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 566
House Bill 2303
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon State Bar)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows award of damages and attorney fees to servicemember
bringing action to enforce right or remedy under Servicemembers
Civil Relief Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to Servicemembers Civil Relief Act; creating new
provisions; amending ORS 36.405; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in this section and sections 2 and
3 of this 2009 Act, 'servicemember' has the meaning given that
term in 50 U.S.C. App. 511 as in effect on the effective date of
this 2009 Act.
(2) An action brought by a servicemember to enforce a right or
remedy under 50 U.S.C. App. 501 et seq. is not subject to
court-ordered arbitration under ORS 36.400 to 36.425 unless the
parties to the action stipulate in writing to arbitration after
the action is commenced.
(3) In addition to the counties specified in ORS 14.080, an
action brought by a servicemember to enforce a right or remedy
under 50 U.S.C. App. 501 et seq. may be brought in the Oregon
county where the servicemember resides or where the servicemember
was a resident at the time of bringing the action.
(4) Any contract term or provision providing for a choice of
forum other than Oregon or application of law other than Oregon
law to a servicemember who resides in Oregon or is a resident of
Oregon is voidable at the election of the servicemember. + }
SECTION 2. { + (1) In addition to any other award to a
servicemember in an action brought to enforce a right or remedy
of a servicemember under 50 U.S.C. App. 501 et seq., the
servicemember shall be awarded the greater of $1,000 or actual
damages, including damages for emotional distress, if the court
finds that written demand was made on the opposing party for
relief under 50 U.S.C. App. 501 et seq.:
(a) At least 10 days before commencement of the action or the
filing of a formal complaint under ORS 46.465; or
(b) Not more than 10 days after the transfer of the action
under ORS 46.461 or the filing of a counterclaim.
(2) If the court finds that the opposing party's conduct that
gave rise to the servicemember's claim to enforce a right or
remedy under 50 U.S.C. App. 501 et seq. was willful, as described
in ORS 646.605, the court shall award the servicemember, in
addition to costs and attorney fees, an amount not to exceed
$5,000 or three times the amount of actual damages, whichever is
greater. + }
SECTION 3. { + (1) A servicemember who brings an action to
enforce a right or remedy under 50 U.S.C. App. 501 et seq. shall
be awarded reasonable attorney fees for the prosecution of the
action if the court finds that the servicemember made written
demand for relief on the opposing party:
(a) At least 10 days before commencement of the action or the
filing of a complaint under ORS 46.465; or
(b) Not more than 10 days after the transfer of the action
under ORS 46.461 or the filing of a counterclaim.
(2)(a) Attorney fees may not be awarded to the servicemember if
the court finds that the opposing party tendered to the
servicemember an amount not less than the actual damages awarded
to the servicemember.
(b) Tender must be made:
(A) Before commencement of the action or the filing of a
complaint under ORS 46.465; or
(B) Not more than 10 days after the transfer of the action
under ORS 46.461 or the filing of a counterclaim. + }
SECTION 4. ORS 36.405 is amended to read:
36.405. (1) { + Except as provided in section 1 of this 2009
Act, + } in a civil action in a circuit court where all parties
have appeared, the court shall refer the action to arbitration
under ORS 36.400 to 36.425 if either of the following applies:
(a) The only relief claimed is recovery of money or damages,
and no party asserts a claim for money or general and special
damages in an amount exceeding $50,000, exclusive of attorney
fees, costs and disbursements and interest on judgment.
(b) The action is a domestic relations suit, as defined in ORS
107.510, in which the only contested issue is the division or
other disposition of property between the parties.
(2) The presiding judge for a judicial district may do either
of the following:
(a) Exempt from arbitration under ORS 36.400 to 36.425 a civil
action that otherwise would be referred to arbitration under this
section.
(b) Remove from further arbitration proceedings a civil action
that has been referred to arbitration under this section, when,
in the opinion of the judge, good cause exists for that exemption
or removal.
(3) If a court has established a mediation program that is
available for a civil action that would otherwise be subject to
arbitration under ORS 36.400 to 36.425, the court shall not
assign the proceeding to arbitration if the proceeding is
assigned to mediation pursuant to the agreement of the parties.
Notwithstanding any other provision of ORS 36.400 to 36.425, a
party who completes a mediation program offered by a court shall
not be required to participate in arbitration under ORS 36.400 to
36.425.
SECTION 5. { + (1) Sections 2 and 3 of this 2009 Act apply to
conduct that violates 50 U.S.C. App. 501 et seq. occurring
before, on or after the effective date of this 2009 Act.
(2) In order to assert a claim under section 2 or 3 of this
2009 Act in an action pending on the effective date of this 2009
Act, a servicemember must provide written notice to the opposing
party of the servicemember's intent to amend the pleadings to
assert claims for damages, attorney fees or both under section 2
or 3 of this 2009 Act.
(3) Sections 1 to 3 of this 2009 Act do not apply to cases in
which judgment has been entered before the effective date of this
2009 Act. + }
SECTION 6. { + Sections 1 to 3 of this 2009 Act apply only to
actions commenced on or after the effective date of this 2009
Act. + }
SECTION 7. { + 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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