75th OREGON LEGISLATIVE ASSEMBLY--2009 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 361
B-Engrossed
House Bill 2191
Ordered by the Senate June 2
Including House Amendments dated April 29 and Senate Amendments
dated June 2
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Consumer and Business Services)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires Director of Department of Consumer and Business
Services to register persons that provide debt management
services. Requires person to register as debt management service
provider in order to provide debt management services, unless
exempt. Specifies information director may require for
registration. Requires applicants for registration to file and
maintain { - corporate surety - } bond { - or irrevocable
letter of credit - } { + issued by corporate surety + }.
Specifies prohibitions on and duties and rights of debt
management service providers. Makes violations of certain
prohibitions and duties unlawful business practice. Imposes
liability on debt management service provider when consumer
suffers ascertainable loss of money or property in connection
with specified violations. Specifies that consumer right of
action exists against { - corporate surety - } bond { +
issued by corporate surety + }.
Punishes violation of specified provisions of debt
consolidation law by maximum of one year's imprisonment, $6,250
fine, or both.
Specifies conditions under which director may deny, suspend,
condition, revoke or refuse to issue or renew registration.
Authorizes director to perform certain actions to enforce
provisions of Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to debt management services; creating new provisions;
amending ORS 192.502, 646.608, 646A.110, 646A.628, 697.602,
697.612, 697.632, 697.642, 697.652, 697.662, 697.672, 697.682,
697.692, 697.702, 697.707, 697.722, 697.732, 697.752, 697.762,
697.822, 697.825, 697.832 and 705.137; repealing ORS 646A.250,
646A.252, 646A.254, 646A.256, 646A.258, 646A.260, 646A.262,
646A.264, 646A.266, 646A.268, 646A.270, 697.622, 697.712,
697.742, 697.772, 697.782, 697.792, 697.802 and 697.812; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 697.602 is amended to read:
697.602. As used in ORS 697.602 to 697.842:
{ - (1) 'Client' means a debtor on whose behalf a debt
consolidating agency is performing the services of a debt
consolidating agency as described in ORS 697.612. - }
{ - (2) 'Director' means the Director of the Department of
Consumer and Business Services. - }
{ + (1) 'Consumer' means an individual who is obligated or is
allegedly obligated to pay a debt and on whose behalf a debt
management service provider performs or agrees to perform a debt
management service.
(2) 'Debt management service' means an activity for which a
person receives money or other valuable consideration or expects
to receive money or other valuable consideration in return for:
(a) Receiving or offering to receive funds from a consumer for
the purpose of distributing the funds among the consumer's
creditors in full or partial payment of the consumer's debts,
whether or not the person holds the consumer's funds;
(b) Improving or offering to improve or preserve a consumer's
credit record, credit history or credit rating;
(c) Modifying or offering to modify terms and conditions of an
existing loan or obligation; or
(d) Obtaining or attempting to obtain as an intermediary on a
consumer's behalf a concession from a creditor including, but not
limited to, a reduction in the principal, interest, penalties or
fees associated with a debt.
(3) 'Debt management service provider' means a person that:
(a) Resides or does business in this state; and
(b) Provides or performs, or represents that the person can or
will provide or perform a debt management service in return for
or in expectation of money or other valuable consideration.
(4) 'Nonprofit entity' means a person, corporation,
organization, board, association or other entity described in 26
U.S.C. 501(c)(3), as in effect on the effective date of this 2009
Act, that is exempt from taxation under 26 U.S.C. 501(a). + }
SECTION 2. ORS 697.612 is amended to read:
697.612. { - (1) A person shall not operate as a debt
consolidating agency or in any way purport to be a debt
consolidating agency unless the person is first registered with
the Director of the Department of Consumer and Business Services
under ORS 697.632. For purposes of this section, a person
operates as a debt consolidating agency and is subject to ORS
697.602 to 697.842 if the person in the regular course of the
person's business directly or indirectly solicits, offers to take
or takes anything of value belonging to the debtor or an
assignment of the wages, salary, income, credits or any other
thing of value of a debtor for the purpose of paying to any
creditor of the debtor the debtor's wages, salary, income,
credits or things of value, or the proceeds from the sale of the
things of value. - }
{ - (2) An employee of a debt consolidating agency is not
required to register with the director under subsection (1) of
this section if the debt consolidating agency is registered under
ORS 697.632. - }
{ - (3) Subsection (1) of this section is subject to the
exemptions in ORS 697.622. - }
{ - (4) A person who violates subsection (1) of this section
is subject to ORS 697.762, 697.832 and 697.990 (3). - }
{ + (1) A person that has not registered with the Director of
the Department of Consumer and Business Services under ORS
697.632 may not engage in business in this state in the course of
which the person:
(a) Performs a debt management service; or
(b) Receives money or other valuable consideration or expects
to receive money or other valuable consideration for:
(A) Soliciting or receiving an application from a consumer for
a debt management service;
(B) Forwarding or providing a completed application for a debt
management service to a debt management service provider;
(C) Referring a consumer to another debt management service
provider, if the person is a debt management service provider;
(D) Providing a consumer's name, address or other information
that identifies the consumer to a debt management service
provider for the purpose of arranging the provision of a debt
management service; or
(E) Providing advice, assistance, instruction or instructional
material concerning a debt management service to a consumer.
(2) A debt management service provider registered under ORS
697.632 may negotiate on a consumer's behalf for a reasonable
alternative repayment schedule or to reduce a claim described in
11 U.S.C. 502 if the debt management service provider is a
nonprofit budget and credit counseling agency approved in
accordance with 11 U.S.C. 111.
(3) Subsection (1) of this section does not apply to:
(a) An employee of a debt management service provider, if the
debt management service provider is registered under ORS 697.632.
(b) An attorney licensed or authorized to practice law in this
state, if the attorney provides a debt management service only
incidentally in the practice of law.
(c) A financial institution or a trust company, both as defined
in ORS 706.008.
(d) A consumer finance company licensed under ORS chapter 725.
(e) An escrow agent licensed under ORS 696.505 to 696.590.
(f) A mortgage banker or mortgage broker licensed under ORS
59.840 to 59.980 or a loan originator, as defined in ORS 59.840.
(g) A broker-dealer registered with the United States
Securities and Exchange Commission or the United States Commodity
Futures Trading Commission, if the broker-dealer is subject to
and acts in accordance with regulations promulgated by either
commission.
(h) A consumer reporting agency, as defined in 15 U.S.C.
1681a(f).
(i) A public body, as defined in ORS 174.109.
(j) A person that is obeying or acting in accordance with a
court order.
(k) An accredited educational institution or program that
offers or performs a debt management service without receiving
money or other valuable consideration, if the institution or
program performs the debt management service as an incidental
part of a class or a duty the institution or program provides
regularly.
(L) A nonprofit budget and credit counseling agency approved in
accordance with 11 U.S.C. 111 that:
(i) Provides only an individual or group briefing, as described
in 11 U.S.C. 109(h), or an instructional course concerning
personal financial management, as described in 11 U.S.C. 111; and
(ii) Does not receive or offer to receive funds from a consumer
for the purpose of distributing the funds among the consumer's
creditors in full or partial payment of the consumer's debts.
(m) A nonprofit entity that provides advice, assistance,
instruction or instructional materials to a consumer in return
for a fee that is reasonably calculated to pay the cost of making
the advice, assistance, instruction or instructional materials
available.
(n) An organization or a counselor approved by the United
States Department of Housing and Urban Development under 12
U.S.C. 1701x. + }
SECTION 3. ORS 697.632 is amended to read:
697.632. { - (1) Subject to ORS chapter 183, the Director of
the Department of Consumer and Business Services shall establish
by rule a program for registration of persons required to
register with the director by ORS 697.612. The program shall
include a requirement that a person who registers with the
director must file and maintain with the director current
information that the director requires by rule. The director
shall require the following information for registration under
this section: - }
{ - (a) The name and address of the person engaging in
business as a debt consolidating agency. - }
{ - (b) The name and address of the debt consolidating
agency. - }
{ - (c) Any assumed names or business names used by the debt
consolidating agency. - }
{ - (d) The names of persons who act as agents in the
business of the debt consolidating agency. - }
{ - (e) The names of persons who are agents of the debt
consolidating agency for purposes of service of legal process, or
an appointment of the director as agent for the debt
consolidating agency for the service of process. - }
{ - (f) If a person has been convicted for a criminal
offense, an essential element of which is fraud, information
relating to the circumstances of the conviction as required by
the director. - }
{ - (g) Any other information required by rules adopted by
the director. - }
{ - (h) That a bond has been obtained and that the bond
satisfies the applicable requirements of ORS 697.642. - }
{ - (2) The director may include any of the following in the
program for the registration established under this section: - }
{ - (a) The director may require any filings with the
director that the director determines to be necessary to maintain
current information required for registration. Filings required
under this subsection may include renewal of registration at
reasonable intervals, filings within a reasonable time after
changes in a debt consolidating agency business and other filings
the director determines to be necessary. In requiring filings
under this subsection, the director shall attempt to minimize
burdens the filings might place on persons required to file. - }
{ - (b) The director may issue certificates of registration
or other indicia of registration that the director determines
will be of assistance to persons engaged in a debt consolidating
agency business in establishing that the persons are registered
under this section. - }
{ - (3) The director shall collect a biennial registration
fee of $200. - }
{ - (4) The director shall maintain current records of the
information required for registration under this section. - }
{ + (1) The Director of the Department of Consumer and
Business Services shall maintain a registry of debt management
service providers and by rule in accordance with ORS chapter 183
shall require a person that performs a debt management service,
unless the person is exempt under ORS 697.612 (3), to apply to
the director to register or to renew a registration as a debt
management service provider. An applicant for registration or
renewal shall provide to the director on a form and in a manner
the director specifies:
(a) The applicant's name and address;
(b) Any assumed business names, trade names or other identities
under which the applicant performs a debt management service;
(c) A general description of the debt management service
business activities the applicant undertakes or proposes to
undertake;
(d) The names of any managing members, managing partners,
executive officers, directors, principals or agents the applicant
has;
(e) The name of the applicant's registered agent or the
applicant's agent for the purpose of receiving service of legal
process;
(f) A signed statement that identifies and describes in detail
any incident in which the applicant or a member, partner,
officer, director or principal of the applicant within the five
years before the date on which the applicant applied to register
or renew a registration as a debt management service provider was
subject to:
(A) A judgment in favor of another person in a circuit court of
this state or in an equivalent court in another state;
(B) An arbitration award in favor of another person; or
(C) An adverse final order from an administrative agency in
this state or another state;
(g) A copy of the corporate surety bond the applicant filed
with the director under ORS 697.642; and
(h) Other information the director may require concerning the
financial responsibility, training, background, experience and
business activities of the applicant or a member, partner,
officer, director or principal of the applicant.
