75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
SA to B-Eng. HB 3004 (A to RC)
LC 1939/HB 3004-B18
SENATE AMENDMENTS TO
B-ENGROSSED HOUSE BILL 3004
(INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
By COMMITTEE ON RULES
June 22
On page 1 of the printed B-engrossed bill, line 3, after '
88.070' insert 'and section 6, chapter ___, Oregon Laws 2009
(Enrolled Senate Bill 952); repealing section 1, chapter ___,
Oregon Laws 2009 (Enrolled Senate Bill 952)'.
On page 3, after line 1, insert:
' { + SECTION 1a. + } { + If Senate Bill 952 becomes law,
section 1, chapter ___, Oregon Laws 2009 (Enrolled Senate Bill
952) (amending ORS 86.755), is repealed and ORS 86.755, as
amended by section 1 of this 2009 Act, is amended to read: + }
' 86.755. (1) The trustee shall hold the trustee's sale on the
date and at the time and place designated in the notice of sale
{ - . - } { + , which must be at a designated time after 9 a.m.
and before 4 p.m., based on the standard of time set forth in ORS
187.110 and at a designated place in the county or one of the
counties where the property is situated. + }The trustee may sell
the property in one parcel or in separate parcels and shall sell
the parcel or parcels at auction to the highest bidder for cash.
Any person, including the beneficiary under the trust deed, but
excluding the trustee, may bid at the trustee's sale. The
attorney for the trustee, or an agent that the trustee or the
attorney designates, may conduct the sale and act in the sale as
the trustee's auctioneer.
' (2) The trustee or the attorney for the trustee, or an agent
that the trustee or the attorney conducting the sale designates,
may postpone the sale for one or more periods totaling not more
than 180 days from the original sale date, giving notice of each
adjournment by public proclamation made at the time and place set
for sale. The trustee, the attorney or an agent that the trustee
or the attorney designates may make the proclamation.
' (3) The purchaser shall pay at the time of sale the price
bid, and, within 10 days following payment, the trustee shall
execute and deliver the trustee's deed to the purchaser.
' (4) The trustee's deed shall convey to the purchaser the
interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed,
together with any interest the grantor or the grantor's
successors in interest acquire after the execution of the trust
deed.
' (5) { + (a) + } The purchaser at the trustee's sale
{ - shall be - } { + is + } entitled to possession of the
property on the 10th day { - following - } { + after + } the
sale { - , and any persons remaining - } { + . A person that
remains + } in possession after { - that - } { + the 10th + }
day under any interest, except
{ - one - } { + an interest + } prior to the trust deed
or { + an interest the grantor or a successor of the grantor + }
created voluntarily { - by the grantor or a successor of the
grantor, shall be deemed to be tenants - } { + is a tenant + }
at sufferance. { + The purchaser may obtain possession of the
property from a tenant at sufferance by following the procedures
set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure. + } { - All persons not holding under an interest
prior to the trust deed may be removed from possession by
following the procedures set out in ORS 105.105 to 105.168 or
other applicable judicial procedure, provided that a person
holding under an interest created voluntarily by the grantor or a
successor of the grantor must first receive 30 days' written
notice of the intent to remove that person served no earlier than
30 days before the date first set for the sale. Notices under
this subsection shall be served by first class mail. ' First
class mail' for purposes of this section does not include
certified or registered mail, or any other form of mail which may
delay or hinder actual delivery of mail to the addressee. - }
' { + (b) Except as provided in paragraph (c) of this
subsection, at any time after the trustee's sale the purchaser
may follow the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure to obtain possession of the
property from a person that holds possession under an interest
that the grantor or a successor of the grantor created
voluntarily if, not earlier than 30 days before the date first
set for the sale, the person was served with not less than 30
days' written notice of the requirement to surrender or deliver
possession of the property.
' (c) If the property purchased at the trustee's sale is a
dwelling unit, as defined in ORS 90.100 (9), that the person
holds under a tenancy that the grantor or a successor of the
grantor created voluntarily and in good faith, the purchaser may
follow the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure to obtain possession if after
the sale the purchaser terminates the tenancy in a written notice
given to the person:
' (A) At least 60 days before the termination date specified in
the notice, if the tenancy is a fixed term tenancy, as defined in
ORS 90.100, and at least 30 days before the date first set for
the trustee's sale the person provided the trustee with a copy of
the rental agreement that established the fixed term tenancy. The
provisions of this subparagraph do not apply to a purchaser that
does not intend to terminate a fixed term tenancy before the date
on which the fixed term tenancy ends.
