Bill Text: OR SB1552 | 2012 | Regular Session | Enrolled
Bill Title: Relating to foreclosures of residential trust deeds; appropriating money; and declaring an emergency.
Spectrum: Moderate Partisan Bill (Democrat 41-7)
Status: (Passed) 2012-04-12 - Effective date, April 11, 2012. [SB1552 Detail]
Download: Oregon-2012-SB1552-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
Enrolled
Senate Bill 1552
Sponsored by Senators BEYER, BATES, BOQUIST, Representatives
GARRETT, HOLVEY, KOTEK, WHISNANT; Senators ATKINSON, COURTNEY,
DEVLIN, DINGFELDER, EDWARDS, HASS, JOHNSON, MONNES ANDERSON,
PROZANSKI, ROSENBAUM, SHIELDS, STEINER HAYWARD, TELFER, VERGER,
Representatives BAILEY, BARKER, BARNHART, BEYER, BOONE,
BUCKLEY, CLEM, COWAN, DEMBROW, DOHERTY, FREDERICK, GELSER,
GREENLICK, HARKER, HUNT, KENY-GUYER, KOMP, MATTHEWS, NATHANSON,
PARRISH, READ, ROBLAN, SHEEHAN, J SMITH, TOMEI, WAND, WITT
(Presession filed.)
CHAPTER ................
AN ACT
Relating to foreclosures of residential trust deeds; creating new
provisions; amending ORS 86.705, 86.735, 86.740, 86.742 and
86.755; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 2a, 3, 4 and 4a 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 sections 3 and
4a 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 shall:
(A) Appoint a mediation service provider to coordinate a
mediation program and shall enter into an agreement to pay the
mediation service provider for the mediation service provider's
services from the Foreclosure Avoidance Mediation Fund
established in section 4 of this 2012 Act. The appointment and
the agreement are not subject to ORS chapter 279A or 279B.
(B) Prescribe qualifications, training and experience
requirements for mediators by rule.
Enrolled Senate Bill 1552 (SB 1552-B) Page 1
(C) Set the schedule of fees 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. The mediator may waive the grantor's portion of the
fee in accordance with rules that the Attorney General adopts to
describe circumstances that permit a waiver.
(d) The requirement to enter into mediation with a grantor does
not apply:
(A) To an individual, a financial institution, as defined in
ORS 706.008, a mortgage banker, as defined in ORS 86A.100, or a
licensee, as defined in ORS 725.010, if the individual, financial
institution, mortgage banker or licensee provides to the Attorney
General a sworn affidavit that states that during the preceding
calendar year the individual, financial institution, mortgage
banker or licensee did not commence or cause an affiliate or
agent of the individual, financial institution, mortgage banker
or licensee to commence 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. An individual, financial institution, mortgage banker or
licensee that intends to claim an exemption under this
subparagraph shall file the affidavit either:
(i) Within 30 days after the operative date specified in
section 11 of this 2012 Act to claim the exemption for calendar
year 2012 and not later than January 31 in any subsequent
calendar year in which the individual, financial institution,
mortgage banker or licensee intends to claim the exemption; or
(ii) At the time the individual, financial institution,
mortgage banker or licensee files a notice of default under ORS
86.735.
(B) 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 30 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.
Enrolled Senate Bill 1552 (SB 1552-B) Page 2
(b) The beneficiary or the beneficiary's agent must appear in
person at the location of the mediation unless the mediator
permits the beneficiary or the beneficiary's agent to appear in
another manner for good cause shown. The fact that a beneficiary
or beneficiary's agent is located outside this state does not
alone constitute good cause for the purposes of this paragraph.
The beneficiary or the beneficiary's agent must appear at 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 enter
into mediation in accordance with mediation guidelines the
Attorney General establishes by rule.
(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, if the beneficiary
has complied with the requirements of subsections (4) and (5) of
Enrolled Senate Bill 1552 (SB 1552-B) Page 3
this section, 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 15 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. + }
SECTION 2a. { + (1)(a) Except as provided in subsection (3) of
this section, a grantor that confirms under section 2 (3)(c) of
this 2012 Act that the grantor will enter into mediation shall
consult a housing counselor approved by the United States
Department of Housing and Urban Development before the scheduled
date of the mediation.
