Bill Text: OR SB484 | 2011 | Regular Session | Introduced
Bill Title: Relating to documentation requirements for foreclosures; declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB484 Detail]
Download: Oregon-2011-SB484-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 1981
Senate Bill 484
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 sale in trust deed foreclosure to include
documentation that establishes beneficiary or beneficiary's agent
as real party in interest with respect to loan to be foreclosed.
Requires documentation to consist of true copy of original debt
instrument and evidence of chain of title from date of original
loan to date of notice of sale.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to documentation requirements for foreclosures; creating
new provisions; amending ORS 86.745 and 86.750; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.745, as amended by sections 1 and 2, chapter
28, Oregon Laws 2010, is amended to read:
86.745. The notice of sale shall:
(1) List the names of the grantor, trustee and beneficiary in
the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed covers.
(3) Identify the book and page of the mortgage records that
record the trust deed.
{ + (4) Include documentation as an attachment that
establishes that the beneficiary or the beneficiary's agent is
the real party in interest with respect to the loan. The
documentation must consist of:
(a) A true copy of the original debt instrument that is the
basis for the claimed right to foreclose the residential trust
deed; and
(b) Evidence of the chain of title, including conveyances,
endorsements and assignments of the residential trust deed, note
and security instrument, from the date of the original loan on
which the beneficiary seeks to foreclose to the date of the
notice of sale. + }
{ - (4) - } { + (5) + } State the default for which the
foreclosure is made.
{ - (5) - } { + (6) + } State the sum owing on the
obligation that the trust deed secures.
{ - (6) - } { + (7) + } State that the property will be
sold to satisfy the obligation.
{ - (7) - } { + (8) + } Set forth the date, time and place
of the sale.
{ - (8) - } { + (9) + } State that the right exists under
ORS 86.753 to have the proceeding dismissed and the trust deed
reinstated by paying the entire amount then due, together with
costs, trustee's fees and attorney fees, and by curing any other
default complained of in the notice of default, at any time that
is not later than five days before the date last set for the
sale.
{ - (9) - } { + (10) + } If the property includes one or
more dwelling units, as defined in ORS 90.100, include a notice
addressed clearly to any person who occupies the property and who
is or might be a residential tenant. The notice required under
this subsection must:
(a) 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;
(b) Include information concerning the right the person has to
notice under ORS 86.755 (5)(c) and state that the person may have
additional rights under federal law;
(c) Be set apart from other text in the notice of sale; and
(d) Be in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS
The property in which you are living is in foreclosure. A
foreclosure sale is scheduled for ________. Unless the lender who
is foreclosing on this property is paid, the foreclosure will go
through and someone new will own this property.
The following information applies to you only if you occupy and
rent this property as a residential dwelling under a legitimate
rental agreement. The information does not apply to you if you
own this property or if you are not a residential tenant.
If the foreclosure goes through, the business or individual who
buys this property at the foreclosure sale has the right to
require you to move out. The buyer must first give you an
eviction notice in writing that specifies the date by which you
must move out. The buyer may not give you this notice until after
the foreclosure sale happens. If you do not leave before the
move-out date, the buyer can have the sheriff remove you from the
property after a court hearing. You will receive notice of the
court hearing.
FEDERAL LAW REQUIRES
YOU TO BE NOTIFIED
IF YOU ARE OCCUPYING AND RENTING THIS PROPERTY AS A RESIDENTIAL
DWELLING UNDER A LEGITIMATE RENTAL AGREEMENT, FEDERAL LAW
REQUIRES THE BUYER TO GIVE YOU NOTICE IN WRITING A CERTAIN NUMBER
OF DAYS BEFORE THE BUYER CAN REQUIRE YOU TO MOVE OUT. THE FEDERAL
LAW THAT REQUIRES THE BUYER TO GIVE YOU THIS NOTICE IS EFFECTIVE
UNTIL DECEMBER 31, 2012. Under federal law, the buyer must give
you at least 90 days' notice in writing before requiring you to
move out. If you are renting this property under a fixed-term
lease (for example, a six-month or one-year lease), you may stay
until the end of your lease term. If the buyer wants to move in
and use this property as the buyer's primary residence, the buyer
can give you written notice and require you to move out after 90
days, even if you have a fixed-term lease with more than 90 days
left.
