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 3278
House Bill 3359
Sponsored by COMMITTEE ON CONSUMER PROTECTION
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.
Imposes duties and restrictions on distressed home consultants.
Requires that distressed home consultation transactions be
provided pursuant to written contract. Authorizes enforcement of
violation of Act as unfair trade practice.
Provides that violation of distressed home consulting laws is
misdemeanor punishable by maximum of one year's imprisonment,
$10,000 fine, or both.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to distressed home sales; creating new provisions;
amending ORS 646.608; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 7 of this 2009 Act:
(1) 'Distressed home' means a dwelling that is:
(a) In danger of foreclosure or in the process of being
foreclosed due to a default under the terms of a mortgage,
mortgage deed, deed of trust, security agreement or other
instrument securing a loan and constituting a lien on or security
interest in the dwelling; or
(b) At risk of loss due to nonpayment of taxes.
(2)(a) 'Distressed home consultant' means a person who:
(A) Solicits or contacts a distressed homeowner to make a
representation or offer to perform a service described in
subsection (3) of this section; or
(B) Systematically contacts owners of property that court
records, newspaper advertisements or any other source demonstrate
are in foreclosure or are in danger of foreclosure.
(b) 'Distressed home consultant' does not mean:
(A) An individual licensed to practice law in this state, if
performing services within an attorney-client relationship.
(B) A person that holds or is owed an obligation that is
secured by a lien on a residence in foreclosure or default, if
performing services in connection with the obligation or lien.
(C) A person doing business under authority of an Oregon or
federal law regulating banks, trust companies, savings and loan
associations, credit unions or insurance companies, or as a
licensee under ORS chapter 725, if performing business services
within the scope of that authority or license.
(D) A subsidiary, affiliate or agent of a person described in
subparagraph (C) of this paragraph, if performing business
services within the scope of the person's authority or license as
the person's subsidiary, affiliate or agent.
(E) The judgment creditor of a homeowner, if the creditor's
claim accrued before a notice of sale was sent to the creditor
under ORS 86.740.
(F) A title insurer authorized to conduct business in Oregon or
an insurance producer licensed to conduct business in Oregon, if
performing title insurance or settlement services within the
scope of that authority or license.
(G) A mortgage broker or mortgage lender licensed under ORS
chapter 59 to conduct business in Oregon, if acting within the
scope of that license.
(H) A real estate licensee under ORS 696.022 or an escrow agent
licensed under ORS 696.511, if acting within the scope of that
license.
(I) A tax-exempt organization that offers counseling or advice
to homeowners in foreclosure if the organization:
(i) Is not directly or indirectly related to for-profit lenders
or foreclosure purchasers;
(ii) Does not contract to provide services to, or receive
services from, for-profit lenders or foreclosure purchasers; and
(iii) Has provided counseling or advice to homeowners for five
years or more.
(J) A creditors' committee, trustee or debtor in possession
participating in a proceeding under the jurisdiction of the
United States Bankruptcy Court.
(K) An individual whose employment with regard to a residential
real property matter under the jurisdiction of the United States
Bankruptcy Court is approved by order of the bankruptcy court.
(L) A person that is a member of the homeowner's family or is
owned or controlled by a member of the homeowner's family.
(3) 'Distressed home consulting transaction' means an agreement
between a distressed homeowner and a distressed home consultant
in which the distressed home consultant represents or offers to
perform a service that the consultant represents will:
(a) Stop, enjoin, delay, void, set aside, annul, stay or
postpone a foreclosure sale.
(b) Obtain forbearance from any servicer, beneficiary or
mortgagee.
(c) Assist the distressed homeowner to exercise a right of
reinstatement provided in loan documents or to refinance a loan
that is in foreclosure or is in danger of foreclosure.
(d) Obtain an extension of the period within which the
distressed homeowner may reinstate the distressed homeowner's
obligation or extend the deadline to object to a ratification.
(e) Obtain a waiver of an acceleration clause contained in a
promissory note or contract secured by a mortgage.
