ORS 86.815
Time within which foreclosure must be commenced
(a)
The provisions of this section might affect the terms and conditions of certain contracts into which residents of this state have entered.(b)
The effects of the provisions of this section are not substantial because the provisions have a limited scope and duration and are necessary to protect the public health, safety and welfare. For these reasons the provisions do not undermine a contractual bargain, interfere with a party’s reasonable expectations or prevent a party from safeguarding or reinstating the party’s rights.(c)
Even if a provision of this section has the effect of undermining a contractual bargain, interfering with a party’s reasonable expectations or preventing a party from safeguarding or reinstating the party’s rights, the provision is appropriate and reasonable as a means by which to implement the significant and legitimate public purpose of responding to the COVID-19 pandemic emergency that began on March 8, 2020, and has continued to date.(2)
As used in this section:(a)
“Borrower” means an individual who directly, or indirectly through an entity, owns a total of not more than five subject properties and is:(A)
A mortgagor;(B)
A grantor, as defined in ORS 86.705 (Definitions for ORS 86.705 to 86.815);(C)
A purchaser in a land sale contract;(D)
A mortgagor, grantor or purchaser who has pledged an interest in subject property as security for a loan to the mortgagor’s, grantor’s or purchaser’s business; or(E)
A successor in interest to a person described in subparagraphs (A) to (D) of this paragraph. For the purposes of this subparagraph, “successor in interest” means a person who receives an interest in subject property from a mortgagor, grantor or purchaser under any of the following circumstances:(i)
The transfer of subject property occurs by devise, descent or operation of law at the mortgagor’s, grantor’s or purchaser’s death;(ii)
A relative of the mortgagor, grantor or purchaser receives the interest in subject property as a result of the mortgagor’s, grantor’s or purchaser’s death;(iii)
The spouse or children of the mortgagor, grantor or purchaser become owners of the subject property;(iv)
The transfer results from a decree of dissolution of marriage, a legal separation agreement or an incidental separation agreement under which the spouse of the mortgagor, grantor or purchaser becomes an owner of the subject property; or(v)
The transfer does not relate to rights to occupy the subject property, but the subject property becomes trust property in an inter vivos trust in which the mortgagor, grantor or purchaser remains a beneficiary.(b)
“Emergency period” means a period that extends from 11:59 p.m. on December 31, 2020, to 11:59 p.m. on June 30, 2021, except that the Governor may by executive order:(A)
Not later than June 14, 2021, extend the emergency period to 11:59 p.m. on September 30, 2021; and(B)
Not later than August 16, 2021, extend the emergency period once more to not past 11:59 p.m. on December 31, 2021.(c)
“Financing agreement” means a contract under which a borrower must make payments to a lender to satisfy an obligation that is secured by a mortgage, a trust deed or a land sale contract for subject property.(d)
“Foreclosure avoidance measure” has the meaning given that term in ORS 86.707 (Additional definitions for ORS 86.726, 86.729, 86.732, 86.736, 86.741, 86.744 and 86.748).(e)
“Forfeiture remedy” has the meaning given that term in ORS 93.905 (Definitions for ORS 93.905 to 93.940).(f)
“Lender” means a beneficiary, as defined in ORS 86.705 (Definitions for ORS 86.705 to 86.815), a mortgagee, as defined in ORS 87.005 (Definitions for ORS 87.001 to 87.060 and 87.075 to 87.093), a seller in a land sale contract or a licensee, as defined in ORS 86A.303 (Definitions).(g)
“Subject property” means real property upon which is situated four or fewer dwelling units, as defined in ORS 90.100 (Definitions), used primarily and designed solely for residential use.(h)
“Trust deed” has the meaning given that term in ORS 86.705 (Definitions for ORS 86.705 to 86.815).(i)
“Trustee” has the meaning given that term in ORS 86.705 (Definitions for ORS 86.705 to 86.815).(3)
Intentionally left blank —Ed.(a)
During the emergency period, a lender may not treat as a default a borrower’s failure to make a periodic installment payment or failure to pay any other amount that is due to the lender on or in connection with an obligation that is subject to a financing agreement if, during the emergency period, the borrower notifies the lender that the borrower cannot make the periodic installment payment or other payment because of a loss of income that is related to the COVID-19 pandemic. In lieu of treating the failure to pay as a default, and only if the lender and borrower do not otherwise agree to modify, defer or otherwise mitigate the obligation, including by agreeing to a foreclosure avoidance measure, the lender shall:(A)
Defer, during the emergency period, from collecting the periodic installment payment or other payment; and(B)
Permit the borrower to pay an amount the borrower owes to the lender as a result of a deferral under this subsection at the scheduled or anticipated date on which full performance of the obligation is due, unless the scheduled or anticipated date on which full performance is due is within the emergency period, in which case the lender shall defer payment of the amount until after the emergency period expires.(b)
