Bill Text: OR SB519 | 2011 | Regular Session | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to sales of property subject to foreclosure.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-08-03 - Effective date, January 1, 2012. [SB519 Detail]
Download: Oregon-2011-SB519-Engrossed.html
Bill Title: Relating to sales of property subject to foreclosure.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-08-03 - Effective date, January 1, 2012. [SB519 Detail]
Download: Oregon-2011-SB519-Engrossed.html
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 1757
A-Engrossed
Senate Bill 519
Ordered by the Senate April 18
Including Senate Amendments dated April 18
Sponsored by Senator DINGFELDER; Senator BONAMICI, Representative
FREDERICK (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.
Provides that if property that is subject to trustee's sale or
judgment of foreclosure and sale is also subject to affordable
housing covenant, { - or if public body holds interest in
property that is junior to interest that beneficiary in trust
deed or plaintiff in foreclosure suit holds, - } sale is subject
to right of eligible covenant holder { - or public body - } to
purchase property for total sum of obligations secured by trust
deed or mortgage on property or highest bid received for the
property other than bid from eligible covenant holder { - or
public body - } .
Requires notice of sale and judgment of foreclosure and sale to
give notice as to rights of eligible covenant holders { - or
public bodies - } .
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to sales of property subject to foreclosure; creating
new provisions; amending ORS 86.705, 86.745, 86.750, 86.755,
130.005 and 456.280; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.705 is amended to read:
86.705. As used in ORS 86.705 to 86.795 { - , unless the
context requires otherwise - } :
{ + (1) 'Affordable housing covenant' has the meaning given
that term in ORS 456.270. + }
{ - (1) - } { + (2) + } 'Beneficiary' means { - the - }
{ + a + } person named or otherwise designated in a trust deed
as the person for whose benefit a trust deed is given, or the
person's successor in interest, and who { - shall not be - }
{ + is not + } the trustee unless the beneficiary is qualified
to be a trustee under ORS 86.790 (1)(d).
{ + (3) 'Eligible covenant holder' has the meaning given that
term in ORS 456.270. + }
{ - (2) - } { + (4) + } 'Grantor' means the person
{ - conveying - } { + that conveys + } an interest in real
property by a trust deed as security for the performance of an
obligation.
{ - (3) - } { + (5) + } 'Residential trust deed' means a
trust deed on property upon which are situated four or fewer
residential units { + , + }
{ - and - } one of { + which + } { - the residential units
is occupied as the principal residence of - } the grantor, the
grantor's spouse or the grantor's minor or dependent child { +
occupies as a principal residence + } at the time a trust deed
foreclosure is commenced.
{ - (4) - } { + (6) + } 'Residential unit' means an
improvement designed for residential use.
{ - (5) - } { + (7) + } 'Trust deed' means a deed executed
in conformity with ORS 86.705 to 86.795 { - , and conveying - }
{ + that conveys + } an interest in real property to a trustee
in trust to secure the performance of an obligation { - owed
by - } the grantor or other person named in the deed { +
owes + } to a beneficiary.
{ - (6) - } { + (8) + } 'Trustee' means a person, other
than the beneficiary, to whom { - an interest in real property
is conveyed by - } a trust deed { + conveys an interest in real
property + }, or { - such - } { + the + } person's successor
in interest { - . The term includes a person who is - } { + ,
or + } an employee of the beneficiary, if the { - person - }
{ + employee + } is qualified to be a trustee under ORS 86.790.
SECTION 2. ORS 86.745, as amended by sections 1 and 2, chapter
28, Oregon Laws 2010, is amended to read:
86.745. The notice of sale { - shall - } { + required under
ORS 86.740 must + }:
(1) List the names of the grantor, trustee and beneficiary in
the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed covers.
(3) Identify the book and page of the mortgage records that
record the trust deed.
(4) State the default for which the foreclosure is made.
(5) State the sum owing on the obligation that the trust deed
secures.
(6) State that the property will be sold to satisfy the
obligation.
(7) Set forth the date, time and place of the sale.
(8) State that the right exists under ORS 86.753 to have the
proceeding dismissed and the trust deed reinstated by paying the
entire amount then due, together with costs, trustee's fees and
attorney fees, and by curing any other default complained of in
the notice of default, at any time that is not later than five
days before the date last set for the sale.
