71st OREGON LEGISLATIVE ASSEMBLY--2001 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 1255
                     (To Resolve Conflicts)
 
                           B-Engrossed
 
                         House Bill 2381
                  Ordered by the Senate May 31
 Including House Amendments dated April 24 and Senate Amendments
                dated May 31 to resolve conflicts
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Joint Interim Judiciary
  Committee for Oregon Collectors Association)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Requires award of reasonable attorney fees to prevailing
plaintiff in action on contract if amount claimed is $5,500 or
less and plaintiff serves demand on defendant at least 10 days
before filing claim. Prohibits award of attorney fees to
prevailing plaintiff if defendant makes offer to plaintiff and
plaintiff fails to acquire judgment more favorable than offer.
Excludes certain contracts and types of actions.
 
                        A BILL FOR AN ACT
Relating to attorney fees; creating new provisions; amending ORS
  20.080, 20.096, 20.097, 46.405, 55.011, 83.100 and 646.498; and
  repealing section 4, chapter ___, Oregon Laws 2001 (Enrolled
  House Bill 2374).
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) As used in this section, 'contract'
includes all express or implied contracts and instruments or
documents evidencing a debt.
  (2) Except as provided in this section, a court shall allow
reasonable attorney fees to the prevailing party on any claim
based on contract if:
  (a) The amount of the principal together with interest due on
the contract at the time the claim is filed is $5,500 or less;
and
  (b) The contract does not contain a clause that authorizes or
requires the award of attorney fees.
  (3) Attorney fees may not be awarded to a plaintiff under the
provisions of this section unless written demand for payment of
the claim was made on the defendant not less than 10 days before
the commencement of the action or the filing of a formal
complaint under ORS 46.465, or not more than 10 days after the
transfer of the action under ORS 46.461. The failure of a
plaintiff to give notice under the provisions of this subsection
does not affect the ability of a defendant to claim attorney fees
under the provisions of this section.
  (4) Attorney fees may not be awarded to a plaintiff under the
provisions of this section if the court finds that the defendant
tendered to the plaintiff, prior to the commencement of the
action or the filing of a formal complaint under ORS 46.465, or
not more than 10 days after the transfer of the action under ORS
46.461, an amount not less than the amount awarded to the
plaintiff.
  (5) The provisions of this section do not apply to:
  (a) Contracts for insurance;
  (b) Contracts for which another statute authorizes or requires
an award of attorney fees;
  (c) Any action for damages for breach of an express or implied
warranty in a sale of consumer goods or services that is subject
to ORS 20.098; or
  (d) Any action against the maker of a dishonored check that is
subject to ORS 30.701. + }
  SECTION 2. ORS 20.080 is amended to read:
  20.080. (1) In any action for damages for an injury or wrong to
the person or property, or both, of another where the amount
pleaded is $5,500 or less, and the plaintiff prevails in the
action, there shall be taxed and allowed to the plaintiff, at
trial and on appeal, a reasonable amount to be fixed by the court
as attorney fees for the prosecution of the action, if the court
finds that written demand for the payment of such claim was made
on the defendant not less than 10 days before the commencement of
the action or the filing of a formal complaint under ORS 46.465,
or not more than 10 days after the transfer of the action under
ORS 46.461. However, no attorney fees shall be allowed to the
plaintiff if the court finds that the defendant tendered to the
plaintiff, prior to the commencement of the action or the filing
of a formal complaint under ORS 46.465, or not more than 10 days
after the transfer of the action under ORS 46.461, an amount not
less than the damages awarded to the plaintiff.
  (2) If the defendant pleads a counterclaim, not to exceed
$5,500, and the defendant prevails in the action, there shall be
taxed and allowed to the defendant, at trial and on appeal, a
reasonable amount to be fixed by the court as attorney fees for
the prosecution of the counterclaim.
   { +  (3) The provisions of this section do not apply to any
action based on contract. + }
  SECTION 3. ORS 20.096 is amended to read:
  20.096. (1) In any action or suit on a contract, where such
contract specifically provides that attorney fees and costs
incurred to enforce the provisions of the contract shall be
awarded to one of the parties, the prevailing party, whether that
party is the party specified in the contract or not, at trial or
on appeal, shall be entitled to reasonable attorney fees in
addition to costs and disbursements.
  (2) Attorney fees provided for in a contract described in
subsection (1) of this section shall not be subject to waiver by
the parties to any such contract which is entered into after
September 9, 1971. Any provision in such a contract which
provides for a waiver of attorney fees is void.
