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 1394
B-Engrossed
Senate Bill 386
Ordered by the House June 25
Including Senate Amendments dated March 30 and House Amendments
dated June 25
Sponsored by Senator BONAMICI; Senators CARTER, MONNES ANDERSON,
Representatives HOLVEY, KAHL
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.
{ - Provides that attempt or threat to enforce right or
remedy or collect debt that person knows or has reason to know
does not exist is unlawful collection practice. - }
Allows court to award attorney fees, costs and expenses to
prevailing debtor in action for unlawful collection practice.
Provides that court may award reasonable attorney fees to
defendant if court finds that debtor brought action in bad faith
or solely for purposes of harassment.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to debt collection practices; creating new provisions;
amending ORS 646.639 and 646.641; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.639 is amended to read:
646.639. (1) As used in subsection (2) of this section:
(a) 'Consumer' means a natural person who purchases or acquires
property, services or credit for personal, family or household
purposes.
(b) 'Consumer transaction' means a transaction between a
consumer and a person who sells, leases or provides property,
services or credit to consumers.
(c) 'Commercial creditor' means a person who in the ordinary
course of business engages in consumer transactions.
(d) 'Credit' means the right granted by a creditor to a
consumer to defer payment of a debt, to incur a debt and defer
{ - its - } payment { + of the debt + }, or to purchase or
acquire property or services and defer payment { - therefor - }
{ + for the property or services + }.
(e) 'Debt' means { + an obligation or an alleged obligation to
pay money or a thing of value evidenced by an agreement or
contract, express or implied, that is formed in the course of or
as a result of a consumer transaction. + } { - any obligation
or alleged obligation arising out of a consumer transaction. - }
(f) 'Debtor' means a consumer who owes { + a debt. + }
{ - or allegedly owes an obligation arising out of a consumer
transaction. - }
(g) 'Debt collector' means { - any - } { + a + } person who
by { - any - } direct or indirect action, conduct or practice,
enforces or attempts to enforce { + a debt owed to a commercial
creditor. + } { - an obligation that is owed or due to any
commercial creditor, or alleged to be owed or due to any
commercial creditor, by a consumer as a result of a consumer
transaction. - }
(h) 'Person' means an individual, corporation, trust,
partnership, incorporated or unincorporated association or
{ - any - } other legal entity.
(2) { - It shall be an unlawful collection practice for - }
A debt collector, while collecting or attempting to collect a
debt { + , may not + } { - to - } do any of the following:
(a) Use or threaten the use of force or violence to cause
physical harm to a debtor or to the debtor's family or property.
(b) Threaten arrest or criminal prosecution.
(c) Threaten the seizure, attachment or sale of a debtor's
property when such action can only be taken pursuant to court
order { + , + } without disclosing that prior court proceedings
are required.
(d) Use profane, obscene or abusive language in communicating
with a debtor or { + a member of + } the debtor's family.
(e) Communicate with the debtor or any member of the debtor's
family repeatedly or continuously or at times known to be
inconvenient to { - that person - } { + the debtor or a
member of the debtor's family + }with intent to harass or annoy
the debtor or { - any - } { + a + } member of the debtor's
family.
(f) Communicate or threaten to communicate with a debtor's
employer concerning the nature or existence of the debt.
(g) Communicate without the debtor's permission or threaten to
communicate with the debtor at the debtor's place of employment
if the place is other than the debtor's residence, except that
the debt collector may:
(A) Write to the debtor at the debtor's place of employment if
no home address is reasonably available and if the envelope does
not reveal that the communication is from a debt collector other
than a provider of the goods, services or credit from which the
debt arose.
(B) Telephone a debtor's place of employment without informing
any other person of the nature of the call or identifying the
caller as a debt collector but only if the debt collector in good
faith has made an unsuccessful attempt to telephone the debtor at
the debtor's residence during the day or during the evening
between the hours of 6 p.m. and 9 p.m. The debt collector may not
contact the debtor at the debtor's place of employment more
frequently than once each business week and may not telephone the
debtor at the debtor's place of employment if the debtor notifies
the debt collector not to telephone at the debtor's place of
employment or if the debt collector knows or has reason to know
that the debtor's employer prohibits the debtor from receiving
such communication. For the purposes of this subparagraph,
{ - any - } language in { - any - } { + an agreement,
contract or + } instrument creating the debt { - which - }
{ + that + } purports to authorize telephone calls at the
debtor's place of employment { - shall - } { + does + } not
{ - be considered as giving - } { + give + } permission to the
debt collector to call the debtor at the debtor's place of
employment.
