SB 1552-A5 (LC 238

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2120/12 (TSB/ps)

PROPOSED AMENDMENTS TO A-ENGROSSED SENATE BILL 1552
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On page 1 of the printed, A-engrossed bill, line 2, after "ORS" delete the rest of the line and line 3 and insert "86.735, 86.737, 86.780, 646.605, 646.618 and 646.632; repealing ORS 646.633; appropriating tures; and declaring an emergency.". Delete lines 5 through 20 and delete pages 2 through 21 and insert: "SECTION 1. Section 2 of this 2012 Act is added to and made a part of ORS 86.705 to 86.795. "SECTION 2. (1) As used in this section, 'foreclosure measure' means an agreement between a beneficiary avoidance and a grantor money; limiting expendi-

that uses one or more of the following methods to modify an obligation that is secured by a trust deed: "(a) The beneficiary defers or forbears from collecting one or more payments due on the obligation. "(b) The beneficiary "(c) The beneficiary grantor. "(d) The grantor conducts a short sale. "(e) The beneficiary provides the grantor with other assistance that enables the grantor to avoid a foreclosure. "(2) The Homeowner Assistance Treasury, separate and distinct Fund is established in the State from the General Fund. The Homemodifies, temporarily or permanently, the

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payment terms or other terms of the obligation. accepts a deed in lieu of foreclosure from the

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owner Assistance Fund consists of all moneys the Attorney General collects or receives as a result of settlement and five mortgage loan servicing corporations in the fund are continuously munity Services Department (3) of this section. "(3) The department "(a) Advertising shall use the moneys in the Homeowner Assistance Fund as follows: and other efforts to ensure that homeowners reagreements described in subsection ceive funds from the settlement (2) of this section, $2,250,000. "(b) Counseling for homeowners and education for housing counselors, $5,350,000. "(c) Coordinating federal and state homeowner assistance and refinancing programs, evaluating impacts and assessing gaps in assistance and refinancing programs, $600,000.
"(

agreements

announced

on February 9, 2012, to which the Attorney General, the United States are parties. The moneys appropriated to the Housing and Com-

for the purposes set forth in subsection

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d) Legal assistance to help low and moderate income homeowners the foreclosure process and foreclosure to homeowners financing and avoidance meas-

understand

ures, $1,980,000. "(e) Direct financial assistance modifications, $13,345,000.
"(f) Mediation to resolve disputes between homeowners and lenders,

to implement loan related efforts,

refinancing,

gap

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$3,100,000. "SECTION 3. Notwithstanding the limitation maximum on expenditures any other law limiting expenditures, established by section 2, chapter of expenses for operations 574, beginning JUly 1, 2011, as the from fees,

Oregon Laws 2011, for the biennium limit for payment

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moneys or other revenues, including Miscellaneous Receipts and fed-

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eral funds from the United States Department Development for contract is increased by $26,625,000. "SECTION 4. DRS 86.735 is amended to read:

of Housing and Urban funds and

services, but excluding lottery

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federal funds not described in section 2, chapter 574, Oregon Laws 2011,

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"86.735. [The] A trustee may foreclose a trust deed by advertisement sale in the manner provided in DRS 86.740 to 86.755 if: "(1) The trust deed], any assignments beneficiary] and any appointment

and

of the trust deed by the trustee or the or assignment of

of a successor trustee

the trust deed that is necessary to establish in the mortgage record the identity of the trustee or beneficiary that performs an act required or permitted under ORS 86.705to 86.795 are recorded in the mortgage records in the counties in which the property described in the deed is situated; [and] "(2) [There is a default by] The grantor or other person, or the grantor's or person's successor in interest, performance successors of which in interest] secures and] has filed for [record] recording in the the or [owing] defaults on an obligation], and with respect the is secured by] for which the trust deed], or by their performance to [any] of in the deed [which] or beneficiary authorizes sale in the event