{ + (9) If the property is subject to an affordable housing
covenant, state that the sale is subject to the right of an
eligible covenant holder to purchase the property as provided in
ORS 86.755 (1)(b). + }
{ - (9) - } { + (10) + } If the property includes one or
more dwelling units, as defined in ORS 90.100, include a notice
addressed clearly to any person who occupies the property and who
is or might be a residential tenant. The notice required under
this subsection must:
(a) Include contact information for the Oregon State Bar and a
person or organization that provides legal help to individuals at
no charge to the individual;
(b) Include information concerning the right the person has to
notice under ORS 86.755 (5)(c) and state that the person may have
additional rights under federal law;
(c) Be set apart from other text in the notice of sale; and
(d) Be in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS
The property in which you are living is in foreclosure. A
foreclosure sale is scheduled for ________. Unless the lender who
is foreclosing on this property is paid, the foreclosure will go
through and someone new will own this property.
The following information applies to you only if you occupy and
rent this property as a residential dwelling under a legitimate
rental agreement. The information does not apply to you if you
own this property or if you are not a residential tenant.
If the foreclosure goes through, the business or individual who
buys this property at the foreclosure sale has the right to
require you to move out. The buyer must first give you an
eviction notice in writing that specifies the date by which you
must move out. The buyer may not give you this notice until after
the foreclosure sale happens. If you do not leave before the
move-out date, the buyer can have the sheriff remove you from the
property after a court hearing. You will receive notice of the
court hearing.
FEDERAL LAW REQUIRES
YOU TO BE NOTIFIED
IF YOU ARE OCCUPYING AND RENTING THIS PROPERTY AS A RESIDENTIAL
DWELLING UNDER A LEGITIMATE RENTAL AGREEMENT, FEDERAL LAW
REQUIRES THE BUYER TO GIVE YOU NOTICE IN WRITING A CERTAIN NUMBER
OF DAYS BEFORE THE BUYER CAN REQUIRE YOU TO MOVE OUT. THE FEDERAL
LAW THAT REQUIRES THE BUYER TO GIVE YOU THIS NOTICE IS EFFECTIVE
UNTIL DECEMBER 31, 2012. Under federal law, the buyer must give
you at least 90 days' notice in writing before requiring you to
move out. If you are renting this property under a fixed-term
lease (for example, a six-month or one-year lease), you may stay
until the end of your lease term. If the buyer wants to move in
and use this property as the buyer's primary residence, the buyer
can give you written notice and require you to move out after 90
days, even if you have a fixed-term lease with more than 90 days
left.
STATE LAW NOTIFICATION REQUIREMENTS
IF THE FEDERAL LAW DOES NOT APPLY, STATE LAW STILL REQUIRES THE
BUYER TO GIVE YOU NOTICE IN WRITING BEFORE REQUIRING YOU TO MOVE
OUT IF YOU ARE OCCUPYING AND RENTING THE PROPERTY AS A TENANT IN
GOOD FAITH. EVEN IF THE FEDERAL LAW REQUIREMENT IS NO LONGER
EFFECTIVE AFTER DECEMBER 31, 2012, THE REQUIREMENT UNDER STATE
LAW STILL APPLIES TO YOUR SITUATION. Under state law, if you have
a fixed-term lease (for example, a six-month or one-year lease),
the buyer must give you at least 60 days' notice in writing
before requiring you to move out. If the buyer wants to move in
and use this property as the buyer's primary residence, the buyer
can give you written notice and require you to move out after 30
days, even if you have a fixed-term lease with more than 30 days
left.
If you are renting under a month-to-month or week-to-week
rental agreement, the buyer must give you at least 30 days'
notice in writing before requiring you to move out.
IMPORTANT: For the buyer to be required to give you notice
under state law, you must prove to the business or individual who
is handling the foreclosure sale that you are occupying and
renting this property as a residential dwelling under a
legitimate rental agreement. The name and address of the business
or individual who is handling the foreclosure sale is shown on
this notice under the heading 'TRUSTEE.' You must mail or deliver
your proof not later than ________ (30 days before the date first
set for the foreclosure sale). Your proof must be in writing and
should be a copy of your rental agreement or lease. If you do not
have a written rental agreement or lease, you can provide other
proof, such as receipts for rent you paid.