If the borrower’s obligation is a line of credit under which the period in which the borrower may receive advances has not ended, the lender shall defer the amount the borrower owes until the beginning of the repayment period specified in the financing agreement, at which time the lender, in accordance with the terms of the financing agreement, may include the deferred amount in the balance the lender uses to calculate the amount of each payment due during the repayment period unless the repayment period begins during the emergency period, in which case the lender, with an appropriate calculation of the balance, shall defer the amount due until after the emergency period expires.(c)
For the purposes of negotiating and agreeing to a foreclosure avoidance measure, a lender may request from the borrower, in addition to the notice described in paragraph (a) of this subsection, information about any hardship or reduction in income that caused the borrower’s failure to make a payment. A borrower’s failure to provide the information does not disqualify the borrower from obtaining the protections described in paragraph (a) of this subsection.(d)
After an escrow analysis and in accordance with the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.), a lender may adjust the amount of any escrow impound payment the borrower has an obligation to make under the financing agreement and may take into account any shortage or deficiency that results from deferring payments under this subsection.(e)
Intentionally left blank —Ed.(A)
Except as provided in subparagraph (B) of this paragraph, a borrower does not need to provide a notice to a lender under paragraph (a) of this subsection more than once. If a borrower provides the notice orally, a lender may request confirmation in writing that the borrower does not own more than five subject properties and that the borrower cannot make a periodic installment payment or other payment because of a loss of income that is related to the COVID-19 pandemic.(B)
A borrower’s notice to a lender before the effective date of this 2021 Act [June 1, 2021] is not effective as notice under paragraph (a) of this subsection. The borrower must notify the lender as provided in this subsection to receive the protections described in paragraph (a) of this subsection.(f)
During the emergency period, if a borrower gives notice as provided in paragraph (a) of this subsection, a lender may not:(A)
Impose or collect charges, fees, penalties, attorney fees or other amounts that, but for the provisions of this section, the lender might have imposed or collected from a borrower for failing, during the emergency period, to make a periodic installment payment or to pay another amount due on or in connection with the borrower’s obligation;(B)
Impose a default rate of interest that, but for the provisions of this section, the lender might have imposed or collected from a borrower for failing, during the emergency period, to make a periodic installment payment or to pay another amount due on or in connection with the borrower’s obligation;(C)
Treat in any manner the borrower’s failure during the emergency period to make a periodic installment payment or pay another amount due on or in connection with the obligation as an ineligibility for a foreclosure avoidance measure; or(D)
Require or charge for an inspection, appraisal or broker opinion of value during the emergency period.(4)
Notwithstanding ORS 18.860 (Function of writ) to 18.993 (Effect of ORS 18.860 to 18.993 on court’s ability to direct seizure), 86.752 (Foreclosure by advertisement and sale), 88.010 (Foreclosure of lien by suit) and 93.905 (Definitions for ORS 93.905 to 93.940) to 93.940 (Effect of seller’s foreclosure or other action on interest, lien or claim), and except as provided in subsection (10) of this section, with respect to subject property, a lender or trustee may not at any time during the emergency period:(a)
Foreclose a trust deed by advertisement and sale;(b)
Bring an action or suit to foreclose a mortgage or trust deed; or(c)
Enforce a forfeiture remedy.(5)
Intentionally left blank —Ed.(a)
Notwithstanding ORS 18.920 (Notice of sale of personal property), 18.924 (Notice of sale of real property), 86.764 (Notice of sale for certain persons) and 93.915 (Notice of default) and except as provided in subsection (10) of this section, if a lender or trustee recorded a notice of default and served a notice of sale for a foreclosure by advertisement and sale, commenced a suit under ORS 88.010 (Foreclosure of lien by suit) or otherwise initiated a foreclosure with respect to subject property on or after March 8, 2020, the foreclosure is stayed during the emergency period. After the emergency period expires, a trustee’s sale may occur if the lender or trustee complies with the provisions of ORS 86.782 (Sale of property) (12), a lender may obtain a forfeiture remedy if the lender complies with the provisions of ORS 93.918 (Continuation of proceedings after certain types of stay ordered by court) and, for other types of foreclosure proceedings, a foreclosure may continue if the lender complies with the requirements of applicable law.(b)
Notwithstanding the 180-day limit specified for postponing a trustee’s sale set forth in ORS 86.782 (Sale of property) (2)(a), a trustee, an attorney for the trustee or an agent that the trustee or attorney designates shall, for the duration of the emergency period, postpone all trustee’s sales of subject property with respect to which the trustee, attorney or agent acts in the capacity of a trustee on behalf of a lender.(6)