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which a provision "(3) The trustee

default; [of such provision;

county clerk's office in each county where the trust property, or some part of [it] the trust property, is situatedj.] information beneficiary's required by ORS 86.745 a notice of default containing and containing the trustee's

election to sell the property to satisfy the obligation; and commenced to recover the commenced, the the debt that remains secured by

"(4) [No] An action has not been [instituted] debt or any part of [it then remaining] the trust action has been dismissed, except that:

deed, or, if such action has been [instituted]

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"(a) Subject to ORS 86.010 and the procedural requirements

of ORCP 79

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and 80, an action may be instituted temporary restraining

to appoint

a receiver or to obtain a

order during foreclosure of a trust deed by advertiseresidence

ment and sale, except that a receiver [shall] may not be appointed with respect to a single-family residence [which is occupied as the principal of] that the grantor, the grantor's ent child occupies as a principal residence. "(b) An action may be commenced for the judicial trust deed, or any other trust deeds, mortgages, security interests or nonjudicial forecloor sure of the same trust deed as to any other property covered [thereby] by the security agreements other consensual or nonconsensual or liens securing respouse or the grantor's minor or depend-

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payment of the debt. "SECTION 5. ORS 86.737 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.
(3)

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Subject to any rules adopted under subsection [(2)] the f/ollowing] form

of this section, the notice must be in substantially

below or as shown in subsection (2) of this section, whichever is applicable, 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

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(address).

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Your lender has decided to sell this property because the money due on your

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mortgage loan has not been paid on time or because you have failed to fulfill some other obligation to your lender. This
IS

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[sometimes]

called

'foreclosure.' The amount you would have had to pay as of mortgage loan current was $ _ (date) to bring your

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. 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 and to the exact amount you must pay to bring your mortgage loan current by sending a request by certified mail to: _

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get other details about the amount you owe. You may also get these details

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THIS IS WHEN AND WHERE YOUR PROPERTY WILL BE SOLD IF YOU DO NOT TAKE ACTION:
Date and time: Place: _ ,2 at _

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You may be able to avoid this foreclosure sale if you contact your lender to see if you qualify for a loan modification or some other type of foreclosure avoidance measure. Your lender has attempted to contact you to discuss these options, but either has not been successful in reaching you or has not been able to determine if you qualify for one of these options. Please call the number below or write to your lender at the address below to see if you qualify for one of these options.

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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 payoff sale. 3. You can call write (name) at (name) at (telephone number) or (address) to find out if [your lender Your lender the loan in full anytime before the

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is willing to give you more time or change the terms of your loan.] you can
get more time or qualify for a change in your loan terms. may also be willing to take the property back from you in exchange for releasing you from any further payments on your loan. 4. You can sell your home, provided the sale price is enough to pay what you owe. Your lender might be willing to allow you to sell your' property for an amount that is less than what you owe (called a 'short sale'). There are government information telephone Bar's agencies and nonprofit organizations that can give you

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about foreclosure and help you decide what to do. For the name near you, please call the statewide . You may also wish to talk to a at or toll-free in Oregon at contact number Referral at

and telephone number of an organization

lawyer. If you need help finding a lawyer, you may call the Oregon State Lawyer Service or you may visit its website at: may be available lines. For more information and a directory . Legal assistance of legal aid programs, go to

if you have a low income and meet federal poverty guide-

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WARNING: You may get offers from people who tell you they can help you

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keep your property. you understand

You should be careful about those offers.

Make sure

any papers you are asked to sign. If you have any questions, mentioned above before signing.

talk to a lawyer or one of the organizations DATED: , 2,__ (print) _ _

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Trustee name: -Trustee signature: Trustee telephone number:

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"
"(2) If a lender has already determined that the borrower does not qualify for a foreclosure avoidance measure, the sender of a notice of sale under DRS 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 (3) of this section, the notice must be in substantially the form below and printed in at least 14-point type:

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"
NOTICE: YOU ARE IN DANGER OF LOSING YOUR PROPERTY IF YOU DO NOT TAKE ACTION IMMEDIATELY This notice about your mortgage loan on your property at

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(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

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some other obligation to your lender. This is 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

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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: _