(2) At the time an applicant submits an application for
registration under this section, the applicant shall pay a
nonrefundable fee in an amount the director specifies by rule. An
applicant who applies to renew a registration shall pay another
fee in an amount the director specifies by rule.
(3) The director shall specify amounts for the fees described
in subsection (2) of this section that in the aggregate are
sufficient to pay the costs of administering ORS 697.602 to
697.842. The director shall pay all moneys received under this
section as provided in ORS 697.842.
(4) A registration under this section is valid for two years.
In order to continue to provide a debt management service, a debt
management service provider must renew the registration at the
end of the two-year period.
(5) The director may refuse to register the applicant or may
refuse to renew a registration for a debt management service
provider for any of the reasons set forth in ORS 697.752. + }
SECTION 4. ORS 697.642 is amended to read:
697.642. { - (1) A person who applies for registration as a
debt consolidating agency shall file with the Director of the
Department of Consumer and Business Services a bond with one or
more corporate sureties authorized to do business in this state.
The bond: - }
{ - (a) Must be in the amount of $10,000. - }
{ - (b) Must require the surety company to provide written
notice to the director by registered or certified mail of any
cancellation or revocation of the bond: - }
{ - (A) At least 30 days in advance of the cancellation or
revocation; or - }
{ - (B) Upon any payment made for a loss under the bond. - }
{ - (c) Must satisfy the provisions of subsection (2) or (3)
of this section, whichever is applicable to the debt
consolidating agency. - }
{ - (2) If the debt consolidating agency for which
registration is sought is not incorporated under subsection (c)
of section 501 of the Internal Revenue Code of 1954 (as amended
and in effect on April 1, 1983), the bond required under
subsection (1) of this section shall be a surety bond payable to
the order of the director and be conditioned that the applicant
shall pay all amounts, upon order of a court or order of the
director, resulting from any violation by the debt consolidating
agency of its statutory duties and obligations to its clients
under ORS 697.652 to 697.702. - }
{ - (3) If the debt consolidating agency for which
registration is sought is incorporated under subsection (c) of
section 501 of the Internal Revenue Code of 1954 (as amended and
in effect on April 1, 1983), the bond required under subsection
(1) of this section shall be a fidelity bond, and shall be
payable to the applicant. - }
{ - (4) If the director has cause to believe that the
proceeds of the fidelity bond required under subsection (3) of
this section are not being used to pay damages to a client, then
either upon order of a court or order of the director upon the
holder of the proceeds of the bond, the proceeds shall be paid to
the director to pay the damages for the purpose of satisfying the
requirements of ORS 697.772 to 697.812. - }
{ - (5) The bond required by this section shall be
continuously on file with the director in the amount required by
this section. Upon termination or cancellation of the bond or
reduction of the bond to less than the required amount, the debt
consolidating agency immediately: - }
{ - (a) Shall file a replacement bond; or - }
{ - (b) Shall surrender its registration to the director and
cease operating as a debt consolidating agency. - }
{ + (1) An applicant for registration as a debt management
service provider at the time of application shall file with the
Director of the Department of Consumer and Business Services a
bond issued by one or more corporate sureties authorized to do
business in this state. The bond must:
(a) Be in an amount that is:
(A) A minimum of $10,000; or
(B) An amount the director specifies by rule.
(b) Require the surety company to provide written notice to the
director by registered or certified mail:
(A) At least 30 days before the surety company cancels or
revokes the bond; or
(B) Whenever the surety company pays for a loss under the bond.
(c) Satisfy the provisions of subsection (2) of this section.
(2) The bond that a debt management service provider must file
under subsection (1) of this section, in addition to the
requirements set forth under subsection (1) of this section, must
be:
(a) Payable to the order of the director; and
(b) Conditioned so that the corporate surety or the debt
management service provider upon the director's order or a court
order pays all amounts due for a violation of the debt management
service provider's duties and obligations to consumers under ORS
697.652 to 697.702.
(3) If a surety cancels, revokes or otherwise terminates a bond
required under subsection (1) of this section or if the amount of
the bond is reduced to less than the amount required under
subsection (1) of this section, the debt management service
provider shall immediately:
(a) File a replacement bond; or
(b) Surrender the debt management service provider's
registration to the director and cease operating as a debt
management service provider or providing debt management
services.
(4) A person that has a right of action against a debt
management service provider under section 20 of this 2009 Act has
a right of action against the bond required under subsection (1)
of this section. + }
SECTION 5. ORS 697.652 is amended to read:
697.652. { - (1) A debt consolidating agency improperly makes
a contract or an agreement with a client if the debt
consolidating agency does not comply with the requirements of
subsection (2) or (3) of this section. - }
{ - (2) A debt consolidating agency shall include the
following items in each debt consolidating contract or agreement
with a client: - }
{ - (a) The name and address of the debt consolidating agency
and of the client. - }
{ - (b) A listing of every debt to be consolidated. The
listing must disclose the creditor's name and address and the
approximate total of all such debts. - }
{ - (c) A statement, in precise terms, of payments reasonably
within the ability of the client to pay. - }
{ - (d) A statement, in precise terms, of the rate to be
charged by the debt consolidating agency. - }
{ - (e) A statement of the approximate number of installments
and the amount of each installment, in the form of a schedule
showing the ratio or other arrangement made to pay the debts in
full. - }
{ - (f) A provision allowing the client to examine the
client's account in the office of the debt consolidating agency
during office hours. - }
{ - (g) A provision that the debt consolidating agency may
cancel a debt consolidating contract or agreement without the
client's written authorization while the client is employed and
the client's salary is subject to any wage assignment made to the
debt consolidating agency, if the client fails or refuses to make
all of the client's debts subject to the contract or agreement,
if the client knowingly enters into new credit obligations while
subject to a debt consolidating contract or agreement without the
prior approval of the debt consolidating agency or if the client
by any means knowingly withholds from the debt consolidating
agency any wages that are subject to wage assignment. - }
{ - (3) A debt consolidating agency shall deliver a legible
copy of a contract or agreement between the debt consolidating
agency and the client to the client immediately after the client
executes it. The client's copy shall be executed by the debt
consolidating agency. - }
{ - (4) A debt consolidating agency which improperly makes a
contract or agreement with a client is subject to ORS 697.752,
697.762, 697.832 and 697.990 (3). - }
{ - (5) A contract or agreement is not effective until a
client has made a payment or a payment has been made under a wage
assignment to the debt consolidating agency for distribution to
the client's creditors. - }
{ + (1) A debt management service provider may not perform a
debt management service for a consumer without entering into a
written agreement with the consumer that:
(a) Lists the name and telephone number for the debt management
service provider and the consumer and, to the extent the
information is available, the facsimile number, electronic mail
address and website address or other Internet uniform resource
locator for the debt management service provider.
(b) Lists every debt for which the debt management service
provider will provide a debt management service on the consumer's
behalf. The list must disclose the creditor's name and the
approximate total of all of the identified debts.
(c) States in precise terms how much the consumer can
reasonably pay, if the debt management service provider holds,
directly or indirectly, a consumer's funds for distribution to
creditors.
(d) Describes in precise terms the debt management services the
debt management service provider will perform, itemizes the fees
the debt management service provider will charge and explains how
the debt management service provider calculated the amount of the
fees.
(e) Shows in the form of a schedule the approximate number of
installments, the amount of each installment and the ratio or
other arrangement that will apply to the consumer's payment or
satisfaction of the debts.
(f) Provides that the consumer may:
(A) Examine the consumer's account in the debt management
provider's office during office hours; or
(B) Request the debt management service provider to deliver to
the consumer a full and complete written statement of the
consumer's account:
(i) Within two business days, if the debt management service
provider delivers the statement electronically; or
(ii) Within seven business days, if the debt management service
provider delivers the statement by mail.
(g) Provides that the debt management service provider may
cancel the agreement without the consumer's written authorization
if the consumer fails to make scheduled periodic payments under
the terms of the agreement for more than 60 days.
(h) Estimates the time period necessary to complete the debt
management services identified in the agreement.