ABOUT YOUR SECURITY DEPOSIT
Under state law, you may apply your security deposit and any
rent you paid in advance against the current rent you owe your
landlord. To do this, you must notify your landlord in writing
that you want to subtract the amount of your security deposit or
prepaid rent from your rent payment. You may do this only for the
rent you owe your current landlord. If you do this, you must do
so before the foreclosure sale. The business or individual who
buys this property at the foreclosure sale is not responsible to
you for any deposit or prepaid rent you paid to your landlord.
ABOUT YOUR TENANCY
AFTER THE FORECLOSURE SALE
The business or individual who buys this property at the
foreclosure sale may be willing to allow you to stay as a tenant
instead of requiring you to move out. You should contact the
buyer to discuss that possibility if you would like to stay.
Under state law, if the buyer accepts rent from you, signs a new
residential rental agreement with you or does not notify you in
writing within 30 days after the date of the foreclosure sale
that you must move out, the buyer becomes your new landlord and
must maintain the property. Otherwise, the buyer is not your
landlord and is not responsible for maintaining the property on
your behalf and you must move out by the date the buyer specifies
in a notice to you.
YOU SHOULD CONTINUE TO PAY RENT TO YOUR LANDLORD UNTIL THE
PROPERTY IS SOLD TO ANOTHER BUSINESS OR INDIVIDUAL OR UNTIL A
COURT OR A LENDER TELLS YOU OTHERWISE. IF YOU DO NOT PAY RENT,
YOU CAN BE EVICTED. AS EXPLAINED ABOVE, YOU MAY BE ABLE TO APPLY
A DEPOSIT YOU MADE OR PREPAID RENT YOU PAID AGAINST YOUR CURRENT
RENT OBLIGATION. BE SURE TO KEEP PROOF OF ANY PAYMENTS YOU MAKE
AND OF ANY NOTICE YOU GIVE OR RECEIVE CONCERNING THE APPLICATION
OF YOUR DEPOSIT OR YOUR PREPAID RENT.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
HOME WITHOUT FIRST GOING TO COURT TO EVICT YOU. FOR MORE
INFORMATION ABOUT YOUR RIGHTS, YOU MAY WISH TO CONSULT A LAWYER.
If you believe you need legal assistance, contact the Oregon
State Bar and ask for the lawyer referral service. Contact
information for the Oregon State Bar is included with this
notice. If you do not have enough money to pay a lawyer and are
otherwise eligible, you may be able to receive legal assistance
for free. Information about whom to contact for free legal
assistance is included with this notice.
_________________________________________________________________
SECTION 3. ORS 86.750, as amended by section 3, chapter 28,
Oregon Laws 2010, and section 2, 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
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) - }
{ + (10) + }.
(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
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),
chapter 864, Oregon Laws 2009.
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
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) - }
{ + (10) + }.
(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.
SECTION 5. ORS 86.755 is amended to read:
86.755. (1) { + (a) + } { - The - } { + A + } trustee shall
hold { - the - } { + a + } trustee's sale on the date and at
the time and place designated in the notice of sale { + given
under ORS 86.740 + }, which must be at a designated time after 9
a.m. and before 4 p.m., based on the standard of time set forth
in ORS 187.110 and at a designated place in the county or one of
the counties where the property is situated. { + Except as
provided in paragraph (b) of this subsection, + } the trustee may
sell the property in one parcel or in separate parcels and shall
sell the parcel or parcels at auction to the highest bidder for
cash. Any person, including the beneficiary under the trust deed,
but excluding the trustee, may bid at the trustee's sale.
{ - The - } { + An + } attorney for the trustee, or an agent
that the trustee or the attorney designates, may conduct the sale
and act in the sale as the trustee's auctioneer.
{ + (b) If the property subject to the trustee's sale is also
subject to an affordable housing covenant, the trustee shall sell
the property to an eligible covenant holder for a bid of the
lesser of:
(A) The total sum of obligations that is owed and due to a
person and is secured by a trust deed, mortgage or lien on the
property that is superior to the eligible covenant holder's
interest; or
(B) The highest bid received for the property other than a bid
from the eligible covenant holder. + }
(2) The trustee or the attorney for the trustee, or an agent
that the trustee or the attorney conducting the sale designates,
may postpone the sale for one or more periods { - totaling - }
{ + that total + } not more than 180 days from the original
sale date, giving notice of each adjournment by public
proclamation made at the time and place set for sale. The
trustee, the attorney or an agent that the trustee or the
attorney designates may make the proclamation.
