72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 3366
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
Bankers Association)
CHAPTER ................
AN ACT
Relating to statute of frauds; creating new provisions; and
amending ORS 41.580.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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
Enrolled House Bill 3366 (HB 3366-INTRO) Page 1
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 under ORS chapter 725 or a mortgage
banker as defined in ORS 59.840; { + or + }
(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 - } { +
subsection + }, { - all - } defenses and exceptions { - to
subsection (1)(a) to (g) of this section - } created by
{ - any provision - } { + provisions + } of the Oregon Revised
Statutes or recognized by the courts of this state { - shall
also - } { + do not + } 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 - } { +
modification + } 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 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 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 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 or mortgage banker shall
develop and implement a program reasonably designed to inform
existing and potential commercial borrowers of the provisions of
Enrolled House Bill 3366 (HB 3366-INTRO) Page 2
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
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 or
mortgage banker complies with this paragraph and paragraph (c) of
this subsection, the financial institution, consumer finance
company 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 2. { + The amendments to ORS 41.580 by section 1 of
this 2003 Act apply only to an agreement, promise or commitment
made on or after the effective date of this 2003 Act. + }
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Passed by House April 14, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 29, 2003
...........................................................
President of Senate
Enrolled House Bill 3366 (HB 3366-INTRO) Page 3
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 3366 (HB 3366-INTRO) Page 4