Bill Text: OR SB804 | 2013 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to trust deeds; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB804 Detail]
Download: Oregon-2013-SB804-Introduced.html
Bill Title: Relating to trust deeds; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB804 Detail]
Download: Oregon-2013-SB804-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 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 3679
Senate Bill 804
Sponsored by COMMITTEE ON JUDICIARY
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 grantor that seeks mediation with trustee before
foreclosure proceedings to provide mediation service provider
with certain documents.
Makes beneficiary's duty to provide certain documents and to
appear at mediation contingent on grantor's providing documents.
Specifies when grantor is at risk of default and would be
eligible to seek mediation with beneficiary.
Specifies form of notice of determination that beneficiary must
send to grantor if beneficiary determines that grantor is not
eligible for foreclosure avoidance measure or if grantor fails to
comply with foreclosure avoidance measure.
Revises definition of 'beneficiary. '
Modifies requirements for trustee to foreclose a trust deed by
advertisement and sale.
Modifies requirements for providing notice of sale.
Modifies notice requirements for postponing trustee's sale.
Declares recorded trustee's deed prima facie evidence that all
assignments required to be recorded are recorded. Declares
instrument executed by beneficiary prima facie evidence that
beneficiary is authorized to execute instrument.
Becomes operative 91 days after effective date of Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to trust deeds; creating new provisions; amending ORS
86.705, 86.735, 86.750, 86.755, 86.780 and 86.790 and sections
2, 2a, 3, 4 and 4a, chapter 112, Oregon Laws 2012; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 2, chapter 112, Oregon Laws 2012, is amended
to read:
{ + Sec. 2. + } (1) As used in this section and sections 3
and 4a { - of this 2012 Act - } , { + chapter 112, Oregon Laws
2012, + } '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 - } { + beneficiary
approves + } 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 { + , chapter 112, Oregon Laws 2012 + }
{ - 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.
(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, { + partnership, corporation, limited
liability company or other business entity, to + } a financial
institution { - , - } { + or trust company + } as { + those
terms are + } defined in ORS 706.008, { + to + } a mortgage
banker { - , - } as defined in ORS 86A.100, or { + to + } a
licensee { - , - } as defined in ORS 725.010, if the
individual, { + partnership, corporation, limited liability
company or other business entity, + } financial institution,
{ + trust company, + } mortgage banker or licensee provides to
the Attorney General a sworn affidavit that states that during
the preceding calendar year the individual, { + partnership,
corporation, limited liability company or other business
entity, + } financial institution, { + trust company, + }
mortgage banker or licensee did not commence or cause an
affiliate or agent of the individual, { + partnership,
corporation, limited liability company or other business
entity, + } financial institution, { + trust company, + }
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, { + partnership, corporation, limited
liability company or other business entity, + } financial
institution, { + trust company, + } mortgage banker or licensee
that intends to claim an exemption under this subparagraph shall
file the affidavit { + with the Attorney General + } 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,
{ + partnership, corporation, limited liability company or other
business entity, + } financial institution, { + trust
company, + } mortgage banker or licensee intends to claim the
exemption; or
(ii) At the time the individual, { + partnership, corporation,
limited liability company or other business entity, + } financial
institution, { + trust company, + } 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.
{ + (e) The Attorney General shall maintain a publicly
accessible index of exemption affidavits filed under paragraph
(d)(A) of this subsection and shall make copies of the exemption
affidavits available for any person who desires a copy. + }
(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 { + the mediator and 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 { + in writing + } 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 - } { + in + } subsection (3)(c) of this section
that the grantor will enter into mediation, { - the beneficiary
or the beneficiary's agent shall - } { + at least 20 days
before the scheduled date described in subsection (3)(a) of this
section the grantor shall provide the mediation service provider
with:
(A) An intake form, the contents and format of which the
Attorney General specifies by rule;
(B) Evidence of the grantor's income for the previous two full
months, such as:
(i) A record of wages or other pay the grantor received; or
(ii) A profit and loss statement, if available, if the grantor
is self-employed;
(C) Account statements for the grantor's bank account for the
previous two full months;
(D) A statement that shows how much income the grantor receives
from Social Security, disability, unemployment or other benefits
and that indicates how often and for how long the grantor
receives and will receive the benefits, if the grantor relies on
income from the benefits to pay the obligation secured by the
grantor's residential trust deed;
(E) A decree or judgment of dissolution or a legal separation
agreement, if the grantor must pay child support, spousal support
or related obligations;
(F) The most recent statement that shows the amount the grantor
paid for electricity, for heat, for natural gas and for other
utilities;
(G) The most recent property tax statement or appraisal
conducted for the property that is described in the trust deed
that the beneficiary seeks to foreclose; and
(H) The grantor's tax returns for the previous two years.