(i) Provides that the debt management service provider must
deliver to the consumer each calendar quarter a financial
statement of the consumer's funds, if any, that the debt
management service provider holds, directly or indirectly.
(j) Provides that:
(A) The consumer may cancel the agreement:
(i) At any time before midnight of the third business day after
the consumer entered into the agreement with the debt management
service provider; or
(ii) At any time during the remaining term of the agreement,
for any reason, after giving 10 calendar days' written notice of
the cancellation to the debt management service provider;
(B) The consumer's cancellation is effective on the date the
consumer mails a notice of cancellation or immediately if the
consumer sends the cancellation by electronic mail or facsimile;
and
(C) The debt management service provider shall:
(i) Refund all fees the consumer paid before the cancellation
if the consumer cancels the agreement under subparagraph (A)(i)
of this paragraph; or
(ii) Return to the consumer all of the consumer's funds that
the debt management service provider has not expended from among
the funds that the debt management service provider holds,
directly or indirectly, if the consumer cancels the agreement
under subparagraph (A)(ii) of this paragraph.
(k) Provides that the debt management service provider shall
notify the consumer's creditors in writing that the debt
management service provider may negotiate with the creditors
concerning the consumer's debts on the consumer's behalf.
(2) Before the consumer and the debt management service
provider sign the agreement described in subsection (1) of this
section, the debt management service provider shall give the
consumer an analysis of the consumer's budget that is separate
from the agreement and that evaluates whether the debt management
services the debt management service provider proposes to perform
are advantageous to the consumer.
(3) As soon as is practicable after the consumer and the debt
management service provider sign and date the agreement described
in subsection (1) of this section, the debt management service
provider shall provide the consumer with a legible copy of the
signed and dated agreement.
(4)(a) A consumer's waiver or an agreement or contract between
a debt management service provider and a consumer that purports
to waive or otherwise violate a provision of ORS 697.602 to
697.842 is void and unenforceable as contrary to public policy.
(b) A debt management service provider may not induce or
attempt to induce a consumer to waive a provision of ORS 697.602
to 697.842.
(c) A person that claims an exemption from a provision of ORS
697.602 to 697.842 has the burden of proof with respect to the
claim in a proceeding under ORS 697.602 to 697.842.
(d) A circuit court of this state has jurisdiction in equity to
restrain and enjoin a violation of ORS 697.602 to 697.842.
(e) This subsection does not prohibit a person from enforcing a
right provided under ORS 646.608 and 697.602 to 697.842 or other
applicable law. + }
SECTION 6. ORS 697.662 is amended to read:
697.662. { - (1) A debt consolidating agency commits an
improper debt consolidating practice when the debt consolidating
agency does any of the following: - }
{ - (a) Takes a contract, promise to pay or other instrument
that has any blank spaces when it is signed by a client. - }
{ - (b) Takes a negotiable instrument, other than a check or
draft, as payment or security for the charges of the debt
consolidating agency. - }
{ - (c) Takes a wage assignment, real estate mortgage,
purchase money security interest or other security, all or any
part of which is an amount greater than that provided in ORS
697.692, to secure the charges of the debt consolidating
agency. - }
{ - (d) Takes a confession of judgment or a power of attorney
to confess judgment against the client or to appear for the
client in a judicial proceeding. - }
{ - (e) Takes a release from a client of an obligation to be
performed on the part of the debt consolidating agency. - }
{ - (f) Makes any contract or agreement with a client that
provides for later charges or reserves for liquidated
damages. - }
{ - (g) Commingles a client's wages, salaries, income,
credits or property held by the debt consolidating agency with
the property or funds of the debt consolidating agency. - }
{ - (h) Except as authorized in ORS 697.712, cancels a debt
consolidating contract or agreement without a client's written
authorization. - }
{ - (i) Violates ORS 697.707. - }
{ - (2) A person commits an improper debt consolidating
practice if the person advertises, prints, displays, publishes,
distributes or broadcasts, or causes to be advertised, printed,
displayed, published, distributed or broadcasted, any false or
misleading statement or representation with regard to the rates,
terms or services of a debt consolidating agency. - }
{ - (3) A debt consolidating agency that commits an improper
debt consolidating practice under this section is subject to ORS
697.752, 697.762, 697.832 and 697.990 (3). - }
{ - (4) A person other than a debt consolidating agency that
commits an improper debt consolidating practice under subsection
(2) of this section is subject to ORS 697.762, 697.832 and
697.990 (3). - }
{ + A debt management service provider or a person required
to obtain a registration as a debt management service provider
under ORS 697.612 may not:
(1) Make, or counsel or advise a consumer to make, a statement
that is untrue or misleading or that the debt management service
provider or the person in the exercise of reasonable care should
know is untrue or misleading.
(2) Represent that the debt management service provider or the
person is authorized or competent to perform a debt management
service or to furnish advice concerning tax, accounting,
bankruptcy or legal matters unless the debt management service
provider or the person is actually authorized under the laws of
this state to perform the debt management service or furnish the
advice or the debt management service provider or the person
performs the debt management service or furnishes the advice in
compliance with the laws of this state.
(3) Charge or receive money or other valuable consideration
solely to refer a consumer to another person who may or will
extend credit to the consumer on substantially the same terms
that the other person provides to the other person's customers.
(4) Offer to perform a debt management service without
evaluating as part of the budget analysis the debt management
service provider must perform under ORS 697.652 (2) whether the
debt management service is or would be advantageous to the
consumer.
(5) Perform a debt management service without having a good
faith belief formed after conducting an evaluation described in
subsection (4) of this section that the consumer can or will
comply with the terms of the agreement described in ORS 697.652.
(6) Solicit, accept or receive an agreement, contract, promise
to pay or other instrument that has blank spaces at or after the
time the consumer signs the agreement, contract, promise to pay
or instrument.
(7) Accept or receive from a consumer:
(a) Payment or security for the debt management service
provider's or person's fees or charges other than as provided in
ORS 697.692 (2);
(b) A wage assignment, a mortgage on real estate, a purchase
money security interest or other security, all or any part of
which is in an amount larger than permitted under ORS 697.692, to
secure the debt management service provider's or person's fees or
charges;
(c) A confession of judgment or a power of attorney to confess
judgment against the consumer or to appear for the consumer in a
judicial proceeding; or
(d) A release of an obligation that the debt management service
provider or person must perform.
(8) Agree or form a contract with a consumer, the terms of
which provide for later charges or reserves for liquidated
damages.
(9) Commingle any of the consumer's wages, salary, income,
credits or other funds or property that the debt management
service provider or person holds with the debt management service
provider's or person's funds or property.
(10) Cancel an agreement with a consumer without the consumer's
written authorization, except as provided in ORS 697.652 (1)(g).
(11) Violate a provision of ORS 697.602 to 697.842.
(12) Publish, distribute or broadcast or cause to be published,
distributed or broadcast an advertisement, presentation or other
communication or promotional material that:
(a) Contains a false, misleading or deceptive statement or
representation, including a statement or representation that the
debt management service provider or person can alter or remove
factually correct information from a consumer's credit report;
(b) Identifies the debt management service provider or person
by a name other than the name that appears on the registration
that the Director of the Department of Consumer and Business
Services issued or the assumed business name that the debt
management service provider or person registered under ORS
chapter 648;
(c) Displays an emblem, logo or other sign or device that is
similar to an emblem, logo, sign or device that a government
agency uses to identify the government agency or a product or
service the government agency provides, including but not limited
to an eagle, flag or crest; or
(d) Misrepresents, directly or indirectly:
(A) The nature of a service the debt management service
provider or person will perform;
(B) The time within which the debt management service provider
or person will perform a service;
(C) The debt management service provider's or person's ability
to improve a consumer's credit report or credit rating;
(D) The amount, type or quality of credit a consumer may or
will receive as a result of a service the debt management service
provider or person performs or offers to perform; or
(E) The debt management service provider's or person's
qualifications, training or experience or the qualifications,
training or experience of the debt management service provider's
or the person's employees, agents or affiliates. + }
SECTION 7. ORS 697.672 is amended to read:
697.672. { - (1) A debt consolidating agency improperly
maintains records when the debt consolidating agency does not
comply with the following requirements: - }
{ - (a) A debt consolidating agency shall maintain a record
of all wages, salaries, income, credits and property of a client
that are received by the debt consolidating agency, and a record
of all property of the client sold by the debt consolidating
agency, for the purpose of remitting the proceeds to creditors of
the client. - }
{ - (b) A debt consolidating agency shall maintain a record
of all disbursements that the debt consolidating agency has made
to creditors of the client. - }
{ - (c) A debt consolidating agency shall maintain records
described in paragraphs (a) and (b) of this subsection for a
period of three years from the date of the last entry on the
records. - }
{ - (d) The debt consolidating agency shall allow the
Director of the Department of Consumer and Business Services or
any authorized agent of the director to inspect all records
described in paragraphs (a) and (b) of this subsection. - }
{ - (e) The debt consolidating agency shall allow a client to
inspect records of the client during the business hours of the
debt consolidating agency. - }
{ - (2) A debt consolidating agency that improperly maintains
records under this section is subject to ORS 697.752, 697.762,
697.832 and 697.990 (3). - }
{ - (3) A debt consolidating agency may dispose of records to
which this section applies after the three-year period provided
in subsection (1) of this section has expired. - }
{ + (1) A debt management service provider shall make, keep
and maintain accounts, correspondence, memoranda, papers, books
and other records that the Director of the Department of Consumer
and Business Services by rule determines are necessary to ensure
that the debt management service provider is complying with the
provisions of ORS 697.602 to 697.842.
