75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 628
Sponsored by Senator BONAMICI, Representative HOLVEY; Senator
WALKER, Representative KAHL
CHAPTER ................
AN ACT
Relating to residential property foreclosures; creating new
provisions; amending ORS 86.750 and section 20, chapter 19,
Oregon Laws 2008; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 20, chapter 19, Oregon Laws 2008, is amended
to read:
{ + Sec. 20. + } (1) If a notice of default is recorded for
property that is subject to a residential trust deed, the sender
of a notice of sale under ORS 86.740 shall, on or before the date
the notice of sale is served or mailed, give notice under this
section to the grantor by both first class and certified mail
with return receipt requested. Subject to any rules adopted under
subsection (2) of this section, the notice must be in
substantially the following form and printed in at least 14-point
type:
_________________________________________________________________
NOTICE:
YOU ARE IN DANGER OF LOSING
YOUR PROPERTY IF YOU DO NOT
TAKE ACTION IMMEDIATELY
This notice is about your mortgage loan on your property
at ______ (address).
Your lender has decided to sell this property because the money
due on your mortgage loan has not been paid on time or because
you have failed to fulfill some other obligation to your lender.
This is sometimes called 'foreclosure. '
The amount you would have had to pay as of ___ (date) to bring
your mortgage loan current was $___. The amount you must now pay
to bring your loan current may have increased since that date.
By law, your lender has to provide you with details about the
amount you owe, if you ask. You may call ______ (telephone
number) to find out the exact amount you must pay to bring your
mortgage loan current and to get other details about the amount
you owe. You may also get these details by sending a request by
certified mail to: ______.
Enrolled Senate Bill 628 (SB 628-C) Page 1
THIS IS WHEN AND WHERE
YOUR PROPERTY WILL BE SOLD
IF YOU DO NOT TAKE ACTION:
Date and time: ______, 2___ at ______
Place: ______
THIS IS WHAT YOU CAN DO
TO STOP THE SALE:
1. You can pay the amount past due or correct any other default,
up to five days before the sale.
2. You can refinance or otherwise pay off the loan in full
anytime before the sale.
3. You can { - call ______ (name) at ______ (telephone number)
to find out if your lender is willing to - } { + request that
your lender + } give you more time or change the terms of your
loan.
4. You can sell your home, provided the sale price is enough to
pay what you owe.
There are government agencies and nonprofit organizations that
can give you information about foreclosure and help you decide
what to do. For the name and telephone number of an organization
near you, please call the statewide telephone contact number at
______. You may also wish to talk to a lawyer. If you need help
finding a lawyer, you may call the Oregon State Bar's Lawyer
Referral Service at ______ or toll-free in Oregon at ______ or
you may visit its website at: ______. Legal assistance may be
available if you have a low income and meet federal poverty
guidelines. For more information and a directory of legal aid
programs, go to ______.
{ + Your lender may be willing to modify your loan to reduce
the interest rate, reduce the monthly payments or both. You can
get information about possible loan modification programs by
contacting your lender at ______. If you can't reach your lender,
you may contact the trustee at the telephone number at the bottom
of this notice. If you have already entered into a loan
modification with your lender, it is possible that you will not
be able to modify your loan again unless your circumstances have
changed. Your lender is not obligated to modify your loan. + }
{ + You may request to meet with your lender to discuss options
for modifying your loan. During discussions with your lender, you
may have the assistance of a lawyer, a housing counselor or
another person of your choosing. To receive a referral to a
housing counselor or other assistance available in your
community, call this toll-free consumer mortgage foreclosure
information number: ______. Many lenders participate in new
federal loan modification programs. You can obtain more
information about these programs at: __________. + }
{ + IF YOU WANT TO APPLY TO MODIFY YOUR LOAN, YOU MUST FILL OUT
AND MAIL BACK THE ENCLOSED 'MODIFICATION REQUEST FORM.' YOUR
LENDER MUST RECEIVE THE FORM BY ______, WHICH IS 30 DAYS AFTER
THE DATE SHOWN BELOW. + }
Enrolled Senate Bill 628 (SB 628-C) Page 2
WARNING: You may get offers from people who tell you they can
help you keep your property. You should be careful about those
offers. Make sure you understand any papers you are asked to
sign. If you have any questions, talk to a lawyer or one of the
organizations mentioned above before signing.