(b) The mediation service provider shall provide the
beneficiary or beneficiary's agent with the material the grantor
provides in accordance with paragraph (a) of this subsection at
least 15 days before the scheduled date described in subsection
(3)(a) of this section.
(c) If the grantor confirms by the date specified in subsection
(3)(c) of this section that the grantor will enter into mediation
and the grantor complies with the requirements set forth in
paragraph (a) of this subsection, the beneficiary or the
beneficiary's agent shall:
(A) Provide the mediation service provider, at least 15 days
before the scheduled date described in subsection (3)(a) of this
section, with:
(i) The grantor's payment history for the obligation that is
secured by the residential trust deed that the beneficiary seeks
to foreclose, beginning with the most recent date on which the
beneficiary's records indicate that the obligation was not past
due or otherwise in default;
(ii) A true copy of the original debt instrument that is the
basis for the right the beneficiary claims to foreclose the trust
deed;
(iii) A copy of the authorization from the beneficiary to the
beneficiary's agent, if the beneficiary's agent will appear at
the mediation; and
(iv) A copy of any document that the beneficiary claims limits
the beneficiary's authority to agree to a foreclosure avoidance
measure.
(B) + } 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 - } .
{ + (d) The mediation service provider shall provide the
beneficiary or beneficiary's agent with the material the grantor
provides in accordance with paragraph (a) of this subsection
before the scheduled date described in subsection (3)(a) of this
section.
(e) If the grantor does not comply with the requirements set
forth in paragraph (a) of this subsection, the mediation service
provider shall deem the grantor to have declined to enter into
mediation and shall provide the beneficiary with the certificate
described in subsection (6)(b) of this section without requiring
the beneficiary to comply with the requirements of paragraph (c)
of this subsection. + }
{ - (b) - } { + (f) If the beneficiary or beneficiary's
agent must comply with paragraph (c) of this subsection, + }the
beneficiary or the beneficiary's agent { - must - } { +
shall + } 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) - } { + (g) + } 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 { + and the
grantor + } 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 { + , within five days after the
conclusion of the last mediation session, + } notify the Attorney
General { + in writing + } that the mediation did not result in
an agreement.
(6)(a) { - At the - } { + Within five days after the + }
conclusion of the mediation, if the beneficiary has complied with
the requirements of subsections (4) and (5) of 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 { + or the grantor does not comply with the
requirements of subsection (4)(a) of 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 grantor declined to enter
into mediation with the beneficiary.
(c) { + Within five days after the mediation service provider
issues the certificate of compliance under paragraph (a) or (b)
of this subsection, + } the mediation service provider shall
provide a copy of the certificate { - the mediation service
provider issues under paragraph (a) or (b) of this subsection - }
{ + of compliance + } to the grantor and to the Attorney
General.
(7)(a) A grantor that is at risk of { + + } { - default - }
{ + defaulting on an obligation secured by a residential trust
deed + }before the beneficiary or the trustee has filed a notice
of default for recording under ORS 86.735 { + or before the
beneficiary has filed an action for the judicial foreclosure of
the grantor's trust deed + } may notify the { - beneficiary or
trustee - } { + person to whom the grantor was most recently
directed to send payments + } { - in the trust deed - } or the
beneficiary's or trustee's agent that the grantor wants to enter
{ - into - } mediation. { + Unless the beneficiary has claimed
an exemption in accordance with subsection (2)(d) of this
section, + } 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 - } { + described + }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. { + If the beneficiary has claimed an exemption under
subsection (2)(d) of this section, within 15 days after receiving
the grantor's request for mediation, the beneficiary or trustee
or the beneficiary's or trustee's agent shall inform the grantor
in writing that the beneficiary is exempt from the requirement to
enter into mediation.
(b) For the purposes of paragraph (a) of this subsection, a
grantor is at risk of defaulting on an obligation if at the time
the grantor requests mediation the grantor has, for 30 days or
more, failed to make a required periodic payment or otherwise has
failed to perform in accordance with the terms of the obligation
that is secured by the trust deed. + }
{ - (b) - } { + (c) + } 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) - } { + (d) Unless the beneficiary has claimed an
exemption under subsection (2)(d) of this section, + } 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.
