
possession of the property.
(c) If the property purchased at the trustee's sale includes a
dwelling unit that is subject to ORS chapter 90 and an individual
occupies the unit under a bona fide tenancy, the purchaser may
obtain possession by following the procedures set forth in ORS
105.105 to 105.168 and by using the complaint form provided in
ORS 105.124 or 105.126:
(A) At least 60 days after service of a written termination
notice, if the bona fide tenancy is a fixed term tenancy as
defined in ORS 90.100; or
(B) At least 30 days after service of a written termination
notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser intends to occupy,
as the purchaser's primary residence, the dwelling unit that is
subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or week-to-week tenancy, as those
terms are defined in ORS 90.100.
(d) If a purchaser gives a 30-day written termination notice
pursuant to paragraph (c) of this subsection, the purchaser may
include in the notice a request that a tenant with a fixed term
tenancy provide written evidence of the existence of the tenancy
to the purchaser at an address described in the notice. Written
evidence includes a copy of the rental agreement or another
document that shows the existence of the fixed term tenancy.
Failure of the tenant to provide the requested written evidence
before the purchaser files an action for possession based on a
30-day notice:
(A) Does not prevent the tenant from asserting the existence of
the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering prevailing party
attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The 30-day notice must describe the
provisions of this paragraph.
(e) A purchaser may not commence a proceeding under ORS 105.105
to 105.168 that is authorized under this subsection before the
later of:
(A) The 10th day after the trustee's sale;
(B) The date specified in a written notice of the requirement
to surrender or deliver possession of the property if the notice
is required by and is given to the person in accordance with
paragraph (b) of this subsection;
(C) The date specified in a written notice of the purchaser's
intent to terminate a tenancy if the notice is required by and is
given to the person in accordance with paragraph (c) of this
subsection; or
(D) The date on which the term of a fixed term tenancy ends, if
the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
(f) A purchaser seeking to obtain possession pursuant to ORS
105.105 to 105.168 must attach proof of service of a written
termination notice required by paragraph (c) of this subsection
to the pleadings.
(g) In an action to obtain possession, violation of the
procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide
tenant seeking to retain possession.
(h) As used in this subsection, 'bona fide tenancy' means
tenancy of a dwelling unit that is subject to ORS chapter 90 that
results from an arm's-length transaction that occurred before the
date of a foreclosure sale in which:
(A) The mortgagor or the child, spouse or parent of the
mortgagor under the contract is not the tenant; and
(B) The rent required is not substantially less than fair
market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy.
(7) A purchaser shall serve a notice under subsection (6) of
this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the dwelling unit.
(c) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(8) If the notice under subsection (6) of this section is
served by mail pursuant to subsection (7)(b) of this section, the
minimum period for compliance must be extended by three days and
the notice must include the extension in the period stated in the
notice.
(9)(a) Notwithstanding the provisions of subsection (6)(c) of
this section and except as provided in paragraph (b) of this
subsection, the purchaser is not a landlord subject to the
provisions of ORS chapter 90 unless the purchaser:
(A) Accepts rent from the individual who possesses the property
under a tenancy described in subsection (6)(c) of this section;
(B) Enters into a new rental agreement with the individual who
possesses the property under a tenancy described in subsection
(6)(c) of this section; or
(C) Fails to terminate the tenancy as provided in subsection
(6)(c) of this section within 30 days after the date of the sale.
(b) The purchaser may act as a landlord for purposes of
terminating a tenancy in accordance with the provisions of ORS
90.396.
(c) The purchaser is subject to the provisions of ORS 90.322,
90.375, 105.165, 659A.421 and 659A.425. The application of ORS
90.375 to a purchaser that does not become a landlord does not
impose an affirmative duty to pay for or provide services. For
the purpose of damages pursuant to this paragraph, 'rent' refers
to the amount paid by the tenant to the landlord for the right to
occupy the unit before the foreclosure.
(10)(a) Except as provided in paragraph (b) of this subsection,
the purchaser is not liable to the individual who possesses the
property under a tenancy described in subsection (6)(c) of this
section for:
(A) Damage to the property or diminution in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under the provisions of
subsection (9)(a) of this section is liable to the individual who
possesses the property under a tenancy described in subsection
(6)(c) of this section for:
(A) Damage to the property or diminution in rental value that
occurs after the date of the trustee's sale; or
(B) Returning a security deposit the individual pays after the
date of the trustee's sale.
(11)(a) Except as provided in paragraph (b) of this subsection
and notwithstanding an agreement to the contrary, in an action or
defense arising pursuant to subsection (6)(c), (d), (f) or (g),
(7) or (9)(c) of this section, reasonable attorney fees at trial
and on appeal may be awarded to the prevailing party together
with costs and disbursements.
(b) If a tenant asserts a successful defense to an action for
possession pursuant to subsection (6)(c), (d), (f) or (g) of this
section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable cause to know, of
the existence of a fixed term tenancy when commencing the action
for possession; and
(B) Promptly dismissed the action upon becoming aware of the
existence of a fixed term tenancy.
(c) As used in this subsection, 'prevailing party' means the
party in whose favor final judgment is rendered.
(12)(a) Notwithstanding subsection (2) of this section, except
when a beneficiary has participated in obtaining a stay,
foreclosure proceedings that are stayed by order of the court, by
proceedings in bankruptcy or for any other lawful reason shall,
after release from the stay, continue as if uninterrupted, if
within 30 days after release the trustee sends amended notice of
sale by registered or certified mail to the last-known address of
the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
(A) By registered or certified mail to:
(i) The address provided by each person who was present at the
time and place set for the sale that was stayed; and
(ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
(13) The amended notice of sale must:
(a) Be given at least 20 days before the amended date of sale;
(b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 are satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS 86.745; and
(e) State that the original sale proceedings were stayed and
the date the stay terminated.
(14) If the publication of the notice of sale was not completed
before the date the foreclosure proceedings were stayed by order
of the court, by proceedings in bankruptcy or for any other
lawful reason, after release from the stay, in addition to
complying with the provisions of subsections (12) and (13) of
this section, the trustee shall complete the publication by
publishing an amended notice of sale that states that the notice
has been amended following release from the stay and that
contains the amended date of sale. The amended notice must be
published in a newspaper of general circulation in each of the
counties in which the property is situated once a week for four
successive weeks, except that the required number of publications
must be reduced by the number of publications that were completed
before the effective date of the stay. The last publication must
be made more than 20 days before the date the trustee conducts
the sale.
SECTION 11. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
(rrr) Violates ORS 646A.092.
(sss) Violates a provision of ORS 646.644.
(ttt) Violates a provision of ORS 646A.295.
{ + (uuu) Violates ORS 86.755 (2)(b) or fails to comply with
a provision of section 2 (2), (4), (5) or (7) of this 2012
Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(xx)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
SECTION 12. { + Sections 2, 3 and 4 of this 2012 Act and the
amendments to ORS 86.705, 86.735, 86.740, 86.742, 86.755 and
646.608 by sections 5 to 11 of this 2012 Act apply to requests
for mediation that a grantor sends and notices of sale and
mediation that a trustee or beneficiary or an agent of a trustee
or beneficiary sends on or after the effective date of this 2012
Act. + }
SECTION 13. { + This 2012 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2012 Act takes effect on
its passage. + }
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