DATED: ___, 2___
Trustee name: ______ (print)
Trustee signature: ______
Trustee telephone number: ______
_________________________________________________________________
(2) The Department of Consumer and Business Services may adopt
rules prescribing the format, font size and other physical
characteristics of the notice form set forth in subsection (1) of
this section. The department shall adopt rules specifying the
{ - statewide - } resource telephone contact numbers and
website addresses the sender is to insert in completing the
notice.
(3) When filling blanks in the notice form set forth in
subsection (1) of this section, the sender of the notice shall
include, stated in plain language:
(a) The amount of payment that was needed to bring the mortgage
loan current as of the date stated in the notice; and
(b) One or more telephone numbers consisting of:
(A) A telephone number that will allow the grantor access
during regular business hours to details regarding the grantor's
loan delinquency and repayment information; and
(B) A telephone number that will allow the grantor access
during regular business hours to person-to-person consultation
with an individual authorized by the beneficiary to discuss the
grantor's payment and loan term negotiation and modification
options.
(4) Telephone numbers described in subsection (3) of this
section must be toll-free numbers unless the beneficiary:
(a) Made the loan with the beneficiary's own money;
(b) Made the loan for the beneficiary's own investment; and
(c) Is not in the business of making loans secured by an
interest in real estate.
(5) If the sender giving notice under subsection (1) of this
section has actual knowledge that the grantor is not the occupant
of the residential real property, the sender shall also give
notice to the occupant of the property by both first class and
certified mail with return receipt requested.
{ + (6) The notice required under subsection (1) of this
section must be accompanied by a form to request a loan
modification. The form must include the address to which and
state the date by which the grantor must return the form. The
date must be 30 days after the date on which the trustee signs
the notice. The form may state that the grantor must disclose
current information about the grantor's income and expenses, the
grantor's address, phone number and electronic mail address and
other facts that may affect the grantor's eligibility for a loan
modification. + }
SECTION 2. { + Section 3 of this 2009 Act is added to and made
a part of ORS 86.705 to 86.795. + }
Enrolled Senate Bill 628 (SB 628-C) Page 3
SECTION 3. { + (1) If a grantor returns the form identified in
section 20 (6), chapter 19, Oregon Laws 2008, to the lender by
the date specified on the form, the beneficiary or an agent of
the beneficiary shall review the information the grantor provided
in the form and, in good faith, shall process the grantor's
request. The beneficiary or the beneficiary's agent, as soon as
reasonably practicable but not later than 45 days after receiving
the form, shall notify the grantor whether the beneficiary
approves or denies the request or requires additional
information. A trustee's sale for the property subject to the
loan may not occur until after the beneficiary or the
beneficiary's agent timely responds to the grantor. During the
45-day period, the beneficiary or the beneficiary's agent may
request the grantor to provide additional information required to
determine whether the loan can be modified.
(2)(a) Except as provided in paragraph (b) of this subsection,
if the grantor timely requests a meeting with the beneficiary,
the beneficiary or the beneficiary's agent shall meet with the
grantor in person or shall speak to the grantor by telephone
before the beneficiary or the beneficiary's agent responds to the
grantor's request to modify the loan. If the grantor requests the
meeting, the beneficiary or the beneficiary's agent shall take
reasonable steps to schedule the meeting by contacting the
grantor at the grantor's last known address or telephone number
or at the grantor's electronic mail address, if the grantor
indicates on the loan modification form that the beneficiary or
the beneficiary's agent can contact the grantor at the electronic
mail address.
(b) A beneficiary or the beneficiary's agent complies with the
provisions of paragraph (a) of this subsection even if the
beneficiary or beneficiary's agent does not speak to or meet with
the grantor if, within seven business days after the beneficiary
or beneficiary's agent attempts to contact the grantor, the
grantor does not respond.
(c) The beneficiary or the beneficiary's agent that meets with
the grantor shall have or be able to obtain authority to modify
the loan.
(3)(a) The beneficiary or the beneficiary's agent shall provide
the trustee with the affidavit described in ORS 86.750 (5). In
the affidavit, the beneficiary or the beneficiary's agent shall
describe how the beneficiary or the beneficiary's agent has
complied with subsections (1) and (2) of this section.