    { - (3) If the plaintiff prevails in any action or suit on a
contract which expressly provides for the award of attorney fees
where the amount of principal together with interest due on such
contract at the time of commencement of the proceedings does not
exceed $200, there shall be taxed and allowed to the plaintiff a
reasonable amount to be fixed by the court as attorney fees, if
the court finds that written demand for the payment of
plaintiff's claim was made on the defendant not less than 10 days
before the commencement of the action. However, no attorney fees
shall be allowed to the plaintiff if the court finds that the
defendant tendered to the plaintiff, subsequent to such demand
but prior to the commencement of the action or suit, an amount
not less than the damages awarded to the plaintiff. - }
    { - (4) In the event that a default judgment is taken against
the defendant in an action or suit described in subsection (3) of
this section, the amount of attorney fees awarded shall be 25
percent of the amount of the principal together with interest
due, exclusive of any other fees or costs authorized by law. - }
    { - (5) - }  { +  (3) + } Except as provided in ORS 20.015,
as used in this section { + , + }   { - and ORS 20.097 - }
'prevailing party' means the party in whose favor final judgment
or decree is rendered.
    { - (6) - }  { +  (4) + } As used in this section and ORS
20.097 { + , + } ' contract' includes any instrument or document
evidencing a debt.
  SECTION 3a.  { + If House Bill 2374 becomes law, section 4,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2374)
(amending ORS 20.096), is repealed and ORS 20.096, as amended by
section 3 of this 2001 Act, is amended to read: + }
  20.096. (1) In any action or suit  { + in which a claim is made
based + } on a contract, where such contract specifically
provides that attorney fees and costs incurred to enforce the
provisions of the contract shall be awarded to one of the
parties, the
  { - prevailing - }  party { +  that prevails on the claim + },
whether that party is the party specified in the contract or not,
 { - at trial or on appeal, - }  shall be entitled to reasonable
attorney fees in addition to costs and disbursements.
  (2) Attorney fees provided for in a contract described in
subsection (1) of this section shall not be subject to waiver by
the parties to any such contract   { - which - }   { + that + }
is entered into after September 9, 1971. Any provision in such a
contract   { - which - }  { + that + } provides for a waiver of
attorney fees is void.
    { - (3) Except as provided in ORS 20.015, as used in this
section, 'prevailing party' means the party in whose favor final
judgment or decree is rendered. - }
    { - (4) - }  { +  (3) + } As used in this section and ORS
20.097, ' contract' includes any instrument or document
evidencing a debt.
  SECTION 4. ORS 20.097 is amended to read:
  20.097. (1) In any action or suit on a contract by an assignee
of any right under that contract,   { - when that contract
specifically provides that attorney fees and costs incurred to
enforce the provisions of the contract shall be awarded to one of
the parties, if the defendant is the prevailing party, - }  the
maker of that contract and the plaintiff in the action or suit on
that contract shall be severally liable for   { - reasonable - }
 { +  any + } attorney fees and costs   { - provided by ORS
20.096 - }  { +  that may be awarded to the defendant in the
action + }.
  (2) As used in this section, 'maker' means the original party
to the contract which is the subject of the action or suit who is
the predecessor in interest of the plaintiff under the contract.
  (3) A maker shall be liable under this section only if the
defense successfully asserted by the defendant existed at the
time of the assignment of the contract.
  SECTION 5. ORS 46.405 is amended to read:
  46.405. (1) Except as provided in subsection   { - (3) - }
 { + (6) + } of this section, each circuit court shall have a
small claims department.
    { - (2) All actions for the recovery of money, damages,
specific personal property, or any penalty or forfeiture,
excepting class actions and actions providing for statutory
attorney fees, where the amount or value claimed does not exceed
$750, shall be commenced and prosecuted only in the small claims
department.  Where the amount or value claimed does not exceed
$5,000, such actions may be commenced and prosecuted in the small
claims department. - }
   { +  (2) Except as provided in this section, all actions for
the recovery of money, damages, specific personal property, or
any penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the
action does not exceed $750.
  (3) Except as provided in this section and ORS 46.455 (2)(c),
an action for the recovery of money, damages, specific personal
property, or any penalty or forfeiture may be commenced and
prosecuted in the small claims department if the amount or value
claimed in the action does not exceed $5,000.
  (4) Class actions may not be commenced and prosecuted in the
small claims department.
  (5) Actions providing for statutory attorney fees in which the
amount or value claimed does not exceed $750 may be commenced and
prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the circuit court.  This
subsection does not apply to an action based on contract for
which attorney fees are authorized under section 1 of this 2001
Act. + }
    { - (3) - }  { +  (6) + } If a circuit court is located in
the same city as a justice court, the circuit court need not have
a small claims department if the circuit court and the justice
court enter into an intergovernmental agreement that provides
that only the justice court will operate a small claims
department. If an intergovernmental agreement is entered into
under this subsection, the agreement must establish appropriate
procedures for referring small claims cases to the justice court.
  SECTION 6. ORS 55.011 is amended to read:
  55.011. (1) Except as provided in subsection   { - (5) - }
 { + (8) + } of this section, in each justice court created under
any law of this state there shall be a   { - department to be
known as the Small Claims Department of the Justice Court - }
 { +  small claims department + }.