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THIS IS WHEN AND WHERE YOUR PROPERTY WILL BE SOLD IF YOU DO NOT TAKE ACTION: Date and time: Place: _ ,2 at _

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Your lender has already determined ification or other foreclosure

that you do not qualify for a loan modsuch as a 'short sale' or change

avoidance measure,

deed in lieu of foreclosure. However, if your financial circumstances you owe, you should immediately

or a new person offers to buy your property for an amount less than what contact your lender at the number or address below to see if you now qualify for one of these options. THIS IS WHAT YOU CAN DO TO STOP THE SALE:

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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 payoff the loan in full anytime before the sale. 3. If your financial circumstances at (telephone change, you can call or write (name) (name) at number)

(address) to find out if you can get more time or qualify for a change in your loan terms. 4. You can sell your home, provided the sale price is enough to pay what you owe. There are government agencies and nonprofit organizations information and telephone number of an organization telephone contact number at Bar's Lawyer Referral Service at that can give you

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about foreclosure and help you decide what to do. For the name near you, please call the statewide . You may also wish to talk to a or toll-free in Oregon at

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lawyer. If you need help finding a lawyer, you may call the Oregon State or you may visit its website at: lines. For more information and a directory . Legal assistance of legal aid programs, go to

may be available if you have a low income and meet federal poverty guide-

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WARNING: You may get offers from people who tell you they can help you keep your property. you understand You should be careful about those offers. mentioned Make sure any papers you are asked to sign. If you have any questions, above before signing.

talk to a lawyer or one of the organizations DATED: , 2__

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SB 1552-A5 2/20/12 Proposed Amendments to A-Eng. SB 1552

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Trustee name: Trustee signature:

~

(print) _ _

Trustee telephone number: "
"[(2)] (3) The Department

of Consumer and Business Services may adopt of
(1)] subsections

rules prescribing of this section.

the format, font size and other physical characteristics The department

the notice [form] forms set forth in [subsection

(1) and (2)

shall adopt rules specifying the resource

telephone contact numbers and website addresses the sender is to insert in completing the notice. "[(3)] (4) When filling blanks
[subsection
(1)]

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in the notice [form]

forms set forth in

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subsections

(1) and (2) 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:

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"CA) A telephone number that will allow the grantor access during regular business repayment hours to details regarding the grantor's loan delinquency and information; and number that will allow the grantor access during reguconsultation with an individual aupayment and loan term hours to person-to-person and modification options.

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"(E) A telephone lar business negotiation

thorized by the beneficiary to discuss the grantor's

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"[(4)] (5) Telephone numbers described in subsection [(3)] (4) of this section must be toll-free numbers unless the beneficiary: "(a) Made the loan with the beneficiary's
"(b)

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own money; and

Made the loan for the beneficiary's own investment;

"(c) Is not in the business of making loans secured by an interest in real

SB 1552-A5 2120112 Proposed Amendments to A-Eng. SB 1552

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estate. "[(5)] (6) If the sender giving notice under [subsection (1)] subsection (1) or (2) of this section has actual knowledge that the grantor cup ant of the residential turn receipt requested. "SECTION 6. DRS 86.780 is amended to read: deed is recorded in the deed rerequired "86.780. (1)(a) [When the] If a trustee's situated, the recitals contained is not the oc-

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real property, the sender shall also give notice to

the occupant of the property by both first class and certified mail with re-

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cords of the county or counties where the property described in the deed is in the deed and in the affidavits under DRS 86.750 (3) and (4) [shall bel are prima facie evidence in any court of the truth of the matters
[shall

set forth [therein] in the recitals, but the recitals for value in good faith [re(a) of this

bel are conclusive in favor of a purchaser

lying upon them] that relies on the recitals. "(b) A trustee's deed recorded as provided in paragraph

subsection is prima facie evidence in any court that all assignments of the trust deed that are required to be recorded under ORS 86.735are recorded, but the recording is conclusive in favor of a purchaser for

