Relating to business transactions; creating new provisions; and amending ORS 41.580, 82.010, 82.025, 105.480, 205.460, 475A.005, 646.551, 646.605, 674.100, 696.520, 697.005, 697.622, 717.235, 723.014, 725.010, 725.020, 725.045, 725.140, 725.145, 725.190, 725.220, 725.230, 725.340, 726.075 and 744.609.

 
 
 
     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 2750
 
                         House Bill 2735
 
Sponsored by Representative BOWMAN
 
 
                             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.
 
  Establishes licensing requirements for persons engaging in
business of check cashing or making title loans. Sets maximum
rate for interest and charges that may be imposed by licensees.
 
                        A BILL FOR AN ACT
Relating to business transactions; creating new provisions; and
  amending ORS 41.580, 82.010, 82.025, 105.480, 205.460,
  475A.005, 646.551, 646.605, 674.100, 696.520, 697.005, 697.622,
  717.235, 723.014, 725.010, 725.020, 725.045, 725.140, 725.145,
  725.190, 725.220, 725.230, 725.340, 726.075 and 744.609.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 725.010 is amended to read:
  725.010. As used in this chapter:
   { +  (1) 'Applicant' includes an employee who exercises
management or policy control over the company or a director,
officer, limited or general partner, manager or shareholder
holding more than five percent of the outstanding stock of the
corporation.
  (2) 'Check' means any check, draft, money order, personal money
order, traveler's check, warrant or other instrument for the
transmission or payment of money.
  (3) 'Check casher' means a person that for compensation
engages, in whole or in part, in the business of cashing checks,
including deferred deposit transactions. 'Check casher' does not
include:
  (a) Any exempt institution;
  (b) Any retail seller engaged primarily in the business of
selling consumer goods, including consumables, to retail buyers
that cashes checks or issues money orders for a minimum flat fee
not exceeding $1 as a service to its customers that is either
independent of or incidental to the retail sale of goods or
services; or
  (c) Any person that cashes checks without consideration or a
fee.
  (4) 'Consideration' includes any premium charged for the sale
of goods or services in excess of the cash price of the goods or
services.
  (5) 'Consumer finance loan' means the offer of or loan of money
in an amount of $50,000 or less to a consumer primarily for
personal, family or household purposes.
 
  (6) 'Deferred deposit' means a transaction whereby the check
casher refrains from depositing a personal check written by a
customer until a specified date, pursuant to a written agreement,
as provided in section 10 of this 2001 Act. + }
    { - (1) - }   { + (7) + } 'Department' means the Department
of Consumer and Business Services.
    { - (2) - }   { + (8) + } 'Director' means the Director of
the Department of Consumer and Business Services.
   { +  (9) 'Exempt institution' means any bank, banking
institution, extranational institution, federal bank, federal
savings bank, financial institution, national bank or trust
company, as those terms are defined in ORS 706.008, that is
chartered, licensed or organized under the laws of this state or
under federal law and authorized to do business in this state.
  (10) 'Incidental to the retail sale of goods or services '
means not included in the payment for the retail sale of goods or
services, provided check cashing services are not advertised,
announced or otherwise promoted as a service separate and apart
from the retail sale.
  (11) 'License' means a consumer finance license or a short-term
personal loan license issued under ORS 725.140. + }
    { - (3) - }   { + (12) + } 'Licensee' means every person
licensed under this chapter.
   { +  (13) 'Person' means any individual, partnership,
association, joint stock association, trust, corporation or other
entity, but does not include the United States Government or the
government of this state.
  (14) 'Short-term personal loan' means a noncommercial loan of
nine months or less in duration made by a person that is in the
business of making short-term personal loans. 'Short-term
personal loan' includes but is not limited to all services
provided by a check casher, title loans and any other loan
designated by rule or order of the director.
  (15) 'Title loan' means a loan, other than a purchase money
loan, secured by the title to a motor vehicle, recreational
vehicle, boat or mobile home. + }
  SECTION 2. ORS 725.020 is amended to read:
  725.020. This chapter shall be known as the Oregon Consumer
Finance  { + and Short-Term Personal Loan + } Act.
  SECTION 3. ORS 725.045 is amended to read:
  725.045.  { + (1) + }   { - No person, without first obtaining
a license under this chapter, shall - }   { + A person may
not + } make a consumer  { +  finance + } loan of $50,000 or less
 { - , except as provided under ORS 82.010, 82.020 and 82.025 - }
 { + without first obtaining a consumer finance license issued
under ORS 725.140. This subsection does not apply to loans
described in ORS 82.010 or 82.020 or to persons or loans
described in ORS 82.025 + }.
   { +  (2) Notwithstanding ORS 82.010, a person may not make a
short-term personal loan without first obtaining a short-term
personal loan license issued under ORS 725.140. This subsection
does not apply to:
  (a) Persons holding a consumer finance license under subsection
(1) of this section;
  (b) Exempt institutions;
  (c) Any retail seller engaged primarily in the business of
selling consumer goods, including consumables, to retail buyers
that cashes checks or issues money orders for a minimum flat fee
not exceeding $1 as a service to its customers that is either
independent of or incidental to the retail sale of goods and
services; or
  (d) Any person that cashes checks without consideration or a
fee. + }
  SECTION 4.  { + Sections 5 to 13 of this 2001 Act are added to
and made a part of ORS chapter 725. + }
 