' (B) At least 30 days before the termination date specified in
the notice, if:
' (i) The tenancy is a month-to-month tenancy or week-to-week
tenancy, as those terms are defined in ORS 90.100, and at least
30 days before the date first set for the trustee's sale the
person provided the trustee with a copy of the rental agreement
that established the tenancy or with other written evidence of
the existence of a rental agreement, if the person cannot provide
the rental agreement; or
' (ii) The tenancy is a fixed term tenancy for which the person
has provided notice to the trustee as provided in subparagraph
(A) of this paragraph and the purchaser intends to occupy the
property that is subject to the fixed term tenancy as the
purchaser's primary residence.
' (d) A purchaser may not commence a proceeding under ORS
105.105 to 105.168 that is authorized under this subsection
before the later of:
' (A) The 10th day after the trustee's sale;
' (B) The date specified in a written notice of the requirement
to surrender or deliver possession of the property if the notice
is required by and is given to the person in accordance with
paragraph (b) of this subsection;
' (C) The date specified in a written notice of the purchaser's
intent to terminate a tenancy if the notice is required by and is
given to the person in accordance with paragraph (c) of this
subsection; or
' (D) The date on which the term of a fixed term tenancy ends,
if the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
' (e) For the purposes of this subsection:
' (A) A month-to-month tenancy or a week-to-week tenancy that a
grantor or a successor of the grantor first created after a
notice of sale was served under ORS 86.750 is presumed not to be
a tenancy created in good faith.
' (B) A fixed term tenancy that a grantor or a successor of the
grantor created after a notice of sale was served under ORS
86.750 is not a tenancy created in good faith.
' (6) A purchaser shall serve a notice under subsection (5) of
this section by first class mail and not by certified or
registered mail or a form of mail that may delay or hinder actual
delivery of mail to the addressee. The notice is effective three
days after the notice is mailed.
' (7)(a) Notwithstanding the provisions of subsection (5)(c) of
this section and except as provided in paragraph (b) of this
subsection, the purchaser is not a landlord subject to the
provisions of ORS chapter 90 unless the purchaser:
' (A) Accepts rent from the person who possesses the property
under a tenancy described in subsection (5)(c) of this section;
' (B) Enters into a new rental agreement with the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section; or
' (C) Fails to terminate the tenancy as provided in subsection
(5)(c) of this section within 30 days after the date of the sale.
' (b) The purchaser may act as a landlord for purposes of
terminating a tenancy in accordance with the provisions of ORS
90.396.
' (8)(a) Except as provided in paragraph (b) of this
subsection, the purchaser is not liable to the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section for:
' (A) Damage to the property or diminution in rental value; or
' (B) Returning a security deposit.
' (b) A purchaser that is a landlord under the provisions of
subsection (7)(a) of this section is liable to the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section for:
' (A) Damage to the property or diminution in rental value that
occurs after the date of the trustee's sale; or
' (B) Returning a security deposit the person pays after the
date of the trustee's sale. + }
' { - (6)(a) - } { + (9)(a) + } Notwithstanding subsection
(2) of this section, except when a beneficiary has participated
in obtaining a stay, foreclosure proceedings that are stayed by
order of the court, by proceedings in bankruptcy or for any other
lawful reason shall, after release from the stay, continue as if
uninterrupted, if within 30 days after release the trustee sends
amended notice of sale by registered or certified mail to the
last-known address of the persons listed in ORS 86.740 and 86.750
(1).
' (b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
' (A) By registered or certified mail to:
' (i) The address provided by each person who was present at
the time and place set for the sale that was stayed; and
' (ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
' (B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
' { - (7) - } { + (10) + } The amended notice of sale must:
' (a) Be given at least 20 days prior to the amended date of
sale;
' (b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 are satisfied;
' (c) Specify the time and place for sale;
' (d) Conform to the requirements of ORS 86.745; and
' (e) State that the original sale proceedings were stayed and
the date the stay terminated.
