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 3002
Senate Bill 492
Sponsored by Senator BONAMICI (Presession filed.)
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.
Removes certain exemptions from requirement to comply with law
governing mortgage loan modifications. Extends sunset date for
mortgage loan modification law.
Requires trustee to be resident of this state or have
registered agent that meets certain qualifications.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to foreclosures of trust deeds; amending ORS 86.790 and
sections 3, 9 and 10, chapter 864, Oregon Laws 2009; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 3, chapter 864, Oregon Laws 2009, as amended
by section 1, chapter 40, Oregon Laws 2010, is amended to read:
{ + Sec. 3. + } (1)(a) If a grantor returns the form
identified in ORS 86.737 (6) 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.
(b) If the beneficiary denies a request made under paragraph
(a) of this subsection, the beneficiary or the beneficiary's
agent in the notice shall provide the grantor with an explanation
of how the beneficiary or the beneficiary's agent calculated that
the grantor was not eligible for a loan modification.
(c) A beneficiary or the beneficiary's agent complies with the
requirement set forth in paragraph (b) of this subsection if the
beneficiary or the beneficiary's agent provides the information
specified for a borrower notice in Supplemental Directive 09-08,
as in effect on { - the effective date of this 2010 Act - }
{ + May 27, 2010 + }, issued by the United States Department of
the Treasury under the Helping Families Save Their Homes Act of
2009, P.L. 111-22, as in effect on { - the effective date of
this 2010 Act - } { + May 27, 2010 + }.
(d) 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 as provided in this subsection.
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. If the
beneficiary denies a request made under subsection (1)(a) of this
section, as part of the description, the beneficiary or the
beneficiary's agent shall state that the beneficiary or the
beneficiary's agent provided the grantor with the information
described in subsection (1)(b) or (c) 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 or the beneficiary's agent notifies the
grantor in writing that the grantor is not eligible. In the
notice, the beneficiary or the beneficiary's agent shall describe
the basis for the beneficiary's determination and explain the
reasons why the grantor was not eligible. - }
SECTION 2. Section 9, chapter 864, Oregon Laws 2009, is amended
to read:
{ + Sec. 9. + }The amendments to ORS { + 86.737 and + }
86.750 { - and section 20, chapter 19, Oregon Laws 2008, - }
by sections 4 and 6 { + , chapter 864, Oregon Laws 2009, + }
{ - of this 2009 Act - } become operative on January 2,
{ - 2012 - } { + 2014 + }.
SECTION 3. Section 10, chapter 864, Oregon Laws 2009, is
amended to read:
{ + Sec. 10. + } Section 3 { + , chapter 864, Oregon Laws
2009, + } { - of this 2009 Act - } is repealed on January 2,
{ - 2012 - } { + 2014 + }.
SECTION 4. ORS 86.790 is amended to read:
86.790. (1) The trustee of a trust deed under ORS 86.705 to
86.795 { - shall not be - } { + is not + } required to comply
with the provisions of ORS chapters 707 and 709 { + . + }
{ - and shall be: - } { + The trustee must be a resident of
this state or have a registered agent that meets the
qualifications set forth in ORS 60.111 (2)(a) or (b) and must
be: + }
(a) { - Any - } { + An + } attorney who is an active member
of the Oregon State Bar;
(b) A financial institution or trust company, as defined in ORS
706.008, that is authorized to do business under the laws of
Oregon or the United States;
(c) A title insurance company authorized to insure title to
real property in this state, { + or a subsidiary, affiliate,
insurance producer or branch of the title insurance company + }
{ - its subsidiaries, affiliates, insurance producers or
branches - } ;
(d) The United States or { - any - } { + an + } agency
{ - thereof - } { + of the United States + }; or
(e) { + An + } escrow { - agents - } { + agent + }
licensed under ORS 696.505 to 696.590.
(2) An attorney who is a trustee under subsection (1)(a) of
this section may represent the beneficiary in addition to
performing the duties of trustee.
(3) At any time after the trust deed is executed, the
beneficiary may appoint in writing another qualified trustee. If
the appointment of the successor trustee is recorded in the
mortgage records of the county or counties in which the trust
deed is recorded, the successor trustee { - shall be - } { +
is + } vested with { - all - } the powers of the original
trustee.
(4) A trustee or successor trustee is a necessary and proper
party to { - any - } { + a + } proceeding to determine the
validity of or enjoin
{ - any - } { + a + } private or judicial proceeding to
foreclose a trust deed, but a trustee or successor trustee is
neither a necessary nor a proper party to { - any - } { +
a + } proceeding to determine title to the property subject to
the trust deed, or to { - any - } { + a + } proceeding to
impose, enforce or foreclose { - any other - } { +
another + } lien on the subject property.
(5) { - Nothing in - } ORS 86.705 to 86.795
{ - imposes - } { + do not impose + } a duty on the trustee or
successor trustee to notify any person of
{ - any - } { + a + } proceeding with respect to
{ - such - } { + the + } person, except a proceeding
{ - initiated by - } { + that + } the trustee or successor
trustee { + initiated + }.
(6) A trustee or the attorney for the trustee or { - any - }
{ + an + } agent { - designated by - } { + that + } the
trustee or the attorney { + designated + } may announce and
accept a bid from the beneficiary whether or not the beneficiary
is present at the sale.
(7) The trustee or successor trustee { - shall - } { + does
not + } have { + + }
{ - no - } { + a + } fiduciary duty or fiduciary obligation
to the grantor or
{ - other persons having - } { + another person that has + }
an interest in the property subject to the trust deed. The
trustee or successor trustee { - shall not be - } { + is
not + } relieved of the duty to reconvey the property subject to
the trust deed to the grantor { - upon request for reconveyance
by - } { + when + } the beneficiary { + requests the
reconveyance + }.
SECTION 5. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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