(h) Communicate with the debtor in writing without clearly
identifying the name of the debt collector, the name of the
person, if any, for whom the debt collector is attempting to
collect the debt and the debt collector's business address, on
all initial communications. In subsequent communications
involving multiple accounts, the debt collector may eliminate the
name of the person, if any, for whom the debt collector is
attempting to collect the debt, and the term 'various' may be
substituted in
{ - its - } place { + of the name + }.
(i) Communicate with the debtor orally without disclosing to
the debtor within 30 seconds the name of the individual making
the contact and the true purpose { - thereof - } { + of the
contact + }.
(j) Cause any expense to the debtor in the form of long
distance telephone calls, telegram fees or other charges incurred
by a medium of communication, by concealing the true purpose of
the debt collector's communication.
(k) Attempt { - to - } or threaten to { + take an action to
collect a debt or + } enforce a right or remedy with knowledge or
reason to know that the { + debt, + } right or remedy does not
exist, or threaten to take any action { - which - } { +
that + } the debt collector in the regular course of business
does not take.
(L) Use { - any - } { + a + } form of communication
{ - which - } { + that + } simulates legal or judicial process
or { - which - } { + that + } gives the appearance of being
authorized, issued or approved by a governmental agency,
{ + a + } governmental official or an attorney at law when
{ - it - } { + the communication + } is not in fact so
approved or authorized.
(m) Represent that an existing debt may be increased by the
addition of attorney fees, investigation fees or any other fees
or charges when { - such - } { + the + } fees or charges may
not legally be added to the existing debt.
(n) Collect or attempt to collect { - any - } interest or
{ - any - } other charges or fees in excess of the actual debt
unless { - they - } { + the interest, charges or fees + } are
expressly authorized by the agreement { + , contract or
instrument + } creating the debt or expressly allowed by law.
(o) Threaten to assign or sell the debtor's account with an
attending misrepresentation or implication that the debtor would
lose any defense to the debt or would be subjected to harsh,
vindictive or abusive collection tactics.
(3) { - It shall be an unlawful collection practice for - }
A debt collector, by use of any direct or indirect action,
conduct or practice, { - to - } { + may not + } enforce or
attempt to enforce an obligation made void and unenforceable by
the provisions of ORS 759.720 (3) to (5).
{ + (4) Violation of a provision of subsection (2) or (3) of
this section is an unlawful collection practice. + }
SECTION 2. ORS 646.641 is amended to read:
646.641. { + (1) As used in this section:
(a) 'Debt collector' has the meaning given that term in ORS
646.639.
(b) 'Debtor' has the meaning given that term in ORS
646.639. + }
{ - (1) - } { + (2) + } { - Any - } { + A + } person
injured as a result of { + a debt collector's + } willful use or
employment { - by another person - } of an unlawful collection
practice may bring an action in an appropriate court to enjoin
the practice or to recover actual damages or $200, whichever is
greater. The court or the jury may award punitive damages, and
the court may provide such equitable relief as { - it - } { +
the court + } deems necessary or proper.
{ - (2) - } { + (3) + } In { - any - } { + an + }
action brought { - by a person - } under this section, the
court may award { + a prevailing debtor + } reasonable attorney
fees { - to the prevailing party. - } { + , costs and
expenses. If a court finds that a debtor brought an action under
this section in bad faith or solely for the purposes of
harassment, the court may award a prevailing debt collector
reasonable attorney fees. + }
{ - (3) - } { + (4) + } Actions brought under this section
{ - shall - } { + must + } be commenced within one year from
the date of the injury.
SECTION 3. { + The amendments to ORS 646.639 and 646.641 by
sections 1 and 2 of this 2009 Act apply to debts and actions to
collect or enforce a debt that arise or occur on or after the
effective date of this 2009 Act. + }
SECTION 4. { + 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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