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value in good faith that relies on the recording of the trustee's deed. "(2) A trustee's sale that forecloses a trust deed in which a nominee is designated and that is completed before the effective date of this 2012 Act is not void or voidable by reason of a failure to record an assignment of the trust deed in conjunction with or in relation to designating a nominee. "(3) An instrument the instrument that a beneficiary executes is prima facie evito execute is conclu-

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dence in any court that the beneficiary has authorization obligation that the trust deed secures, but the instrument instrument.

from the person that owns or holds the debt or other

sive in favor of a purchaser for value in good faith that relies on the

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"SECTION 7. ORS 646.605 is amended to read:
"646.605. As used in ORS 646.605 to 646.652:
"(1) 'Appropriate

court' means the circuit court of a county: maintain a principal place of

"(a) Where one or more of the defendants reside; "(b) Where one or more of the defendants business; "(c) Where one or more of the defendants "(d) With the defendant's tains an office. "(2) 'Documentary photograph, material' means the original or a copy of any book, paper, communication, tabulation, map, chart, or other tangible document or recordrecord, report, memorandum, ing, wherever situate. "(3) 'Examination' knowledgment "(4) 'Person' incorporated United States. "(5) 'Prosecuting attorney attorney' means the Attorney General or the district of any county in which a violation of ORS 646.605 to 646.652 is algoods or services' means those that are or may be of documentary material shall include inspection, study and taking testimony persons, corporations, associations authority under oath or acor copy thereof. partnerships, or copying of any such material, means natural are alleged to have committed attorney mainan act prohibited by ORS 646.605 to 646.652; or consent, where the prosecuting

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mechanical transcription,

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in respect of any such documentary material or unincorporated

trusts,

and any other legal entity exof this state or the

cept bodies or officers acting under statutory

leged to have occurred. "(6)(a) 'Real estate, obtained primarily for personal, family or household purposes, or that are of credit, and] franchises, distributorships but does not include loans and

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or may be obtained for any purposes as a result of a telephone solicitation, and includes [loans and extensions and other similar business extensions of credit or insurance. opportunities,

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"(b) Notwithstanding
"[(AJ]

paragraph

(a) of this subsection,[:] 90

'real estate'

does not cover conduct covered by ORS chapter

except as provided in section 2, chapter 658, Oregon Laws 2003.

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"[(BJ 'Loans and extensions of credit' does not include transactions inooluing a paumbroker,
"(7) 'Telephone

as defined in ORS 726.010, that is required to be licensed
solicitation' means a solicitation where a person, in the uses a telephone contact or

under ORS chapter 726.]
course of the person's business, an automatic a potential dialing-announcing vocation or occupation, device to initiate

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telephonic

with

customer and the person is not one of the following: or salesperson licensed under ORS to ORS to 696,

"(a) A person who is a broker-dealer when the solicitation 59.055. "(b) A real estate engage in professional when the solicitation is for a security

59.175, or a mortgage banker or mortgage broker licensed under ORS B6A106 qualified for sale pursuant

licensee or a person who is otherwise real estate activity pursuant

authorized

to ORS chapter

involves professional

real estate activity. as a builder pursuant to alteration, as an in-

"(c) A person licensed or exempt from licensure repair, improvement insurance or demolition of a structure. authorized

ORS chapter 701, when the solicitation involves the construction, "(d) A person licensed or otherwise producer pursuant volves insurance. "(e) A person soliciting the sale of a newspaper magazine or membership in a book or record club.
"(D A person soliciting without

to sell insurance

to ORS chapter 744, when the solicitation

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of general circulation,

a

in a book or record club who complies with ORS

646.611, when the solicitation involves newspapers, magazines or membership the intent during to complete and who does not solicitation and who

complete the sales presentation

the telephone

only completes the sales presentation

at a later face-to-face meeting between

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the solicitor and the prospective purchaser. "(g) A supervised financial institution or parent, subsidiary or affiliate means thereof. As used in this paragraph, any financial institution 'supervised financial institution'

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or trust company, as those terms are defined in ORS that is subject to regulation by an official or or precon-

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706.008, or any personal property broker, consumer finance lender, comrnercial finance lender or insurer agency of this state or of the United States. "(h) A person who is authorized solicitation plans.
"(i) A person

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to conduct prearrangement or preconstruction

struction funeral or cemetery sales, pursuant involves prearrangement

to ORS chapter 692, when the funeral or cemetery

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who solicits the services provided by a cable television pursuant to state, local or federal law, when is regulated by the

system licensed or franchised the solicitation

involves cable television services.