  SECTION 5.  { + The following conditions apply to short-term
personal loans:
  (1) The licensee may not compound interest on short-term
personal loans.
  (2) The licensee shall maintain a written or electronic log of
all written or verbal complaints and documentation on how each
complaint was resolved.
  (3) The licensee may not renew, roll over or otherwise
consolidate a short-term personal loan more than three times in
succession. Each rollover period shall be 30 days or longer.
  (4) The licensee may not impose any penalty for the prepayment
in full of any short-term personal loan.
  (5) In the case of a deferred deposit, the licensee may not
charge more than one fee per loan if a check is dishonored due to
insufficient funds. + }
  SECTION 6.  { + The following conditions apply only to
short-term personal loans that are title loans:
  (1) The licensee may not accept a separate set of keys to any
vehicle securing the title loan.
  (2) The licensee shall make only one outstanding title loan per
vehicle.
  (3) The licensee:
  (a) Shall give the borrower 10 days' advance written notice of
intent to sell a repossessed vehicle;
  (b) Shall sell a repossessed vehicle in a commercially
acceptable manner;
  (c) Shall obtain at least three bids on the vehicle, unless the
sale is conducted at public auction; and
  (d) May not sell the vehicle to a subsidiary or affiliate of
the licensee.
  (4) If a vehicle is sold, all proceeds exceeding the debt and
reasonable costs associated with repossession and sale shall be
delivered to the customer not later than three days after the
date of the sale. + }
  SECTION 7.  { + (1) At the time of the transaction, a licensee
that makes or offers to make a short-term personal loan shall
provide to each customer a clearly written statement, to be
acknowledged in writing by the customer, that discloses the
following:
  (a) That the cost of credit obtained through the licensee is
higher than other types of credit that may be available.
  (b) The rate agreed to, the annual percentage rate, all fees
and the total cost of credit expressed as a dollar amount.
  (c) A description of the results of any default or late
payment.
  (2) If the short-term personal loan is a title loan, the
disclosures required under subsection (1) of this section shall
also include a statement:
  (a) That describes when and under what circumstances a vehicle
may be repossessed; and
  (b) That informs the customer that if the vehicle is
repossessed, the customer may not receive any proceeds from the
sale because of the costs that may be incurred and that the
customer may owe additional funds if the proceeds of the sale do
not equal at least the amount of the debt plus the costs of
repossession and sale. + }
  SECTION 8.  { + The following conditions apply to a licensee
engaging in business as a check casher:
  (1) Before a licensee deposits a check cashed by the licensee
with any bank, financial institution or other depository
institution, the check shall be indorsed with the name of the
licensee that appears on the licensee's license. If the licensee
is doing business under a name other than the name that appears
on the license, the indorsement shall also include that name.
  (2) Each licensee shall keep and use in its business any books,
accounts and records that the Director of the Department of
Consumer and Business Services may require by rule. Each licensee
shall preserve the books, accounts and records for at least two
years.
  (3) A licensee may not indicate through advertising, signs or
otherwise that checks may be cashed without identification of the
bearer of the check. Any person seeking to cash a check shall be
required to present reasonable identification as prescribed by
the director by rule.
  (4) Within five business days after being advised by the payor
institution that a check has been altered, forged, stolen,
obtained through fraudulent or illegal means or negotiated
without proper legal authority, or that the check represents the
proceeds of illegal activity, the licensee shall notify the
director and the district attorney for the county in which the
check was received. In the event a check is returned to the
licensee by the payor institution for any reason described in
this subsection, the licensee may not release the check without
the consent of the district attorney or other investigating law
enforcement authority as prescribed by the director by rule. + }
  SECTION 9.  { + (1) Notwithstanding ORS 82.010, 725.340,
725.345 and 725.347, a licensee may not:
  (a) Charge check cashing fees in excess of three percent of the
face amount of the check or $5, whichever is greater, if the
check is the payment of any kind of state public assistance or
federal Social Security benefit payable to the bearer of the
check or draft;
  (b) Except as provided in paragraph (a) of this subsection and
section 10 of this 2001 Act, charge check cashing fees in excess
of five percent of the face amount of the check or $5, whichever
is greater, for any type of check or money order, including
personal checks; or
  (c) Charge any initial membership fee, identification fee or
other fee unless the fee is specifically authorized by a rule
adopted under this chapter.
  (2) A licensee shall provide a receipt to the customer for each
check cashing transaction. + }
  SECTION 10.  { + (1) A licensee may defer the deposit of a
personal check written by a customer for up to 30 days as
provided in this section.
  (2) The face amount of the check may not exceed $300. Each
deferred deposit shall be made pursuant to a written agreement
that has been signed by the customer and by the licensee or an
authorized representative of the licensee. The written agreement
shall contain a statement of the total amount of any fees charged
for the deferred deposit, expressed as a dollar amount and as an
annual percentage rate. The written agreement shall authorize the
licensee acting as a check casher to defer deposit of the
personal check until a specific date not later than 30 days from
the date the written agreement was signed and executed. The
written agreement may not permit the licensee to accept
collateral.
  (3) Notwithstanding ORS 82.010, 725.340, 725.345 and 725.347,
in any deferred deposit agreement, a licensee may not charge a
fee in excess of 18 percent of the face amount of the check.
  (4) A customer who enters into a deferred deposit agreement and
offers a personal check to a licensee pursuant to the agreement
is not subject to any criminal penalty for failure to comply with
the terms of the agreement. + }
  SECTION 11.  { + Notwithstanding ORS 82.010, 725.340, 725.345
and 725.347, in the case of a title loan, a licensee may charge,
contract for and receive interest as follows:
  (1) Not more than three percent per month on that part of the
unpaid principal balance that is $1,000 or less.
  (2) Not more than two percent per month on that part of the
unpaid principal balance that is more than $1,000 but less than
$3,000.
  (3) In any loan where the original principal amount of the loan
is $3,000 or more, not more than two percent per month on the
unpaid principal balance. + }
  SECTION 12.  { + (1) Any customer who is injured by any
violation of section 9, 10 or 11 of this 2001 Act may bring an
action for the recovery of damages, an action to restrain and
enjoin those violations, or both. The amount awarded may be up to
three times the damages actually incurred, but in no event less
than the amount paid by the customer to a person subject to this
chapter.
  (2) In any action brought under this section, if the plaintiff
prevails, the plaintiff shall be awarded reasonable attorney fees
and costs. If a court determines by clear and convincing evidence
that a breach or violation was willful, the court, in its
discretion, may award punitive damages in addition to the amounts
otherwise set forth in this section. + }
  SECTION 13. { +  The following materials shall accompany each
application for a license under this chapter:
  (1) Audited financial statements prescribed by the Director of
the Department of Consumer and Business Services by rule;
  (2) Evidence that the applicant has complied or will comply
with all workers' and unemployment compensation laws of this
state;
  (3) A bond or irrevocable letter of credit to be approved by
the Department of Consumer and Business Services in which the
applicant shall be the obligor, in the sum of $5,000, with one or
more sureties whose liability as sureties need not exceed such
sum in the aggregate. The bond or letter of credit shall run to
the department for the use of the state. The bond or letter of
credit shall be conditioned that the obligor will faithfully
conform to and abide by the provisions of this chapter and of all
rules adopted by the department under this chapter, and will pay
to the state any and all moneys that become due or owing to the
state from the obligor under this chapter. If the aggregate
amount of all recoveries or payments exceeds the sum thereof, the
licensee shall be required to furnish a new and additional bond
or letter of credit, in the same amount as the original bond,
which shall be filed with the director within 30 days after the
demand therefor; and
  (4) Fingerprints of each applicant submitted on forms supplied
by the department and written consent to the performance of
background checks. + }
  SECTION 14. ORS 725.140 is amended to read:
  725.140. (1) Conditioned upon the applicant's compliance with
this chapter and the payment of the license fee, the Director of
the Department of Consumer and Business Services, within 90 days
after the date of filing the application referred to in ORS
725.120, shall disapprove the application or shall issue and
deliver a license to the applicant   { - to make loans - }  in
accordance with this chapter at the location specified in the
application.  However, before issuing a license, the director
must first find upon investigation:
  (a) That the financial responsibility, experience, character
and general fitness of the applicant, and of the members thereof
if the applicant is a partnership or association, and of the
officers and directors thereof if the applicant is a corporation,
are such as to command the confidence of the community and to
warrant the belief that the business will be operated honestly,
fairly and efficiently within the purposes of this chapter  { - ;
and - }  { + .  In determining whether the applicant has met this
qualification, the director may review and approve:
  (A) The business records and capital adequacy of the applicant;
  (B) The competence, experience, integrity and financial ability
of the applicant; and
  (C) A record on the part of the applicant of a:
 
  (i) Criminal activity or association with a criminal
enterprise;
  (ii) Fraud or other act of dishonesty;
  (iii) Act, omission or practice that constitutes a breach of a
fiduciary duty; or
  (iv) Suspension or removal by an agency or department of the
United States or a state from participating in the conduct of a
business. + }
  (b) That grounds for disapproval of an application described in
ORS 725.145 do not exist and that, in the judgment of the
director, there are no other reasons or conditions that would
warrant the refusal to grant a license.
   { +  (c) That the applicant has liquid assets of at least
$10,000 available for the operation of the business, for each
location specified in the application. + }
  (2) A license issued under this section shall be a continuing
license and shall remain in full force and effect until the
license is surrendered by the licensee as provided in ORS 725.250
or revoked or suspended as provided in ORS 725.230.
  SECTION 15. ORS 725.145 is amended to read:
  725.145. The Director of the Department of Consumer and
Business Services may disapprove an application for a license if
any person named in the application submitted pursuant to ORS
725.120:
  (1) Is insolvent, either in the sense that the person's
liabilities exceed the person's assets or that the person cannot
meet the person's obligations as they mature, or is in such
financial condition that the person cannot continue in business
with safety to the person's customers;
  (2) Has engaged in dishonest, fraudulent or illegal practices
or conduct in any business or profession;
  (3) Has knowingly or repeatedly violated or failed to comply
with any provision of the Oregon Bank Act, the Savings
Association Act, the Oregon Credit Union Act, the Oregon Consumer
Finance  { + and Short-Term Personal Loan + } Act or the
Pawnbrokers Act, or any administrative rule or order adopted
pursuant to any such Act;
  (4) Has been convicted of a crime, an essential element of
which is fraud;
  (5) Is permanently or temporarily enjoined by a court of
competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the consumer finance
business;
  (6) Is the subject of an order of the director, subjecting the
person to a fine or other civil penalty under the Bank Act, ORS
chapter 722 or 723 or this chapter, or removing the person from
an office in any entity regulated under the Bank Act, ORS chapter
722 or 723 or this chapter;   { - or - }
  (7) Is the subject of an order entered within the past five
years, subjecting the person to a fine or other civil penalty, or
removing the person from an office in a   { - state banking
institution, a national bank, a state or federal savings
association, a state or federal credit union - }   { + financial
institution + } or a consumer finance company, issued by the
regulatory authority of another state or of the federal
government with authority over such   { - banking institutions,
savings associations, credit unions - }   { + financial
institutions + } or consumer finance companies  { - . - }  { + ;
or
  (8) Has been convicted of a felony in any jurisdiction or of a
crime that, if committed in this state, would constitute a felony
under the laws of this state. + }
  SECTION 16. ORS 725.190 is amended to read:
  725.190. (1) On or before February 15 of each year, or on such
other date established by the Director of the Department of
Consumer and Business Services by rule, every licensee shall file
a report with the director giving such relevant information as
the director may require concerning the business and operations
during the preceding calendar year of each licensed place of
business conducted by the licensee within the state. The report
shall be made under oath and shall be in the form prescribed by
the director.
  (2) Every licensee   { - who - }   { + that + } fails to file
any report required under this chapter within the time specified
may be subject to a penalty of $10 per day for each day's delay.
  SECTION 17. ORS 725.220 is amended to read:
  725.220. (1) When a licensee wishes to change the place of
business to another location, the licensee shall submit written
notice thereof, together with the license, to the Director of the
Department of Consumer and Business Services. The director shall
amend the license of the licensee to reflect the new location and
shall return the amended license to the licensee.
  (2) A change in the place of business of a licensee to a
location outside the city named in the original license may be
allowed under the same license only if the director determines
that the new location will serve substantially the same community
as is served at the location named in the original license.
  (3) If the director disapproves the proposed new location of
the business, the director shall immediately notify the licensee
of the disapproval and return the license unchanged to the
licensee.
   { +  (4) Any communication directed by the Department of
Consumer and Business Services to the last-known address of
record shall be considered delivered when deposited in the United
States mail, regular mail.
  (5) A licensee shall notify the director 30 business days in
advance of a change of ownership. The director may revoke the
license if the new ownership would have resulted in denial of the
initial license under the provisions of this chapter. + }
  SECTION 18. ORS 725.230 is amended to read:
  725.230. (1) The Director of the Department of Consumer and
Business Services may revoke any license under this chapter upon
10 days' notice to the licensee stating the contemplated action
and in general the grounds therefor and upon reasonable
opportunity for a hearing in connection therewith, if the
director finds that { +  the licensee + }:
  (a)   { - The licensee - }  Has failed to pay the annual
license fee or to comply with any demand, ruling or requirement
of the director made pursuant to this chapter or to comply with
the provisions of law to keep the corporation in good standing if
such licensee is a corporation;
  (b)   { - The licensee - }  Has violated any provisions of this
chapter or any rule made by the director under the authority of
this chapter;   { - or - }
   { +  (c) Has committed any fraud, engaged in any dishonest
activities or made any misrepresentations;
  (d) Has violated or has knowingly assisted an unlicensed person
to act in violation of any provisions of this chapter or any rule
adopted under this chapter or has violated any other law in the
course of the licensee's dealings as a licensee;
  (e) Has made a false statement in the application for the
license or failed to give a true reply to a question in an
application for the license; or
  (f) Has demonstrated the licensee's incompetence or
untrustworthiness to act as a licensee, or if the director finds
that any fact or condition exists with relation to the license
that, if it had existed at the time of the original application
for the license, would have warranted the director to refuse
originally to issue the license. + }
    { - (c) Any fact or condition exists which, if it had existed
at the time of the original application for such license, clearly
 