' { - (8) - } { + (11) + } If the publication of the notice
of sale was not completed before the date the foreclosure
proceedings were stayed by order of the court, by proceedings in
bankruptcy or for any other lawful reason, after release from the
stay, in addition to complying with the provisions of subsections
{ - (6) and (7) - } { + (9) and (10) + } of this section, the
trustee shall complete the publication by publishing an amended
notice of sale that states that the notice has been amended
following release from the stay and that contains the amended
date of sale. The amended notice must be published in a newspaper
of general circulation in each of the counties in which the
property is situated once a week for four successive weeks,
except that the required number of publications must be reduced
by the number of publications that were completed before the
effective date of the stay. The last publication must be made
more than 20 days before the date the trustee conducts the sale.
' { + SECTION 1b. + } If Senate Bill 952 becomes law, section
6, chapter ___, Oregon Laws 2009 (Enrolled Senate Bill 952), is
amended to read:
' { + Sec. 6. + } Section 4 { + , chapter ___, Oregon Laws
2009 (Enrolled Senate Bill 952), + } { - of this 2009 Act
and - } the amendments to ORS 86.745 { - and 86.755 by
sections 1 and 2 of this 2009 Act - } { + by section 2, chapter
___, Oregon Laws 2009 (Enrolled Senate Bill 952), and the
amendments to ORS 86.755 by section 1a of this 2009 Act + } apply
to notices given under ORS 86.740 on or after the effective date
of { + chapter ___, Oregon Laws 2009 (Enrolled Senate Bill 952),
+ } { - this 2009 Act - } and to proceedings or actions under
ORS 105.105 to 105.168 that begin on or after the effective date
of { + chapter ___, Oregon Laws 2009 (Enrolled Senate Bill 952)
+ } { - this 2009 Act - } .
' { + SECTION 1c. + } { + The amendments to ORS 86.755 by
section 1a of this 2009 Act become operative on the effective
date of chapter ___, Oregon Laws 2009 (Enrolled Senate Bill
952). + } ' .
Delete lines 25 through 31 and insert:
' (1) If, under ORS 86.705 to 86.795, a trustee sells property
covered by a trust deed, the trustee's sale forecloses and
terminates the interest in the property that belongs to a person
that received notice of the sale under ORS 86.740 and 86.750 or
to a person that claims an interest by, through or under the
person that received notice. A person whose interest the
trustee's sale foreclosed and terminated may not redeem the
property from the purchaser at the trustee's sale. A failure to
give notice to a person entitled to notice does not affect the
validity of the sale as to persons that were notified.'.
In line 37, after the semicolon insert 'or'.
Delete lines 38 through 44 and insert:
' (b) Any other note, bond or other obligation secured by a
residential trust deed for, or mortgage on, the property that was
subject to the trustee's sale or the foreclosure when the debt,
of which the note, bond or other obligation is evidence:
' (A) Was created at the same time as the note, bond or other
obligation secured by the foreclosed residential trust deed; and
' (B) Is owed to the beneficiary in the residential trust deed
that was subject to the trustee's sale or the foreclosure.'.
On page 4, delete lines 16 through 25 and insert:
' { + SECTION 3. + } ORS 88.070 is amended to read:
' 88.070. { + (1) + } When real property is sold pursuant to a
judgment foreclosing a mortgage and the proceeds of the sale are
not adequate to satisfy the amounts secured by the mortgage, all
judgment remedies for collection of the unsatisfied amounts
expire when the sale is made if:
' { - (1) - } { + (a) + } The mortgage was given to a seller
to secure the unpaid balance of the purchase price of real
property; or
' { - (2) - } { + (b) + } The mortgage was given after
September 13, 1975, to a person other than a seller to secure not
more than $50,000 of the unpaid balance of the purchase price of
real property used by the purchaser as the primary or secondary
single family residence of the purchaser.
' { + (2) If a purchaser gives more than one mortgage to a
seller or a single lender to finance the purchase of real
property that the purchaser uses as the purchaser's primary
single family residence and the seller or lender or a subsidiary,
affiliate or successor of the seller or lender continues to hold
the mortgages at the time of foreclosure, judgment remedies for
the collection of unsatisfied amounts that the grantor owes to
the seller or lender or the subsidiary, affiliate or successor of
the seller or lender on notes secured by the mortgages expire
when the real property is sold in accordance with the
foreclosure. + } ' .
In line 26, after '1' insert 'of'.
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