(b) The trustee shall record the affidavit described in
paragraph (a) of this subsection.
(4) Subsections (1) and (2) of this section do not apply to a
beneficiary that determines in good faith, after considering the
most current financial information the grantor provides, that the
grantor is not eligible for a loan modification, provided that
the beneficiary informs the grantor that the grantor is not
eligible. + }
SECTION 4. Section 20, chapter 19, Oregon Laws 2008, as amended
by section 1 of this 2009 Act, is amended to read:
{ + Sec. 20. + } (1) If a notice of default is recorded for
property that is subject to a residential trust deed, the sender
of a notice of sale under ORS 86.740 shall, on or before the date
the notice of sale is served or mailed, give notice under this
section to the grantor by both first class and certified mail
with return receipt requested. Subject to any rules adopted under
subsection (2) of this section, the notice must be in
Enrolled Senate Bill 628 (SB 628-C) Page 4
substantially the following form and printed in at least 14-point
type:
_________________________________________________________________
NOTICE:
YOU ARE IN DANGER OF LOSING
YOUR PROPERTY IF YOU DO NOT
TAKE ACTION IMMEDIATELY
This notice is about your mortgage loan on your property
at ______ (address).
Your lender has decided to sell this property because the money
due on your mortgage loan has not been paid on time or because
you have failed to fulfill some other obligation to your lender.
This is sometimes called 'foreclosure. '
The amount you would have had to pay as of ___ (date) to bring
your mortgage loan current was $___. The amount you must now pay
to bring your loan current may have increased since that date.
By law, your lender has to provide you with details about the
amount you owe, if you ask. You may call ______ (telephone
number) to find out the exact amount you must pay to bring your
mortgage loan current and to get other details about the amount
you owe. You may also get these details by sending a request by
certified mail to: ______.
THIS IS WHEN AND WHERE
YOUR PROPERTY WILL BE SOLD
IF YOU DO NOT TAKE ACTION:
Date and time: ______, 2___ at ______
Place: ______
THIS IS WHAT YOU CAN DO
TO STOP THE SALE:
1. You can pay the amount past due or correct any other default,
up to five days before the sale.
2. You can refinance or otherwise pay off the loan in full
anytime before the sale.
3. You can { - request that your lender - } { + call ______
(name) at ______ (telephone number) to find out if your lender is
willing to + } give you more time or change the terms of your
loan.
4. You can sell your home, provided the sale price is enough to
pay what you owe.
There are government agencies and nonprofit organizations that
can give you information about foreclosure and help you decide
what to do. For the name and telephone number of an organization
near you, please call the statewide telephone contact number at
______. You may also wish to talk to a lawyer. If you need help
finding a lawyer, you may call the Oregon State Bar's Lawyer
Referral Service at ______ or toll-free in Oregon at ______ or
you may visit its website at: ______. Legal assistance may be
available if you have a low income and meet federal poverty
Enrolled Senate Bill 628 (SB 628-C) Page 5
guidelines. For more information and a directory of legal aid
programs, go to ______.
{ - Your lender may be willing to modify your loan to reduce
the interest rate, reduce the monthly payments or both. You can
get information about possible loan modification programs by
contacting your lender at ______. If you can't reach your lender,
you may contact the trustee at the telephone number at the bottom
of this notice. If you have already entered into a loan
modification with your lender, it is possible that you will not
be able to modify your loan again unless your circumstances have
changed. Your lender is not obligated to modify your loan. - }
{ - You may request to meet with your lender to discuss options
for modifying your loan. During discussions with your lender, you
may have the assistance of a lawyer, a housing counselor or
another person of your choosing. To receive a referral to a
housing counselor or other assistance available in your
community, call this toll-free consumer mortgage foreclosure
information number: ______. Many lenders participate in new
federal loan modification programs. You can obtain more
information about these programs at: __________. - }
{ - IF YOU WANT TO APPLY TO MODIFY YOUR LOAN, YOU MUST FILL OUT
AND MAIL BACK THE ENCLOSED 'MODIFICATION REQUEST FORM.' YOUR
LENDER MUST RECEIVE THE FORM BY ______, WHICH IS 30 DAYS AFTER
THE DATE SHOWN BELOW. - }
WARNING: You may get offers from people who tell you they can
help you keep your property. You should be careful about those
offers. Make sure you understand any papers you are asked to
sign. If you have any questions, talk to a lawyer or one of the
organizations mentioned above before signing.