{ + (e) If the beneficiary has claimed an exemption under
subsection (2)(d) of this section, within 10 days after receiving
notification of the grantor's request for mediation under
paragraph (c) of this subsection, the mediation service provider
shall inform the grantor in writing that the beneficiary is
exempt from the requirement to enter into mediation. + }
{ - (d) - } { + (f) + } 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 2. Section 2a, chapter 112, Oregon Laws 2012, is
amended to read:
{ + Sec. 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 - } { + , chapter 112, Oregon Laws
2012, + } that the grantor will enter into mediation shall
consult a housing counselor approved by the United States
Department of Housing and Urban Development { + or an agency of
this state + } 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 - } { + , chapter 112,
Oregon Laws 2012, + } 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. { + Within five days after the mediation
service provider receives the notification from the grantor, + }
the mediation service provider shall notify the beneficiary or
the beneficiary's agent { + in writing + } of the grantor's
decision.
(2) The notice of mediation described in section 3 { - of
this 2012 Act - } { + , chapter 112, Oregon Laws 2012, + } 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.
SECTION 3. Section 3, chapter 112, Oregon Laws 2012, is amended
to read:
{ + Sec. 3. + } The notice of mediation required under ORS
86.740 (1)(b) must be { + substantially + } in a form and with
the contents the Attorney General specifies by rule and must:
(1) List the { + last-known + } name, address, telephone
number and other contact information for the grantor or other
person named in the residential trust deed { + or of the last
person the beneficiary knows to have assumed the grantor's
obligations under the note and 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 { + , chapter 112, Oregon Laws
2012, + } { - 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 - } { + provide under section
2 (4)(a), chapter 112, Oregon Laws 2012 + }.
(6) State that the grantor { + must appear in person and + }
may choose to have an attorney or a housing counselor approved by
the United States Department of Housing and Urban
Development { + or an agency of this state + } 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 - } { + the + } 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 - } { + , chapter 112, Oregon Laws
2012 + }.
SECTION 4. Section 4, chapter 112, Oregon Laws 2012, is amended
to read:
{ + Sec. 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 coordinating a mediation program under section 2
{ - of this 2012 Act - } { + , chapter 112, Oregon Laws
2012, + } 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: - }
{ + (b) The $100 charge described in paragraph (a) of this
subsection does not apply to an individual, partnership,
corporation, limited liability company or other business entity,
to a financial institution or trust company as those terms are
defined in ORS 706.008, to a mortgage banker as defined in ORS
86A.100, or to a licensee as defined in ORS 725.010, if:
(A) The index maintained by the Attorney General under section
2 (2)(e), chapter 112, Oregon Laws 2012, shows that the
individual, partnership, corporation, limited liability company
or other business entity, financial institution, trust company,
mortgage banker or licensee has filed an exemption affidavit
under section 2 (2)(d)(A), chapter 112, Oregon Laws 2012; or
(B) The individual, partnership, corporation, limited liability
company or other business entity, financial institution, trust
company, mortgage banker or licensee provides to the county clerk
a sworn affidavit or a copy of the sworn affidavit the
beneficiary provided to the Attorney General pursuant to section
2 (2)(d)(A), chapter 112, Oregon Laws 2012, that states that
during the preceding calendar year the individual, partnership,
corporation, limited liability company or other business entity,
financial institution, trust company, mortgage banker or licensee
did not commence or cause an affiliate or agent of the
individual, partnership, corporation, limited liability company
or other business entity, financial institution, trust company,
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, partnership, corporation, limited
liability company or other business entity, financial
institution, trust company, mortgage banker or licensee that
intends to claim an exemption under this paragraph shall provide
a copy of the affidavit either: + }
{ - (A) - } { + (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, { + partnership, corporation, limited liability
company or other business entity, + } financial institution, { +
trust company, + } mortgage banker or licensee intends to claim
the exemption; or
{ - (B) - } { + (ii) + } At the time the individual, { +
partnership, corporation, limited liability company or other
business entity, + } financial institution, { + trust
company, + } mortgage banker or licensee files a notice of
default under ORS 86.735.