(3) The purchaser shall pay at the time of sale the price bid
{ + or the price determined in accordance with subsection
(1)(b) of this section + }, and, within 10 days following
payment, the trustee shall execute and deliver the trustee's deed
to the purchaser.
(4) The trustee's deed shall convey to the purchaser the
interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed,
together with any interest the grantor or the grantor's
successors in interest acquire after the execution of the trust
deed.
(5)(a) The purchaser at the trustee's sale is entitled to
possession of the property on the 10th day after the sale. A
person that remains in possession after the 10th day under any
interest, except an interest prior to the trust deed { + , + } or
an interest the grantor or a successor of the grantor created
voluntarily { + , + } is a tenant at sufferance. The purchaser
may obtain possession of the property from a tenant at sufferance
by following the procedures set forth in ORS 105.105 to 105.168
or other applicable judicial procedure.
(b) Except as provided in paragraph (c) of this subsection, at
any time after the trustee's sale the purchaser may follow the
procedures set forth in ORS 105.105 to 105.168 or other
applicable judicial procedure to obtain possession of the
property from a person that holds possession under an interest
that the grantor or a successor of the grantor created
voluntarily if, not earlier than 30 days before the date first
set for the sale, the person was served with not less than 30
days' written notice of the requirement to surrender or deliver
possession of the property.
(c) If the property purchased at the trustee's sale is a
dwelling unit, as defined in ORS 90.100 (9), that the person
holds under a tenancy that the grantor or a successor of the
grantor created voluntarily and in good faith, the purchaser may
follow the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure to obtain possession if after
the sale the purchaser terminates the tenancy in a written notice
given to the person:
(A) At least 60 days before the termination date specified in
the notice, if the tenancy is a fixed term tenancy, as defined in
ORS 90.100, and at least 30 days before the date first set for
the trustee's sale the person provided the trustee with a copy of
the rental agreement that established the fixed term tenancy. The
provisions of this subparagraph do not apply to a purchaser that
does not intend to terminate a fixed term tenancy before the date
on which the fixed term tenancy ends.
(B) At least 30 days before the termination date specified in
the notice, if:
(i) The tenancy is a month-to-month tenancy or week-to-week
tenancy, as those terms are defined in ORS 90.100, and at least
30 days before the date first set for the trustee's sale the
person provided the trustee with a copy of the rental agreement
that established the tenancy or with other written evidence of
the existence of a rental agreement, if the person cannot provide
the rental agreement; or
(ii) The tenancy is a fixed term tenancy for which the person
has provided notice to the trustee as provided in subparagraph
(A) of this paragraph and the purchaser intends to occupy the
property that is subject to the fixed term tenancy as the
purchaser's primary residence.
(d) A purchaser may not commence a proceeding under ORS 105.105
to 105.168 that is authorized under this subsection before the
later of:
(A) The 10th day after the trustee's sale;
(B) The date specified in a written notice of the requirement
to surrender or deliver possession of the property if the notice
is required by and is given to the person in accordance with
paragraph (b) of this subsection;
(C) The date specified in a written notice of the purchaser's
intent to terminate a tenancy if the notice is required by and is
given to the person in accordance with paragraph (c) of this
subsection; or
(D) The date on which the term of a fixed term tenancy ends, if
the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
(e) For the purposes of this subsection:
(A) A month-to-month tenancy or a week-to-week tenancy that a
grantor or a successor of the grantor first created after a
notice of sale was served under ORS 86.750 is presumed not to be
a tenancy created in good faith.
(B) A fixed term tenancy that a grantor or a successor of the
grantor created after a notice of sale was served under ORS
86.750 is not a tenancy created in good faith.
(6) A purchaser shall serve a notice under subsection (5) of
this section by first class mail and not by certified or
registered mail or a form of mail that may delay or hinder actual
delivery of mail to the addressee. The notice is effective three
days after the notice is mailed.
(7)(a) Notwithstanding the provisions of subsection (5)(c) of
this section and except as provided in paragraph (b) of this
subsection, the purchaser is not a landlord subject to the
provisions of ORS chapter 90 unless the purchaser:
(A) Accepts rent from the person who possesses the property
under a tenancy described in subsection (5)(c) of this section;
(B) Enters into a new rental agreement with the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section; or
(C) Fails to terminate the tenancy as provided in subsection
(5)(c) of this section within 30 days after the date of the sale.