(f) Assist the distressed homeowner to obtain a loan or advance
of funds.
(g) Avoid or ameliorate the impairment of the distressed
homeowner's credit resulting from the recording of a notice of
trustee sale, the filing of a petition to foreclose or the
conduct of a foreclosure sale.
(h) Purchase or obtain an option to purchase the distressed
homeowner's dwelling within 20 days of an advertised or docketed
foreclosure sale.
(i) Arrange for the distressed homeowner to become a lessee or
tenant entitled to continue to reside in the distressed
homeowner's dwelling.
(j) Arrange for the distressed homeowner to have an option to
repurchase the distressed homeowner's dwelling.
(k) Engage in any documentation, grant, conveyance, sale,
lease, trust or gift by which the distressed homeowner clogs the
distressed homeowner's equity of redemption in the distressed
homeowner's dwelling.
(4) 'Distressed home conveyance' means a transaction in which:
(a) A distressed homeowner transfers an interest in the
distressed home to a distressed home purchaser;
(b) The distressed home purchaser allows the distressed
homeowner to occupy the distressed home; and
(c) The distressed home purchaser or a person acting in
participation with the distressed home purchaser:
(A) Conveys or promises to convey the distressed home to the
distressed homeowner;
(B) Provides the distressed homeowner with an option to
purchase the distressed home at a later date; or
(C) Promises the distressed homeowner an interest in, or
portion of, the proceeds of a resale of the distressed home.
(5) 'Distressed home purchaser' means a person, including a
joint venturer, that acquires an interest in a distressed home
under a distressed home conveyance.
(6) 'Distressed homeowner' means an owner of a distressed home.
(7) 'Dwelling' means a single, duplex, triplex or four-unit
family residential building that is occupied by the owner as a
primary residence.
(8) 'Homeowner' means an individual who owns a dwelling whether
or not the ownership interest is encumbered by a mortgage, deed
of trust or other lien or security interest.
(9) 'In danger of foreclosure' means:
(a) The homeowner has defaulted on a mortgage, mortgage deed,
deed of trust, security agreement or other instrument securing a
mortgage loan and constituting a lien on or security interest in
the dwelling, and, under the terms of the instrument, the lien or
security holder may accelerate full payment and repossess or sell
the dwelling or cause the dwelling to be sold;
(b) The homeowner is at least 30 days delinquent on a loan that
is secured by the property; or
(c) The homeowner has a good faith belief that the homeowner is
likely to default on the mortgage within the upcoming four months
due to a lack of funds, and the homeowner has reported this
belief to:
(A) The lien or security holder;
(B) A person described in subsection (2)(b)(G), (H) or (I) of
this section;
(C) An attorney;
(D) A mortgage counselor or other credit counselor licensed or
certified by any federal, state or local agency; or
(E) Any other party to a distressed home consulting
transaction.
(10) 'Resale' means a bona fide market sale of the distressed
home subject to the distressed home conveyance by the distressed
home purchaser to an unaffiliated third party. + }
SECTION 2. { + A distressed home consultant has a fiduciary
relationship with the distressed homeowner. The distressed home
consultant is subject to all requirements for fiduciaries
applicable under state law including, but not limited to, an
obligation to:
(1) Act with good faith in the best interest of the distressed
homeowner;
(2) Avoid compromising the right or interest of the distressed
homeowner in favor of the right or interest of another person,
including a right or interest of the foreclosure consultant;
(3) Disclose to the distressed homeowner all material facts of
which the distressed home consultant has knowledge that might
reasonably affect the rights or interests of the distressed
homeowner or the ability of the distressed homeowner to receive
the intended benefit from the distressed homeowner's residential
mortgage loan;
(4) Use reasonable care in performing the duties of a
foreclosure consultant; and
(5) Provide an accounting to the distressed homeowner for money
and property received from the homeowner. + }
SECTION 3. { + (1) A distressed home consulting transaction
must:
(a) Be in writing in at least 12-point font.