would have warranted the director in refusing originally to issue
the license. - }
  (2) The director, without notice or hearing, may suspend any
license for a period not exceeding 30 days, pending
investigation.
  (3) The director may revoke or suspend only the particular
license with respect to which grounds for revocation or
suspension may occur or exist, or, if the director finds that
such grounds for revocation or suspension are of general
application to all offices or to more than one office operated by
a licensee, the director may revoke or suspend all the licenses
or such number of licenses issued to the licensee as the grounds
for revocation or suspension apply to, as the case may be.
  SECTION 19. ORS 725.340 is amended to read:
  725.340. (1)  { + Except as provided in sections 9, 10 and 11
of this 2001 Act, + } a licensee may charge, contract for and
receive any interest or consideration for loans, secured or
unsecured, as agreed upon by the licensee and the borrower.
  (2) When a precomputed loan contract is originally scheduled to
be repaid in 62 months or less and requires repayment in
substantially equal or consecutive monthly installments of
principal and interest combined, the interest or consideration
may be precomputed, contracted for and earned on scheduled unpaid
principal balances on the assumption that all scheduled payments
will be made when due. In such cases, every payment may be
applied to the combined total of principal and precomputed
interest until the contract is fully paid, and the acceptance or
payment of interest or consideration on any loan made under the
provisions of this subsection shall not be deemed to constitute
payment, deduction or receipt thereof in advance. Such
precomputed interest or consideration shall be subject to the
following adjustments:
  (a) When a default of more than 10 days in the payment of any
scheduled installment occurs, the licensee may charge and collect
a default charge not exceeding five percent of the unpaid amount
of the installment or $5, whichever is less. A default charge may
be collected only once on an installment, but may be collected at
the time it accrues or at any time thereafter. No default charge
may be assessed with respect to an installment which is paid in
full on or within 10 days after a scheduled installment due date
when an earlier maturing installment or a default or deferral
charge on an earlier maturing installment may not have been paid
in full even though all or part of such installment payment is
applied to an earlier maturing installment, or a default or
deferral charge.
  (b) If the payment of all unpaid installments is deferred one
or more full months, and if the contract so provides, the
licensee may charge and collect a deferral charge not exceeding
the annual percentage rate previously disclosed to the borrower
pursuant to the Federal Consumer Credit Protection
(Truth-in-Lending) Act applied to the sum of the installments
deferred for the length of the deferral period. The deferral
period is that period in which no scheduled installment is
required to be paid by reason of the deferral. Such charge may be
collected at the time of deferral or at any time thereafter. A
deferral charge may not be made for the deferral of any
installment with respect to which a default charge has been
collected, unless the default charge is deducted from the
deferral charge. If prepayment of the loan in full occurs during
the deferral period, in addition to any other rebate which may be
required, the borrower shall receive a rebate of the portion of
the deferral applicable to the unexpired months in the deferral
period, for which purpose a fraction of an unexpired month
exceeding 15 days shall be deemed to be a month.
  (c)  { + Except as provided in paragraph (d) of this subsection
for short-term personal loans, + } upon prepayment in full of the
unpaid balance of a precomputed loan, a rebate of unearned
interest or consideration shall be made as provided in this
paragraph. The amount of the rebate shall be not less than the
total interest contracted for to maturity, less the greater of:
  (A) Ten percent of the amount financed or $75, whichever is
less; or
  (B) The interest or consideration earned to the installment due
date nearest the date of prepayment, computed by applying the
simple interest rate of the loan to the actual principal balances
outstanding, for the periods of time the balances were actually
outstanding. For purposes of rebate computations under this
subparagraph, the installment due date preceding the date of
prepayment shall be considered to be nearest if prepayment occurs
15 days or less after that installment date. If prepayment occurs
more than 15 days after the preceding installment due date, the
next succeeding installment due date shall be considered to be
nearest to the date of prepayment. In determining the simple
interest rate, the licensee may apply to the scheduled payments
the actuarial method, by which each scheduled payment is applied
first to accrued and unpaid interest or consideration, and any
amount remaining is applied to reduction of the principal
balance.
   { +  (d) Upon prepayment in full of the unpaid balance of a
short-term personal loan, a rebate of unearned interest or
consideration shall be made by the licensee to the borrower. + }
  (3) If the borrower agrees to perform certain duties to insure
or preserve the collateral and fails to perform those duties, the
licensee may pay for the performance of those duties and add the
amounts paid to the unpaid principal balance. A charge may be
made for sums advanced, at the rate provided for in the loan
agreement.
  (4) The loan contract may provide that after default and
referral the borrower shall pay the licensee for reasonable
attorney fees actually paid by the licensee to an attorney not a
salaried employee of the licensee.
  SECTION 20. ORS 41.580 is amended to read:
  41.580. (1) In the following cases the agreement is void unless
it, or some note or memorandum thereof, expressing the
consideration, is in writing and subscribed by the party to be
charged, or by the lawfully authorized agent of the party;
evidence, therefore, of the agreement shall not be received other
than the writing, or secondary evidence of its contents in the
cases prescribed by law:
  (a) An agreement that by its terms is not to be performed
within a year from the making.
  (b) An agreement to answer for the debt, default or miscarriage
of another.
  (c) An agreement by an executor or administrator to pay the
debts of the testator or intestate out of the estate of the
executor or administrator.
  (d) An agreement made upon consideration of marriage, other
than a mutual promise to marry.
  (e) An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of any interest
therein.
  (f) An agreement concerning real property made by an agent of
the party sought to be charged unless the authority of the agent
is in writing.
  (g) An agreement authorizing or employing an agent or broker to
sell or purchase real estate for a compensation or commission;
but if the note or memorandum of the agreement is in writing and
subscribed by the party to be charged, or by the lawfully
authorized agent of the party, and contains a description of the
property sufficient for identification, and authorizes or employs
the agent or broker to sell the property, and expresses with
reasonable certainty the amount of the commission or compensation
to be paid, the agreement shall not be void for failure to state
a consideration.
  (h) An agreement, promise or commitment to lend money, to
otherwise extend credit, to forbear with respect to the repayment
of any debt payable in money, to modify or amend the terms under
which the person has lent money or otherwise extended credit, to
release any guarantor or cosigner or to make any other financial
accommodation pertaining to an existing debt or other extension
of credit. This paragraph does not apply:
  (A) If no party to the agreement, promise or commitment is a
financial institution as defined in ORS 706.008, a   { - consumer
finance company licensed - }  { +  licensee + } under ORS chapter
725 or a mortgage banker as defined in ORS 59.840;
  (B) To a loan of money or extension of credit to a natural
person which is primarily for personal, family or household
purposes and not for business or agricultural purposes or which
is secured solely by residential property consisting of one to
four dwelling units, one of which is the primary residence of the
debtor; or
  (C) To any transaction involving the use of a credit card,
charge card or similar device.
  (2)(a) Except as provided in this section, all defenses and
exceptions to subsection (1)(a) to (g) of this section created by
any provision of the Oregon Revised Statutes or recognized by the
courts of this state shall also apply to subsection (1)(h) of
this section.
  (b) An agreement, promise or commitment which does not satisfy
the requirements of subsection (1)(h) of this section, but which
is valid in other respects, is enforceable if the party against
whom enforcement is sought admits in the party's pleading,
testimony or otherwise in court that the agreement, promise or
commitment was made. The agreement is not enforceable under this
paragraph beyond the dollar amount admitted.
  (c) Nothing in subsection (1)(h) of this section precludes a
party from seeking to prove the waiver of any term relating to
the time of repayment.
  (3)(a) If a financial institution as defined in ORS 706.008, a
 { - consumer finance company licensed - }   { + licensee + }
under ORS chapter 725 or a mortgage banker as defined in ORS
59.840 lends money or extends credit, and subsection (1)(h) of
this section applies to the loan or extension of credit, the
financial institution,
  { - consumer finance company - }   { + licensee + } or mortgage
banker shall, not later than the time the loan or extension of
credit is initially made, include within the loan or credit
document, or within a separate document which identifies the loan
or extension of credit, a statement which is underlined or in at
least 10-point bold type and which is substantially to the
following effect:
_________________________________________________________________
  ' Under Oregon law, most agreements, promises and commitments
made by us after October 3, 1989, concerning loans and other
credit extensions which are not for personal, family or household
purposes or secured solely by the borrower's residence must be in
writing, express consideration and be signed by us to be
enforceable. '
_________________________________________________________________
  (b) The financial institution,   { - consumer finance
company - }  { +  licensee + } or mortgage banker shall obtain
the borrower's signature on the original document described in
paragraph (a) of this subsection and shall give the borrower a
copy.
  (c) Not later than October 3, 1989, each financial institution,
 { - consumer finance company - }   { + licensee + } or mortgage
banker shall develop and implement a program reasonably designed
to inform existing and potential commercial borrowers of the
provisions of subsection (1)(h) of this section. Each program
shall at a minimum include making available to existing and
potential commercial borrowers, on a continuing basis for a
period ending not sooner than three years after October 3, 1989,
a brochure or other written material containing the statement
required by paragraph (a) of this subsection. The statement shall
be underlined or be in at least 10-point bold type.
  (d) Each financial institution,   { - consumer finance
company - }  { +  licensee + } and mortgage banker shall make
available the brochure or material described in paragraph (c) of
this subsection at each branch, office or other location from
which it makes loans or other extensions of credit to which
subsection (1)(h) of this section applies. If a financial
institution,   { - consumer finance company - }
 { + licensee + } or mortgage banker complies with this paragraph
and paragraph (c) of this subsection, the financial institution,
  { - consumer finance company - }   { + licensee + } or mortgage
banker shall not be precluded from enforcing subsection (1)(h) of
this section because any particular existing or potential
commercial borrower did not receive the brochure or material.
  SECTION 21. ORS 82.010 is amended to read:
  82.010. (1) The rate of interest for the following
transactions, if the parties have not otherwise agreed to a rate
of interest, is nine percent per annum and is payable on:
  (a) All moneys after they become due; but open accounts bear
interest from the date of the last item thereof.
  (b) Money received to the use of another and retained beyond a
reasonable time without the owner's express or implied consent.
  (c) Money due or to become due where there is a contract to pay
interest and no rate specified.
  (2) Except as provided in this subsection, the rate of interest
on judgments for the payment of money is nine percent per annum.
The following apply as described:
  (a) Interest on a judgment under this subsection accrues from
the date of the entry of the judgment unless the judgment
specifies another date.
  (b) Interest on a judgment under this subsection is simple
interest, unless otherwise provided by contract.
  (c) Interest accruing from the date of the entry of a judgment
shall also accrue on interest that accrued before the date of
entry of a judgment.
  (d) Interest under this subsection shall also accrue on
attorney fees and costs entered as part of the judgment.
  (e) A judgment on a contract bearing more than nine percent
interest shall bear interest at the same rate provided in the
contract as of the date of entry of the judgment.
  (3) Except as provided in ORS 82.025 { +  and sections 9, 10
and 11 of this 2001 Act + }, no person shall:
  (a) Make a business or agricultural loan of $50,000 or less at
an annual rate of interest exceeding the greater of 12 percent,
or five percent in excess of the discount rate, including any
surcharge on the discount rate, on 90-day commercial paper in
effect at the Federal Reserve Bank in the Federal Reserve
district where the person making the loan is located, on the date
the loan or the initial advance of funds under the loan is made;
or
  (b) Make a loan of $50,000 or less, except a loan made under
paragraph (a) of this subsection, at an annual rate of interest
exceeding the greater of 12 percent, or five percent in excess of
the discount rate on 90-day commercial paper in effect at the
Federal Reserve Bank in the Federal Reserve district where the
person making the loan is located, on the date the loan or the
initial advance of funds under the loan is made.
  (4) Any person who violates subsection (3) of this section
shall forfeit the right to collect or receive any interest upon
any loan for which a greater rate of interest or consideration
than is permitted by subsection (3) of this section has been
charged, contracted for or received. The borrower upon such loan
shall be required to repay only the principal amount borrowed.
  SECTION 22. ORS 82.025 is amended to read:
  82.025. ORS 82.010 (3) and (4) and 82.020 do not apply to:
  (1) Any financial institution or trust company, as those terms
are defined in ORS 706.008, any   { - consumer finance - }
licensee under ORS chapter 725, or any pawnbroker licensed under
ORS chapter 726.
  (2) Any lender approved by the Secretary of Housing and Urban
Development of the United States for participation in any
mortgage insurance program under the National Housing Act (12
U.S.C. 1701 et seq.).
  (3) Any loan secured by a first lien on real property or made
to finance the acquisition of real property and secured by any
lien on that property.
  (4) Any loan which is secured by real property, which is
scheduled under the loan agreement to be repaid in substantially
equal payments and which is made by a lender described in this
subsection. A lender under this subsection is one who makes,
invests in or arranges real property loans, including loans
secured by first liens on residential manufactured homes,
aggregating more than $1 million per year. Under this subsection,
payments shall be 'substantially equal' if, under the terms of
the loan agreement, no single scheduled payment is more than
twice the amount of any other scheduled payment.
  (5) Any loan wholly or partially secured or covered by
guarantees or insurance by the Federal Housing Administration,
the United States Department of Veterans Affairs or the Farmers
Home Administration of the United States, any department, bureau,
board, commission or agency of the United States, or any
corporation wholly owned, directly or indirectly by the United
States.
  (6) Any loan permitted under applicable federal law and
regulations from a tax qualified retirement plan to a person then
a participant under the plan.
  (7) Any bona fide sale or resale of securities or commercial
paper.
  (8) Any interest charge by broker-dealers registered under the
Securities Exchange Act of 1934 for carrying a debit balance in
an account for a customer if the debit balance is payable on
demand and secured by stocks or bonds.
  SECTION 23. ORS 105.480 is amended to read:
  105.480. (1) The representations contained in a seller's
disclosure statement and in any amendment to the disclosure
statement are the representations of the seller only, and no
financial institution that may have made or that may make a loan
pertaining to the property covered by a seller's disclosure
statement, or that may have or take a security interest in the
property covered by a seller's disclosure statement, is bound by
or has any liability with respect to any representation,
misrepresentation, omission, error or inaccuracy contained in
another party's disclosure statement required by ORS 105.465 or
any amendment to the disclosure statement.
  (2) For purposes of ORS 105.465 to 105.490, 696.301 and
696.870, 'financial institution' has the meaning given that term
in ORS 706.008 and also includes mortgage bankers and mortgage
brokers as those terms are defined in ORS 59.840, and
 { - consumer finance companies licensed - }   { + licensees + }
under ORS chapter 725.
  SECTION 24. ORS 205.460 is amended to read:
  205.460. (1) A person whose property is subject to an invalid
claim of encumbrance may petition the circuit court of the county
in which the person resides or in which the property is located
for an order, which may be granted ex parte, directing the
encumbrance claimant to appear at a hearing before the court and
show cause why the claim of encumbrance should not be stricken
and other relief provided by this section should not be granted.
The court shall schedule the hearing no earlier than seven days
after the date of the order. The scheduled date of the hearing
shall allow adequate time for notice of the hearing under
subsection (4) of this section.
  (2) A petition under this section shall state the grounds upon
which relief is requested, and shall be supported by the
affidavit of the petitioner or the petitioner's attorney setting
forth a concise statement of the facts upon which the motion is
based.
  (3) The petition and affidavit described in subsection (2) of
this section shall be in substantially the following form:
_________________________________________________________________
                     IN THE CIRCUIT COURT OF
                       THE STATE OF OREGON
                    FOR THE COUNTY OF ______
 