(2) A debt management service provider shall maintain records
for each consumer with which the debt management service provider
does business in a form and with contents the director specifies
by rule. The debt management service provider shall maintain each
consumer record for a period of three years after the date of the
last entry in the record. The debt management service provider
may dispose of the record in accordance with applicable law after
the three-year period described in this subsection has expired.
(3) A debt management service provider shall record all
disbursements that the debt management service provider makes, if
any, to a consumer's creditors.
(4) The director may at any reasonable time examine the debt
management service provider, the records described in subsection
(1) of this section or the debt management service provider's
activities in connection with performing a debt management
service. + }
SECTION 8. ORS 697.682 is amended to read:
697.682. { - (1) A debt consolidating agency improperly
handles funds when the debt consolidating agency does not comply
with the following requirements: - }
{ - (a) The debt consolidating agency shall keep either a
separate trust account for each client or a single account for
all clients. If a single account is kept for all clients, the
debt consolidating agency shall keep a separate ledger or other
record on receipts and disbursements for each client. The debt
consolidating agency shall maintain the trust account or accounts
in this state. - }
{ - (b) The debt consolidating agency shall deposit in the
trust account all wages, salaries, income, credits or property
received from the client and all proceeds received from property
of the client. - }
{ - (c) The debt consolidating agency shall make all
disbursements to the client or on behalf of the client, including
any fees charged by the debt consolidating agency, from the
client's trust account. - }
{ - (d) Upon request of a client, a debt consolidating agency
shall provide to the client without charge a statement of the
money or property received from or on behalf of the client and
the disbursements made by the debt consolidating agency under the
debt consolidating agreement or contract for the period of time
requested. - }
{ - (2) A debt consolidating agency that improperly handles
funds under this section is subject to ORS 697.752, 697.762,
697.832 and 697.990 (3). - }
{ + (1) A debt management service provider that holds a
consumer's funds, directly or indirectly, shall establish a trust
account in this state with an insured institution, as defined in
ORS 706.008, in which to keep the consumer funds that the debt
management service provider holds.
(2) The debt management service provider may establish a
separate trust account for each consumer with whom the debt
management service provider does business, or may establish a
single trust account in which the debt management service
provider keeps all consumer funds. If the debt management service
provider establishes a single trust account, the debt management
service provider shall maintain a separate ledger or other record
of receipts and disbursements for each consumer on whose behalf
the debt management service provider holds funds in the account.
The debt management service provider in the financial statement
required under subsection (4) of this section and the agreement
described in ORS 697.652 shall disclose the amount of interest
earned on the consumer's funds in the separate trust account or
the amount attributable to the consumer's share of the single
trust account to the extent that the interest earned exceeds the
fees the financial institution charges to maintain the trust
account.
(3) The debt management service provider shall deposit into the
trust account all wages, salary, income, credits or proceeds from
property that the debt management service provider receives from
the consumer or the consumer's property and shall disburse from
the trust account all payments the debt management service
provider makes on the consumer's behalf, including payments of
the debt management service provider's fees or charges.
(4) The debt management service provider without charge shall
provide to the consumer in accordance with the terms of the
agreement described in ORS 697.652, or at the consumer's request
for the period of time the consumer specifies, a statement of the
funds or property that the debt management service provider
received from or on behalf of the consumer and the disbursements
that the debt management service provider made from the trust
account under the terms of the agreement.
(5) A debt management service provider may not deposit in a
trust account on a single consumer's behalf more than $250,000 in
consumer funds. + }
SECTION 9. ORS 697.692 is amended to read:
697.692. { - (1) A debt consolidating agency: - }
{ - (a) May charge a client an initial set-up fee of not more
than $25. - }
{ - (b) May charge for services performed for the client in
an amount of not more than 15 percent of the amount actually
received by the debt consolidating agency on behalf of a client
for payment to creditors. A debt consolidating agency may not
receive an amount from the client under this paragraph until the
first installment under the contract or agreement with the client
is paid to any creditor of the client. - }
{ - (c) May not charge a person for any discussion with that
person that may or may not result in an agreement for services of
a debt consolidating agency. - }
{ - (d) Notwithstanding paragraph (c) of this subsection, may
charge a fee to cover the expenses for education classes if: - }
{ - (A) The classes are approved by the Director of the
Department of Consumer and Business Services, or the classes are
required by rule or order of a federal or state agency and the
debt consolidating agency is certified by the federal or state
agency to provide the education; and - }
{ - (B) A request to charge the fee has been approved in
writing by the director. - }
{ - (2) Notwithstanding subsection (1)(c) of this section, a
debt consolidating agency that is a nonprofit organization may
charge a fee in an amount set by the director by rule to cover
the expenses of credit counseling if: - }
{ - (a) The debt consolidating agency demonstrates to the
director the need for the fee or the credit counseling is
required by rule or order of a federal or state agency and the
debt consolidating agency is certified by the federal or state
agency to provide the credit counseling; and - }
{ - (b) A request to charge the fee has been approved in
writing by the director. - }
{ - (3) A debt consolidating agency that charges a fee not
authorized under this section is subject to ORS 697.752, 697.762,
697.832 and 697.990 (3). - }
{ - (4) As used in this section, 'nonprofit organization '
means an organization described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under
section 501(a) of the Internal Revenue Code. - }
{ + (1) A debt management service provider may charge a
consumer only the following fees:
(a) An initial fee of not more than $50.
(b) A fee reasonably calculated to recover the costs that the
debt management service provider incurs in providing an initial
counseling session or education class. The debt management
service provider may charge the fee described in this paragraph
in advance, but the fee may not exceed $50.
(c) A monthly fee equivalent to 15 percent of the funds that
the debt management service provider receives from a consumer for
payment to the consumer's creditors. The debt management service
provider may charge the fee described in this paragraph only if
the debt management service provider holds a consumer's funds,
directly or indirectly, on the consumer's behalf. The fee
described in this paragraph may not exceed $65 per month.
(d) A fee equivalent to 15 percent of the amount of debt a
consumer owes to one or more creditors at the time the consumer
signs the agreement described in ORS 697.652 and places funds in
a bank account that the consumer establishes or maintains in the
consumer's own name with an insured institution, as defined in
ORS 706.008, and designates specifically for making disbursements
in connection with a debt management service. The debt management
service provider may charge the fee described in this paragraph
only if the debt management service provider does not hold a
consumer's funds directly or indirectly. The debt management
service provider may not charge the fee described in this
paragraph in amounts or installments that exceed $65 per month.
(e) A fee equivalent to 7.5 percent of the difference between
the principal amount of the debt the consumer owed to the
consumer's creditor at the time the consumer signed the agreement
described in ORS 697.652 and the amount the consumer paid to the
creditor to settle the debt, exclusive of fees the consumer paid
to the debt management service provider under paragraph (a), (b)
or (d) of this subsection. The debt management service provider
may charge the fee described in this paragraph only if the debt
management service provider obtains from the consumer's creditor
a reduction in the principal amount of the consumer's debt.
(f) Additional counseling fees that the Director of the
Department of Consumer and Business Services specifies by rule,
provided that the director limits the counseling fee to:
(A) $25 per counseling session; and
(B) $50 for all counseling sessions that occur within a 30-day
period.
(2) A debt management service provider may accept payment for a
fee described in subsection (1) of this section by means of:
(a) A check, draft or similar paper instrument; or
(b) A transfer of funds through an electronic terminal,
telephonic instrument, computer or magnetic tape that transmits
an order, instruction or authorization to a financial institution
to debit or credit an account. + }
SECTION 9a. ORS 697.692, as amended by section 9 of this 2009
Act, is amended to read:
697.692. (1) A debt management service provider may charge a
consumer only the following fees:
(a) An initial fee of not more than $50.
(b) A fee reasonably calculated to recover the costs that the
debt management service provider incurs in providing an initial
counseling session or education class. The debt management
service provider may charge the fee described in this paragraph
in advance, but the fee may not exceed $50.
(c) A monthly fee equivalent to 15 percent of the funds that
the debt management service provider receives from a consumer for
payment to the consumer's creditors. The debt management service
provider may charge the fee described in this paragraph only if
the debt management service provider holds a consumer's funds,
directly or indirectly, on the consumer's behalf. The fee
described in this paragraph may not exceed $65 per month.
(d) A fee equivalent to 15 percent of the amount of debt a
consumer owes to one or more creditors at the time the consumer
signs the agreement described in ORS 697.652 and places funds in
a bank account that the consumer establishes or maintains in the
consumer's own name with an insured institution, as defined in
ORS 706.008, and designates specifically for making disbursements
in connection with a debt management service. The debt management
service provider may charge the fee described in this paragraph
only if the debt management service provider does not hold a
consumer's funds directly or indirectly. The debt management
service provider may not charge the fee described in this
paragraph in amounts or installments that exceed $65 per month.
(e) A fee equivalent to 7.5 percent of the difference between
the principal amount of the debt the consumer owed to the
consumer's creditor at the time the consumer signed the agreement
described in ORS 697.652 and the amount the consumer paid to the
creditor to settle the debt, exclusive of fees the consumer paid
to the debt management service provider under paragraph (a), (b)
or (d) of this subsection. The debt management service provider
may charge the fee described in this paragraph only if the debt
management service provider obtains from the consumer's creditor
a reduction in the principal amount of the consumer's debt.