Intentionally left blank —Ed.(a)
Notwithstanding ORS 18.860 (Function of writ) to 18.993 (Effect of ORS 18.860 to 18.993 on court’s ability to direct seizure) and 88.010 (Foreclosure of lien by suit) and except as provided in subsection (10) of this section, during the emergency period a court may not enter a judgment of foreclosure and sale or issue a writ of execution with respect to subject property that secures an obligation on which a mortgagor, a grantor or a purchaser in a land-sale contract has failed to make a periodic installment payment or other payment.(b)
A court shall dismiss without prejudice any action or suit commenced during the emergency period that seeks to foreclose a lien upon subject property.(7)
Intentionally left blank —Ed.(a)
Notwithstanding ORS 86.782 (Sale of property) and except as provided in subsection (10) of this section, a trustee’s sale of subject property may not occur during the emergency period. Any purported trustee’s sale of subject property during the emergency period is void and does not transfer or foreclose any rights to the subject property.(b)
Notwithstanding ORS 18.860 (Function of writ) to 18.993 (Effect of ORS 18.860 to 18.993 on court’s ability to direct seizure) and except as provided in subsection (10) of this section, an execution sale of subject property that secures an obligation on which a mortgagor, grantor or purchaser in a land sale contract has defaulted may not occur during the emergency period. Any purported execution sale of subject property during the emergency period is void and does not transfer or foreclose any rights to the subject property.(8)
Intentionally left blank —Ed.(a)
Except as provided in paragraph (b) of this subsection, a borrower that suffers an ascertainable loss of moneys or property because a lender or trustee took an action prohibited under this section may bring an action in a circuit court of this state to recover the borrower’s actual damages. A borrower who prevails in the action may also recover the borrower’s court costs and attorney fees.(b)
A lender or trustee is not liable to a borrower for damages under paragraph (a) of this subsection if:(A)
The lender’s or trustee’s action violated the prohibitions set forth in subsection (3)(a) or (f) of this section, but the action occurred before the lender received a notice from the borrower under subsection (3)(a) of this section; or(B)
The lender sent to the borrower a periodic statement, billing notice or other communication that appeared to seek payment for an obligation the lender deferred in compliance with subsection (3) of this section, if:(i)
The communication resulted from a bona fide clerical error, an error in calculation, a computer malfunction, a printing error or a genuine incapacity in the lender’s billing system to provide a correct and current notice of the amount of the borrower’s obligation despite the lender having maintained procedures reasonably adapted to avoid the error or after having determined in good faith that a commercially reasonable method for overcoming the incapacity does not exist;(ii)
The lender does not attempt any substantive action to collect any amount the lender deferred in compliance with subsection (3) of this section; and(iii)
The lender confirms in writing that the amount shown in the communication as due remains deferred.(9)
Intentionally left blank —Ed.(a)
Each lender shall notify all of the lender’s borrowers who cannot make a periodic installment payment or other payment on an obligation because of a loss of income related to the COVID-19 pandemic that the borrowers may be entitled to relief under this section. The notice must state that the borrower must provide notice under subsection (3)(a) of this section even if the borrower has provided notice previously and must include the following text:(b)
A lender complies with paragraph (a) of this subsection if the lender notifies by mail:(A)
All of the lender’s borrowers within 60 days after the effective date of this 2021 Act; or(B)
Every borrower who fails to make a periodic installment payment or other payment in connection with the borrower’s obligation within 30 days after the borrower fails to make the payment.(10)
This section does not:(a)
Apply to judgments of foreclosure and sale, writs of execution, notices of a trustee’s sale or forfeitures under land sale contracts:(A)
Under which a trustee’s sale or execution sale concluded, or an affidavit of forfeiture was recorded, before June 30, 2020;(B)
That occur in connection with a tax foreclosure proceeding under ORS 312.010 (When real property subject to tax foreclosure) to 312.120 (Period during which property held by county) or 312.130 (Release of claims of county by redemption) to 312.240 (Vacation of judgment);(C)
That dispose of vacant or abandoned property; or(D)
That result from a borrower’s waste, destruction or illegal use of subject property or the borrower’s failure to prevent another person’s waste, destruction or illegal use of the subject property; or(b)
Relieve a borrower of the duty to repay the full amount of any obligation that is subject to a waiver, deferral, modification or forbearance under the provisions of this section. [2021 c.106 §1]
Source:
Section 86.815 — Time within which foreclosure must be commenced, https://www.oregonlegislature.gov/bills_laws/ors/ors086.html.
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