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
 
______
,           )
Petitioner, Case No. ___
            )
            PETITION FOR AN
            ORDER STRIKING
v.          AND RELEASING
            ENCUMBRANCES,
            AWARDING COSTS
            AND ATTORNEY FEES
______
,           AND ORDER TO
Respondent. ) SHOW CAUSE
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
 
  Petitioner, ______ (insert name), by and through ______ (insert
name and title of attorney for petitioner, if applicable),
petitions this court, pursuant to ORS 205.460, for an order
striking and releasing purported encumbrances, filed or recorded
against Petitioner by Respondent, ______ (insert name or names)
filed or recorded in book/reel/volume No. ___ on page ___ or
document/fee/ file/instrument/microfilm No. ___ in the
______ (insert name of office where document was filed or
recorded), and for an order, pursuant to ORS 205.460, for costs
and attorney fees required to bring this action, on the grounds
that the purported encumbrances have no basis in law or fact.
Petitioner further requests that this court enter an order
requiring Respondent to appear before this court and to show
cause why the above order should not be entered. Finally,
Petitioner requests an order from the court requiring Respondent
to pay penalties and damages as provided in ORS 205.470.
  DATED this __ day of ____, __.
                                                 _______________
                              Petitioner or Petitioner's Attorney
_________________________________________________________________
_________________________________________________________________
                     IN THE CIRCUIT COURT OF
                       THE STATE OF OREGON
                    FOR THE COUNTY OF ______
 
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
 
______
,           )
Petitioner, Case No. ___
            )
            AFFIDAVIT OF
V.          )_______
            _
            )
            )
______
,           )
Respondent. )
 
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
 
________
                  )
STATE OF OREGON   )
                  ) ss.
County of ______
                  )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
  I, ______ (insert name of affiant), after being duly sworn,
depose and say:
  1. I am the above-entitled petitioner (or the attorney for the
petitioner) in this matter.
  2. The information contained in this affidavit is of my own
personal knowledge.
  3. Attached as numbered exhibits are true and correct copies of
the following documents that were filed or recorded in the ______
(insert name of office where documents were filed or recorded) on
______ (insert date):
  (List and attach document(s))
  4. For any purported encumbrances identified above the
following is true. The encumbrance is not authorized by statute,
was not entered into consensually, and is not an equitable,
constructive or other encumbrance imposed by a court of competent
jurisdiction.
  DATED this __ day of ____, __.
                                                 _______________
                            (Petitioner or Petitioner's Attorney)
 