(b) Be in the same language as principally used by the
distressed home consultant to describe the distressed home
consultant's services to the distressed homeowner, and, if the
agreement is written in a language other than English, the
consultant shall:
(A) Cause the agreement to be translated into English and
deliver copies of both the original and English language versions
to the distressed homeowner at the time of execution; and
(B) Keep copies of both versions on file in accordance with
subsection (2) of this section.
(c) Fully disclose the exact nature of the services to be
performed as part of a distressed home consulting transaction,
including any distressed home conveyance that may be involved and
the total amount and terms of compensation to be received by the
distressed home consultant or anyone working in association with
the distressed home consultant.
(d) Be dated and signed by the distressed homeowner and the
distressed home consultant.
(e) Contain the complete legal name, address, telephone number,
fax number, electronic mail address and Internet address, if any,
of the distressed home consultant.
(f) If a distressed home consultant is serving as an agent for
another person, contain the complete legal name, address,
telephone number, fax number, electronic mail address and
Internet address, if any, of the principal.
(g) Contain the following notice, which must be initialed by
the distressed homeowner, in at least 14-point boldfaced
font: + }
________________________________________________________________
{ +
NOTICE REQUIRED BY OREGON LAW + }
{ +
THIS IS AN IMPORTANT LEGAL CONTRACT AND + }
{ +
COULD RESULT IN THE LOSS OF YOUR HOME + }
{ + ______ (Name of distressed home consultant) or a person
working with the distressed home consultant CANNOT guarantee you
that the person will be able to refinance your home or arrange
for you to keep your home. Continue making mortgage payments
until refinancing, if applicable, is approved. You should consult
with an attorney before signing this contract. If you sign a
promissory note, lien, mortgage, deed of trust or deed, you could
lose your home and be unable to get it back. + }
________________________________________________________________
{ + (2) At the time of execution, the distressed home
consultant shall provide the distressed homeowner with a copy of
the written agreement, and the distressed home consultant shall
keep a separate copy of the written agreement on file for at
least five years following the completion or other termination of
the agreement.
(3) Ambiguities or inconsistencies between the English language
and the original language versions of the written agreement must
be strictly construed in favor of the distressed homeowner. + }
SECTION 4. { + (1) In addition to any other right of
rescission, a distressed homeowner has the right to cancel a
contract with a distressed home purchaser until 12 midnight of
the fifth business day after the day on which the distressed
homeowner signs the contract or until 8 a.m. on the last day of
the period during which the distressed homeowner has a right of
redemption, whichever occurs first.
(2) Cancellation occurs when the distressed homeowner delivers
to the distressed home purchaser, by any means, a written notice
of cancellation to the address specified in the contract.
(3) A notice of cancellation provided by the distressed
homeowner is not required to take the particular form as provided
with the contract.
(4) Within 10 days following the receipt of a notice of
cancellation under this section, the distressed home purchaser
shall return without condition an original contract and any other
documents signed by the distressed homeowner. + }
SECTION 5. { + (1) A distressed home consultant shall enter
into a distressed home reconveyance with a distressed homeowner
in the form of a written contract.
(2) The contract must be:
(a) Written in at least 12-point boldfaced font in the same
language principally used by the distressed home purchaser and
distressed homeowner to negotiate the sale of the distressed
home; and
(b) Completed fully, signed and dated by the distressed
homeowner and distressed home purchaser before the execution of
an instrument of conveyance of the distressed home.
(3) The contract required in this section must contain the
entire agreement of the parties and include:
(a) The name, business address and telephone number of the
distressed home purchaser.
(b) The address of the distressed home.
(c) The total consideration to be provided by the distressed
home purchaser in connection with or incident to the sale.
(d) A complete description of the terms of payment or other
consideration including, but not limited to, services of any
nature that the distressed home purchaser represents that the
distressed home purchaser will perform for the distressed
homeowner before or after the sale.
(e) The time at which possession is to be transferred to the
distressed home purchaser.
