Bill Text: OR SB1552 | 2012 | Regular Session | Engrossed

Oregon Senate Bill 1552 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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-Engrossed.html



     76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session

HA to A-Eng. SB 1552

LC 238/SB 1552-A25

                       HOUSE AMENDMENTS TO
                  A-ENGROSSED SENATE BILL 1552

                      By COMMITTEE ON RULES

                             March 5

                               + }
  On page 1 of the printed A-engrossed bill, line 5, delete '3
and 4' and insert '2a, 3, 4 and 4a'.
  In line 7, delete 'section 3' and insert 'sections 3 and 4a'.
  On page 2, line 11, after the period insert '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.'.
  In line 12, after 'apply' insert a colon and delete the rest of
the line and delete lines 13 through 19 and insert:
  ' (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.'.
  In line 29, delete '15' and insert '30'.
  Delete lines 42 and 43 and insert:
  ' (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:'.
  On page 4, line 6, delete '10' and insert '15'.
  After line 22, insert:
  '  { +  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 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. + } ' .
  On page 5, delete lines 21 through 27 and insert:
  ' (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
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. + }
' .
  In line 40, delete the boldfaced material and insert ' default
that results in an action to foreclose the obligation secured by
the trust deed first occurs'.
  On page 6, line 21, delete 'and'.
  After line 21, insert:
  ' (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'.
  In line 22, delete '(5)' and insert '(6)'.
  In line 36, delete 'Except as provided in paragraph (b) of this
subsection,'.
  Delete lines 41 through 45 and insert:
  ' (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.'.
  On page 7, delete line 1.
  On page 9, line 23, before 'notice' insert 'written'.
  In line 25, delete '30' and insert '15' and after the period
insert '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.'.
  On page 15, line 23, before 'notice' insert 'written'.
  In line 25, delete '30' and insert '15' and after the period
insert '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.'.
  On page 20, line 36, delete '3 and 4' and insert '2a, 3, 4 and
4a'.
  In line 42, delete '3 and 4' and insert '2a, 3, 4 and 4a'.
  In line 44, delete '3 and 4' and insert '2a, 3, 4 and 4a'.
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