76th OREGON LEGISLATIVE ASSEMBLY--2011 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 1196
House Bill 2472
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Consumer Protection and Government Accountability)
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.
Requires trustee or beneficiary named in trust deed to respond
in writing to grantor not later than 30 calendar days after
receiving communication from grantor that is related to grantor's
mortgage loan. Prescribes standards for response.
Makes violation of requirement to respond to communication,
requirement to provide loan modification request form and process
request for loan modification and certain other violations
unlawful practice subject to enforcement under Unlawful Trade
Practices Act.
Removes sunset from laws that require response to loan
modification request.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to mortgage lending; creating new provisions; amending
ORS 86.737, 86.750 and 646.608; repealing sections 9 and 10,
chapter 864, Oregon Laws 2009; and prescribing an effective
date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2011 Act is added to and made
a part of ORS 86.705 to 86.795. + }
SECTION 2. { + (1) A trustee or beneficiary shall respond in
writing to the grantor named in the trust deed not later than 30
calendar days after receiving a communication from the grantor
that is related to the grantor's mortgage loan. The trustee or
beneficiary shall respond in such a way as to address the
substance of the grantor's communication with information that is
accurate, specific and relevant to the topic set forth in the
grantor's communication. If the grantor's communication asks the
trustee or beneficiary to perform an action, the trustee or
beneficiary shall:
(a) Perform the requested action, state in the written response
that the trustee or beneficiary has performed the requested
action and report or provide the results of the action; or
(b) State in the written response that the trustee or
beneficiary did not perform the requested action and explain why
the trustee or beneficiary did not perform the requested action.
(2) A violation of the provisions of subsection (1) of this
section is an unlawful practice under ORS 646.608. + }
SECTION 3. ORS 86.737, as amended by section 4, chapter 864,
Oregon Laws 2009, is amended to read:
86.737. (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: ______.
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 'LOAN 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
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 4. ORS 86.750, as amended by section 6, chapter 864,
Oregon Laws 2009, section 4, chapter 28, Oregon Laws 2010, and
section 3, chapter 40, Oregon Laws 2010, is amended to read:
86.750. (1)(a) Except as provided in paragraph (b) of this
subsection, the notice prescribed in ORS 86.745 must 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 that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
first attempt. The person that attempts to effect 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 that attempts to effect service shall post a copy of the
notice in a conspicuous place on the property on the date of the
second attempt. The person that attempts to effect 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
that attempts to effect 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 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) Except as provided in paragraph (b) of this subsection,
a copy of the notice of sale must be published in a newspaper of
general circulation in each of the counties in which the property
{ + described in the deed + } is situated once a week for four
successive weeks. The last publication must be made more than 20
days prior to the date the trustee conducts the sale.
(b) The copy of the notice of sale required to be published
under paragraph (a) of this subsection does not need to include
the notice to tenants required under ORS 86.745 (9).
(3) At or before the time 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) At or before the time 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 ORS 86.737.
{ + (5) Not later than five days 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 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), chapter 864, Oregon Laws
2009. + }
SECTION 5. ORS 646.608 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 ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
{ + (rrr) Violates a provision of ORS 86.737 or 86.750 or
section 3, chapter 864, Oregon Laws 2009, or section 2 of this
2011 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)(xx)
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 6. { + Sections 9 and 10, chapter 864, Oregon Laws
2009, are repealed. + }
SECTION 7. { + (1) Section 2 of this 2011 Act applies to a
communication that a grantor sends on or after the effective date
of this 2011 Act.
(2) The amendments to ORS 646.608 by section 5 of this 2011 Act
apply to a violation that occurs on or after the effective date
of this 2011 Act. + }
SECTION 8. { + This 2011 Act takes effect on the 91st day
after the date on which the 2011 session of the Seventy-sixth
Legislative Assembly adjourns sine die. + }
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