(f) A complete description of the terms of any related
agreement designed to allow the distressed homeowner to remain in
the distressed home including, but not limited to:
(A) A rental agreement;
(B) A repurchase agreement; or
(C) A lease with option to buy.
(g) A complete description of the interest, if any, the
distressed homeowner maintains in the proceeds of, or
consideration to be paid upon, the resale of the distressed home.
(h) A notice of cancellation as provided in this section.
(i) The following notice in at least 14-point boldfaced font
and completed with the name of the distressed home purchaser,
immediately above the statement required in subsection (5) of
this section: + }
________________________________________________________________
{ +
NOTICE REQUIRED BY OREGON LAW + }
{ + Until your right to cancel this contract has
ended, ___ (Distressed Home Consultant) or a person working
for ___ (Distressed Home Consultant) CANNOT ask you to sign or
have you sign a deed or any other document. + }
________________________________________________________________
{ + (4) The distressed home reconveyance contract required by
this section survives delivery of an instrument of conveyance of
the distressed home and has no effect on persons other than the
parties to the contract.
(5) The contract required by this section must contain, in
immediate proximity to the space reserved for the distressed
homeowner's signature, the following conspicuous statement in at
least 14-point boldface font: + }
________________________________________________________________
{ + You may cancel this contract for the sale of your house
without any penalty or obligation at any time before ___ (Date
and time of day). See the attached notice of cancellation form
for an explanation of this right. + }
________________________________________________________________
{ + (6) The distressed home purchaser shall accurately enter
the date and time of day on which the cancellation right ends.
(7) The contract must be accompanied by a completed form in
duplicate, captioned 'NOTICE OF CANCELLATION' in 12-point
boldfaced font followed by a space in which the distressed home
purchaser shall enter the date on which the distressed homeowner
executes the contract. This form must:
(a) Be attached to the contract;
(b) Be easily detachable; and
(c) Contain in at least 12-point font the following statement
written in the same language as used in the contract: + }
________________________________________________________________
{ +
NOTICE OF CANCELLATION + }
{ + ______ (Enter date contract signed) You may cancel this
contract for the sale of your house, without any penalty or
obligation, at any time before: + }
{ + ______ (Enter date and time of day) + }
{ + To cancel this transaction, personally deliver a signed and
dated copy of this cancellation notice to: ______ (Name of
purchaser) ________ (Street address of purchaser's place of
business) NOT LATER THAN ________ (Enter date and time of
day). + }
{ + I hereby cancel this transaction. + }
{ + ______ (Date) + }
{ + ______ (Seller's signature) + }
________________________________________________________________
{ + (8) The distressed home purchaser shall provide the
distressed homeowner with a copy of the contract and the attached
notice of cancellation at the time the contract is executed by
all parties.
(9) The five-business-day period during which the distressed
homeowner may cancel the contract does not begin to run until all
parties to the contract have executed the contract and the
distressed home purchaser has complied with this section. + }
SECTION 6. { + (1) As used in this section:
(a) 'Consideration' means a payment or thing of value provided
to the distressed homeowner, including:
(A) Unpaid rent owed by the distressed homeowner before the
date of eviction or voluntary relinquishment of the distressed
home;
(B) Reasonable costs paid to independent third parties
necessary to complete the distressed home conveyance;
(C) Moneys paid to satisfy a debt or legal obligation of the
distressed homeowner; and
(D) The reasonable cost of repairs for damage to the distressed
home caused by the distressed homeowner.
(b) 'Consideration' does not mean amounts imputed as a down
payment or fee to the distressed home purchaser or a person
acting in participation with the distressed home purchaser.
(2) A distressed home purchaser may not enter into, or attempt
to enter into, a distressed home conveyance with a distressed
homeowner unless the distressed home purchaser verifies and can
demonstrate that the distressed homeowner has a reasonable
ability to pay for the subsequent conveyance of an interest back
to the distressed homeowner.
(3) If the distressed home conveyance described in subsection
(2) of this section is a lease with an option to purchase,
payment ability includes the reasonable ability to make the lease
payments and purchase the property within the term of the option
to purchase.