{ - (f) Additional counseling fees that the Director of the
Department of Consumer and Business Services specifies by rule,
provided that the director limits the counseling fee to: - }
{ - (A) $25 per counseling session; and - }
{ - (B) $50 for all counseling sessions that occur within a
30-day period. - }
(2) A debt management service provider may accept payment for a
fee described in subsection (1) of this section by means of:
(a) A check, draft or similar paper instrument; or
(b) A transfer of funds through an electronic terminal,
telephonic instrument, computer or magnetic tape that transmits
an order, instruction or authorization to a financial institution
to debit or credit an account.
SECTION 10. ORS 697.702 is amended to read:
697.702. { - (1) A person commits the offense of interfering
with records of a debt consolidating agency if the person does
either of the following to a record to which ORS 697.672
applies: - }
{ - (a) Intentionally makes a false entry in the record. - }
{ - (b) Intentionally mutilates, destroys or otherwise
disposes of the record. - }
{ - (2) Subsection (1)(b) of this section does not apply to
the disposal of records by a debt consolidating agency that
occurs after the expiration of the retention period in ORS
697.672. - }
{ + (1) A person commits the offense of interfering with
records of a debt management service provider if, with respect to
a record to which ORS 697.672 applies, the person intentionally:
(a) Makes a false entry in the record; or
(b) Mutilates, destroys or otherwise disposes of the record.
(2) Subsection (1)(b) of this section does not apply to a debt
management service provider that disposes of a record after the
retention period set forth in ORS 697.672 expires. + }
SECTION 11. ORS 697.707 is amended to read:
697.707. { - (1) A debt consolidating agency may not charge
or receive from a client a fee authorized under ORS 697.692 for
any services provided by the agency to the client before the
agency provides the disclosure required under this section. - }
{ - (2) A debt consolidating agency shall disclose in writing
to each client on a separate form: - }
{ - (a) The maximum amount the debt consolidating agency may
charge for services performed for the client; and - }
{ - (b) That the client is responsible for payment of the
amount charged. - }
{ - (3) The form described in subsection (2) of this section
must contain a space for the client to sign the form, indicating
that the client has read and understands the information
disclosed on the form. - }
{ + (1) A debt management service provider may not charge or
receive from a consumer a fee described in ORS 697.692 until
after the debt management service provider makes the disclosures
described in this section.
(2) A debt management service provider shall give to every
consumer for whom the debt management service provider offers to
perform a debt management service a document that:
(a) States the maximum amount the debt management service
provider may charge the consumer for all debt management services
that the debt management service provider will perform;
(b) States that the consumer is responsible for paying the debt
management service provider's charges;
(c) Warns the consumer that canceled debt may constitute income
that is subject to state and federal taxation and advises the
consumer to consult with a tax professional;
(d) Describes completely and in detail the debt management
services that the debt management service provider will perform
for the consumer and states the amount the consumer must pay for
each service and for all services; and
(e) States that the consumer may bring an action against the
bond required under ORS 697.642 and lists the name and address of
the surety that issued the bond.
(3) A debt management service provider that performs a debt
management service as defined in ORS 697.602 (2)(b) or described
in ORS 697.612 (1)(b)(E), in the document required under
subsection (2) of this section, shall:
(a) Describe, accurately and completely, the consumer's right
to review consumer credit information about the consumer that a
consumer reporting agency, as defined in 15 U.S.C. 1681a,
maintains; and
(b) State the approximate price that a consumer reporting
agency will charge a consumer to review the consumer credit
information described in paragraph (a) of this subsection and
that the consumer may review the information at no charge if the
consumer makes a request to the consumer reporting agency within
30 days after the consumer was denied credit.
(4) A debt management service provider that does not hold a
consumer's funds, directly or indirectly, shall include in the
document required under subsection (2) of this section these
additional statements:
(a) That the debt management service provider does not predict
or guarantee specific results and cannot force or require a
creditor to accept a specific settlement;
(b) That the debt management service provider does not make
scheduled periodic payments to creditors;
(c) That creditors may continue collection efforts, including
lawsuits;
(d) That the consumer's failure to make monthly payments on
outstanding debt will likely have a negative impact on the
consumer's credit score;
(e) That the consumer must make regular monthly deposits of
funds in an account the consumer establishes and maintains in the
consumer's name with an insured institution, as defined in ORS
706.008, and designates specifically for making disbursements in
connection with a debt management service; and
(f) That the debt management service provider will withdraw
fees for debt management services from the account described in
paragraph (e) of this subsection only with the consumer's
specific authorization and that the debt management service
provider does not have custody, control or separate or additional
access to the account.
(5) The document described in this section must provide a space
for the consumer to sign the form under a statement that
indicates that the consumer has read and understands the
disclosures set forth in the document. + }
SECTION 12. ORS 697.722 is amended to read:
697.722. Funds in a trust account { - maintained by - }
{ + that + }a debt
{ - consolidating agency - } { + management service provider
maintains + } under ORS 697.682 are not subject to execution or
attachment on { - any - } { + a + } claim against the
debt { + management service provider + } { - consolidating
agency - } .
SECTION 13. ORS 697.732 is amended to read:
697.732. (1) To enforce { + the provisions of + } ORS 697.612
and 697.642 to 697.702, the Director of the Department of
Consumer and Business Services may:
{ - (a) Upon the director's own motion or upon receipt of a
complaint by a client of a debt consolidating agency or of a
person acting as a debt consolidating agency without
registration, audit the trust accounts of the agency or person
for the purpose of investigating any violation of ORS 697.642 to
697.702. The debt consolidating agency or person acting as a debt
consolidating agency without registration shall pay the
reasonable cost of the audit, as determined by the director. - }
{ - (b) Undertake investigations, including investigations
outside of this state, that the director considers necessary
to: - }
{ - (A) Determine whether a person has violated, is violating
or is about to violate ORS 697.612 or 697.642 to 697.702 or any
rule of the director adopted under ORS 697.632; or - }
{ - (B) Aid in the enforcement of ORS 697.612 and 697.642 to
697.702 and in the formulation of rules and forms under ORS
697.632. - }
{ - (c) Require a person to file a statement in writing,
under oath or otherwise, concerning the matter being
investigated. - }
{ - (2) All debt consolidating agencies and persons acting as
debt consolidating agencies without registration shall provide
the director with free access during all reasonable hours to
offices and places of business, books, accounts, records, papers,
files, safes and vaults for the purpose of investigating
violations of ORS 697.612 or 697.642 to 697.702. - }
{ - (3) The director shall maintain for public inspection
records of any civil penalty imposed under ORS 697.832, any
suspension, revocation or refusal to renew the registration of a
debt consolidating agency and any collection on the bond or
deposit of a debt consolidating agency. The record of each action
shall show: - }
{ - (a) The order of the director or the court relating to
the action. - }
{ - (b) The debt consolidating agency against whom the action
was taken. - }
{ - (c) The grounds for the action. - }
{ - (4) Except as provided in subsection (3) of this section,
records, reports and other information received or compiled by
the director as a result of investigations under this section are
exempt from the public disclosure required by ORS 192.420. - }
{ + (a) Examine a debt management service provider or a
person required to obtain a registration as a debt management
service provider under ORS 697.612 and the debt management
service provider's or the person's accounts for the purpose of
investigating a violation of ORS 697.642 to 697.702.
(b) Undertake an investigation, including an investigation
outside this state, that the director considers necessary to:
(A) Determine whether a debt management service provider or a
person required to obtain a registration as a debt management
service provider under ORS 697.612 violated, is violating or is
about to violate ORS 697.612 or 697.642 to 697.702 or a rule the
director adopted under ORS 697.632; or
(B) Aid in enforcing the provisions of ORS 697.612 and 697.642
to 697.702 and in formulating rules for adoption under ORS
697.632.
(c) Require a debt management service provider or a person
required to obtain a registration as a debt management service
provider under ORS 697.612 to file a written statement, under
oath or otherwise, that addresses a matter the director is
investigating.
(d) Administer oaths and affirmations, subpoena witnesses,
compel the witnesses to attend, take evidence and require a
person that the director is investigating to produce books,
papers, correspondence, memoranda, agreements or other documents
or records that the director deems relevant or material to the
investigation. A witness who appears before the director under a
subpoena shall receive the fees and mileage described in ORS
44.415 (2).
(e) Charge and require a debt management service provider or a
person required to obtain a registration as a debt management
service provider under ORS 697.612 to pay for the reasonable cost
of an examination or investigation conducted under this section
in an amount the director specifies.
(2) If a person does not comply with a subpoena that the
director issues under this section, a circuit court in this state
upon the director's application shall begin contempt proceedings
to compel compliance in the same manner in which the court would
compel compliance with a subpoena in a civil action.
(3) A debt management service provider or a person required to
obtain a registration as a debt management service provider under
ORS 697.612 shall provide the director for the purpose of
investigating a violation of ORS 697.612 or 697.642 to 697.702
with free access to the debt management service provider's or the
person's offices, places of business, books, accounts, records,
papers, files, safes and vaults.
(4)(a) The director shall maintain for public inspection a
record of any order the director issued that:
(A) Suspended, revoked or refused to renew a person's
registration as a debt management service provider; or
(B) Imposed a civil penalty under ORS 697.832.