DATED: ___, 2___
Trustee name: ______ (print)
Trustee signature: ______
Trustee telephone number: ______
_________________________________________________________________
(2) The Department of Consumer and Business Services may adopt
rules prescribing the format, font size and other physical
characteristics of the notice form set forth in subsection (1) of
this section. The department shall adopt rules specifying the
resource telephone contact numbers and website addresses the
sender is to insert in completing the notice.
(3) When filling blanks in the notice form set forth in
subsection (1) of this section, the sender of the notice shall
include, stated in plain language:
(a) The amount of payment that was needed to bring the mortgage
loan current as of the date stated in the notice; and
(b) One or more telephone numbers consisting of:
(A) A telephone number that will allow the grantor access
during regular business hours to details regarding the grantor's
loan delinquency and repayment information; and
(B) A telephone number that will allow the grantor access
during regular business hours to person-to-person consultation
Enrolled Senate Bill 628 (SB 628-C) Page 6
with an individual authorized by the beneficiary to discuss the
grantor's payment and loan term negotiation and modification
options.
(4) Telephone numbers described in subsection (3) of this
section must be toll-free numbers unless the beneficiary:
(a) Made the loan with the beneficiary's own money;
(b) Made the loan for the beneficiary's own investment; and
(c) Is not in the business of making loans secured by an
interest in real estate.
(5) If the sender giving notice under subsection (1) of this
section has actual knowledge that the grantor is not the occupant
of the residential real property, the sender shall also give
notice to the occupant of the property by both first class and
certified mail with return receipt requested.
{ - (6) The notice required under subsection (1) of this
section must be accompanied by a form to request a loan
modification. The form must include the address to which and
state the date by which the grantor must return the form. The
date must be 30 days after the date on which the trustee signs
the notice. The form may state that the grantor must disclose
current information about the grantor's income and expenses, the
grantor's address, phone number and electronic mail address and
other facts that may affect the grantor's eligibility for a loan
modification. - }
SECTION 5. ORS 86.750, as amended by section 1, chapter 229,
Oregon Laws 2009 (Enrolled Senate Bill 239), is amended to read:
86.750. (1)(a) Except as provided in paragraph (b) of this
subsection, the notice prescribed in ORS 86.745 shall be served
upon an occupant of the property described in the trust deed in
the manner in which a summons is served pursuant to ORCP 7 D(2)
and 7 D(3) at least 120 days before the day the trustee conducts
the sale.
(b)(A) If service cannot be effected on an occupant as provided
in paragraph (a) of this subsection on the first attempt, the
person attempting service shall post a copy of the notice in a
conspicuous place on the property on the date of the first
attempt. The person attempting service shall make a second
attempt to effect service on a day that is at least two days
after the first attempt.
(B) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the second attempt, the
person attempting service shall post a copy of the notice in a
conspicuous place on the property on the date of the second
attempt. The person attempting service shall make a third attempt
to effect service on a day that is at least two days after the
second attempt.
(C) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the third attempt, the person
attempting service shall send a copy of the notice, bearing the
word 'occupant' as the addressee, to the property address by
first class mail with postage prepaid.
(c) Service on an occupant is deemed effected on the earlier of
the date that notice is served as provided in paragraph (a) of
this subsection or the first date on which notice is posted as
described in paragraph (b)(A) of this subsection.
(2) A copy of the notice of sale shall 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.
The last publication shall be made more than 20 days prior to the
date the trustee conducts the sale.
Enrolled Senate Bill 628 (SB 628-C) Page 7
(3) On or before the date the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated the following affidavits with respect to the notice of
sale:
(a) An affidavit of mailing, if any;
(b) An affidavit of service, if any;
(c) An affidavit of service attempts and posting, if any; and
(d) An affidavit of publication.
(4) On or before the date the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated an affidavit of mailing with respect to the notice to
the grantor required under section 20, chapter 19, Oregon Laws
2008.