SUBSCRIBED AND SWORN to before me this __ day of ______ , __.
                                                 _______________.
                                         NOTARY PUBLIC FOR OREGON
                                      My commission expires: ____
_________________________________________________________________
  (4) A copy of the petition and the order directing the
encumbrance claimant to appear under this section shall be served
upon the encumbrance claimant:
  (a) By service in the manner provided for personal service of
summons under ORCP 7; or
  (b) By mailing a true copy of the petition, affidavit and order
to the encumbrance claimant at the encumbrance claimant's
last-known address, both by first class mail and by certified or
registered mail, return receipt requested. A notice mailed under
this paragraph is effective on the date that the notice is
 
deposited with the United States Postal Service, properly
addressed and postage prepaid.
  (5) The order to show cause shall be in substantially the
following form and shall clearly state that if the encumbrance
claimant fails to appear at the time and place noted, the claim
of encumbrance shall be stricken and released and that the
encumbrance claimant shall be ordered to pay the costs and
reasonable attorney fees incurred by the petitioner at trial and
on appeal:
_________________________________________________________________
                     IN THE CIRCUIT COURT OF
                       THE STATE OF OREGON
                    FOR THE COUNTY OF ______
 
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
 
______
,           )
Petitioner, Case No. ___
            )
            ORDER TO
v.          SHOW CAUSE
            )
            )
______
,           )
Respondent. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
 
  THIS MATTER came before the court on ______ (insert date) on
Petitioner's Petition for an Order Striking and Releasing
Encumbrances, Awarding Costs and Attorney Fees and Order to Show
Cause. The court, having considered the petition, the Affidavit
of ______ (insert name) and the attached exhibits, and it
appearing to the court that there are sufficient grounds to issue
an order to show cause,
  IT IS HEREBY ORDERED that the Respondent, ______ (insert name),
appear before this court on ______ (insert date), at ____ (insert
time), to show cause why the petition should not be granted in
its entirety.
 
                        IMPORTANT NOTICE:
  IF YOU FAIL TO APPEAR AT THE ABOVE TIME AND PLACE, THE COURT
MAY ENTER AN ORDER STRIKING AND RELEASING YOUR ENCUMBRANCE CLAIMS
FILED AGAINST PETITIONER AND YOU MAY BE ORDERED TO PAY COSTS AND
REASONABLE ATTORNEY FEES INCURRED BY THE PETITIONER.
  DATED this __ day of ____, __.
                                                 _______________
                                              Circuit Court Judge
_________________________________________________________________
  (6) If the court determines that the claim of encumbrance is
invalid, the court shall issue an order striking and releasing
the claim of encumbrance and may award costs and reasonable
attorney fees at trial and on appeal to the petitioner to be paid
by the encumbrance claimant. If the court determines that the
claim of encumbrance is valid, the court shall issue an order so
stating and may award costs and reasonable attorney fees at trial
and on appeal to the encumbrance claimant to be paid by the
petitioner.
  (7) The procedure set forth in this section is not available
against a person lawfully conducting business as:
  (a) An institution, a savings bank, a national bank, an
out-of-state bank, a federal savings bank or an extranational
institution, as those terms are defined in ORS 706.008, or a
subsidiary of an entity described in this paragraph;
  (b) A savings association or a federal association, as those
terms are defined in ORS 722.004, or a subsidiary of an entity
described in this paragraph;
  (c) A bank holding company, a savings and loan holding company
or a subsidiary of a bank holding company or a savings and loan
holding company;
  (d) A credit union, as defined in ORS 723.006, or a federal
credit union;
  (e) A   { - consumer finance company - }   { + licensee + }
subject to the provisions of ORS chapter 725;
  (f) A mortgage banker or a mortgage broker, as those terms are
defined in ORS 59.840, a mortgage servicing company or any other
mortgage company; or
  (g) An insurer as defined in ORS 731.106.
  (8) The procedure set forth in this section is not available
against:
  (a) An officer, agency, department or instrumentality of the
federal government;
  (b) An officer, agency, department or instrumentality of this
state; or
  (c) An officer, agency, department or instrumentality of a
political subdivision or public corporation in this state.
  SECTION 25. ORS 475A.005 is amended to read:
  475A.005. As used in this chapter, unless the context requires
otherwise:
  (1) 'All persons known to have an interest' means:
  (a) Any person who has, prior to the time the property is
seized for forfeiture, filed notice of interest with any public
office as may be required or permitted by law to be filed with
respect to the property which has been seized for forfeiture;
  (b) Any person from whose custody the property was seized; or
  (c) Any person who has an interest in the property, including
all owners and occupants of the property, whose identity and
address is known or is ascertainable upon diligent inquiry and
whose rights and interest in the property may be affected by the
action.
  (2) 'Attorney fees' has the meaning given that term in ORCP 68
A.
  (3) 'Costs and disbursements' are those expenditures set forth
in ORCP 68 A.
  (4) 'Financial institution' means any person lawfully
conducting business as:
  (a) A financial institution or trust company, as those terms
are defined in ORS 706.008;
  (b) A   { - consumer finance company - }   { + licensee + }
subject to the provisions of ORS chapter 725;
  (c) A mortgage banker or a mortgage broker as those terms are
defined in ORS 59.840, a mortgage servicing company or other
mortgage company;
  (d) An officer, agency, department or instrumentality of the
federal government, including but not limited to:
  (A) The Secretary of Housing and Urban Development;
  (B) The Federal Housing Administration;
  (C) The Veterans Administration;
  (D) The Farmers Home Administration;
  (E) The Federal National Mortgage Association;
  (F) The Government National Mortgage Administration;
  (G) The Federal Home Loan Mortgage Association;
  (H) The Federal Agricultural Mortgage Corporation; and
  (I) The Small Business Administration;
  (e) An agency, department or instrumentality of the state,
including but not limited to:
  (A) The Housing Agency;
  (B) Any entity established by the Director of Veterans' Affairs
to carry out the provisions of ORS chapter 407; and
  (C) The Public Employees Retirement System;
  (f) An agency, department or instrumentality of any
municipality in the state, including but not limited to such
agencies as the Portland Development Commission;
  (g) An insurer as defined in ORS 731.106;
  (h) A private mortgage insurance company;
  (i) A pension plan or fund or other retirement plan; and
  (j) A broker-dealer or investment adviser as defined in ORS
59.015.
  (5) 'Forfeiting agency' means the State of Oregon or a
political subdivision thereof that has accepted for forfeiture
property seized by a seizing agency or that is processing a
forfeiture case.
  (6) 'Forfeiture counsel' means an attorney designated to
represent a forfeiting agency in forfeiture actions or
proceedings.
  (7) 'Law enforcement agency' means any agency which employs
police officers or prosecutes criminal cases.
  (8) 'Official law enforcement use' or 'official law enforcement
activity' means uses or activities which may reasonably be
expected to result in the identification, apprehension or
conviction of criminal offenders.
  (9) 'Police officer' has the meaning given that term in ORS
133.525.
  (10) 'Proceeds of prohibited conduct' means property derived
directly or indirectly from, maintained by or realized through an
act or omission, and includes any benefit, interest or property
of any kind without reduction for expenses of acquiring or
maintaining it or incurred for any other reason.
  (11) 'Prohibited conduct' includes violation of, solicitation
to violate, attempt to violate or conspiracy to violate any
provisions of ORS 475.005 to 475.285 and 475.805 to 475.999 when
the conduct constitutes either a felony or misdemeanor as those
terms are defined in ORS 161.525 and 161.545.
  (12) 'Property' means any interest in anything of value,
including the whole of any lot or tract of land and tangible and
intangible personal property, including currency, instruments or
securities or any other kind of privilege, interest, claim or
right whether due or to become due.
  (13) 'Seizing agency' means a law enforcement agency that has
seized property for forfeiture.
  (14) 'Weapon' means any instrument of offensive or defensive
combat or anything used, or designed to be used, in destroying,
defeating or injuring a person.
  SECTION 26. ORS 674.100 is amended to read:
  674.100. (1)(a) No person shall engage in, carry on, advertise
or purport to engage in or carry on real estate appraisal
activity within this state without first obtaining certification
or licensure as provided for in ORS 674.310.
  (b) Real estate appraisal activity is the preparation,
completion and issuance of an opinion as to the value on a given
date or at a given time of real property or any interest in real
property, whether such activity is performed in connection with a
federally related transaction or is not performed in connection
with a federally related transaction. Notwithstanding any other
provision of law, a state certified appraiser or a state licensed
appraiser:
  (A) Is not required to be licensed under ORS 696.025 to perform
any real estate appraisal activity or any other activity that
constitutes the giving of an opinion as to the value of real
property or any interest in real property; and
  (B) Is not subject to regulation under ORS 696.010 to 696.495
and 696.600 to 696.995 in connection with the performance of any
real estate appraisal activity or the performance of any activity
which constitutes the giving of an opinion as to the value of
real estate or any interest in real estate.
  (2) Real estate appraisal activity excludes any activity that
is not performed in connection with a federally related
transaction and that:
  (a) Is performed by a nonlicensed regular full-time employee of
a single owner of real estate, if the activity involves the real
estate of the employer and is incidental to the employee's
normal, nonreal estate activities;
  (b) Is performed by a nonlicensed regular full-time employee
whose activity involves the real estate of the employer, when
such activity is the employee's principal activity, but the
employer's principal activity or business is not the appraisal of
real estate;
  (c) Is performed by any attorney at law rendering services in
the performance of duties as an attorney at law;
  (d) Is performed by any registered geologist, registered
professional engineer or architect rendering services as a
registered geologist, registered professional engineer or
architect;
  (e) Is performed by a certified public accountant rendering
services as a certified public accountant;
  (f) Is performed by a mortgage banker rendering services as a
mortgage banker;
  (g) Constitutes a letter opinion or a competitive market
analysis as those terms are defined in ORS 696.010 that, by
administrative or judicial order or subpoena, is compelled from a
person licensed to engage in real estate activity under the
provisions of ORS 696.007 to 696.495, 696.600 to 696.627 and
696.800 to 696.855;
  (h) Is performed by any salaried employee of the State of
Oregon or any of its political subdivisions while engaged in the
performance of the duties of such employee;
  (i) Is limited to analyzing or advising of permissible land use
alternatives, environmental impact, building and use permit
procedures or demographic market studies, if the performance of
such activities does not involve the rendering of an opinion as
to the value of the real estate in question;
  (j) Is performed by a professional forester appraising or
valuing timber, timberland or both as part of services performed
as a private consultant in forest management, but only if, in the
case of timberland, the appraisal or valuation is limited to the
use of the land as forestland;
  (k) Is limited to the giving of an opinion in any
administrative or judicial proceeding regarding the value of real
estate for taxation;
  (L) Is limited to a person not licensed under ORS chapter 696
who is giving an opinion regarding the value of real estate if
the person's business is not the appraisal, selling or listing of
real estate, and such activity is performed without compensation.
This paragraph does not apply to a person conducting
transactional negotiations on behalf of another person for
transfer of an interest in real property; or
  (m) Is limited to a person not licensed under ORS chapter 696
who is transferring or acquiring an interest in real estate.
  (3)(a) 'Real estate appraisal activity' does not include an
analysis, evaluation, opinion, conclusion, notation or
compilation of data prepared by a financial institution or
affiliate,  { + by + } a
  { - consumer finance company licensed - }   { + licensee + }
under ORS chapter 725, or by an insurance company or affiliate,
made for internal use only by the financial institution or
affiliate,   { - consumer finance company - }   { + by the
licensee + } or by the insurance company or affiliate, concerning
an interest in real estate for ownership or collateral purposes
by the financial institution or affiliate, by the   { - consumer
finance company licensed - }   { + licensee + } under ORS chapter
725, or by the insurance company or affiliate. Nothing in this
subsection shall be construed to excuse a financial institution
or affiliate from complying with the provisions of Title XI of
the federal Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (12 U.S.C. 3310 et seq.).
  (b) As used in this   { - section - }  { +  subsection + },
'evaluation ' means a study of the nature, quality or utility of
a parcel of real estate or interests in, or aspects of, real
property in which a value estimate is not necessarily required.
  (4)(a) As used in this section, 'purport to engage in or carry
on real estate appraisal activity' means the display of a card,
sign, advertisement or other printed, engraved or written
instrument bearing the person's name in conjunction with the term
' appraiser,' 'licensed appraiser,' 'certified appraiser' or '
appraisal' or any oral statement or representation of
certification or licensure by the Appraiser Certification and
Licensure Board made by a person.
  (b) Each display or statement described in paragraph (a) of
this subsection by a person not licensed or certified by the
board is a separate violation under ORS 674.990.
  (c) In any proceeding under ORS 674.990, a display or statement
described in paragraph (a) of this subsection shall be considered
prima facie evidence that the person named in the display or
making the statement purports to engage in or carry on real
estate appraisal activity.
  SECTION 27. ORS 696.520 is amended to read:
  696.520. The provisions of ORS 696.505 to 696.590 do not apply
to and the term 'escrow agent' does not include:
  (1) Any person doing business under the laws of this state or
the United States relating to banks, mutual savings banks, trust
companies, savings   { - and loan - }  associations,
 { - consumer finance companies - }  { +  licensees under ORS
chapter 725 + }, or insurance companies except to the extent that
the person provides real estate closing escrow services other
than those permitted under subsection (3) of this section.
  (2) An attorney at law rendering services in the performance of
duties as attorney at law.
  (3) Any firm or corporation lending money on real or personal
property and which firm or corporation is subject to licensing,
supervision or auditing by a federal or state agency but only to
the extent of closing a loan transaction between such firm or
corporation and a borrower, and seller, if a fee for escrow
services is not charged to the seller.
  (4) Any person doing any of the acts specified in ORS 696.505
(2) under order of any court.
  (5) Any real estate broker licensed under ORS 696.010 to
696.490, 696.600 to 696.627, 696.800 to 696.855 and 696.995 who
performs the closing for the principals in a real estate
transaction handled by the broker, if the principals are not
charged a separate fee for escrow services.
  (6) Any collection agency registered under ORS 697.015 that is
engaged in any collection or billing activity without holding
documents relating to the debt.
  SECTION 28. ORS 697.005 is amended to read:
  697.005. As used in ORS 697.005 to 697.095:
  (1)(a) 'Collection agency' means:
  (A) Any person directly or indirectly engaged in soliciting
claims for collection, or collecting or attempting to collect
claims owed, due or asserted to be owed or due to another person
or to a public body;
  (B) Any person who directly or indirectly furnishes, attempts
to furnish, sells or offers to sell forms represented to be a
collection system even though the forms direct the debtor to make
 
