75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 3004
Sponsored by Representatives CLEM, C EDWARDS (at the request of
Jane Cummins)
CHAPTER ................
AN ACT
Relating to sales of foreclosed property; creating new
provisions; amending ORS 86.755, 86.770 and 88.070 and section
6, chapter ___, Oregon Laws 2009 (Enrolled Senate Bill 952);
repealing section 1, chapter ___, Oregon Laws 2009 (Enrolled
Senate Bill 952); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.755 is amended to read:
86.755. (1) The { + trustee shall hold the trustee's + } sale
{ - shall be held - } on the date and at the time and place
designated in the notice of sale. 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 { - any agent designated by - }
{ + an agent that + } the trustee or the attorney { +
designates + }, may conduct the sale and act in the sale as the
{ + trustee's + } auctioneer { - of the trustee - } .
(2) The trustee or the attorney for the trustee, or { - any
agent designated by - } { + 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 proclamation may be made by - } The trustee,
the attorney { - , or any agent designated by - } { + 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 { - which - } { + that + } the
grantor had, or had the power to convey, at the time { - of the
execution by the grantor of - } { + 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) The purchaser at the trustee's sale shall be entitled to
possession of the property on the 10th day following the sale,
and any persons remaining in possession after that day under any
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interest, except one prior to the trust deed or created
voluntarily by the grantor or a successor of the grantor, shall
be deemed to be tenants at sufferance. 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.
(6) { + (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 { - gives - } { +
sends + } amended notice of sale by registered or certified mail
to the last-known address of { - those - } { + the + }
persons listed in ORS 86.740 and 86.750 (1) { + . + } { - and
to - }
{ + (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 { - which - } { +
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) + } The amended notice of sale { - shall - } { +
must + }:
(a) Be given at least 20 days prior to the amended date of
sale;
(b) Set an amended date of sale { - which - } { + 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
{ - and this subsection - } 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.
{ - (7) - } { + (8) + } If the publication of the notice of
sale was not completed { - prior to - } { + 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 { - subsection (6) - } { + subsections
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(6) and (7) + } of this section, the trustee shall complete the
publication by publishing an amended notice of sale
{ - which - } { + that + } states that the notice has been
amended following release from the stay { - , and which - }
{ + and that + } contains the amended date of sale. The amended
notice { - shall - } { + 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 { - shall - }
{ + must + } be reduced by the number of publications that were
completed { - prior to - } { + before + } the effective date
of the stay. The last publication
{ - shall - } { + must + } be made more than 20 days
{ - prior to - } { + before + } the date the trustee conducts
the sale.
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
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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
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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).
Enrolled House Bill 3004 (HB 3004-C) Page 5
(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). + }
SECTION 2. ORS 86.770 is amended to read:
Enrolled House Bill 3004 (HB 3004-C) Page 6
86.770. { - (1) A sale made by a trustee under ORS 86.705 to
86.795 shall foreclose and terminate all interest in the property
covered by the trust deed of all persons to whom notice is given
under ORS 86.740 and 86.750 and of any other person claiming by,
through or under such persons, and such persons shall have no
right to redeem the property from the purchaser at the trustee's
sale. The failure to give notice to any of these persons shall
not affect the validity of the sale as to persons so
notified. - }
{ - (2) Except as provided in subsection (4) of this section,
no other or further action shall be brought, nor judgment entered
for any deficiency, against the grantor, or the grantor's
successor in interest, if any, on the note, bond, or other
obligation secured by the trust deed or against any other person
obligated on such note, bond or other obligation after a sale is
made: - }
{ - (a) By a trustee under ORS 86.705 to 86.795; or - }
{ - (b) Under a judicial foreclosure of a residential trust
deed. - }
{ - (3) Notwithstanding ORS 88.070, when there is a judicial
foreclosure of a trust deed that is not a residential trust deed,
the judgment shall provide that if the sale proceeds are
insufficient to satisfy the judgment, execution may issue for any
amount by which the unpaid balance of the obligation secured by
the trust deed exceeds the net sale proceeds payable to the
beneficiary. - }
{ - (4) Nothing in this section shall preclude an action
judicially or nonjudicially foreclosing the same trust deed as to
any other property covered thereby, or any other trust deeds,
mortgages, security agreements, or other consensual or
nonconsensual security interest or liens covering any other real
or personal property security for the note, bond or other
obligation secured by the trust deed under which a sale has been
made or an action against a guarantor to the extent of any
remaining deficiency following judicial foreclosure. A guarantor
of an obligation secured by a residential trust deed shall not
have the right to recover any deficiency from the grantor or any
successor in interest of the grantor. - }
{ + (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.
(2) Except in accordance with subsection (4) of this section,
after a trustee's sale under ORS 86.705 to 86.795 or after a
judicial foreclosure of a residential trust deed, an action for a
deficiency may not be brought or a judgment entered against the
grantor, the grantor's successor in interest or another person
obligated on:
(a) The note, bond or other obligation secured by the
residential trust deed for the property that was subject to the
trustee's sale or the foreclosure; or
(b) Any other note, bond or other obligation secured by a
residential trust deed for, or mortgage on, the property that was
Enrolled House Bill 3004 (HB 3004-C) Page 7
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.
(3) Notwithstanding ORS 88.070, in a judicial foreclosure of a
trust deed that is not a residential trust deed the judgment must
provide that if the sale proceeds are insufficient to satisfy the
judgment, execution may issue for the amount by which the unpaid
balance of the obligation secured by the trust deed exceeds the
net sale proceeds payable to the beneficiary.
(4) This section does not preclude:
(a) An action that forecloses, judicially or nonjudicially:
(A) Other property covered by the trust deed that is the
subject of the foreclosure; or
(B) Another trust deed, mortgage, security agreement,
consensual or nonconsensual security interest or lien that covers
other real or personal property that is also used as security for
the note, bond or other obligation that is secured by the trust
deed for the property that was sold.
(b) An action against a guarantor for a deficiency that remains
after a judicial foreclosure.
(5) A guarantor of an obligation secured by a residential trust
deed may not recover a deficiency from the grantor or a successor
in interest of the grantor. + }
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. + }
SECTION 4. { + (1) The amendments to ORS 86.755 by section 1
of this 2009 Act apply to sales that occur on or after the
effective date of this 2009 Act.
(2) The amendments to ORS 86.770 and 88.070 by sections 2 and 3
of this 2009 Act apply to a trust deed or mortgage or a note,
bond or other obligation secured by a trust deed or mortgage that
was executed before, on or after the effective date of this 2009
Act. + }
Enrolled House Bill 3004 (HB 3004-C) Page 8
SECTION 5. { + 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. + }
----------
Passed by House June 4, 2009
Repassed by House June 25, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 24, 2009
...........................................................
President of Senate
Enrolled House Bill 3004 (HB 3004-C) Page 9
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 3004 (HB 3004-C) Page 10