STATE LAW NOTIFICATION REQUIREMENTS
IF THE FEDERAL LAW DOES NOT APPLY, STATE LAW STILL REQUIRES THE
BUYER TO GIVE YOU NOTICE IN WRITING BEFORE REQUIRING YOU TO MOVE
OUT IF YOU ARE OCCUPYING AND RENTING THE PROPERTY AS A TENANT IN
GOOD FAITH. EVEN IF THE FEDERAL LAW REQUIREMENT IS NO LONGER
EFFECTIVE AFTER DECEMBER 31, 2012, THE REQUIREMENT UNDER STATE
LAW STILL APPLIES TO YOUR SITUATION. Under state law, if you have
a fixed-term lease (for example, a six-month or one-year lease),
the buyer must give you at least 60 days' notice in writing
before requiring you to move out. If the buyer wants to move in
and use this property as the buyer's primary residence, the buyer
can give you written notice and require you to move out after 30
days, even if you have a fixed-term lease with more than 30 days
left.
If you are renting under a month-to-month or week-to-week
rental agreement, the buyer must give you at least 30 days'
notice in writing before requiring you to move out.
IMPORTANT: For the buyer to be required to give you notice
under state law, you must prove to the business or individual who
is handling the foreclosure sale that you are occupying and
renting this property as a residential dwelling under a
legitimate rental agreement. The name and address of the business
or individual who is handling the foreclosure sale is shown on
this notice under the heading 'TRUSTEE.' You must mail or deliver
your proof not later than ________ (30 days before the date first
set for the foreclosure sale). Your proof must be in writing and
should be a copy of your rental agreement or lease. If you do not
have a written rental agreement or lease, you can provide other
proof, such as receipts for rent you paid.
ABOUT YOUR SECURITY DEPOSIT
Under state law, you may apply your security deposit and any
rent you paid in advance against the current rent you owe your
landlord. To do this, you must notify your landlord in writing
that you want to subtract the amount of your security deposit or
prepaid rent from your rent payment. You may do this only for the
rent you owe your current landlord. If you do this, you must do
so before the foreclosure sale. The business or individual who
buys this property at the foreclosure sale is not responsible to
you for any deposit or prepaid rent you paid to your landlord.
ABOUT YOUR TENANCY
AFTER THE FORECLOSURE SALE
The business or individual who buys this property at the
foreclosure sale may be willing to allow you to stay as a tenant
instead of requiring you to move out. You should contact the
buyer to discuss that possibility if you would like to stay.
Under state law, if the buyer 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 buyer becomes your new landlord and
must maintain the property. Otherwise, the buyer is not your
landlord and is not responsible for maintaining the property on
your behalf and you must move out by the date the buyer specifies
in a notice to you.
YOU SHOULD CONTINUE TO PAY RENT TO YOUR LANDLORD UNTIL THE
PROPERTY IS SOLD TO ANOTHER BUSINESS OR INDIVIDUAL OR UNTIL A
COURT OR A LENDER TELLS YOU OTHERWISE. IF YOU DO NOT PAY RENT,
YOU CAN BE EVICTED. AS EXPLAINED ABOVE, YOU MAY BE ABLE TO APPLY
A DEPOSIT YOU MADE OR PREPAID RENT YOU PAID AGAINST YOUR CURRENT
RENT OBLIGATION. BE SURE TO KEEP PROOF OF ANY PAYMENTS YOU MAKE
AND OF ANY NOTICE YOU GIVE OR RECEIVE CONCERNING THE APPLICATION
OF YOUR DEPOSIT OR YOUR PREPAID RENT.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
HOME WITHOUT FIRST GOING TO COURT TO EVICT YOU. FOR MORE
INFORMATION ABOUT YOUR RIGHTS, YOU MAY WISH TO 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.
_________________________________________________________________
SECTION 2. ORS 86.750, as amended by section 3, chapter 28,
Oregon Laws 2010, and section 2, chapter 40, Oregon Laws 2010, is
amended to read:
86.750. (1)(a) Except as provided in paragraph (b) of this
subsection, the notice prescribed in ORS 86.745 must be served
upon an occupant of the property described in the trust deed in
the manner in which a summons is served pursuant to ORCP 7 D(2)
and 7 D(3) at least 120 days before the day the trustee conducts
the sale.