(b) The purchaser may act as a landlord for purposes of
terminating a tenancy in accordance with the provisions of ORS
90.396.
(8)(a) Except as provided in paragraph (b) of this subsection,
the purchaser is not liable to the person who possesses the
property under a tenancy described in subsection (5)(c) of this
section for:
(A) Damage to the property or diminution in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under the provisions of
subsection (7)(a) of this section is liable to the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section for:
(A) Damage to the property or diminution in rental value that
occurs after the date of the trustee's sale; or
(B) Returning a security deposit the person pays after the date
of the trustee's sale.
(9)(a) Notwithstanding subsection (2) of this section, except
when a beneficiary has participated in obtaining a stay,
foreclosure proceedings that are stayed by order of the court, by
proceedings in bankruptcy or for any other lawful reason shall,
after release from the stay, continue as if uninterrupted, if
within 30 days after release the trustee sends amended notice of
sale by registered or certified mail to the last-known address of
the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
(A) By registered or certified mail to:
(i) The address provided by each person who was present at the
time and place set for the sale that was stayed; and
(ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
(10) The amended notice of sale must:
(a) Be given at least 20 days { - prior to - } { +
before + } the amended date of sale;
(b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 are satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS 86.745; and
(e) State that the original sale proceedings were stayed and
the date the stay terminated.
(11) If the publication of the notice of sale was not completed
before the date the foreclosure proceedings were stayed by order
of the court, by proceedings in bankruptcy or for any other
lawful reason, after release from the stay, in addition to
complying with the provisions of subsections (9) and (10) of this
section, the trustee shall complete the publication by publishing
an amended notice of sale that states that the notice has been
amended following release from the stay and that contains the
amended date of sale. The amended notice must 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,
except that the required number of publications must be reduced
by the number of publications that were completed before the
effective date of the stay. The last publication must be made
more than 20 days before the date the trustee conducts the sale.
SECTION 6. ORS 130.005 is amended to read:
130.005. (1) Except as provided in subsection (2) of this
section, this chapter applies to express trusts, whether
charitable or noncharitable, and to trusts created pursuant to a
statute or a judgment that requires that the trust be
administered in the manner of an express trust.
(2) This chapter does not apply to:
(a) A trust that is part of an employee benefit arrangement or
an individual retirement account.
(b) A trust account established under a qualified tuition
savings program pursuant to ORS 348.841 to 348.873.
(c) Trust accounts maintained on behalf of clients or customers
by licensed service professionals, including trust accounts
maintained by attorneys pursuant to rules of professional conduct
adopted under ORS 9.490 and by real estate brokers pursuant to
ORS 696.241.
(d) An endowment care fund established by a cemetery authority
pursuant to ORS 97.810.
(e) Funds maintained by { + a + } public { - bodies - }
{ + body, + } as defined
{ - by - } { + in + } ORS 174.109 { + , + } or other
governmental entities.
(f) Trust funds held for a single business transaction or an
escrow arrangement.
(g) Trusts created by a depository agreement with a financial
institution.
(h) Trusts created by an account agreement with a regulated
financial services entity.
(i) An account maintained under the Oregon Uniform Transfers to
Minors Act as set forth in ORS 126.805 to 126.886.
(j) A fund maintained pursuant to court order in conjunction
with a bankruptcy proceeding or business liquidation.
(k) A business trust as described in ORS 128.560.
(L) A voting trust as described in ORS 60.254.
(m) Funds maintained to manage proceeds from class actions.
(n) A trust deed as defined in ORS 86.705 { - (5) - } or any
other trust created solely to secure the performance of an
obligation.
(o) A trust established on behalf of a resident of a
residential facility under ORS 443.880.
(p) A trust managed by a nonprofit association for persons with
disabilities under 42 U.S.C. 1396p(d)(4)(C), as in effect on
January 1, 2006, and under the rules of the Department of Human
Services.
(q) A resulting or constructive trust.
(r) A trust fund established for a purchaser who enters into a
prearrangement sales contract, as defined in ORS 97.923, or a
preconstruction sales contract, as defined in ORS 97.923.
