Bill Text: OR SB481 | 2011 | Regular Session | Introduced
Bill Title: Relating to procedures required for a trustee's sale; prescribing an effective date.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB481 Detail]
Download: Oregon-2011-SB481-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 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 1487
Senate Bill 481
Sponsored by Senator BONAMICI (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires notice of trustee's sale to be sent to tenant of
grantor in trust deed under certain circumstances.
Includes tenant of grantor as person that may cure default and
requires trustee to provide tenant with information necessary to
effect cure.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to procedures required for a trustee's sale; creating
new provisions; amending ORS 86.740 and 86.753; and prescribing
an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.740 is amended to read:
86.740. (1) 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 - }
{ + 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, 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 - } { + A + } 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 - } { + A + } person, including the Department
of Revenue or any other 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) A person that is a tenant of the grantor, if the
person notifies the trustee or beneficiary of the existence of a
lease or if the trustee or beneficiary has actual notice that the
person occupies the property and is or may be a tenant of the
grantor. + }
{ - (d) - } { + (e) + } { - Any - } { + A + } person
{ - requesting - } { + that requests + } notice as provided in
ORS 86.785.
(2) A notice served by mail under subsection (1) of this
section is effective when the notice is mailed.
(3)(a) The disability, insanity or death of { - any - } { +
a + } person to whom notice of sale 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 - } { +
before + } the recording of notice of default, the notice
{ - shall - } { + 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 must be given under this
section occurs on or after the recording of notice of default,
the trustee shall, if and when the trustee has knowledge of the
disability, insanity or death, promptly give the guardian,
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 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 under this section,
the notice 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.
SECTION 2. ORS 86.753 is amended to read:
86.753. (1) { - Where - } { + If + } a trustee has
commenced foreclosure of a trust deed by advertisement and sale,
the grantor, the grantor's successor in interest to all or any
part of the trust property,
{ - any - } { + a + } beneficiary under a subordinate trust
deed, { - or any - } { + a + } person { - having - } { +
that has + } a subordinate lien or encumbrance of record on the
property { + or a person that is a tenant of the grantor + }
{ - , - } may cure the default or defaults at any time prior to
five days before the date last set for the sale. If the default
consists of { - a failure - } { + failing + } to pay, when
due, sums secured by the trust deed, the default may be cured by
paying the entire amount due at the time of cure under the terms
of the obligation, other than { - such - } { + a + } portion
{ - as - } { + that + } would not then be due { - had - }
{ + if a + } { - no - } default { + had not + }
occurred. { + The trustee shall provide a person that is
identified in this subsection and that intends to effect a cure
with the information necessary to effect the cure including, but
not limited to, the sums, costs and expenses due as of the date
of the intended cure. + } Any other default of the trust deed
obligation that is capable of being cured may be cured by
tendering the performance required under the obligation or trust
deed. In any case, and in addition to paying the sums or
tendering the performance necessary to cure the default, the
person effecting the cure shall pay to the beneficiary all costs
and expenses actually incurred in enforcing the obligation and
trust deed, together with trustee's and attorney fees in the
amount of:
(a) A total of $1,000 for both trustee's fees and attorney
fees, or the amount actually charged by the trustee and attorney,
whichever is less, if the trust deed is a residential trust deed;
or
(b) Reasonable attorney fees and trustee's fees actually
charged by the trustee and attorney if the trust deed is not a
residential trust deed. { - Any - } { + A + } person entitled
to cure the default may, either before or after reinstatement,
request { - any - } { + a + } court of competent jurisdiction
to determine the reasonableness of the fee demanded or paid as a
condition of reinstatement. The court may award attorney fees to
the prevailing party. An action to determine reasonable attorney
fees or trustee's fees under this section { - shall - } { +
does + } not forestall { - any - } { + a + } sale or affect
{ - its - } { + the + } validity { + of a sale + }.
(2) After cure of the default under subsection (1) of this
section, { - all - } { + the trustee shall dismiss + }
proceedings under ORS 86.740 to 86.755 { - shall be dismissed
by the trustee, - } and { + reinstate + } the obligation and
trust deed { + , which + } { - shall be reinstated and
shall - } { + will + } remain in force { - the same - } as
if { - no - } { + an + } acceleration had { + not + }
occurred.
SECTION 3. { + The amendments to ORS 86.740 and 86.753 by
sections 1 and 2 of this 2011 Act apply to trustee's sales that
are scheduled to occur on or after the effective date of this
2011 Act. + }
SECTION 4. { + This 2011 Act takes effect on the 91st day
after the date on which the 2011 session of the Seventy-sixth
Legislative Assembly adjourns sine die. + }
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