"(j) A person or affiliate of a person whose business

Public Utility Commission of Oregon. "(k) A person who sells farm products as defined by ORS 576.006 if the solicitation neither intends to nor actually results in a sale that costs the

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purchaser in excess of $100.
"(L) An issuer or subsidiary of an issuer that has a class of securities that

is subject to section 12 of the Securities Exchange Act of 1934 and that is either registered or exempt from registration under paragraph
(A), (B), (e),

(E), (F), (G) or (H) or subsection (g) of that section. "(m) A person soliciting exclusively the sale of telephone answering services to be provided by that person or that person's employer when the solicitation involves answering telephone services. utility with access lines of 15,000 or less or a when the solicitation involves regulated "(n) A telecommunications cooperative goods or services.
"(8)

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association

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'Trade'

and 'commerce' mean advertising,

offering or distributing,

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whether by sale, rental or otherwise, any real estate, goods or services, and include any trade or commerce directly or indirectly this state. "(9) 'Unconscionable which a person: "(a) Knowingly takes advantage of a customer's physical infirmity, ignoranee, illiteracy or inability to understand the language of the agreement; from which tactics' include, but are not limited to, actions by affecting the people of

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"(b) Knowingly permits a customer to enter into a transaction the customer will derive no material benefit; "(c) Permits a customer to enter into a transaction

with knowledge that financial ob-

there is no reasonable

probability of payment of the attendant

ligation in full by the customer when due; or "(d) Knowingly takes advantage of a disabled veteran, of a customer who is a disabled veteran, or servicemember in active a disabled servicemember or a servicemember in active service, or the spouse disabled servicemember service. For purposes of this paragraph: "(A) 'Disabled veteran' has the meaning given that term in DRS 408.225. "(B) 'Disabled servicemember' ability compensation means a servicemember, as defined in 50 U.S.C. App. 511 as in effect on January ment of Veterans Affairs. "(C) 'Servicemember in active service' means: 1, 2010; or 1, 2010, who may be entitled to disby the United States Depart-

under laws administered

"(D A servicemember called into active service under Title 10 or Title 32
of the United States Code as in effect on January "(ii) A servicemember on active state duty, as defined in DRS 398.002. "(10) A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation. "(11) A loan is made 'in close connection with the sale of a manufactured dwelling' if: "(a) The lender directly or indirectly controls, is controlled by or is under

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common control with the seller, unless the relationship a factor in the transaction; "(b) The lender gives a commission, rebate seller who refers

is remote and is not

or credit in any form to a of the

the borrower to the lender, other than payment

proceeds of the loan jointly to the seller and the borrower; "(c) The lender is related to the seller by blood or marriage; "(d) The seller directly and materially the loan; "(e) The seller prepares documents that are given to the lender and used to the seller used by the borrower in in connection with the loan; or
"(f) The lender supplies documents

assists the borrower in obtaining

obtaining

the loan.

"SECTION 8. ORS 646.605, as amended by section 12, chapter 658, Oregon
Laws 2003, section 199, chapter 71, Oregon Laws 2007, section 32, chapter 319, Oregon Laws 2007, section 2, chapter 215, Oregon Laws 2009, and section 2, chapter 94, Oregon Laws 2010, is amended to read: "646.605. As used in ORS 646.605 to 646.652: "(1) 'Appropriate court' means the circuit court of a county: reside; maintain a principal place of "(a) Where one or more of the defendants "(b) Where one or more of the defendants business; "(c) Where one or more of the defendants "(d) With the defendant's tains an office. "(2) 'Documentary photograph, material' means the original or a copy of any book, paper, communication, tabulation, map, chart, or other tangible document or recordmaterial shall include inspection, study record, report, memorandum, mechanical are alleged to have committed attorney mainan act prohibited by ORS 646.605 to 646.652; or consent, where the prosecuting