(b) If, after consulting with the housing counselor, the
grantor decides not to enter into mediation, the grantor shall
notify the mediation service provider that sent the notice under
section 2 (3) of this 2012 Act that the grantor no longer intends
to enter into mediation. The housing counselor shall inform the
grantor of the requirement under this paragraph to notify the
mediation service provider. The mediation service provider shall
notify the beneficiary or the beneficiary's agent of the
grantor's decision.
(2) The notice of mediation described in section 3 of this 2012
Act must include a statement that informs the grantor that the
Enrolled Senate Bill 1552 (SB 1552-B) Page 4
grantor must consult a housing counselor in accordance with
subsection (1) of this section. The statement must also notify
the grantor that the requirement to consult a housing counselor
is subject to the provisions of subsection (3) of this section.
(3) The requirement under subsection (1) of this section to
consult a housing counselor does not apply to a grantor that
could not obtain an appointment to consult a housing counselor
within 30 days after receiving the notice described in subsection
(2) of this section. A grantor that intends to claim the
exemption provided under this subsection shall obtain from the
mediation service provider and sign an affidavit that attests
that the grantor could not obtain an appointment to consult a
housing counselor within the 30-day period. The Attorney General
by rule shall prescribe the form and contents of the
affidavit. + }
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 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
Enrolled Senate Bill 1552 (SB 1552-B) Page 5
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) An individual, a financial institution, as defined in ORS
706.008, a mortgage banker, as defined in ORS 86A.100, or a
licensee, as defined in ORS 725.010, is not subject to the $100
charge described in paragraph (a) of this subsection if the
individual, financial institution, mortgage banker or licensee
provides to the county clerk a sworn affidavit that states that
during the preceding calendar year the individual, financial
institution, mortgage banker or licensee did not commence or
cause an affiliate or agent of the individual, financial
institution, mortgage banker or licensee to commence 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. An individual, financial institution,
mortgage banker or licensee that intends to claim an exemption
under this paragraph shall provide the affidavit either:
(A) Within 30 days after the operative date specified in
section 11 of this 2012 Act to claim the exemption for calendar
year 2012 and not later than January 31 in any subsequent
calendar year in which the individual, financial institution,
mortgage banker or licensee intends to claim the exemption; or
(B) At the time the individual, financial institution, mortgage
banker or licensee files a notice of default under ORS
86.735. + }
SECTION 4a. { + (1)(a) If a beneficiary determines that a
grantor is not eligible for any foreclosure avoidance measure or
that the grantor has not complied with the terms of a foreclosure
avoidance measure to which the grantor has agreed, the
beneficiary or the beneficiary's agent, at least 30 days before
the date specified for the trustee's sale in a notice served
under ORS 86.740 or 86.755 (2)(b), shall notify the grantor in
writing of the beneficiary's determination and shall cause the
notice to be served as provided in ORS 86.740 (1).
(b) The notice must in plain language explain the basis for the
beneficiary's determination.
(2) The beneficiary or the beneficiary's agent shall mail a
copy of the notice of the determination described in subsection
(1) of this section to the Department of Justice on the same date
on which the notice is served.
(3)(a) At least 20 days before the date specified for the
trustee's sale in a notice served under ORS 86.740 or 86.755
(2)(b), the beneficiary or the beneficiary's agent shall:
(A) Record in the mortgage records for the property that is
subject to the trustee's sale, in the county or in one of the
counties in which the property is located, an affidavit that
Enrolled Senate Bill 1552 (SB 1552-B) Page 6
states that the beneficiary has complied with the requirements
set forth in subsections (1) and (2) of this section; and
(B) Mail a copy of the affidavit to the department.
(b) The affidavit described in paragraph (a) of this subsection
must:
(A) Identify the property that is the subject of the trustee's
sale;
(B) Identify the grantor and, as of the date of the affidavit,
the trustee and the beneficiary;
(C) State that the beneficiary or beneficiary's agent has
complied with the requirements set forth in subsections (1) and
(2) of this section; and
(D) Include proof of service on the grantor for the notice
described in subsection (1) of this section.
(4) The Attorney General by rule shall specify a form for and
the contents of the notice of the determination described in
subsection (1) of this section and shall identify an address to
which the beneficiary or beneficiary's agent must mail the copy
of the notice under subsection (2) of this section and the
affidavit under subsection (3) of this section.
(5)(a) A beneficiary or an agent of the beneficiary that fails
to comply with the provisions of this section is liable to the
grantor in the amount of $500 plus the amount of the grantor's
actual damages for each failure to comply with a provision of
this section.