(b)(A) If service cannot be effected on an occupant as provided
in paragraph (a) of this subsection on the first attempt, the
person that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
first attempt. The person that attempts to effect service shall
make a second attempt to effect service on a day that is at least
two days after the first attempt.
(B) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the second attempt, the
person that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
second attempt. The person that attempts to effect service shall
make a third attempt to effect service on a day that is at least
two days after the second attempt.
(C) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the third attempt, the person
that attempts to effect service shall send a copy of the notice,
bearing the word 'occupant' as the addressee, to the property
address by first class mail with postage prepaid.
(c) Service on an occupant is effected on the earlier of the
date that notice is served as provided in paragraph (a) of this
subsection or the first date on which notice is posted as
described in paragraph (b)(A) of this subsection.
(2)(a) Except as provided in paragraph (b) of this subsection,
a copy of the notice of sale 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. The last
publication must be made more than 20 days prior to the date the
trustee conducts the sale.
(b) The copy of the notice of sale required to be published
under paragraph (a) of this subsection does not need to include
{ + the documentation described in ORS 86.745 (4) or + } the
notice to tenants required under ORS 86.745 { - (9) - } { +
(10) + }.
(3) At or before the time the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated the following affidavits with respect to the notice of
sale:
(a) An affidavit of mailing, if any;
(b) An affidavit of service, if any;
(c) An affidavit of service attempts and posting, if any; and
(d) An affidavit of publication.
(4) At or before the time the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated an affidavit of mailing with respect to the notice to
the grantor required under ORS 86.737.
(5) Not later than five days before the date the trustee
conducts the sale, the trustee shall file for recording in the
official record of the county or counties in which the property
is located an affidavit from the beneficiary or the beneficiary's
agent that states how the beneficiary or the beneficiary's agent
has complied with the provisions of section 3 (1) and (2),
chapter 864, Oregon Laws 2009.
SECTION 3. ORS 86.750, as amended by section 6, chapter 864,
Oregon Laws 2009, section 4, chapter 28, Oregon Laws 2010, and
section 3, chapter 40, Oregon Laws 2010, is amended to read:
86.750. (1)(a) Except as provided in paragraph (b) of this
subsection, the notice prescribed in ORS 86.745 must be served
upon an occupant of the property described in the trust deed in
the manner in which a summons is served pursuant to ORCP 7 D(2)
and 7 D(3) at least 120 days before the day the trustee conducts
the sale.
(b)(A) If service cannot be effected on an occupant as provided
in paragraph (a) of this subsection on the first attempt, the
person that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
first attempt. The person that attempts to effect service shall
make a second attempt to effect service on a day that is at least
two days after the first attempt.
(B) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the second attempt, the
person that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
second attempt. The person that attempts to effect service shall
make a third attempt to effect service on a day that is at least
two days after the second attempt.
(C) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the third attempt, the person
that attempts to effect service shall send a copy of the notice,
bearing the word 'occupant' as the addressee, to the property
address by first class mail with postage prepaid.
(c) Service on an occupant is effected on the earlier of the
date that notice is served as provided in paragraph (a) of this
subsection or the first date on which notice is posted as
described in paragraph (b)(A) of this subsection.
(2)(a) Except as provided in paragraph (b) of this subsection,
a copy of the notice of sale 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. The last
publication must be made more than 20 days prior to the date the
trustee conducts the sale.
(b) The copy of the notice of sale required to be published
under paragraph (a) of this subsection does not need to include
the { + documentation described in ORS 86.745 (4) or the + }
notice to tenants required under ORS 86.745 { - (9) - } { +
(10) + }.
(3) At or before the time the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated the following affidavits with respect to the notice of
sale:
(a) An affidavit of mailing, if any;
(b) An affidavit of service, if any;
(c) An affidavit of service attempts and posting, if any; and
(d) An affidavit of publication.
(4) At or before the time the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated an affidavit of mailing with respect to the notice to
the grantor required under ORS 86.737.
SECTION 4. { + The amendments to ORS 86.745 and 86.750 by
sections 1 to 3 of this 2011 Act apply to a notice of sale sent
on or after the effective date of this 2011 Act. + }
SECTION 5. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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