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
 
                         House Bill 2381
 
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 as
introduced.
 
  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.
 
                        A BILL FOR AN ACT
Relating to attorney fees; creating new provisions; and amending
  ORS 20.080, 20.096, 20.097, 20.098, 30.701, 46.405, 55.011,
  83.100 and 646.498.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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 - }
 { +  based on contract or tort in which + } the amount pleaded
is $5,500 or less,
  { - and the plaintiff prevails in the action, - }  there shall
be taxed and allowed to   { - the - }  { +  a prevailing + }
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 { +  based on
contract or tort + }, 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) As used in this section:
  (a) 'Contract' includes all express or implied contracts and
instruments or documents evidencing a debt, whether or not the
contract contains a provision for the award of attorney fees.
  (b) 'Tort' has the meaning given that term in ORS 30.260. + }
  SECTION 2. 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 3. 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 4. ORS 20.098 is amended to read:
  20.098. (1) In any action for damages for breach of an express
or implied warranty in a sale of consumer goods or services where
the amount pleaded is $2,500 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, and
as part of the disbursements of the action, - }  a reasonable
amount to be fixed by the court as compensation of expert
witnesses, if the court finds that written demand for the payment
of such claim was made on the defendant not less than 30 days
before commencement of the action and that the defendant was
allowed within that 30 days reasonable opportunity to inspect any
property pertaining to the claim; provided, that no
 { - attorney fees at trial and on appeal or - }  compensation of
expert witnesses shall be allowed to the plaintiff if the court
finds that the defendant tendered to the plaintiff, prior to the
commencement of the action, an amount not less than the damages
awarded to the plaintiff.
  (2) If the defendant prevails in an action in which the
plaintiff requests   { - attorney fees or - }  compensation of
expert witnesses under subsection (1) of this section, the court
may in its discretion allow   { - reasonable attorney fees at
trial and on appeal or - }  a reasonable amount as compensation
of expert witnesses to the defendant if it finds the action to
have been frivolous.
  SECTION 5. ORS 30.701 is amended to read:
  30.701. (1) In any action against a maker of a dishonored
check, a payee may recover from the maker statutory damages in an
amount equal to $100 or triple the amount for which the check is
drawn, whichever is greater. Statutory damages awarded under this
subsection are in addition to the amount for which the check was
drawn and may not exceed by more than $500 the amount for which
the check was drawn. The court shall allow reasonable attorney
fees at trial and on appeal to the prevailing party in an action
on a dishonored check and in any action on a check that is not
paid because payment has been stopped.
  (2)  { + Notwithstanding ORS 20.080, + } statutory damages and
attorney fees under subsection (1) of this section may be awarded
only if the payee made written demand of the maker of the check
not less than 30 days before commencing the action and the maker
failed to tender to the payee before the commencement of the
action an amount of money not less than the amount for which the
check was drawn, all interest that has accrued on the check under
ORS 82.010 as of the date of demand and any charges imposed under
subsection (5) of this section.
  (3) Statutory damages under subsection (1) of this section
shall not be awarded by the court if after the commencement of
the action but before trial the defendant tenders to the
plaintiff an amount of money equal to the amount for which the
check was drawn, all interest that has accrued on the check under
ORS 82.010 as of the date of payment, any charges imposed under
subsection (5) of this section, costs and disbursements and the
plaintiff's reasonable attorney fees incurred as of the date of
the tender.
  (4) If the court or jury determines that the failure of the
defendant to satisfy the dishonored check at the time demand was
made under subsection (2) of this section was due to economic
hardship, the court or jury has the discretion to waive all or
part of the statutory damages provided for in subsection (1) of
this section. If all or part of the statutory damages are waived
under this subsection, judgment shall be entered in favor of the
plaintiff for the amount of the dishonored check, all interest
that has accrued on the check under ORS 82.010, any charges
imposed under subsection (5) of this section, the plaintiff's
reasonable attorney fees and costs and disbursements.
  (5) If a check is dishonored, the payee may collect from the
maker a reasonable fee representing the cost of handling and
collecting on the check. The total fee for any single check may
not exceed $25. Any award of statutory damages under subsection
(1) of this section must be reduced by the amount of any charges
imposed under this subsection that have been paid by the maker or
that are entered as part of the judgment.
  (6) The provisions of this section apply only to a check that
has been dishonored because of a lack of funds or credit to pay
the check, because the maker has no account with the drawee or
because the maker has stopped payment on the check without good
cause. A plaintiff is entitled to the remedies provided by this
section without regard to the reasons given by the drawee for
dishonoring the check.
  (7) For the purposes of this section:
  (a) 'Check' means a check, draft or order for the payment of
money.
  (b) 'Drawee' has that meaning given in ORS 73.0103.
  (c) 'Payee' means a payee, holder or assignee of a check.
  SECTION 6. 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 ORS 20.080. + }
    { - (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 7. 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 ORS 20.080. + }
    { - (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 8. ORS 83.100 is amended to read:
  83.100. (1)  { + Except as provided in ORS 20.080,  + }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 9. 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 10.  { + The amendments to ORS 20.080, 20.096, 20.097,
20.098, 30.701, 46.405, 55.011, 83.100 and 646.498 by sections 1
to 9 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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