(b) A grantor may bring an action against a beneficiary or an
agent of the beneficiary in a circuit court of this state to
recover the amounts described in paragraph (a) of this
subsection. The grantor shall commence the action within two
years after the date on which the beneficiary or the
beneficiary's agent should have complied, but did not comply,
with the provisions of this section.
(c) Notwithstanding an agreement to the contrary, a court may
award reasonable attorney fees, costs and disbursements to a
grantor that obtains a final judgment in the grantor's favor. + }
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 that
results in an action to foreclose 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
Enrolled Senate Bill 1552 (SB 1552-B) Page 7
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, if the beneficiary
must enter into mediation with the grantor under section 2 (2)(a)
of this 2012 Act;
(5)(a) The beneficiary or the beneficiary's agent has complied
with the provisions of section 4a of this 2012 Act; and
(b) The grantor is not in compliance with the terms of a
foreclosure avoidance measure upon which the beneficiary and the
grantor have agreed; and + }
{ - (4) - } { + (6) + } { - 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 + }.
Enrolled Senate Bill 1552 (SB 1552-B) Page 8
(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) + } 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 and the beneficiary in the trust deed must enter into
mediation with the grantor under section 2 (2)(a) of this 2012
Act, a separate notice of mediation, in the form and with the
contents described in section 3 of this 2012 Act, must be served
or mailed in the manner provided in paragraph (a) of this
subsection at least 60 days before the notice of sale described
in paragraph (a) of this subsection is served or mailed.
(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 that the Attorney
General appoints 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
Enrolled Senate Bill 1552 (SB 1552-B) Page 9
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).
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(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.
Enrolled Senate Bill 1552 (SB 1552-B) Page 11
(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 written 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 15 days before the new sale date. The person may
postpone the sale once, for not more than two calendar days,
without giving notice as provided in this paragraph. The person
may not postpone the sale for more than two calendar days or more
than once without giving notice as provided in this
paragraph. + }
(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:
Enrolled Senate Bill 1552 (SB 1552-B) Page 12
(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
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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
Enrolled Senate Bill 1552 (SB 1552-B) Page 14
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
Enrolled Senate Bill 1552 (SB 1552-B) Page 15
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
Enrolled Senate Bill 1552 (SB 1552-B) Page 16
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
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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 written 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 15 days before the new sale date. The person may
postpone the sale once, for not more than two calendar days,
without giving notice as provided in this paragraph. The person
may not postpone the sale for more than two calendar days or more
than once without giving notice as provided in this
paragraph. + }
Enrolled Senate Bill 1552 (SB 1552-B) Page 18
(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.
Enrolled Senate Bill 1552 (SB 1552-B) Page 19
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.
_________________________________________________________________
Enrolled Senate Bill 1552 (SB 1552-B) Page 20
(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;
Enrolled Senate Bill 1552 (SB 1552-B) Page 21
(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.
Enrolled Senate Bill 1552 (SB 1552-B) Page 22
(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;
Enrolled Senate Bill 1552 (SB 1552-B) Page 23
(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. { + (1) Sections 2, 2a, 3, 4 and 4a of this 2012
Act and the amendments to ORS 86.705, 86.735, 86.740, 86.742 and
86.755 by sections 5 to 9 of this 2012 Act become operative 91
days after the effective date of this 2012 Act.
(2) The Attorney General may take any action before the
operative date specified in subsection (1) of this section that
is necessary to enable the Attorney General to exercise, on and
after the operative date specified in subsection (1) of this
section, all of the duties, functions and powers conferred on the
Attorney General by sections 2, 2a, 3, 4 and 4a of this 2012 Act
and the amendments to ORS 86.740 by section 7 of this 2012
Act. + }
SECTION 12. { + Sections 2, 2a, 3, 4 and 4a of this 2012 Act
and the amendments to ORS 86.705, 86.735, 86.740, 86.742 and
86.755 by sections 5 to 10 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 the trustee or
beneficiary sends on or after the operative date specified in
section 11 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. + }
----------
Enrolled Senate Bill 1552 (SB 1552-B) Page 24
Passed by Senate February 16, 2012
Repassed by Senate March 5, 2012
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House March 5, 2012
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 1552 (SB 1552-B) Page 25
Received by Governor:
......M.,............., 2012
Approved:
......M.,............., 2012
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2012
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 1552 (SB 1552-B) Page 26