SECTION 5. Section 4a, chapter 112, Oregon Laws 2012, is
amended to read:
{ + Sec. 4a. + } (1)(a) If a beneficiary { + that has
entered into mediation with a grantor under section 2, chapter
112, Oregon Laws 2012, + } determines that a grantor is not
eligible for any foreclosure avoidance measure or { + determines
after completing mediation with a grantor + }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 - } { + 25 + } 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 { + or
mailed + } 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) - } { + (2)(a) + } { + If a beneficiary makes a
determination under subsection (1)(a) of this section, + } 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) - } { + subsection (1) + } of this section; and
(D) Include proof of service on { + or mailing to + } 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. - }
{ + (3) The notice described in subsection (1) of this
section must be in substantially this form: + }
________________________________________________________________
{ +
NOTICE OF DETERMINATION + }
{ +
YOU ARE AT RISK OF FORECLOSURE + }
{ +
YOU MAY LOSE YOUR PROPERTY + }
{ +
IF YOU DO NOT TAKE IMMEDIATE ACTION + }
{ + Lender's Name: __________ + }
{ + Homeowner's Name: __________ + }
{ + Property Address: __________ + }
{ + Your lender has determined that: + }
? ? { + You are not eligible for:
o A forbearance agreement
o A temporary or permanent loan
modification
o A short sale
o A deed in lieu of foreclosure
o Any other foreclosure avoidance measure + }
{ + Your lender considered these other foreclosure
avoidance measures, but these measures are not
available:
____________________
____________________ + }
{ + The basis for your lender's determination is
(must be described specifically and in plain
language):
____________________
____________________ + }
? ? { + You have not complied with the terms of
an agreement with your lender for a
forbearance, temporary or permanent loan
modification, short sale, deed in lieu of
foreclosure or other foreclosure avoidance
measure. + }
{ + The basis for your lender's determination is
(must be described specifically and in plain
language):
____________________
____________________ + }
{ + Government agencies and nonprofit organizations can give
you information about foreclosure and help you decide what to do.
For the name and telephone number of an agency or organization
near you, please call __________. If you need help finding a
lawyer, call the Oregon State Bar's Lawyer Referral Service at
__________ or visit online at __________. If you have a low
income, you might be eligible for assistance at no cost. For more
information and a directory of legal aid programs, visit
__________.
(Beneficiary or Beneficiary's Agent)
By: __________ Date: __________ + }
________________________________________________________________
{ - (5)(a) - } { + (4)(a) + } A beneficiary { - or an
agent of the beneficiary - } that { + is subject to and + }
fails to { + substantially + } 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. { + The remedy
provided for the grantor under this subsection shall be the
grantor's exclusive remedy for a beneficiary's violation 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 - } { + the prevailing party in an action the grantor
brings under paragraph (b) of this subsection + }.
SECTION 6. ORS 86.705, as amended by section 5, chapter 112,
Oregon Laws 2012, 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 - } { + the + } person named
or otherwise designated in a trust deed as { - the person for
whose benefit a trust deed is given - } { + the + } { +
beneficiary + }, 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
trustee in trust to secure the performance of an obligation the
grantor or other person named in the deed owes to a
beneficiary { + or a person for whom the beneficiary is acting
as agent or nominee + }.
(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 7. ORS 86.735, as amended by section 6, chapter 112,
Oregon Laws 2012, is amended to read:
86.735. { + (1) + } A trustee may foreclose a trust deed by
advertisement and sale in the manner provided in ORS 86.740 to
86.755 if:
{ - (1) - } { + (a) + } The trust deed, { - any
assignments of the trust deed by the trustee or the beneficiary
and - } any appointment of a successor trustee { + and any
assignment that changes the designation of the beneficiary of the
trust deed + } are recorded in the mortgage records in the
counties in which the property described in the deed is situated;
{ - (2) There is a default by the grantor or other person
that owes an obligation, the performance of which is secured by
the trust deed, or by the grantor's or other person's successors
in interest with respect to a provision in the deed that
authorizes sale in the event of default of the provision; - }
{ + (b) The grantor or other person, or the grantor's or
other person's successor in interest, defaults on an obligation
for which the trust deed secures performance and with respect to
which a provision in the deed authorizes sale in the event of
default; + }
{ - (3) - } { + (c) + } The trustee or beneficiary has
filed for { - record - } { + recording + } in the county
clerk's office in each county where the trust property, or some
part of 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;
{ - (4) - } { + (d) + } 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, chapter
112, Oregon Laws 2012, if the beneficiary must enter into
mediation with the grantor under section 2 (2)(a), chapter 112,
Oregon Laws 2012;
{ - (5)(a) - } { + (e) + } The beneficiary or the
beneficiary's agent has complied with the provisions of section
4a, chapter 112, Oregon Laws 2012 { + , if the provisions apply
to the beneficiary + }; 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 - }
{ - (6) - } { + (f) + } An action has not been commenced to
recover the debt or any part of the debt then remaining secured
by the trust deed, or, if an action has been commenced, the
action has been dismissed, except that:
{ - (a) - } { + (A) + } Subject to ORS 86.010 and the
procedural requirements of ORCP 79 and 80, an action may be
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 may not be
appointed with respect to a single-family residence that the
grantor, the grantor's spouse or the grantor's minor or dependent
child occupies as a principal residence.
