(1) “Cash sale price” means the price for which the seller would
have sold or furnished to the buyer, and the buyer would have bought or
obtained from the seller, the goods or services which are the subject
matter of a retail installment transaction, if the sale had been a sale
for cash. The cash sale price may include any taxes, registration and
license fees and charges for transferring vehicle titles, delivery,
installation, servicing, repairs, alterations or improvements.
(2) “Goods” means all chattels personal, other than motor vehicles
as defined in ORS 83.510, when purchased primarily for personal, family
or household use and not for commercial or business use, but not
including money or, except as provided in the next sentence, things in
action. “Goods” includes but is not limited to merchandise certificates
or coupons, issued by a retail seller, to be used in their face amount in
lieu of cash in exchange for goods or services sold by such a seller and
goods which, at the time of sale or subsequently, are to be so affixed to
real property as to become a part thereof, whether or not severable
therefrom.
(3) “Official fees” means the amount of the fees prescribed by law
for filing, recording or otherwise perfecting, and releasing or
satisfying, a retained title, lien or other security interest created by
a retail installment transaction.
(4) “Principal balance” means the cash sale price of the goods or
services which are the subject matter of a retail installment contract
less the amount of the buyer’s down payment in money or goods or both,
plus the amounts, if any, included therein, if a separate identified
charge is made therefor and stated in the contract, for insurance and
official fees.
(5) “Rate” means the percentage which, when multiplied times the
outstanding balance for each month or other installment period, yields
the amount of the service charge for such month or period.
(6) “Retail buyer” or “buyer” means a person who buys or agrees to
buy goods or obtains services or agrees to have services rendered or
furnished, from a retail seller.
(7) “Retail charge agreement,” “revolving charge agreement” or
“charge agreement” means an agreement entered into or performed in this
state prescribing the terms of retail installment transactions which may
be made thereunder from time to time and under the terms of which a
service charge is to be computed in relation to the buyer’s unpaid
balance from time to time.
(8) “Retail installment contract” or “contract” means a contract,
other than a retail charge agreement or an instrument reflecting a sale
made pursuant thereto, entered into or performed in this state for a
retail installment transaction. “Retail installment contract” includes a
chattel mortgage, a conditional sale contract and a contract in the form
of a bailment or a lease if the bailee or lessee contracts to pay as
compensation for their use a sum substantially equivalent to or in excess
of the value of the goods sold and if it is agreed that the bailee or
lessee is bound to become, or for no other or a merely nominal
consideration, has the option of becoming the owner of the goods upon
full compliance with the provisions of the bailment or lease.
(9) “Retail installment transaction” means any transaction in which
a retail buyer purchases goods or services from a retail seller pursuant
to a retail installment contract or a retail charge agreement which
provides for a service charge and under which the buyer agrees to pay the
unpaid balance in one or more installments.
(10) “Retail seller” or “seller” means a person engaged in the
business of selling goods or services to retail buyers.
(11) “Service charge” however denominated or expressed, means the
amount which is paid or payable for the privilege of purchasing goods or
services to be paid for by the buyer in installments over a period of
time. “Service charge” does not include the amount, if any, charged for
insurance premiums, delinquency charges, attorney fees, court costs or
official fees.
(12) “Services” means work, labor or services of any kind when
purchased primarily for personal, family or household use and not for
commercial or business use whether or not furnished in connection with
the delivery, installation, servicing, repair or improvement of goods and
includes repairs, alterations or improvements upon or in connection with
real property, but does not include services for which the price charged
is required by law to be determined or approved by or to be filed,
subject to approval or disapproval, with the United States or any state,
or any department, division, agency, officer or official of either as in
the case of transportation services.
(13) “Time balance” means the principal balance plus the service
charge. [1963 c.489 §1](1) Except as provided in subsections (2) and (3) of
this section, every retail installment contract shall be contained in a
single document which shall contain the entire agreement of the parties
including any promissory notes or other evidences of indebtedness between
the parties relating to the transaction, except as provided in ORS
83.040, 83.050 and 83.140.
(2) Where the buyer’s obligation to pay the time balance is
represented by a promissory note secured by a chattel mortgage, the
promissory note may be a separate instrument if the mortgage recites the
amount and terms of payment of such note and the promissory note recites
that it is secured by a mortgage.
(3) In a transaction involving the repair, alteration or
improvement upon or in connection with real property, the contract may be
secured by a mortgage on the real property contained in a separate
document. Home improvement retail sales transactions which are financed
or insured by the Federal Housing Administration are not subject to ORS
83.010 to 83.190.