{ + (5) On or before the date the trustee conducts the sale,
the trustee shall file for recording in the official record of
the county or counties in which the property is located an
affidavit from the beneficiary or the beneficiary's agent that
states how the beneficiary or the beneficiary's agent has
complied with the provisions of section 3 (1) and (2) of this
2009 Act. + }
SECTION 6. ORS 86.750, as amended by section 1, chapter 229,
Oregon Laws 2009 (Enrolled Senate Bill 239), and section 5 of
this 2009 Act, is amended to read:
86.750. (1)(a) Except as provided in paragraph (b) of this
subsection, the notice prescribed in ORS 86.745 shall be served
upon an occupant of the property described in the trust deed in
the manner in which a summons is served pursuant to ORCP 7 D(2)
and 7 D(3) at least 120 days before the day the trustee conducts
the sale.
(b)(A) If service cannot be effected on an occupant as provided
in paragraph (a) of this subsection on the first attempt, the
person attempting service shall post a copy of the notice in a
conspicuous place on the property on the date of the first
attempt. The person attempting service shall make a second
attempt to effect service on a day that is at least two days
after the first attempt.
(B) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the second attempt, the
person attempting service shall post a copy of the notice in a
conspicuous place on the property on the date of the second
attempt. The person attempting service shall make a third attempt
to effect service on a day that is at least two days after the
second attempt.
(C) If service cannot be effected on an occupant as provided in
paragraph (a) of this subsection on the third attempt, the person
attempting service shall send a copy of the notice, bearing the
word 'occupant' as the addressee, to the property address by
first class mail with postage prepaid.
(c) Service on an occupant is deemed effected on the earlier of
the date that notice is served as provided in paragraph (a) of
this subsection or the first date on which notice is posted as
described in paragraph (b)(A) of this subsection.
(2) A copy of the notice of sale shall 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.
The last publication shall be made more than 20 days prior to the
date the trustee conducts the sale.
Enrolled Senate Bill 628 (SB 628-C) Page 8
(3) On or before the date the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated the following affidavits with respect to the notice of
sale:
(a) An affidavit of mailing, if any;
(b) An affidavit of service, if any;
(c) An affidavit of service attempts and posting, if any; and
(d) An affidavit of publication.
(4) On or before the date the trustee conducts the sale, the
trustee shall file for recording in the official record of the
county or counties in which the property described in the deed is
situated an affidavit of mailing with respect to the notice to
the grantor required under section 20, chapter 19, Oregon Laws
2008.
{ - (5) On or before the date the trustee conducts the sale,
the trustee shall file for recording in the official record of
the county or counties in which the property is located an
affidavit from the beneficiary or the beneficiary's agent that
states how the beneficiary or the beneficiary's agent has
complied with the provisions of section 3 (1) and (2) of this
2009 Act. - }
SECTION 7. { + (1) Notwithstanding the purposes set forth in
ORS 180.095, and except as provided in subsection (2) of this
section, the Department of Justice shall use the proceeds of the
State of Oregon's settlement with Countrywide Financial
Corporation that are deposited into the Consumer Protection and
Education Revolving Account to make grants, in consultation with
the Housing and Community Services Department, to nonprofit
entities to provide foreclosure relief services.
(2) The Department of Justice need not use the proceeds
identified in subsection (1) of this section if sufficient
funding for the purposes identified in subsection (1) of this
section is available from another source. + }
SECTION 8. { + (1) Section 3 of this 2009 Act and the
amendments to ORS 86.750 and section 20, chapter 19, Oregon Laws
2008, by sections 1 and 5 of this 2009 Act apply to a notice of
sale sent on or after the 60th day following the effective date
of this 2009 Act.
(2) Section 3 of this 2009 Act and the amendments to ORS 86.750
and section 20, chapter 19, Oregon Laws 2008, by sections 1 and 5
of this 2009 Act do not apply to property secured by a trust deed
that a government agency holds for a loan the government agency
funded through a government program. + }
SECTION 9. { + The amendments to ORS 86.750 and section 20,
chapter 19, Oregon Laws 2008, by sections 4 and 6 of this 2009
Act become operative on January 2, 2012. + }
SECTION 10. { + Section 3 of this 2009 Act is repealed on
January 2, 2012. + }
SECTION 11. { + 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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Enrolled Senate Bill 628 (SB 628-C) Page 9
Passed by Senate June 26, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 29, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 628 (SB 628-C) Page 10
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 628 (SB 628-C) Page 11