(4) An evaluation of a distressed homeowner's ability to pay
under subsection (2) of this section includes debt to income
ratios, fair market value of the distressed home and the
distressed homeowner's payment and credit history.
(5) There is a rebuttable presumption that the distressed home
purchaser has not verified a distressed homeowner's ability to
pay if the distressed home purchaser has not obtained
documentation of assets, liabilities and income, other than an
undocumented statement, of the distressed homeowner.
(6) A distressed home purchaser shall:
(a) Ensure that title to the distressed home has been
reconveyed to the distressed homeowner.
(b) Make payment to the distressed homeowner so that the
distressed homeowner has received consideration in an amount of
at least 82 percent of the fair market value of the property as
of the date of the eviction or voluntary relinquishment of
possession of the distressed home by the distressed homeowner.
(7) The distressed home purchaser may not:
(a) Enter into repurchase or lease terms as part of the
distressed home conveyance that are unfair or commercially
unreasonable, or engage in any other unfair or deceptive acts or
practices.
(b) Represent, directly or indirectly, that the distressed home
purchaser is:
(A) Acting as an advisor or consultant;
(B) Acting on behalf of or in the interests of the distressed
homeowner; or
(C) Assisting the distressed homeowner to save the distressed
home, buy time or use other substantially similar language.
(c) Misrepresent the distressed home purchaser's status as to
licensure or certification.
(d) Perform any of the following until after the time during
which the distressed homeowner may cancel the transaction has
expired:
(A) Accept from a distressed homeowner an execution of, or
induce a distressed homeowner to execute, an instrument of
conveyance of any interest in the distressed home.
(B) Present for recordation to the county clerk a document,
including an instrument of conveyance, signed by the distressed
homeowner.
(C) Transfer, encumber or purport to transfer or encumber an
interest in the distressed home.
(D) Fail to reconvey title to the distressed home when the
terms of the distressed home conveyance contract have been
fulfilled.
(e) Enter into a distressed home conveyance in which a party to
the transaction is represented by a power of attorney.
(f) Fail to extinguish or assume all liens or security
interests encumbering the distressed home immediately following
the conveyance of the distressed home.
(g) Fail to close a distressed home conveyance in person before
an independent third party who is authorized to conduct real
estate closings within the state.
(8) For the purposes of subsection (6)(b) of this section,
there is a rebuttable presumption that an appraisal by a person
licensed or certified by an agency of the federal government or
this state to appraise real estate constitutes the fair market
value of the distressed home. + }
SECTION 7. { + (1) A provision in a contract that attempts or
purports to require arbitration of a dispute arising under
sections 1 to 7 of this 2009 Act is void at the option of the
distressed homeowner.
(2) A person may not induce or attempt to induce a distressed
homeowner to waive the distressed homeowner's rights under
sections 1 to 7 of this 2009 Act.
(3) A waiver by a distressed homeowner of the provisions of
sections 1 to 7 of this 2009 Act is void and unenforceable as
contrary to public policy. + }
SECTION 8. { + Violation of a provision of sections 1 to 7 of
this 2009 Act is a misdemeanor and is punishable by imprisonment
for a term of not more than one year or by a fine of not more
than $10,000, or both. + }
SECTION 9. 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) Violates ORS 646A.095.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646A.090 (2) to (4).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646A.362.
(yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(zz) Violates ORS 180.440 (1).
(aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(bbb) Violates ORS 87.007 (2) or (3).
(ccc) Violates ORS 92.405 (1), (2) or (3).
(ddd) Engages in an unlawful practice under ORS 646.648.
(eee) Violates ORS 646A.365.
(fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(ggg) Sells a gift card in violation of ORS 646A.276.
(hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
(iii) Violates ORS 646A.430 to 646A.450.
(jjj) Violates a provision of sections 2 to 6, chapter 19,
Oregon Laws 2008.
(kkk) 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.
{ + (LLL) Violates a provision of sections 1 to 7 of this
2009 Act. + }
(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)
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 10. { + 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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