{ - (b) - } { + (B) + } An action may be commenced to
foreclose, judicially or nonjudicially, the same trust deed as to
any other property covered by the trust deed, or any other trust
deeds, mortgages, security agreements or other consensual or
nonconsensual security interests or liens that secure repayment
of the debt.
{ + (2) For purposes of subsection (1) of this section, the
negotiation, transfer or assignment of a note does not constitute
an assignment that changes the designation of the beneficiary of
the trust deed. + }
SECTION 8. ORS 86.750 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 - } { + under + } ORCP 7 D(2) and 7 D(3) { + or mailed by
both first class and certified mail with return receipt
requested, + }at least 120 days before the day the trustee
conducts the sale { + , + } { + to the last-known address of
the occupant + }.
{ - (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) - } { + (b) + } 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 - } { + mailed + }.
(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 notice to tenants required under ORS 86.745 (9).
(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; { + and + }
{ - (c) An affidavit of service attempts and posting, if any;
and - }
{ - (d) - } { + (c) + } 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 9. ORS 86.755, as amended by section 9, chapter 112,
Oregon Laws 2012, 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
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) { + (A) Except as provided in subparagraphs (B) and (C) of
this paragraph, + } if a person postpones the sale date { - as
provided in - } { + under + } paragraph (a) of this subsection,
the trustee, in the manner provided for { - service of the - }
{ + giving a + } 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 { + or mailed to + } the grantor and
{ - on - } any person { - to whom notice of the sale was
given - } { + who was given a notice of sale + } under ORS
86.745. The { + postponement + } 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. - }
{ + (B) The person conducting the sale may, on the day
previously scheduled for the sale, postpone the time set for the
sale one or more times to a later time that day, giving notice of
each postponement by public proclamation made at the time and
place previously set for the sale.
(C) The person conducting the sale may postpone the sale once
beyond the originally scheduled sale date for not more than two
calendar days, giving notice of the postponement by public
proclamation made at the time and place originally set for the
sale. + }
(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 10. ORS 86.755, as amended by section 7, chapter 510,
Oregon Laws 2011, and section 10, chapter 112, Oregon Laws 2012,
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
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) { + (A) Except as provided in subparagraphs (B) and (C) of
this paragraph, + } if a person postpones the sale date { - as
provided in - } { + under + } paragraph (a) of this subsection,
the trustee, in the manner provided for { - service of the - }
{ + giving a + } 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 { + or mailed to + } the grantor and
{ - on - } any person { - to whom notice of the sale was
given - } { + who was given a notice of sale + } under ORS
86.745. The { + postponement + } 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. - }
{ + (B) The person conducting the sale may, on the day
previously scheduled for the sale, postpone the time set for the
sale one or more times to a later time that day, giving notice of
each postponement by public proclamation made at the time and
place previously set for the sale.
(C) The person conducting the sale may postpone the sale once
beyond the originally scheduled sale date for not more than two
calendar days, giving notice of the postponement by public
proclamation made at the time and place originally set for the
sale. + }
(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 11. ORS 86.780 is amended to read:
86.780. { + (1)(a) + } { - When the - } { + If a + }
trustee's deed is recorded in the deed records of the county or
counties where the property described in the deed is situated,
the recitals contained in the deed and in the
{ - affidavits - } { + documents + } required { + to be
recorded + } under { - ORS 86.750 (3) and (4) shall be - }
{ + ORS 86.705 to 86.795 are + } prima facie evidence { - in
any court - } of the truth of the matters set forth
{ - therein - } { + in the recitals + }, but the recitals
{ - shall be - } { + are + } conclusive in favor of a
purchaser for value in good faith relying upon { - them - }
{ + the recitals + }. { +
(b) A trustee's deed recorded as provided in paragraph (a) of
this subsection is prima facie evidence that all assignments of
the trust deed that are required to be recorded under ORS 86.735
are recorded, but the recording is conclusive in favor of a
purchaser for value in good faith that relies upon the recording
of the trustee's deed.
(2) A trustee's sale that forecloses a trust deed in which a
nominee is designated as beneficiary and that is completed before
the effective date of this 2013 Act is not void or voidable by
reason of the absence in the record of an assignment of the trust
deed unless the assignment changes the designation of the
beneficiary of the trust deed.