(b) The record that the director maintains of the director's
order shall show:
(A) The form of the order that the director issued;
(B) The name of the person that is the subject of the order;
and
(C) The grounds for the action that the director took in the
order.
(c) The director shall maintain as a public record any notice
or other information that indicates that a collection on a
deposit or on the bond required under ORS 697.642 has occurred.
(d) Except as provided in this subsection, records, reports and
other information that the director receives or compiles as a
result of an investigation conducted under this section are
exempt from the disclosure required under ORS 192.420. + }
SECTION 14. ORS 697.752 is amended to read:
697.752. { - (1) The Director of the Department of Consumer
and Business Services may refuse to issue or renew or may revoke
or suspend the registration of a debt consolidating agency if the
director determines any of the following facts: - }
{ - (a) The debt consolidating agency has filed false or
untruthful information with the director under ORS 697.632. - }
{ - (b) The debt consolidating agency has violated any of the
rules of the director adopted under ORS 697.632. - }
{ - (c) The debt consolidating agency has violated any
provision of ORS 697.642 to 697.702. - }
{ - (d) Any person required to register to engage in the
business of debt consolidating has been convicted of a felony or
a misdemeanor, an essential element of which is fraud. - }
{ - (e) There has been any lapse in or any reduction of the
amount of any bond filed under ORS 697.642. - }
{ - (2) A revocation or suspension under this section may be
for a time certain or upon condition that the debt consolidating
agency meets conditions specified by the director. - }
{ - (3) The conduct of hearings, issuance of orders and
judicial review of orders are governed by ORS chapter 183. - }
{ + The Director of the Department of Consumer and Business
Services may deny, suspend, condition, revoke or refuse to issue
or renew a registration as a debt management service provider if
the director determines that an applicant or debt management
service provider:
(1) Cannot meet financial obligations as the obligations
mature, has liabilities that exceed assets or is in a financial
condition that prevents the applicant or debt management service
provider from continuing in business with safety to consumers;
(2) Engaged in dishonest, fraudulent or illegal practices or
conduct in a business or profession, or unfair or unethical
practices or conduct in connection with a debt management
service;
(3) Filed, knowingly or negligently, false or untruthful
information with the director under ORS 697.632;
(4) Violated a provision of ORS 697.642 to 697.702 or a rule
the director adopted under ORS 697.632;
(5) Filed an application for registration that on the date the
director issued a registration or on the date the director
denied, suspended, conditioned or revoked a registration was
incomplete in a material respect or contained a statement that
was false or misleading with respect to a material fact in light
of the circumstances in which the applicant or debt management
service provider made the statement;
(6) Failed to account to interested persons for money or
property the applicant or debt management service provider
received;
(7) Was temporarily or permanently enjoined from engaging in or
continuing a conduct or practice involving a debt management
service by a court of competent jurisdiction;
(8) Is subject to a director's order that denied, suspended,
conditioned or revoked a registration as a debt management
service provider, or a license or registration that the director
issued under another provision of law;
(9) Is subject to a cease and desist order that the director
entered within the previous five years after giving the applicant
or debt management service provider notice and an opportunity for
a hearing;
(10) Demonstrated negligence or incompetence in performing a
debt management service or an act, the performance of which
requires the applicant or debt management service provider to
obtain a registration or license;
(11) Failed to supervise diligently and control an employee's
or agent's actions related to a debt management service that the
applicant or debt management service provider performed;
(12) Was convicted of a felony or of a misdemeanor for which an
essential element is fraud, either as an individual that is
subject to the requirement to register as a debt management
service provider or as a member, partner, officer, director or
principal of an applicant or debt management service provider;
(13) Reduced the amount of the bond required under ORS 697.642
or allowed the bond to lapse;
(14) Knowingly made a false entry in a consumer's record; or
(15) Knowingly mutilated, destroyed or otherwise disposed of a
consumer's record unless the record concerns a consumer that no
longer receives a debt management service from the applicant or
debt management service provider or the record is not subject to
the retention requirement set forth in ORS 697.672. + }
SECTION 15. ORS 697.762 is amended to read:
697.762. (1) If the Director of the Department of Consumer and
Business Services determines that { - any - } { + a + }
person has engaged in, is engaging in or is about to engage in
{ - any - } { + an + } act or practice that the director
believes is in violation of ORS 697.612 { + , + } { - or - }
697.642 to 697.702 { + or 697.752 + }, { + in addition to
actions the director may take under ORS 697.752 + }the director
may bring suit in the name of the State of Oregon in
{ - any - } { + a + } circuit court of this state to enjoin
the { - acts or practices - } { + act or practice + }. Upon a
proper showing, the court shall grant a permanent or temporary
injunction or restraining order and may appoint a receiver or
conservator for the defendant or the defendant's assets. The
court may not require the director to post a bond. The court may
award reasonable attorney fees to the director if the director
prevails in an action under this section. The court may award
reasonable attorney fees to a defendant { - who - } { + if
the defendant + } prevails in an action under this section { +
and + } { - if - } the court determines that the director
{ - had no - } { + did not have an + } objectively reasonable
basis for asserting the claim or { - no - } { + a + }
reasonable basis for appealing an adverse decision of the trial
court.
(2) The director may include in { - any - } { + a + } suit
authorized by subsection (1) of this section a claim for damages
on behalf of
{ - any other - } { + a + } person injured by { - any - }
{ + an + } act or practice against which { + the director
sought + }an injunction or restraining order { - is sought - }
. The court may award appropriate relief to the person if the
court finds that { - enforcement of the - } { + enforcing the
person's + } right { - of the person - } by private civil
action or suit, whether by class action or otherwise, would be so
burdensome or expensive as to be impracticable.
SECTION 16. ORS 697.822 is amended to read:
697.822. The remedy provided for in { - ORS 697.782 - } { +
section 20 of this 2009 Act + }:
(1) Is in addition to and not exclusive of { - any - } other
remedies provided by law.
(2) Does not limit { - any - } { + a person's + } statutory
or common-law
{ - rights of a person - } { + right + } to bring an action
in any court for an act of a debt { - consolidating agency - }
{ + management service provider + }, or the right of the state
to punish a person for { - violation of any - } { + violating
a + } law.
SECTION 17. ORS 697.825 is amended to read:
697.825. (1) The Director of the Department of Consumer and
Business Services may, if the director has reason to believe that
a person { - has - } :
{ - (a) Violated, is violating or is about to violate ORS
697.612 or 697.642 to 697.702, a rule adopted under ORS 697.632
or an order issued under ORS 697.732 or 697.742, issue an order
to cease and desist from the violation. - }
{ + (a) Violated, is violating or is about to violate ORS
697.612, 697.642 to 697.702 or 697.752, a rule adopted under ORS
697.632 or an order issued under ORS 697.652 or 697.732, issue an
order to cease and desist from the violation. + }
(b) Filed information under ORS 697.632 that is false or
untruthful, issue an order to correct the filing.
(c) Failed to maintain in effect the bond required under ORS
697.642, issue an order to remedy the failure.
(2)(a) The director shall serve an order under this section on
the person named in the order.
(b) An order issued under this section becomes effective upon
service on the person named in the order.
(c) ORS 183.413 to 183.470 apply to an order issued under this
section.
(d) Notwithstanding paragraph (c) of this subsection, a person
may not obtain a hearing on the order unless the person requests
the hearing in writing within 20 days after service of the order.
(e) A person who does not request a contested case hearing may
not obtain judicial review of the order.
(f) The director may vacate or modify an order issued under
this section. A modified order is effective upon service on the
person named in the order.
(3) The authority conferred by this section is in addition to
and not in lieu of any other authority conferred on the director.
SECTION 18. ORS 697.832 is amended to read:
697.832. (1) In addition to any other liability or penalty
provided by law, the Director of the Department of Consumer and
Business Services may impose a civil penalty on a person in an
amount not to exceed { - $1,000 - } { + $5,000 + } for each
violation of ORS 697.612 or 697.642 to 697.702, rules adopted
under ORS 697.632 or order issued under ORS 697.825.
(2) The director shall impose a civil penalty on a person under
this section in the manner provided { - by - } { + in + } ORS
183.745.
(3) Notwithstanding ORS 183.745, the person to whom the notice
is addressed { - shall have - } { + has + } 10 days from the
date { + on which + } { - of mailing of - } the notice { +
was mailed + } in which to apply for a hearing before the
director.
(4) { - The payment or tendering of payment of - } { +
Paying or tendering payment for + } a civil penalty imposed under
this section
{ - shall - } { + does + } not relieve { - the - } { + a
person from the + }obligation { - of a person - } to comply
with the applicable statute or rule.
(5) All penalties recovered under this section shall be paid
into the State Treasury and credited to the General Fund and are
available for general governmental expenses.
SECTION 19. { + Sections 20 and 21 of this 2009 Act are added
to and made a part of ORS 697.602 to 697.842. + }
SECTION 20. { + (1) A debt management service provider or a
person required to obtain a registration as a debt management
service provider under ORS 697.612 is liable to a consumer who
suffers an ascertainable loss of money or property, real or
personal, in connection with the debt management service
provider's or person's violation of a provision of ORS 697.652,
697.662, 697.682, 697.692 or 697.707.
(2) Except as provided in this subsection, an action or suit
may not be commenced under this section more than three years
after the date on which the debt management service provider or
person enters into an agreement for a debt management service
with the consumer that suffered the ascertainable loss of money
or property or more than three years after the debt management
service provider or person performs a debt management service
that violates ORS 697.652. An action under this section may be
commenced within three years after the transaction that is the
subject of the action or within two years after the facts on
which the action is based were or should have been discovered,
but an action may not be commenced more than five years after the
transaction. Failure to commence an action on a timely basis is
an affirmative defense.