    { - (2) All actions in the justice court for the recovery of
money or damages only, excepting class actions and actions
providing for statutory attorney fees, where the amount claimed
does not exceed $750, shall be commenced and prosecuted only in
the small claims department. Where the amount claimed does not
exceed $5,000, such actions may be commenced and prosecuted in
the small claims department subject to the provisions of ORS
55.065 (2)(c). - }
   { +  (2) Except as provided in this section, all actions for
the recovery of money, damages, specific personal property, or
any penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the
action does not exceed $750.
  (3) Except as provided in this section and ORS 46.455 (2)(c),
an action for the recovery of money, damages, specific personal
property, or any penalty or forfeiture may be commenced and
prosecuted in the small claims department if the amount or value
claimed in the action does not exceed $5,000.
  (4) Class actions may not be commenced and prosecuted in the
small claims department.
  (5) Actions providing for statutory attorney fees in which the
amount or value claimed does not exceed $750 may be commenced and
prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the justice court.  This
subsection does not apply to an action based on contract for
which attorney fees are authorized under section 1 of this 2001
Act. + }
    { - (3) - }  { +  (6) + } Jurisdiction of the person of the
defendant in an action commenced in the small claims department
shall be deemed acquired as of the time of service of the notice
and claim.
    { - (4) - }  { +  (7) + } Except as provided in ORS 55.065
(2)(c), the provisions of ORS 55.020 to 55.140 shall apply with
regard to proceedings in the small claims department of any
justice court.
    { - (5) - }  { +  (8) + } If a justice court is located in
the same city as a circuit court, the justice court need not have
a small claims department if the justice court and the circuit
court enter into an intergovernmental agreement that provides
that only the circuit court will operate a small claims
department. If an intergovernmental agreement is entered into
under this subsection, the agreement must establish appropriate
procedures for referring small claims cases to the circuit court.
  SECTION 7. ORS 83.100 is amended to read:
  83.100. (1)  { + Except as provided in section 1 of this 2001
Act, + } the holder of any retail installment contract or retail
charge agreement may not collect any delinquency or collection
charges, including any attorney's fee and court costs and
disbursements, unless the contract or charge agreement so
provides. In such cases, the charges shall be reasonable, and no
attorney's fee may be recovered unless the contract or charge
agreement is referred for collection to an attorney not a
salaried employee of the holder.
  (2) The contract or charge agreement may contain other
provisions not inconsistent with the purposes of ORS 83.010 to
83.190, including but not limited to provisions relating to
refinancing, transfer of the buyer's equity, construction permits
and title reports.
  SECTION 8. ORS 646.498 is amended to read:
  646.498. (1) In addition to pursuing any other remedy, a
consumer may bring a private cause of action to recover damages
caused by a violation of any provision of ORS 646.482 to 646.498.
The court shall award a consumer who prevails in such an action
pecuniary loss and noneconomic damages, together with costs,
disbursements, reasonable attorney fees and any equitable relief
that the court determines is appropriate. Pecuniary loss caused
by a violation of ORS 646.482 to 646.498 shall include collateral
costs, beginning at the time of the violation, whether or not the
consumer acquired the rights provided by ORS 646.488. If a
consumer has submitted a dispute arising under ORS 646.482 to
646.498 to a dispute resolution procedure as described in ORS
646.494, the consumer may not bring a private cause of action
under this section relating to that dispute until a decision
resulting from the dispute resolution procedure has been issued
or until the consumer has withdrawn the dispute from the dispute
resolution procedure.
  (2) If a consumer appeals to a court from a decision resulting
from the dispute resolution procedure described in ORS 646.494
because the consumer was not granted one of the remedies by ORS
646.482 to 646.498, and the consumer is granted one of the
remedies by the court, the consumer who prevails under this
subsection shall be awarded:
  (a) Up to three times the amount of any damages awarded if the
court finds that the party opposing the consumer did not act in
good faith in the dispute resolution procedure;
  (b) Reasonable attorney fees; and
  (c) Any fees incurred in the dispute resolution procedure and
any judicial action.
  (3) If the party opposing the consumer is the prevailing party
in an action brought under subsection (1) or (2) of this section,
the party opposing the consumer shall be entitled to reasonable
attorney fees  { - , in accordance with ORS 20.098, and costs and
disbursements - }   { + if the court finds the action to have
been frivolous + }.
  (4) Any action brought under this section shall be commenced
during the period beginning one year after the date the assistive
device was originally delivered to the consumer and ending two
years later.
 
  SECTION 9.  { + Section 1 of this 2001 Act and the amendments
to ORS 20.080, 20.096, 20.097, 46.405, 55.011, 83.100 and 646.498
by sections 2 to 8 of this 2001 Act apply only to actions
commenced on or after the effective date of this 2001 Act. Any
action commenced before the effective date of this 2001 Act shall
continue to be governed by the provisions of law in effect
immediately before the effective date of this 2001 Act, as though
this 2001 Act had never become law. + }
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