payment to the creditor and even though the forms may be or are
actually used by the creditor in the creditor's own name;
  (C) Any person who in attempting to collect or in collecting
the person's own claim uses a fictitious name or any name other
than the person's own that indicates to the debtor that a third
person is collecting or attempting to collect the claim;
  (D) Any person in the business of engaging in the solicitation
of the right to repossess or in the repossession of collateral
security due or asserted to be due to another person; or
  (E) Any person who in the collection of claims from another
person:
  (i) Uses any name other than the name regularly used in the
conduct of the business out of which the claim arose; and
  (ii) Engages in any action or conduct that tends to convey the
impression that a third party has been employed or engaged to
collect the claim.
  (b) 'Collection agency' does not include:
  (A) Any individual engaged in soliciting claims for collection,
or collecting or attempting to collect claims on behalf of a
registrant under ORS 697.005 to 697.095, if the individual is an
employee of the registrant;
  (B) Any individual collecting or attempting to collect claims
for not more than three employers, if all collection efforts are
carried on in the name of the employer and the individual is an
employee of the employer;
  (C) Any person who prepares or mails monthly or periodic
statements of accounts due on behalf of another person if all
payments are made to that other person and no other collection
efforts are made by the person preparing the statements of
accounts;
  (D) Any attorney-at-law rendering services in the performance
of the duties of an attorney-at-law;
  (E) Any licensed certified public accountant or public
accountant rendering services in the performance of the duties of
a licensed certified public accountant or public accountant;
  (F) Any bank, mutual savings bank,   { - consumer finance
company - }  { + licensee under ORS chapter 725 + }, trust
company, savings   { - and loan - } association, credit union or
debt consolidation agency;
  (G) Any real estate licensee or escrow agent licensed under the
provisions of ORS chapter 696, as to any collection or billing
activity involving a real estate transaction or collection escrow
transaction of the licensee or escrow agent;
  (H) Any individual regularly employed as a credit person or in
a similar capacity by one person, firm or corporation that is not
a collection agency as defined in this section;
  (I) Any public officer or any person acting under order of any
court;
  (J) Any person acting as a property manager in collecting or
billing for rent, fees, deposits or other sums due landlords of
managed units;
  (K) Any person while the person is providing billing services.
A person is providing billing services for the purposes of this
subparagraph if the person engages, directly or indirectly, in
the business or pursuit of collection of claims for other
persons, whether in the other person's name or any other name, by
any means that:
  (i) Is an accounting procedure, preparation of mail billing or
any other means intended to accelerate cash flow to the other
person's bank account or to any separate trust account; and
  (ii) Does not include any personal contact or contact by
telephone with the person from whom the claim is sought to be
collected;
  (L) Any person while the person is providing factoring
services. A person is providing factoring services for the
 
purposes of this subparagraph if the person engages, directly or
indirectly, in the business or pursuit of:
  (i) Lending or advancing money to commercial clients on the
security of merchandise or accounts receivable and then enforcing
collection actions or procedures on such accounts; or
  (ii) Soliciting or collecting on accounts that have been
purchased from commercial clients under an agreement whether or
not the agreement:
  (I) Allows recourse against the commercial client;
  (II) Requires the commercial client to provide any form of
guarantee of payment of the purchased account; or
  (III) Requires the commercial client to establish or maintain a
reserve account in any form;
  (M) Any individual employed by another person who operates as a
collection agency if the person does not operate as a collection
agency independent of that employment;
  (N) Any mortgage banker as defined in ORS 59.840;
  (O) Any public utility, as defined in ORS 757.005, any
telecommunications utility, as defined in ORS 759.005, any
people's utility district, as defined in ORS 261.010, and any
cooperative corporation engaged in furnishing electric or
communication service to consumers; or
  (P) Any public body or any individual collecting or attempting
to collect claims owed, due or asserted to be owed or due to any
public body, if the individual is an employee of the public body.
  (2) 'Collection system' means a scheme intended or calculated
to be used to collect claims sent, prepared or delivered by:
  (a) A person who in collecting or attempting to collect the
person's own claim uses a fictitious name or any name other than
the person's own that indicates to the debtor that a third person
is collecting or attempting to collect the claim; or
  (b) A person directly or indirectly engaged in soliciting
claims for collection, or collecting or attempting to collect
claims owed or due or asserted to be owed or due another person.
  (3) 'Claim' means any obligation for the payment of money or
thing of value arising out of any agreement or contract, express
or implied.
  (4) 'Client' or 'customer' means any person authorizing or
employing a collection agency to collect a claim.
  (5) 'Debtor' means any person owing or alleged to owe a claim.
  (6) 'Debts incurred outside this state' means any action or
proceeding that:
  (a) Arises out of a promise, made anywhere to the plaintiff or
a third party for the plaintiff's benefit, by the defendant to
perform services outside of this state or to pay for services to
be performed outside of this state by the plaintiff;
  (b) Arises out of services actually performed for the plaintiff
by the defendant outside of this state or services actually
performed for the defendant by the plaintiff outside of this
state, if the performance outside of this state was authorized or
ratified by the defendant;
  (c) Arises out of a promise, made anywhere to the plaintiff or
a third party for the plaintiff's benefit, by the defendant to
deliver or receive outside of this state or to send from outside
of this state goods, documents of title or other things of value;
  (d) Relates to goods, documents of title or other things of
value sent from outside of this state by the defendant to the
plaintiff or a third person on the plaintiff's order or
direction;
  (e) Relates to goods, documents of title or other things of
value actually received outside of this state by the plaintiff
from the defendant or by the defendant from the plaintiff,
without regard to where delivery to carrier occurred; or
  (f) Where jurisdiction at the time the debt was incurred was
outside of this state.
 