transcription,

ing, wherever situate. "(3) 'Examination' of documentary

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or copying of any such material, knowledgment "(4) 'Person' incorporated United States. "(5) 'Prosecuting attorney attorney' means natural

and taking testimony corporations, authority

under oath or acor copy thereof. partnerships, ex-

in respect of any such documentary persons, or unincorporated associations

material

trusts,

and any other legal entity

cept bodies or officers acting under statutory

of this state or the or the district

means the Attorney

General

of any county in which a violation of ORS 646.605 to 646.652 is al~ goods or services' means those that are or may be family or household purposes, or that are

leged to have occurred. "(6)(a) 'Real estate, obtained primarily for personal,

or may be obtained for any purposes as a result of a telephone solicitation, and includes [loans and extensions of credit, and] franchises, distributorships and other similar business "(b) Notwithstanding
"[(AJ] 'real estate' "[(B)

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opportunities,

but does not include loans and

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extensions of credit or insurance. paragraph (a) of this subsection,[:] does not cover conduct covered by ORS chapter 90.

'Loans and extensions of credit' does not include transactions inuolu-

ing a pawnbroker, as defined in DRS 726.010, that is required to be licensed under DRS chapter 726.]
"(7) 'Telephone an automatic solicitation' means a solicitation where a person, in the device to initiate telephonic contact with course of the person's business, vocation or occupation, uses a telephone or dialing-announcing

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a potential customer and the person is not one of the following: "(a) A person who is a broker-dealer when the solicitation 59.055. "(b) A real estate engage in professional licensee or a person who is otherwise real estate activity pursuant authorized to 696, or salesperson licensed under ORS to ORS 59.175, or a mortgage banker or mortgage broker licensed under ORS 86A.106 is for a security qualified for sale pursuant

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to ORS chapter

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when the solicitation involves professional real estate activity. "(c) A person licensed or exempt from licensure as a builder pursuant DRS chapter 701, when the solicitation involves the construction, repair, improvement insurance or demolition of a structure. authorized to sell insurance as an to DRS chapter 744, when the solicitation mof general circulation, a "(d) A person licensed or otherwise producer pursuant volves insurance. "(e) A person soliciting the sale of a newspaper magazine or membership in a book or record club. in a book or record club who complies with DRS to alteration,

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646.611, when the solicitation involves newspapers, magazines or membership

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"(0 A person soliciting without the intent to complete and who does not
complete the sales presentation during the telephone solicitation and who only completes the sales presentation "(g) A supervised financial at a later face-to-face meeting between or parent, subsidiary or affiliate means

the solicitor and the prospective purchaser. institution thereof. As used in this paragraph, any financial institution 'supervised financial institution'

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or trust company, as those terms are defined in DRS that is subject to regulation by an official or or precon-

706.008, or any personal property broker, consumer finance lender, cornmercial finance lender or insurer agency of this state or of the United States. "(h) A person who is authorized solicitation plans.
"(i)

to conduct prearrangement or preconstruction

struction funeral or cemetery sales, pursuant involves prearrangement

to DRS chapter 692, when the funeral or cemetery

A person

who solicits the services provided by a cable television pursuant to state, local or federal law, when by the involves cable television services.

system licensed or franchised the solicitation

"(j) A person or affiliate of a person whose business is regulated Public Utility Commission of Oregon.