(3) A consumer that has a right of action against a debt
management service provider under this section has a right of
action against the bond required under ORS 697.642.
(4) A court may award reasonable attorney fees to the
prevailing party in an action brought under this section. + }
SECTION 21. { + The Director of the Department of Consumer and
Business Services may adopt, amend and repeal rules that are
necessary to carry out the provisions of ORS 697.602 to
697.842. + }
SECTION 22. ORS 192.502 is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if public
disclosure would constitute an unreasonable invasion of privacy,
unless the public interest by clear and convincing evidence
requires disclosure in the particular instance. The party seeking
disclosure shall have the burden of showing that public
disclosure would not constitute an unreasonable invasion of
privacy.
(3) Public body employee or volunteer addresses, Social
Security numbers, dates of birth and telephone numbers contained
in personnel records maintained by the public body that is the
employer or the recipient of volunteer services. This exemption:
(a) Does not apply to the addresses, dates of birth and
telephone numbers of employees or volunteers who are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(b) Does not apply to employees or volunteers to the extent
that the party seeking disclosure shows by clear and convincing
evidence that the public interest requires disclosure in a
particular instance;
(c) Does not apply to a substitute teacher as defined in ORS
342.815 when requested by a professional education association of
which the substitute teacher may be a member; and
(d) Does not relieve a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9)(a) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(b) Subject to ORS 192.423, paragraph (a) of this subsection
does not apply to factual information compiled in a public record
when:
(A) The basis for the claim of exemption is ORS 40.225;
(B) The factual information is not prohibited from disclosure
under any applicable state or federal law, regulation or court
order and is not otherwise exempt from disclosure under ORS
192.410 to 192.505;
(C) The factual information was compiled by or at the direction
of an attorney as part of an investigation on behalf of the
public body in response to information of possible wrongdoing by
the public body;
(D) The factual information was not compiled in preparation for
litigation, arbitration or an administrative proceeding that was
reasonably likely to be initiated or that has been initiated by
or against the public body; and
(E) The holder of the privilege under ORS 40.225 has made or
authorized a public statement characterizing or partially
disclosing the factual information compiled by or at the
attorney's direction.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapters 238 and 238A.
(13) Records of or submitted to the State Treasurer, the Oregon
Investment Council or the agents of the treasurer or the council
relating to active or proposed publicly traded investments under
ORS chapter 293, including but not limited to records regarding
the acquisition, exchange or liquidation of the investments. For
the purposes of this subsection:
(a) The exemption does not apply to:
(A) Information in investment records solely related to the
amount paid directly into an investment by, or returned from the
investment directly to, the treasurer or council; or
(B) The identity of the entity to which the amount was paid
directly or from which the amount was received directly.
(b) An investment in a publicly traded investment is no longer
active when acquisition, exchange or liquidation of the
investment has been concluded.
(14)(a) Records of or submitted to the State Treasurer, the
Oregon Investment Council, the Oregon Growth Account Board or the
agents of the treasurer, council or board relating to actual or
proposed investments under ORS chapter 293 or 348 in a privately
placed investment fund or a private asset including but not
limited to records regarding the solicitation, acquisition,
deployment, exchange or liquidation of the investments including
but not limited to:
(A) Due diligence materials that are proprietary to an
investment fund, to an asset ownership or to their respective
investment vehicles.
(B) Financial statements of an investment fund, an asset
ownership or their respective investment vehicles.
(C) Meeting materials of an investment fund, an asset ownership
or their respective investment vehicles.
(D) Records containing information regarding the portfolio
positions in which an investment fund, an asset ownership or
their respective investment vehicles invest.
(E) Capital call and distribution notices of an investment
fund, an asset ownership or their respective investment vehicles.
(F) Investment agreements and related documents.
(b) The exemption under this subsection does not apply to:
(A) The name, address and vintage year of each privately placed
investment fund.
(B) The dollar amount of the commitment made to each privately
placed investment fund since inception of the fund.
(C) The dollar amount of cash contributions made to each
privately placed investment fund since inception of the fund.
(D) The dollar amount, on a fiscal year-end basis, of cash
distributions received by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board from each privately placed
investment fund.
(E) The dollar amount, on a fiscal year-end basis, of the
remaining value of assets in a privately placed investment fund
attributable to an investment by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board.
(F) The net internal rate of return of each privately placed
investment fund since inception of the fund.
(G) The investment multiple of each privately placed investment
fund since inception of the fund.
(H) The dollar amount of the total management fees and costs
paid on an annual fiscal year-end basis to each privately placed
investment fund.
(I) The dollar amount of cash profit received from each
privately placed investment fund on a fiscal year-end basis.
(15) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(16) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(17) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Growth Account
Board, the Port of Portland or other ports, as defined in ORS
777.005, by applicants for investment funds, loans or services
including, but not limited to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(18) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(19) All information supplied by a person under ORS 151.485 for
the purpose of requesting appointed counsel, and all information
supplied to the court from whatever source for the purpose of
verifying the financial eligibility of a person pursuant to ORS
151.485.
(20) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(21) Sensitive business records or financial or commercial
information of the Oregon Health and Science University that is
not customarily provided to business competitors.
(22) Records of Oregon Health and Science University regarding
candidates for the position of president of the university.
(23) The records of a library, including:
(a) Circulation records, showing use of specific library
material by a named person;
(b) The name of a library patron together with the address or
telephone number of the patron; and
(c) The electronic mail address of a patron.
(24) The following records, communications and information
obtained by the Housing and Community Services Department in
connection with the department's monitoring or administration of
financial assistance or of housing or other developments:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence.
(k) Personal information about a tenant.
(L) Housing assistance payments.
(25) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(26) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(28) Personally identifiable information about customers of a
municipal electric utility or a people's utility district or the
names, dates of birth, driver license numbers, telephone numbers,
electronic mail addresses or Social Security numbers of customers
who receive water, sewer or storm drain services from a public
body as defined in ORS 174.109. The utility or district may
release personally identifiable information about a customer, and
a public body providing water, sewer or storm drain services may
release the name, date of birth, driver license number, telephone
number, electronic mail address or Social Security number of a
customer, if the customer consents in writing or electronically,
if the disclosure is necessary for the utility, district or other
public body to render services to the customer, if the disclosure
is required pursuant to a court order or if the disclosure is
otherwise required by federal or state law. The utility, district
or other public body may charge as appropriate for the costs of
providing such information. The utility, district or other public
body may make customer records available to third party credit
agencies on a regular basis in connection with the establishment
and management of customer accounts or in the event such accounts
are delinquent.
(29) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(30) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
(31) Documents, materials or other information submitted to the
Director of the Department of Consumer and Business Services in
confidence by a state, federal, foreign or international
regulatory or law enforcement agency or by the National
Association of Insurance Commissioners, its affiliates or
subsidiaries under ORS { - 646A.250 to 646A.270, - } 697.005
to 697.095, 697.602 to 697.842, 705.137, 717.200 to 717.320,
717.900 or 717.905, ORS chapter 59, 722, 723, 725 or 726, the
Bank Act or the Insurance Code when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information.
(32) A county elections security plan developed and filed under
ORS 254.074.
(33) Information about review or approval of programs relating
to the security of:
(a) Generation, storage or conveyance of:
(A) Electricity;
(B) Gas in liquefied or gaseous form;
(C) Hazardous substances as defined in ORS 453.005 (7)(a), (b)
and (d);
(D) Petroleum products;
(E) Sewage; or
(F) Water.
(b) Telecommunication systems, including cellular, wireless or
radio systems.
(c) Data transmissions by whatever means provided.
(34) The information specified in ORS 25.020 (8) if the Chief
Justice of the Supreme Court designates the information as
confidential by rule under ORS 1.002.
SECTION 23. ORS 646.608, as amended by section 8, chapter 19,
Oregon Laws 2008, and section 5, chapter 31, Oregon Laws 2008, is
amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646A.020.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646A.142.
(ii) Violates ORS 646A.360.
(jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
(mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646A.210 or 646A.214.
(oo) Violates any provision of ORS 646A.124 to 646A.134.
{ - (pp) Violates ORS 646A.254. - }
{ - (qq) - } { + (pp) + } Violates ORS 646A.095.
{ - (rr) - } { + (qq) + } Violates ORS 822.046.
{ - (ss) - } { + (rr) + } Violates ORS 128.001.
{ - (tt) - } { + (ss) + } Violates ORS 646.649 (2) to (4).
{ - (uu) - } { + (tt) + } Violates ORS 646A.090 (2) to (4).
{ - (vv) - } { + (uu) + } Violates ORS 87.686.
{ - (ww) - } { + (vv) + } Violates ORS 646.651.
{ - (xx) - } { + (ww) + } Violates ORS 646A.362.
{ - (yy) - } { + (xx) + } Violates ORS 646A.052 or any rule
adopted under ORS 646A.052 or 646A.054.
{ - (zz) - } { + (yy) + } Violates ORS 180.440 (1).
{ - (aaa) - } { + (zz) + } Commits the offense of acting as
a vehicle dealer without a certificate under ORS 822.005.
{ - (bbb) - } { + (aaa) + } Violates ORS 87.007 (2) or (3).