SECTION 7. ORS 456.280 is amended to read:
456.280. (1) A person may create an affordable housing covenant
as a condition of giving or receiving a subsidy during ownership
or upon { - conveyance of - } { + conveying + } real
property, in the form of a covenant, servitude, easement,
condition or restriction in a deed, declaration, land sale
contract, trust deed, mortgage, security agreement, assignment,
will, trust, rental agreement, lease or other written instrument
that is:
(a) Executed by the owner of the real property and the covenant
holder; and
(b) Recorded in the deed and mortgage records of the county in
which the real property is located.
(2) The affordable housing covenant creates a real property
right in an eligible covenant holder to:
(a) Limit the use of real property to occupancy by low or
moderate income households in rental or owner-occupied housing;
(b) Restrict the rental rate or sale price of real property to
ensure affordability by future low and moderate income
households; { - or - }
(c) Limit, restrict or condition the use and enjoyment of real
property to create or retain rental or owner-occupied affordable
housing for occupancy by low or moderate income households
{ - . - } { + ; or
(d) Enforce a right of first refusal or an option to purchase
real property in a trustee's sale under terms set forth in ORS
86.755. + }
(3) The affordable housing covenant may be conveyed, assigned,
modified or terminated by a written instrument recorded in the
deed and mortgage records of the county in which the real
property is located. The affordable housing covenant may be:
(a) Conveyed or assigned by a written instrument executed by
the conveying or assigning covenant holder and the accepting
covenant holder;
(b) Modified by a written instrument executed by the covenant
holder and the owner of the real property; or
(c) Terminated by a written instrument executed by the covenant
holder and a third party with the right to enforce the covenant.
(4) An affordable housing covenant is not invalid because a
holder of the covenant is not an eligible covenant holder. A
covenant holder who is not an eligible covenant holder may not
modify, terminate or commence an action to enforce the covenant.
However, the covenant holder may convey or assign the covenant to
an eligible covenant holder who may modify or terminate the
covenant or commence an action to enforce the covenant.
(5) An affordable housing covenant is unlimited in duration
unless:
(a) The instrument creating the covenant provides otherwise;
(b) The duration of the covenant is modified { - prior to the
expiration of its - } { + before the + } stated term { + of
the covenant expires + }; or
(c) The covenant is terminated.
(6) Upon termination of an affordable housing covenant for any
reason { - prior to the expiration of its - } { + before
the + } stated term { + of the covenant expires + }, the
covenant holder is entitled to receive the difference between the
fair market value of the real property immediately before
termination and the fair market value of the real property
immediately after termination.
(7) { + An affordable housing covenant does not impair + }an
interest in real property { - in existence when an - } { +
that exists at the time the + } affordable housing covenant is
created { - is not impaired by the affordable housing
covenant - } unless the owner of the interest is a party to the
affordable housing covenant, subordinates the interest to the
affordable housing covenant or otherwise agrees to be bound by
the affordable housing covenant.
(8) { - The - } { + An + } instrument { - creating - }
{ + that creates + } an affordable housing covenant may grant
the eligible covenant holder, or a designee of the eligible
covenant holder, a right to enter the real property to ensure
compliance with the covenant and, if the right is granted, the
instrument shall designate the time and manner in which the
eligible covenant holder or designee may enter the real property.
(9) An affordable housing covenant holder may assign a
third-party right of enforcement, by a written instrument
executed by the covenant holder and recorded in the deed and
mortgage records of the county in which the real property is
located, to a person that qualifies { - to be - } { + as + }
an eligible covenant holder but that is not the holder of that
covenant.
(10) An affordable housing covenant is automatically terminated
if:
(a) The only holder of the covenant is a corporation, as
defined in ORS 65.001, that is dissolved without conveying or
assigning the covenant; and
(b) No person is entitled to exercise a third-party right of
enforcement pursuant to subsection (9) of this section.
SECTION 8. { + (1) The amendments to ORS 86.705, 86.745,
86.750 and 86.755 by sections 1 to 5 of this 2011 Act apply to
notices of trustee's sales that are sent on or after the
effective date of this 2011 Act and to trustee's sales that occur
on or after the effective date of this 2011 Act.
(2) The amendments to ORS 456.280 by section 7 of this 2011 Act
apply to affordable housing covenants that are created on or
after the effective date of this 2011 Act. + }
SECTION 9. { + 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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