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"(k) A person who sells farm products as defined by ORS 576.006 if the solicitation neither intends to nor actually results in a sale that costs the

purchaser in excess of $100. "(L) An issuer or subsidiary of an issuer that has a class of securities that subject to section 12 of the Securities Exchange Act of 1934 and that is under paragraph (A), (E), (e), either registered or exempt from registration

(E), (F), (G) or (H) or subsection (g) of that section. "(m) A person soliciting exclusively the sale of telephone answering licitation involves answering telephone services. utility with access lines of 15,000 or less or a when the solicitation involves regulated services to be provided by that person or that person's employer when the so"(n) A telecommunications cooperative goods or services.
"(8)

s
lO

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association

'Trade'

and 'commerce'

mean advertising,

offering or distributing, affecting the people of

whether by sale, rental or otherwise, any real estate, goods or services, and include any trade or commerce directly or indirectly this state. "(9) 'Unconscionable which a person: "(a) Knowingly takes advantage of a customer's physical infirmity, ignotactics' include, but are not limited to, actions by

ranee, illiteracy or inability to understand

the language of the agreement; from which

"(b) Knowingly permits a customer to enter into a transaction the customer will derive no material benefit; "(c) Permits a customer to enter into a transaction

with knowledge that financial ob-

there is no reasonable

probability of payment of the attendant

ligation in full by the customer when due; or "(d) Knowingly takes advantage of a disabled veteran, disabled of a customer who is a disabled veteran, or servicemember in active a disabled service member or a servicemember in active service, or the spouse servicemember service. For purposes of this paragraph:

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"(A) 'Disabled veteran' has the meaning given that term in ORS 408.225. "(E) 'Disabled servicemember' ability compensation means a servicemember, as defined in 50 U.S.C. App. 511 as in effect on January ment of Veterans Affairs, "(C) 'Servicemember in active service' means: called into active service under Title 10 or Title 32 1, 2010; or 1, 2010, who may be entitled to disby the United States Depart-

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4

under laws administered

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"(0 A servicemember

of the United States Code as in effect on January

"(ii) A servicemember on active state duty, as defined in ORS 398.002. "(10) A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation. "(11) A loan is made 'in close connection with the sale of a manufactured dwelling' if: "(a) The lender directly or indirectly controls, is controlled by or is under common control with the seller, unless the relationship a factor in the transaction; "(b) The lender gives a commission, rebate or credit in any form to a of the seller who refers the borrower to the lender, other than payment proceeds of the loan jointly to the seller and the borrower; "(c) The lender is related to the seller by blood or marriage; "(d) The seller directly and materially the loan; "(e) The seller prepares documents that are given to the lender and used in connection with the loan; or "(0 The lender supplies documents to the seller used by the borrower in obtaining the loan. assists the borrower in obtaining is remote and is not

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28

"SECTION 9. ORS 646.618 is amended to read:
"646.618. (1) [Except as provided in ORS 646.633,] When it appears to the prosecuting attorney that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by ORS 646.607 or

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646.608, the prosecuting attorney may execute in writing and cause to be served an investigative demand upon any person who is believed to have in-

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22

formation, documentary material or physical evidence relevant to the alleged or suspected violation. The investigative under oath or otherwise, to appear relevant interrogatories, or to produce demand shall require such person, and testify, to answer written documentary material or physical

evidence for examination, in the investigative gation.

at such reasonable time and place as may be stated of the investide-

demand, or to do any of the foregoing, concerning con-

duct of any trade or commerce which is the subject matter "(2) At any time before the return

date specified in an investigative

mand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause including privileged material, may be filed in the appropriate court. in DRS 646.633,] A prosecuting attorney

"SECTION 10. ORS 646.632 is amended to read:
"646.632. (1) [Except as provided who has probable cause to believe that a person is engaging in, has engaged in, or is about to engage in an unlawful trade practice may bring suit in the name of the State of Oregon in the appropriate court to restrain such person from engaging in the alleged unlawful trade practice. "(2) Except as provided in subsections (5) and (6) of this section, before filing a suit under subsection shall in writing practice manner
(1) of this section, the prosecuting

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attorney trade

notify the person charged

of the alleged unlawful

and the relief to be sought.

