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 2118
A-Engrossed
House Bill 2349
Ordered by the House April 17
Including House Amendments dated April 17
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary)
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.
{ - Permits owner of improvement or land that seeks release
of lien perfected against improvement or land to file surety bond
or deposit money with escrow agent instead of county recorder or
county treasurer. - }
{ + Directs county treasurer to pay investment income to
person who deposits money with county to release perfected lien
against improvement or land when treasurer distributes money to
owner and lien claimant. Specifies that person who makes deposit
bears risk of loss that results from investment of money.
Creates procedures for release of lien and distribution or
return of deposited money. + }
A BILL FOR AN ACT
Relating to value given for release of lien; creating new
provisions; and amending ORS 87.076, 87.083 and 87.088.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 87.076 is amended to read:
87.076. (1) The owner of an improvement or land against which a
lien perfected under ORS 87.035 is claimed, or { - any
other - } { + an + } interested person, may file with the
recording officer of the county in whose office the claim of lien
is filed a bond executed by a corporation authorized to issue
surety bonds in the State of Oregon to the effect that the
principal or principals on the bond shall pay the amount of the
claim and all costs and attorney fees that are awarded against
the improvement or land on account of the lien. The bond shall be
in an amount not less than 150 percent of the amount claimed
under the lien, or in the amount of $1,000, whichever is greater.
(2)(a) In lieu of the surety bond provided for in subsection
(1) of this section, the owner of an improvement or land against
which a lien perfected under ORS 87.035 is claimed, or { - any
other - } { + an + } interested person, may deposit with the
treasurer of the county in which the claim of lien is filed a sum
of money or { - its - } { + the + } equivalent { + of
money + } equal in value to 150 percent of the amount claimed
under the lien, or in the amount of $1,000, whichever is greater.
(b) { - The court in which any proceeding to foreclose the
lien may be brought may, upon notice and upon motion by a person
who makes a deposit under paragraph (a) of this subsection, order
the money invested in such manner as the court may direct. - } A
person who makes a deposit under paragraph (a) of this subsection
{ - shall be - } { + is + } entitled to any { +
investment + } income { + . + } { - from the investments and
the treasurer of the county shall pay the income when received to
the depositor without order. - } { + The treasurer shall pay
the investment income to the person who makes the deposit at the
time the treasurer, in accordance with ORS 87.083, distributes
the money deposited under this subsection. The person who makes
the deposit bears the risk for a loss that results from an
investment of the money deposited. + }
(3) A { + person may file a + } bond or { + deposit + } money
{ - may be filed or deposited - } under subsection (1) or (2)
of this section at any time after the { - filing of the - }
claim of lien { + is filed + } under ORS 87.035.
(4)(a) { - Any - } { + A + } person entitled to post a bond
under subsection (1) of this section or a cash deposit under
subsection (2) of this section may deliver pursuant to ORS 87.018
a written demand { + to the lien claimant + } that a lien
perfected under ORS 87.035 be released and a notice that if
{ - it - } { + the lien + } is not released the
{ - party making the demand may be entitled to - } { + person
may + } recover the actual costs { + the person + } incurred
{ - by the party making the demand - } in complying with this
section { - , - } { + and + } ORS 87.078 and 87.081 or the sum
of $500, whichever is greater. If the lien is not released within
10 days after { - delivery of - } the demand and notice { +
is delivered + } and the lien claimant or an assignor of the lien
claimant does not bring a suit to foreclose the lien within the
time provided in ORS 87.055, and if the person { - making - }
{ + who made + } the demand has complied with this section
{ - , - } { + and + } ORS 87.078 and 87.081, then the
{ - person failing - } { + lien claimant or assignor of the
lien claimant who fails + } to release { - and - } { + or + }
foreclose the lien
{ - shall be - } { + is + } liable to the person { - making
the demand - } for the actual costs { - incurred by - } the
person { - making the demand - } { + incurred + } in
complying with this section { - , - } { + and + } ORS 87.078
and 87.081 or the sum of $500, whichever is greater, in addition
to any other remedy provided by law or equity.
(b) In { - any - } { + an + } action to recover damages
under this subsection in which the plaintiff prevails,
{ - there shall be allowed to the plaintiff, - } { + the
court, + } at trial and on appeal, { + shall allow and fix + }
a reasonable amount for attorney fees { - to be fixed by the
court - } for prosecution of the action, if the court finds that
a written demand for payment of the claim was made on the
defendant not less than 20 days before commencement of the
action. However, { + the court may not allow + } attorney fees
{ - shall not be allowed - } to the plaintiff, but shall
{ - be allowed - } { + allow attorney fees + } to the
defendant, if the court finds that the defendant tendered to the
plaintiff prior to commencement of the action an amount not less
than the damages awarded to the plaintiff.