{ - (ccc) - } { + (bbb) + } Violates ORS 92.405 (1), (2) or
(3).
{ - (ddd) - } { + (ccc) + } Engages in an unlawful practice
under ORS 646.648.
{ - (eee) - } { + (ddd) + } Violates ORS 646A.365.
{ - (fff) - } { + (eee) + } Violates ORS 98.854 or 98.858
or a rule adopted under ORS 98.864.
{ - (ggg) - } { + (fff) + } Sells a gift card in violation
of ORS 646A.276.
{ - (hhh) - } { + (ggg) + } Violates ORS 646A.102, 646A.106
or 646A.108.
{ - (iii) - } { + (hhh) + } Violates ORS 646A.430 to
646A.450.
{ - (jjj) - } { + (iii) + } Violates a provision of
sections 2 to 6, chapter 19, Oregon Laws 2008.
{ - (kkk) - } { + (jjj) + } Violates section 2, chapter 31,
Oregon Laws 2008, 30 or more days after a recall notice, warning
or declaration described in section 2, chapter 31, Oregon Laws
2008, is issued for the children's product, as defined in section
1, chapter 31, Oregon Laws 2008, that is the subject of the
violation.
{ + (kkk) Violates a provision of ORS 697.612, 697.642,
697.652, 697.662, 697.682, 697.692 or 697.707. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection
{ - (1)(zz) - } { + (1)(yy) + } of this section by a person
other than a prosecuting attorney, relief is limited to an
injunction and the prevailing party may be awarded reasonable
attorney fees.
SECTION 24. ORS 646A.628 is amended to read:
646A.628. Notwithstanding ORS 705.145 (2), (3) and (5), the
Director of the Department of Consumer and Business Services can
allocate as deemed appropriate the moneys derived pursuant to ORS
{ - 646A.252 to 646A.270, - } 650.005 to 650.100, 697.005 to
697.095, 697.602 to 697.842, 705.350 and 717.200 to 717.320 and
731.804 and ORS chapters 59, 645, 706 to 716, 722, 723, 725 and
726 to implement ORS 646A.600 to 646A.628.
SECTION 25. ORS 705.137 is amended to read:
705.137. (1) Except as provided in subsection (3) of this
section, { - any - } { + a + } document, material or other
information that is in the possession or control of the
Department of Consumer and Business Services for the purpose of
administering ORS { - 646A.250 to 646A.270, - } 697.005 to
697.095, 697.602 to 697.842, 717.200 to 717.320, 717.900 and
717.905, ORS chapters 59, 722, 723, 725 and 726, the Bank Act and
the Insurance Code and that is described in statute as
confidential or as not subject to disclosure is not subject to
disclosure under ORS 192.410 to 192.505, is not subject to
subpoena and is not subject to discovery or admissible in
evidence in { - any - } { + a + } private civil action. The
Director of the Department of Consumer and Business Services may
use { - such - } { + a + } confidential { - documents,
materials - } { + document, material + } or other information
in administering ORS { - 646A.250 to 646A.270, - } 697.005 to
697.095, 697.602 to 697.842, 717.200 to 717.320, 717.900 and
717.905, ORS chapters 59, 722, 723, 725 and 726, the Bank Act and
the Insurance Code and in { - the furtherance of any other - }
{ + furthering a + } regulatory or legal action brought as a
part of the director's duties.
(2) { - Any - } { + A + } document, material or other
information to which subsection (1) of this section applies is
subject to the public officer privilege described in ORS 40.270.
(3) In order to assist in the performance of the director's
duties, the director { + may + }:
(a) { - May authorize the sharing of - } { + Authorize
sharing a + } confidential { - documents, materials and - }
{ + document, material or + } other information { + that
is + } subject to subsection (1) of this section as appropriate
among the administrative divisions and staff offices of the
department created under ORS 705.115 for the purpose of
administering and enforcing the statutes { - referred to - }
{ + identified + } in subsection (1) of this section, in order
to enable the administrative divisions and staff offices to carry
out
{ - their - } { + the + } functions and responsibilities { +
of the administrative divisions and staff offices + }.
(b) { - May share documents, materials and - } { + Share a
document, material or + } other information, including
{ - the - } { + a + } confidential
{ - documents, materials and - } { + document, material
or + } other information that is subject to subsection (1) of
this section or that is otherwise confidential under ORS 192.501
or 192.502, with other state, federal, foreign and international
regulatory and law enforcement agencies and with the National
Association of Insurance Commissioners and { - its - }
affiliates or subsidiaries { + of the National Association of
Insurance Commissioners + }, if the recipient agrees to maintain
the confidentiality of the
{ - documents, materials and - } { + document, material
or + } other information.
(c) { - May receive documents, materials and - } { +
Receive a document, material or + } other information,
including { + an + } otherwise confidential { - documents,
materials and - } { + document, material or + } other
information, from state, federal, foreign and international
regulatory and law enforcement agencies and from the National
Association of Insurance Commissioners and { - its - }
affiliates or subsidiaries { + of the National Association of
Insurance Commissioners + }. { + As provided in this
section, + } the director shall maintain { - as confidential as
provided in this section any such document, material - } { +
the confidentiality of documents, materials + } or other
information received upon notice or with an understanding that
{ - it is - } { + the document, material or other information
is + } confidential or privileged under the laws of the
jurisdiction that is the source of the document, material or
other information.
(4) { - Neither disclosure of documents, materials - } { +
Disclosing a document, material + } or other information to the
director under this section { - nor the - } { + or + }
sharing { - of documents, materials - } { + a document,
material + } or other information as authorized in subsection (3)
of this section { - waives any - } { + does not waive an + }
applicable privilege or claim of confidentiality in the
{ - documents, materials - } { + document, material + } or
other information.
(5) This section does not prohibit the director from
releasing { + a + } final, adjudicated { - actions - } { +
action + }, including
{ - suspensions or revocations of certificates - } { + a
suspension or revocation of a certificate + } of authority or
{ - licenses, when - } { + a license if + } the { - actions
are - } { + action is + } otherwise open to public inspection,
to a database or other clearinghouse service maintained by the
National Association of Insurance Commissioners or { - its - }
affiliates or subsidiaries { + of the National Association of
Insurance Commissioners + }.
SECTION 26. ORS 646A.110 is amended to read:
646A.110. (1) ORS 646.608 { - (1)(fff) - } { +
(1)(eee) + }, 646A.100 to 646A.110 and 646A.112 apply only to
persons who engage in the retail sale of merchandise in the
regular course of their business.
(2) ORS 646.608 { - (1)(fff) - } { + (1)(eee) + }, 646A.100
to 646A.110 and 646A.112 do not apply to public officials acting
within the scope of their duties as public officials.
SECTION 27. { + ORS 646A.250, 646A.252, 646A.254, 646A.256,
646A.258, 646A.260, 646A.262, 646A.264, 646A.266, 646A.268,
646A.270, 697.622, 697.712, 697.742, 697.772, 697.782, 697.792,
697.802 and 697.812 are repealed. + }
SECTION 28. { + (1) Sections 20 and 21 of this 2009 Act, the
amendments to ORS 192.502, 646.608, 646A.110, 646A.628, 697.602,
697.612, 697.632, 697.642, 697.652, 697.662, 697.672, 697.682,
697.692, 697.702, 697.707, 697.722, 697.732, 697.752, 697.762,
697.822, 697.825, 697.832 and 705.137 by sections 1 to 9, 10 to
18 and 22 to 26 of this 2009 Act and the repeal of ORS 646A.250,
646A.252, 646A.254, 646A.256, 646A.258, 646A.260, 646A.262,
646A.264, 646A.266, 646A.268, 646A.270, 697.622, 697.712,
697.742, 697.772, 697.782, 697.792, 697.802 and 697.812 by
section 27 of this 2009 Act become operative on January 1, 2010.
(2) The Director of the Department of Consumer and Business
Services may take any action before January 1, 2010, that is
necessary to enable the director to exercise, on and after
January 1, 2010, all the duties, functions and powers conferred
on the director by sections 20 and 21 of this 2009 Act and the
amendments to ORS 192.502, 646.608, 646A.110, 646A.628, 697.602,
697.612, 697.632, 697.642, 697.652, 697.662, 697.672, 697.682,
697.692, 697.702, 697.707, 697.722, 697.732, 697.752, 697.762,
697.822, 697.825, 697.832 and 705.137 by sections 1 to 9, 10 to
18 and 22 to 26 of this 2009 Act. + }
SECTION 29. { + Sections 20 and 21 of this 2009 Act, the
amendments to ORS 192.502, 646.608, 646A.110, 646A.628, 697.602,
697.612, 697.632, 697.642, 697.652, 697.662, 697.672, 697.682,
697.692, 697.702, 697.707, 697.722, 697.732, 697.752, 697.762,
697.822, 697.825, 697.832 and 705.137 by sections 1 to 9, 10 to
18 and 22 to 26 of this 2009 Act and the repeal of ORS 646A.250,
646A.252, 646A.254, 646A.256, 646A.258, 646A.260, 646A.262,
646A.264, 646A.266, 646A.268, 646A.270, 697.622, 697.712,
697.742, 697.772, 697.782, 697.792, 697.802 and 697.812 by
section 27 of this 2009 Act apply to a contract for debt
management services entered into on or after the effective date
of this 2009 Act. + }
SECTION 30. { + The amendments to ORS 697.692 by section 9a of
this 2009 Act become operative on January 1, 2012. + }
SECTION 31. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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