Such notice shall be served in the demands. compli-

set forth in DRS 646.622 for the service of investigative attorney an assurance of voluntary

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The person charged thereupon and deliver to the prosecuting

shall have 10 days within which to execute

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ance. Such assurance shall set forth what actions, if any, the person charged intends to take with respect to the alleged unlawful trade practice. The as-

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surance of voluntary assurance

compliance shall not be considered an admission of a attorney is satisfied with the to an appropriate be filed with the clerk or otherwise, and if the compliance, it may be submitted

violation for any purpose. If the prosecuting of voluntary court for approval

and if approved shall thereafter

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of the court. If an approved assurance

of voluntary compliance provides for

the payment of an amount of money, as restitution

amount is not paid within 90 days of the date the court approves the assurance, or, if the assurance of voluntary compliance requires periodic payments and if any periodic payment is not paid within 30 days of the date specified in the assurance of voluntary compliance for any periodic payment, then the of voluntary of money to the court with a prosecuting attorney may submit that portion of the assurance compliance which provides for the payment certificate stating the requirements of voluntary

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the unpaid balance in a form which fully complies with of ORS 18.038 and 18.042. Upon submission of an assurance

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compliance under this subsection, the court shall sign the as-

surance of voluntary compliance and it shall be entered in the register of the court and the clerk of the court shall note in the register that it creates a lien. The assurance judgment in ORS chapter of voluntary compliance shall thereupon constitute a in favor of the State of Oregon and may be enforced as provided 18. The notice of the prosecuting attorney under this subof 10 days

section shall not be deemed a public record until the expiration from the service of the notice.
"(3) The prosecuting

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attorney may reject as unsatisfactory

any assurance: in specific

"(a) Which does not contain amounts or or through arbitration

a promise to make restitution

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30

for persons who suffered any ascertainable

loss of money or property as a result of the alleged unlawful trade practice; "(b) Which does not contain any provision, including but not limited to the keeping of records, which the prosecuting to be necessary to ensure the continued attorney reasonably believes cessation of the alleged unlawful

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trade practice, if such provision was included in a proposed assurance tached to the notice served pursuant to this section.

at-

"(4) Violation of any of the terms of an assurance of voluntary compliance which has been approved by and filed with the court shall constitute tempt of court. "(5) The prosecuting attorney need not serve notice pursuant to suba con-

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11

section (2) of this section before filing a suit if, within two years of the filing of such suit, the person charged with the alleged unfair trade practice submitted to any prosecuting attorney an assurance of voluntary compliance which was accepted by and filed with an appropriate forth in ORS 646.622 for the service of investigative or earlier day previous to the filing of suit. "(6) If the prosecuting attorney alleges that the prosecuting attorney has court. The prosecuting demands, on the 10th

attorney shall in such case serve notice on the defendant in the manner set

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reason to believe that the delay caused by complying with the provisions of subsection (2) or (5) of this section would cause immediate harm to the public health, safety or welfare, the prosecuting attorney may immediately institute a suit under subsection (1) of this section. "(7) A temporary restraining order may be granted without prior notice harm to the order shall to the person if the court finds there is a threat public health, of immediate restraining

safety or welfare. Such a temporary

expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the person restrained that it may be extended for a longer period.
"(8)

consents

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The court may award reasonable attorney fees to the prevailing party

in an action under this section. If the defendant prevails in such suit and the court finds that the defendant had in good faith submitted to the prosecuting attorney a satisfactory assurance of voluntary compliance prior to the institution of the suit or that the prosecuting attorney, in a suit brought under

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subsections (5) and (6) of this section, did not have reasonable fees at trial and on appeal to the defendant. "SECTION 11. ORS 646.633 is repealed.

grounds to attorney

proceed under those subsections, the court shall award reasonable

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"SECTION 12. The amendments to ORS 86.735 and 86.780 by sections 4 and 6 of this 2012 Act apply to trust deeds that are executed before, on or after the effective date of this 2012 Act. "SECTION 13. The amendments 2012 Act apply to trustee's
July 1, 2012.

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to ORS 86.737 by section 5 of this

sales for which a notice was sent on or after for the immediate

"SECTION 14. This 2012 Act being necessary preservation

of the public peace, health and safety, an emergency is

declared to exist, and this 2012 Act takes effect on its passage.".

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