(c) If a lien claimant or an assignor of the lien claimant is
served with a demand under paragraph (a) of this subsection and
is a prevailing party in the suit to foreclose the lien, then in
addition to { - such - } other costs and attorney fees to
which the lien claimant or the assignor of the lien claimant is
entitled, the court shall allow the actual costs incurred in
addressing the demand or the sum of $500, whichever is greater.
SECTION 2. ORS 87.083 is amended to read:
87.083. (1) { - Any - } { + A + } suit to foreclose a lien
pursuant to ORS 87.060 that is commenced or pending after
{ - the filing of - } a bond { + is filed + } or
{ - deposit of - } money { + deposited + } under ORS 87.076
shall proceed as if no filing or deposit { - had been - } { +
was + } made except that the lien shall attach to the bond or
money upon the filing or deposit and the service of notice
thereof upon the lien claimant. The property described in the
claim of lien { - shall - } { + is + } thereafter
{ - be - } entirely free of the lien and { - shall in no way
be - } { + is not + } involved in subsequent proceedings.
{ + (2) The county or an officer or employee of the county
may not be named or otherwise made a party to a suit described in
subsection (1) of this section. + }
{ - (2) - } { + (3) + } When a bond is filed or money is
deposited, if, in a suit to enforce the lien for which the filing
or deposit is made, the court allows the lien, the lien
{ - shall - } { + must + } be satisfied out of the bond or
money. The court shall include as part of { - its - } { + the
court's + } judgment an order { - for the return to the person
who deposited the money of any amount remaining after the lien is
satisfied. - } { + that specifies the amount the treasurer must
release to the judgment creditor and the amount of the remaining
balance that the treasurer must release to the person who
deposited the money. + }
{ - (3) - } { + (4) + } When a bond is filed or money is
deposited, if, in a suit to enforce the lien for which the filing
or deposit is made, the court disallows the lien, the court shall
include as part of { - its - } { + the court's + } judgment
an order { - for the - } { + to + } return
{ - of - } the bond or money to the person who filed the bond
or deposited the money.
{ + (5) Notwithstanding an order from the court under
subsection (3) or (4) of this section or an order or notice under
ORS 87.088, if the county treasurer is not certain about how to
distribute money deposited under ORS 87.076, the treasurer shall
notify the lien claimant and the person who deposited the money
of how the treasurer intends to distribute the money. If within
10 days after the date of the treasurer's notice a party to the
suit to foreclose the lien objects to the notice, the treasurer
may:
(a) Hold the money until the court or a stipulation of the
parties provides further direction; or
(b) Commence an interpleader proceeding under ORCP 31. + }
SECTION 3. ORS 87.088 is amended to read:
87.088. The county recording officer shall record a written
release of the lien or the county treasurer in whose office money
is deposited under ORS 87.076 shall return the money to the
person who made the deposit { - when - } { + if + }:
(1) { + The person who filed the bond or deposited the money
under ORS 87.076 notifies the lien claimant and the treasurer in
writing and by certified mail that + }a suit to foreclose the
lien
{ - is - } { + was + } not commenced within the time
specified by ORS 87.055 { - ; - } { + . The notice shall
provide that the lien claimant has 15 calendar days in which to
object to the release of the lien and the return of the money and
to provide documentation that demonstrates that a suit was timely
commenced or that the time for commencement has not expired. If
the treasurer receives an objection, the treasurer may decide how
to distribute the money or may commence an interpleader
proceeding under ORCP 31. + }
(2) The person who { - recorded - } { + filed + } the bond
or deposited the money presents a certified copy of a court's
order for the release of the bond or all or some of the money to
{ - that - } { + the + } person { - ; or - } { + . + }
(3) The person who { - recorded - } { + filed + } the bond
or deposited the money presents a written release of lien signed
by the lien claimant.
SECTION 4. { + Section 5 of this 2009 Act is added to and made
a part of ORS 87.075 to 87.093. + }
SECTION 5. { + The provisions of ORS 87.076, 87.083 and 87.088
do not create a cause of action and may not be asserted as a
basis for a per se negligence action. + }
SECTION 6. { + Section 5 of this 2009 Act and the amendments
to ORS 87.076, 87.083 and 87.088 by sections 1 to 3 of this 2009
Act apply to a surety bond or money that is filed or deposited in
connection with a demand for a release of a perfected lien on or
after the effective date of this 2009 Act. + }
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