74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1350
Senate Bill 499
Sponsored by COMMITTEE ON RULES (at the request of Oregon Law
Commission)
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.
Changes terminology for motion for summary judgment to motion
for summary determination.
A BILL FOR AN ACT
Relating to determination of claims in civil actions; amending
ORS 86.742 and ORCP 47 A, 47 B, 47 C, 47 D, 47 E, 47 F and 47
H.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORCP 47 A is amended to read:
A For claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for
summary { - judgment - } { + determination + } by the adverse
party, move, with or without supporting affidavits or
declarations, for a summary
{ - judgment - } { + determination + } in that party's favor
upon all or any part thereof.
SECTION 2. ORCP 47 B is amended to read:
B For defending party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move, with or without
supporting affidavits or declarations, for a summary
{ - judgment - } { + determination + } in that party's favor
as to all or any part thereof.
SECTION 3. ORCP 47 C is amended to read:
C Motion and proceedings thereon. The motion and all supporting
documents shall be served and filed at least 60 days before the
date set for trial. The adverse party shall have 20 days in which
to serve and file opposing affidavits or declarations and
supporting documents. The moving party shall have five days to
reply. The court shall have discretion to modify these stated
times. The court shall { - enter judgment for the moving
party - } { + grant the motion + } if the pleadings,
depositions, affidavits, declarations and admissions on file show
that there is no genuine issue as to any material fact and that
the moving party is entitled to { - a judgment - }
{ + prevail + } as a matter of law. No genuine issue as to a
material fact exists if, based upon the record before the court
viewed in a manner most favorable to the adverse party, no
objectively reasonable juror could return a verdict for the
adverse party on the matter that is the subject of the motion for
summary { - judgment - } { + determination + }. The adverse
party has the burden of producing evidence on any issue raised in
the motion as to which the adverse party would have the burden of
persuasion at trial. The adverse party may satisfy the burden of
producing evidence with an affidavit or a declaration under
section E of this rule. A summary { - judgment - } { +
determination + }, interlocutory in character, may be rendered on
the issue of liability alone although there is a genuine issue as
to the amount of damages.
SECTION 4. ORCP 47 D is amended to read:
D Form of affidavits and declarations; defense required. Except
as provided by section E of this rule, supporting and opposing
affidavits and declarations shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant or declarant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit or a declaration shall be attached thereto or served
therewith. The court may permit affidavits or declarations to be
supplemented or opposed by depositions or further affidavits or
declarations. When a motion for summary { - judgment - }
{ + determination + } is made and supported as provided in this
rule an adverse party may not rest upon the mere allegations or
denials of that party's pleading, but the adverse party's
response, by affidavits, declarations or as otherwise provided in
this section, must set forth specific facts showing that there is
a genuine issue as to any material fact for trial. If the adverse
party does not so respond, { - summary judgment, if
appropriate, shall be entered against such party - } { + the
court shall grant the motion if appropriate + }.
SECTION 5. ORCP 47 E is amended to read:
E Affidavit or declaration of attorney when expert opinion
required. Motions under this rule are not designed to be used as
discovery devices to obtain the names of potential expert
witnesses or to obtain their facts or opinions. If a party, in
opposing a motion for summary { - judgment - } { +
determination + }, is required to provide the opinion of an
expert to establish a genuine issue of material fact, an
affidavit or a declaration of the party's attorney stating that
an unnamed qualified expert has been retained who is available
and willing to testify to admissible facts or opinions creating a
question of fact, will be deemed sufficient to controvert the
allegations of the moving party and an adequate basis for the
court to deny the motion. The affidavit or declaration shall be
made in good faith based on admissible facts or opinions obtained
from a qualified expert who has actually been retained by the
attorney who is available and willing to testify and who has
actually rendered an opinion or provided facts which, if revealed
by affidavit or declaration, would be a sufficient basis for
denying the motion for summary
{ - judgment - } { + determination + }.
SECTION 6. ORCP 47 F is amended to read:
F When affidavits or declarations are unavailable. Should it
appear from the affidavits or declarations of a party opposing
the motion that such party cannot, for reasons stated, present by
affidavit or declaration facts essential to justify the
opposition of that party, the court may { - refuse the
application for judgment, - } { + deny the motion + } or may
order a continuance to permit affidavits or declarations to be
obtained or depositions to be taken or discovery to be had, or
may make such other order as is just.
SECTION 7. ORCP 47 H is amended to read:
H Multiple parties or claims; limited judgment. If the court
grants { + a motion for + } summary { - judgment - }
{ + determination + } for less than all parties and claims in an
action, a limited judgment may be entered if the court makes the
determination required by Rule 67 B.
SECTION 8. ORS 86.742 is amended to read:
86.742. (1) If the trustee fails to give notice of the sale to
any person entitled to notice under ORS 86.740 (1)(c), and such
person did not have actual notice of the sale at least 25 days
prior to the date the trustee conducted the sale, such omitted
person shall have the same rights possessed by the holder of a
junior lien or interest who was omitted as a party defendant in a
judicial foreclosure proceeding, and the purchaser at the
trustee's sale or the purchaser's heirs, assigns or transferees,
shall have the same rights possessed by a purchaser at a
sheriff's sale following a judicial foreclosure.
(2) The omitted person may also commence an action against the
trustee in the circuit court in the county where the real
property is located. In an action against the trustee, the
omitted person shall be entitled to damages upon proof that:
(a) The trustee did not give notice of the sale to the omitted
person in the manner required by ORS 86.740 (1)(c) and 86.750;
(b) A search of the record under the name of the grantor as it
appears on the trust deed, or the name of the grantor's successor
in interest, would have revealed the omitted person's interest;
(c) The omitted person could and would have cured the default
under ORS 86.753; and
(d) The omitted person sustained actual damages as a result of
such person's loss of the opportunity to cure the default under
ORS 86.753 (1).
(3) In an action against the trustee under subsection (2) of
this section, any defendant or third party defendant may move for
dismissal on the ground that the omitted person would not or
could not have cured the default and reinstated the trust deed if
the omitted person had received the notice required by ORS 86.740
(1)(c). The court shall hold a hearing on such motion prior to
any hearing on any motion for summary { - judgment - } { +
determination + }, and prior to trial of the action. The court
shall deny the motion only if the omitted person produces
affidavits or other evidence sufficient for a reasonable jury to
find, applying a standard of clear and convincing evidence, that
the omitted person had the financial ability to cure the default
under ORS 86.753 prior to the date of the trustee's sale, and
that the omitted person would have done so had the omitted person
received the notice required by ORS 86.740 (1)(c). If the court
grants the motion to dismiss it shall award attorney fees
pursuant to subsection (5) of this section.
(4) In any action against the trustee or any other party under
this section the omitted person shall plead that the omitted
person did not have actual knowledge of the sale at least 25 days
prior to the date the trustee conducted the sale, but thereafter
the defendant shall have the burden of proving that the omitted
person did have such notice.
(5) In all suits brought under this section, the applicable
court may, upon entering judgment, allow to the prevailing party
as a part of the costs a reasonable amount for attorney fees at
trial and on appeal.
(6) The remedies described in subsections (1) to (5) of this
section shall be the sole remedies available to a person entitled
to notice of foreclosure by advertisement and sale under ORS
86.740 (1)(c), who failed to receive such notice. Such a person's
failure to redeem or to commence an action against the trustee
within five years of the date of a trustee's sale under ORS
86.755 shall bar any action under this section or any other
applicable law.
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