  (7) 'Department' means the Department of Consumer and Business
Services.
  (8) 'Director' means the Director of the Department of Consumer
and Business Services.
  (9) 'Out-of-state collection agency' means a collection agency
located outside of this state whose activities within this state
are limited to collecting debts incurred outside of this state
from debtors located in this state. As used in this subsection,
'collecting debts' means collecting by means of interstate
communications, including telephone, mail or facsimile
transmission from the collection agency location in another state
on behalf of clients located outside of this state.
  (10) 'Person' includes an individual, firm, partnership, trust,
joint venture, association, limited liability company or
corporation.
  (11) 'Public body' means:
  (a) The state and any branch, department, agency, board or
commission of the state;
  (b) Any city, county, district or other political subdivision
or municipal or public corporation and any instrumentality
thereof; and
  (c) Any intergovernmental agency, department, council, joint
board of control created under ORS 190.125 or other like entity,
which is created under ORS 190.003 to 190.130 and which does not
act under the direction and control of any single member
government.
  (12) 'Registered' or 'registrant' means any person registered
under ORS 697.005 to 697.095 or registered or licensed as a
collection agency under the laws of another state.
  (13) 'Statement of account' means a report setting forth
amounts billed, invoices, credits allowed or aged balance due.
  SECTION 29. ORS 697.622 is amended to read:
  697.622. The following are not required to comply with ORS
697.602 to 697.842:
  (1) Attorneys-at-law rendering services in the performance of
duties as attorneys.
  (2) Financial institutions and trust companies, as those terms
are defined in ORS 706.008.
  (3) Savings   { - and loan - }  associations, credit unions and
mutual savings banks.
  (4)   { - Consumer finance companies licensed - }
 { + Licensees + } under ORS chapter 725.
  (5) Escrow agents licensed under ORS 696.505 to 696.590.
  (6) Any public officer or any person acting under an order of
court.
  SECTION 30. ORS 717.235 is amended to read:
  717.235. (1) Upon the filing of a complete application, the
Director of the Department of Consumer and Business Services
shall review the application and may investigate the financial
condition and responsibility, financial and business experience,
character and general fitness of the applicant. The director may
conduct an on-site investigation of the applicant, the reasonable
cost of which shall be paid by the applicant. The director may
disapprove an application if the director finds that the
applicant:
  (a) Is insolvent, either in the sense that the person's
liabilities exceed the person's assets or that the person cannot
meet obligations as they mature, or that the person is in such
financial condition that the person cannot continue in business
with safety to the person's customers;
  (b) Has engaged in dishonest, fraudulent or illegal practices
or conduct in any business or profession;
  (c) Has willfully or repeatedly violated or failed to comply
with any provisions of the Oregon Bank Act, Oregon Securities
Law, Savings Association Act, Oregon Credit Union Act, Oregon
Consumer Finance  { + and Short-Term Personal Loan + } Act or
Pawnbrokers Act or any rule or order of the director adopted
under those laws;
  (d) Has been convicted of a crime, an essential element of
which is fraud;
  (e) Is not qualified to engage in the business of money
transmission on the basis of such factors as training, experience
and knowledge of the business;
  (f) Is permanently or temporarily enjoined by a court of
competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the banking business or of
the money transmission business;
  (g) Is the subject of an order of the director subjecting the
person to a fine or other civil penalty or removing the person
from an office in any entity regulated by the director; or
  (h) Is the subject of an order entered within the past five
years, subjecting the person to a fine or other civil penalty or
removing the person from an office in a state or federally
chartered, licensed or regulated financial services company.
  (2) The director may also disapprove an application if the
director finds that any controlling person is subject to any
provision of subsection (1) of this section except subsection
(1)(a) or (e) of this section. If a controlling person is the
sole owner of the applicant, then the director may disapprove an
application if the director finds that the controlling person is
subject to any provision of subsection (1) of this section.
  (3) If the director finds that the applicant's business will be
conducted honestly, fairly and in a manner commanding the
confidence and trust of the community, and that the applicant has
fulfilled the requirements imposed by ORS 717.200 to 717.320,
717.900 and 717.905 and has paid the required license fee, the
director shall issue a license to the applicant authorizing the
applicant to conduct money transmission business in this state
for a term of one year. If these requirements have not been met,
the director shall deny the application in writing and shall
describe the reasons for the denial.
  (4) An order of the director denying an application under ORS
717.200 to 717.320, 717.900 and 717.905 shall state the grounds
upon which the order is based and shall not become effective for
at least 20 days after written notice of the order has been sent
by registered or certified mail to the applicant at the principal
place of business of the applicant.
  (5) Appeals from an order of the director denying an
application may be taken to the courts of this state as provided
by ORS 183.310 to 183.550.
  SECTION 31. ORS 723.014 is amended to read:
  723.014. The Director of the Department of Consumer and
Business Services may not issue a certificate of approval under
ORS 723.012 if any person named in the articles of incorporation
submitted for approval:
  (1) Is insolvent or bankrupt;
  (2) Has engaged in dishonest, fraudulent or illegal practices
or conduct in any business or profession;
  (3) Has willfully or repeatedly violated or failed to comply
with any provision of the Oregon Bank Act, the Savings
Association Act, the Oregon Credit Union Act, the Oregon Consumer
Finance  { + and Short-Term Personal Loan + } Act, the Oregon
Securities Law, the Oregon Mortgage Lender Law or the Pawnbrokers
Act, or any administrative rule or order adopted pursuant to any
such Act;
  (4) Has been convicted of a crime, an essential element of
which is fraud;
  (5) Is not qualified to conduct a credit union business on the
basis of such factors as training, experience and knowledge of
the business;
 
 
  (6) Is permanently or temporarily enjoined by a court of
competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the credit union business;
  (7) Is the subject of an order of the director subjecting the
person to a fine or other civil penalty, or removing the person
from an office in any entity regulated by the director; or
  (8) Is the subject of an order entered within the past five
years subjecting the person to a fine or other civil penalty or
removing the person from an office in a state banking
institution, a national bank, a state or federal credit union, a
state or federal savings association or a consumer finance
company, or from a position as a securities broker or dealer, a
state or federal investment adviser or a mortgage lender, that
was issued by the regulatory authority of another state, or of
the federal government, with authority over such banking
institutions, credit unions, consumer finance companies, savings
associations, securities firms or mortgage lenders.
  SECTION 32. ORS 726.075 is amended to read:
  726.075. The Director of the Department of Consumer and
Business Services may not grant a license to engage in the
business of pawnbroker to any person if any person named in the
application submitted pursuant to ORS 726.060:
  (1) Is insolvent, either in the sense that the person's
liabilities exceed the person's assets or that the person cannot
meet obligations as they mature, or is in such financial
condition that the person cannot continue in business with safety
to the person's customers;
  (2) Has engaged in dishonest, fraudulent or illegal practices
or conduct in any business or profession;
  (3) Has willfully or repeatedly violated or failed to comply
with any provision of the Oregon Bank Act, the Savings
Association Act, the Oregon Credit Union Act, the Oregon Consumer
Finance  { + and Short-Term Personal Loan + } Act or the
Pawnbrokers Act, or any administrative rule or order adopted
pursuant to any such Act;
  (4) Has been convicted of a crime, an essential element of
which is fraud;
  (5) Is not qualified to conduct a pawnbroker business on the
basis of such factors as training, experience and knowledge of
the business;
  (6) Is permanently or temporarily enjoined by a court of
competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the pawnbroker business;
  (7) Is the subject of an order of the director, subjecting the
person to a fine or other civil penalty, or removing the person
from an office in any entity regulated by either director; or
  (8) Is the subject of an order entered within the past five
years, subjecting the person to a fine or other civil penalty, or
removing the person from an office in a state banking
institution, a national bank, a state or federal savings
association, a state or federal credit union or a consumer
finance company, issued by the regulatory authority of another
state or of the federal government with authority over such
banking institutions, credit unions, consumer finance companies
or savings associations.
  SECTION 33. ORS 744.609 is amended to read:
  744.609. The following persons are not insurance consultants
for the purposes of this chapter, and the prohibition in ORS
744.605 does not apply to them:
  (1) Any attorney-at-law rendering services in the performance
of duties of an attorney-at-law.
  (2) Any certified public accountant or public accountant
rendering services in the performance of the duties of a
certified public accountant or public accountant, as authorized
by law.
 