(3) An instrument that a beneficiary executes is prima facie
evidence that the beneficiary has authorization to execute the
instrument from the person that owns or holds the debt or other
obligation that the trust deed secures. The instrument is
conclusive in favor of a purchaser for value in good faith that
relies on the instrument unless, before the purchaser's reliance
begins, the beneficiary has recorded an instrument withdrawing or
repudiating the instrument it previously executed. + }
SECTION 12. ORS 86.790 is amended to read:
86.790. (1) The trustee of a trust deed under ORS 86.705 to
86.795 shall not be required to comply with the provisions of ORS
chapters 707 and 709 and shall be:
(a) Any attorney who is an active member of the Oregon State
Bar;
(b) A financial institution or trust company, as defined in ORS
706.008, that is authorized to do business under the laws of
Oregon or the United States;
(c) A title insurance company authorized to insure title to
real property in this state, its subsidiaries, affiliates,
insurance producers or branches;
(d) The United States or any agency thereof; or
(e) Escrow agents licensed under ORS 696.505 to 696.590.
{ + (2) The person named or otherwise designated as the
beneficiary in a trust deed may not be the trustee under the
trust deed unless the person is qualified to be a trustee under
subsection (1)(d) of this section. + }
{ - (2) - } { + (3) + }An attorney who is a trustee under
subsection (1)(a) of this section may represent the beneficiary
in addition to performing the duties of trustee.
{ - (3) - } { + (4) + } At any time after the trust deed is
executed, the beneficiary may appoint in writing another
qualified trustee. If the appointment of the successor trustee is
recorded in the mortgage records of the county or counties in
which the trust deed is recorded, the successor trustee shall be
vested with all the powers of the original trustee.
{ - (4) - } { + (5) + } A trustee or successor trustee is a
necessary and proper party to any proceeding to determine the
validity of or enjoin any private or judicial proceeding to
foreclose a trust deed, but a trustee or successor trustee is
neither a necessary nor a proper party to any proceeding to
determine title to the property subject to the trust deed, or to
any proceeding to impose, enforce or foreclose any other lien on
the subject property.
{ - (5) - } { + (6) + } Nothing in ORS 86.705 to 86.795
imposes a duty on the trustee or successor trustee to notify any
person of any proceeding with respect to such person, except a
proceeding initiated by the trustee or successor trustee.
{ - (6) - } { + (7) + } A trustee or the attorney for the
trustee or any agent designated by the trustee or the attorney
may announce and accept a bid from the beneficiary whether or not
the beneficiary is present at the sale.
{ - (7) - } { + (8) + } The trustee or successor trustee
shall have no fiduciary duty or fiduciary obligation to the
grantor or other persons having an interest in the property
subject to the trust deed. The trustee or successor trustee shall
not be relieved of the duty to reconvey the property subject to
the trust deed to the grantor upon request for reconveyance by
the beneficiary.
SECTION 13. { + Section 14 of this 2013 Act is added to and
made a part of ORS 86.705 to 86.795. + }
SECTION 14. { + (1) A beneficiary, including a beneficiary
designated as an agent or nominee, may designate an agent or
nominee to act on behalf of the beneficiary.
(2) A third party may rely on a designation of an agent or
nominee in the recorded trust deed or in a separate document that
has been recorded in the records of the counties in which the
trust deed was recorded unless:
(a) Termination of the designation has been recorded in the
records; or
(b) The third party has actual notice that the designation has
been terminated.
(3) The recording of the original trust deed establishes the
identity of the original beneficiary as agent or nominee for a
successor in interest unless:
(a) An assignment to the successor in interest has been
recorded and the assignment does not designate the original
beneficiary as agent or nominee for the successor in interest; or
(b) A document has been recorded that designates a person other
than the original beneficiary as agent or nominee for the
successor in interest. + }
SECTION 15. { + (1) Section 14 of this 2013 Act and the
amendments to statutes and session laws by sections 1 to 12 of
this 2013 Act become operative 91 days after the effective date
of this 2013 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 the enactment of section 14 of this 2013 Act
and the amendments to statutes and session laws by sections 1 to
12 of this 2013 Act. + }
SECTION 16. { + Section 14 of this 2013 Act and the amendments
to statutes and session laws by sections 1 to 12 of this 2013 Act
apply to all foreclosures by advertisement and sale, whether
commenced before, on or after the effective date of this 2013
Act. + }
SECTION 17. { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
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