Bill Text: OR SB1564 | 2012 | Regular Session | Engrossed
Bill Title: Relating to notice requirements for sale of property subject to a trust deed; declaring an emergency.
Spectrum: Strong Partisan Bill (Democrat 14-1)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [SB1564 Detail]
Download: Oregon-2012-SB1564-Engrossed.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 188
Minority Report
A-Engrossed
Senate Bill 1564
Ordered by the Senate February 14
Including Senate Minority Report Amendments dated February 14
Sponsored by nonconcurring members of the Senate Committee on
General Government, Consumer and Small Business Protection:
Senators BOQUIST, GEORGE
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.
Requires beneficiary to determine whether grantor qualifies for
foreclosure avoidance measure or has not complied with terms of
foreclosure avoidance measure to which grantor agreed. Requires
beneficiary or beneficiary's agent to serve grantor with notice
that explains basis for beneficiary's determination before
trustee may conduct trustee's sale. Requires beneficiary or
beneficiary's agent to record affidavit stating that beneficiary
has complied with requirements to make determination and to
notify grantor. Requires beneficiary or beneficiary's agent to
mail copy of notice and affidavit to Department of Justice.
Requires trustee to serve grantor and certain other persons
with notice if trustee postpones trustee's sale.
{ - Provides that violation of certain provisions of Act are
unlawful practices enforceable under unlawful trade practices
law. - }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to notice requirements for sale of property subject to a
trust deed; creating new provisions; amending ORS 86.705,
86.735 and 86.755; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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) '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. + }
{ - (4) - } { + (5) + } 'Grantor' means the person that
conveys an interest in real property by a trust deed as security
for the performance of an obligation.
{ - (5) - } { + (6) + } '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) - } { + (7) + } 'Residential unit' means an
improvement designed for residential use.
{ - (7) - } { + (8) + } '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) - } { + (9) + } '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 2. 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)(a) The beneficiary or the beneficiary's agent has
complied with the provisions of section 6 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
grantor have agreed; 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 3. 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 as provided in
paragraph (a) of this subsection, the trustee, in the manner
provided for service of the notice of the 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. + }
(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 4. 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 as provided in
paragraph (a) of this subsection, the trustee, in the manner
provided for service of the notice of the 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. + }
(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 5. { + Section 6 of this 2012 Act is added to and made
a part of ORS 86.705 to 86.795. + }
SECTION 6. { + (1)(a) If the beneficiary determines that the
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. + }
SECTION 7. { + Section 6 of this 2012 Act and the amendments
to ORS 86.705, 86.735 and 86.755 by sections 1 to 4 of this 2012
Act apply to notices of sale sent on or after the effective date
of this 2012 Act. + }
SECTION 8. { + 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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