  (3) Any person who, while conducting an educational seminar,
performs any of the activities described in ORS 744.605 (1)(b).
  (4) Any financial institution, as defined in ORS 706.008, or
  { - consumer finance - }  licensee under ORS chapter 725.
  (5) Any actuary who is a member of an organization determined
by the Director of the Department of Consumer and Business
Services as establishing standards for the actuarial profession.
  (6) A person who provides or offers or purports to provide any
of the services described in ORS 744.605 only to an agent or an
authorized insurer.
  SECTION 34. ORS 646.551 is amended to read:
  646.551. As used in ORS 646.551 to 646.557, unless the context
requires otherwise:
  (1) 'Telephonic seller' means a person who, on the person's own
behalf, or on behalf of another person, causes or attempts to
cause a telephone solicitation to be made under the following
circumstances:
  (a) The person initiates telephonic contact with a prospective
purchaser and represents or implies any of the following:
  (A) That a prospective purchaser who buys one or more goods or
services unit will receive additional units, whether or not of
the same type as purchased, without further cost. As used in this
subparagraph, 'further cost' does not include actual postage or
common carrier delivery charges, if any;
  (B) That a prospective purchaser will receive a prize or gift
if the person also encourages the prospective purchaser to do
either of the following:
  (i) Purchase or rent any goods or services; or
  (ii) Pay any money, including, but not limited to a delivery or
handling charge;
  (C) That a prospective purchaser who buys goods or services,
because of some unusual event or imminent price increase, will be
able to buy these items at prices which are below those usually
charged or will be charged for those items;
  (D) That the seller is a person other than the actual seller;
  (E) That the items for sale or rent are manufactured or
supplied by a person other than the actual manufacturer or
supplier; or
  (F) That the items for sale are gold, silver or other precious
metals, diamonds, rubies, sapphires or other precious stones or
any interest in oil, gas or mineral fields, wells or exploration
sites; or
  (b) The telephone solicitation is made by the person in
response to inquiries from prospective purchasers generated by
advertisement, on behalf of the person and the solicitation is
conducted as described in paragraph (a) of this subsection.
  (2) 'Telephonic seller' does not include any of the following:
  (a) A person selling a security as defined in ORS 59.015, or
securities which are exempt under ORS 59.025.
  (b) A person licensed pursuant to ORS chapter 696 when the
transaction is governed by that chapter.
  (c) A person licensed pursuant to ORS 701.055 when the
solicited transaction is governed by ORS chapter 701.
  (d) A person licensed pursuant to ORS chapter 744 when the
solicited transaction is governed by the Insurance Code.
  (e) A person soliciting the sale of a franchise when the
solicited transaction is governed by ORS 650.005 to 650.085.
  (f) A person primarily soliciting the sale of a subscription to
or advertising in a newspaper of general circulation.
  (g) A person primarily soliciting the sale of a magazine or
periodical, or contractual plans, including book or record clubs:
  (A) Under which the seller provides the consumer with a form
which the consumer may use to instruct the seller not to ship the
offered merchandise, and which is regulated by the Federal Trade
Commission trade regulation concerning 'Use of Negative Option
Plans by Sellers in Commerce'; or
  (B) Using arrangements such as continuity plans, subscription
arrangements, standing order arrangements, supplements and series
arrangements under which the seller periodically ships
merchandise to a consumer who has consented in advance to receive
such merchandise on a periodic basis.
  (h) A person soliciting business from prospective purchasers
who have previously purchased from the business enterprise for
which the person is calling.
  (i) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sale presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser, unless at that later meeting the solicitor
collects or attempts to collect payment for delivery of items
purchased.
  (j) Any supervised financial institution or parent, subsidiary,
or affiliate thereof. As used in this paragraph, ' supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker,   { - consumer finance lender - }  { +
licensee under ORS chapter 725 + }, commercial finance lender or
insurer that is subject to regulation by an official or agency of
this state or the United States.
  (k) A person soliciting the sale of funeral or burial services
regulated by ORS 59.670 and 59.680 or by ORS chapter 692.
  (L) A person soliciting the sale of services provided by a
cable television system operating under authority of a franchise
or permit issued by a governmental agency of this state, or
subdivision thereof.
  (m) A person or affiliate of a person whose business is
regulated by the Public Utility Commission, or a
telecommunications utility with access lines of 15,000 or less or
a cooperative telephone association.
  (n) A person soliciting the sale of a farm product, as defined
in ORS 79.1090 (3), if the solicitation does not result in a sale
which costs the purchaser in excess of $100.
  (o) An issuer or a subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
of subsection (g) of that section.
  (p) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer.
  (q) A person registered under the Charitable Solicitations Act.
  SECTION 35. ORS 646.605 is amended to read:
  646.605. As used in ORS 646.605 to 646.652:
  (1) 'Appropriate court' means the circuit court of a county:
  (a) Where one or more of the defendants reside;
  (b) Where one or more of the defendants maintain a principal
place of business;
  (c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or
  (d) With the defendant's consent, where the prosecuting
attorney maintains an office.
  (2) 'Documentary material' means the original or a copy of any
book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
  (3) 'Examination' of documentary material shall include
inspection, study, or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such
documentary material or copy thereof.
  (4) 'Person' means natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and
 
any other legal entity except bodies or officers acting under
statutory authority of this state or the United States.
  (5) 'Prosecuting attorney' means the Attorney General or the
district attorney of any county in which a violation of ORS
646.605 to 646.652 is alleged to have occurred.
  (6) 'Real estate, goods or services' means those which are or
may be obtained primarily for personal, family or household
purposes, or which are or may be obtained for any purposes as a
result of a telephone solicitation, and includes franchises,
distributorships and other similar business opportunities, but
does not include insurance. Real estate does not cover conduct
covered by ORS chapter 90.
  (7) 'Telephone solicitation' means a solicitation where a
person, in the course of the person's business, vocation or
occupation, uses a telephone or an automatic dialing-announcing
device to initiate telephonic contact with a potential customer
and the person is not one of the following:
  (a) A person who is a broker-dealer or salesperson licensed
under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security
qualified for sale pursuant to ORS 59.055;
  (b) A person who is licensed or is otherwise authorized to
engage in professional real estate activity pursuant to ORS
chapter 696, when the solicitation involves professional real
estate activity;
  (c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;
  (d) A person licensed or otherwise authorized to sell insurance
as an agent pursuant to ORS chapter 744, when the solicitation
involves insurance;
  (e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club
who complies with ORS 646.611, when the solicitation involves
newspapers, magazines or membership in a book or record club;
  (f) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sales presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser;
  (g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, 'supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker,   { - consumer finance lender - }  { +
licensee under ORS chapter 725 + }, commercial finance lender or
insurer that is subject to regulation by an official or agency of
this state or of the United States;
  (h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or
preconstruction funeral or cemetery plans;
  (i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local
or federal law, when the solicitation involves cable television
services;
  (j) A person or affiliate of a person whose business is
regulated by the Public Utility Commission of Oregon;
  (k) A person who sells farm products as defined by ORS chapter
576 if the solicitation neither intends to nor actually results
in a sale that costs the purchaser in excess of $100;
  (L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
 
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
  (m) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer when the solicitation involves answering services; or
  (n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.
  (8) 'Trade' and 'commerce' mean advertising, offering or
distributing, whether by sale, rental or otherwise, any real
estate, goods or services, and includes any trade or commerce
directly or indirectly affecting the people of this state.
  (9) 'Unconscionable tactics' include, but are not limited to,
actions by which a person:
  (a) Knowingly takes advantage of a customer's physical
infirmity, ignorance, illiteracy or inability to understand the
language of the agreement;
  (b) Knowingly permits a customer to enter into a transaction
from which the customer will derive no material benefit; or
  (c) Permits a customer to enter into a transaction with
knowledge that there is no reasonable probability of payment of
the attendant financial obligation in full by the customer when
due.
  (10) A willful violation occurs when the person committing the
violation knew or should have known that the conduct of the
person was a violation.
  SECTION 36.  { + (1) Sections 5 to 13 of this 2001 Act and the
amendments to statutes by sections 1 to 3 and 14 to 35 of this
2001 Act apply to short-term personal loans made on or after the
operative date of sections 5 to 13 of this 2001 Act and the
amendments to statutes by sections 1 to 3 and 14 to 35 of this
2001 Act.
  (2) The Director of the Department of Consumer and Business
Services by rule shall set a date by which persons holding a
license under ORS chapter 725 (1999 Edition) on the effective
date of this 2001 Act must comply with the provisions of section
13 of this 2001 Act.
  (3) Nothing in sections 1 to 35 of this 2001 Act is intended to
require a person holding a license under ORS chapter 725 (1999
Edition) on the effective date of this 2001 Act to reapply for a
license or supply additional application information to the
director. + }
  SECTION 37.  { + Sections 5 to 13 of this 2001 Act and the
amendments to statutes by sections 1 to 3 and 14 to 35 of this
2001 Act become operative ___. The Director of the Department of
Consumer and Business Services may take any action before the
operative date set forth in this section that is necessary to
enable the director to exercise, on and after the operative date
set forth in this section, all the duties, functions and powers
conferred on the director by this 2001 Act. + }
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