(4) The contract shall be dated, signed by the retail buyer and
completed as to all essential provisions, except as otherwise provided in
ORS 83.050 and 83.060. The printed or typed portion of the contract,
other than instructions for completion, shall be in a size equal to at
least 8-point type. [1963 c.489 §2] The retail installment contract shall
contain the names of the seller and the buyer, the place of business of
the seller, the residence or other address of the buyer as specified by
the buyer and a description or identification of the goods sold or to be
sold, or services furnished or rendered or to be furnished or rendered.
The contract also shall contain the following items, which shall be set
forth in the sequence appearing below; however, additional items may be
included to explain the calculations involved in determining the balance
to be paid by the buyer:
(1) The cash sale price of each item of goods or services;
(2) The amount of the buyer’s down payment, identifying the amounts
paid in money and allowed for goods traded in;
(3) The difference between subsections (1) and (2) of this section;
(4) The aggregate amount, if any, included for insurance,
specifying the type or types of insurance and the terms of coverage;
(5) The aggregate amount of official fees;
(6) The principal balance, which is the sum of subsections (3), (4)
and (5) of this section;
(7) The dollar amount or rate of the service charge;
(8) The amount of the time balance owed by the buyer to the seller,
which is the sum of subsections (6) and (7) of this section, if
subsection (7) is stated in a dollar amount; and
(9) The maximum number of installment payments required, the amount
of each installment and the due date of each payment necessary to pay
such balance. However, if installment payments other than the final
payment are stated as a series of equal scheduled amounts and if the
amount of the final installment payment does not substantially exceed the
scheduled amount of each preceding installment payment, the maximum
number of payments and the amount and due date of each payment need not
be separately stated and the amount of the scheduled final installment
payment may be stated as the remaining unpaid balance. The due date of
the first installment payment may be fixed by a day or date or may be
fixed by reference to the date of the contract or to the time of delivery
or installation. [1963 c.489 §4] A retail
installment contract may be contained in more than one document, provided
that one such document shall be an original document signed by the retail
buyer, stated to be applicable to purchases of goods or services to be
made by the retail buyer from time to time. In such case such document,
together with the sales slip, account book or other written statement
relating to each purchase, shall set forth all of the information
required by ORS 83.030 and shall constitute the retail installment
contract for each purchase. On each succeeding purchase pursuant to such
original document, the sales slip, account book or other written
statement may at the option of the seller constitute the memorandum
required by ORS 83.140. [1963 c.489 §5]
(1) Retail installment contracts negotiated and entered into by mail
without personal solicitation by salesmen or other representatives of the
seller and based upon a catalog of the seller, or other printed
solicitation of business, if such catalog or other printed solicitation
clearly sets forth the cash sale prices and other terms of sales to be
made through such medium, may be made as provided in this section. The
provisions of ORS 83.010 to 83.190 with respect to retail installment
contracts shall be applicable to such sales, except that the retail
installment contract, when completed by the buyer need not contain the
items required by ORS 83.030.
(2) When the contract is received from the retail buyer, the seller
shall prepare a written memorandum containing all of the information
required by ORS 83.030 to be included in a retail installment contract.
In lieu of delivering a copy of the contract to the retail buyer as
provided in ORS 83.070, the seller shall deliver to the buyer a copy of
such memorandum prior to the due date of the first installment payable
under the contract. However, if the catalog or other printed solicitation
does not set forth all of the other terms of sales in addition to the
cash sale prices, such memorandum shall be delivered to the buyer prior
to or at the time of delivery of the goods or services. [1963 c.489 §6] The seller shall not obtain the signature of
the buyer to any contract when it contains blank spaces of items which
are essential provisions of the transaction except as provided in ORS
83.050. However, if delivery of the goods is not made at the time of the
execution of the contract, the identifying numbers or marks of the goods
or similar information and the due date of the first installment may be
inserted by the seller in the seller’s counterpart of the contract after
it has been signed by the buyer. [1963 c.489 §7] The retail seller
shall deliver to the retail buyer, or mail to the retail buyer at the
address shown on the retail installment contract, a copy of the contract
as accepted by the seller. Until the seller does so, the buyer shall be
obligated to pay only the cash sale price. Any acknowledgment by the
buyer of delivery of a copy of the contract shall be in a size equal to
at least 10-point bold type and, if contained in the contract, shall
appear directly above the buyer’s signature. [1963 c.489 §3](1) At or prior to the time a retail charge agreement
is made the seller shall advise the buyer in writing, on the application
form or otherwise, or orally, that a service charge will be computed on
the outstanding balance for each month (which need not be a calendar
month) or other regular period agreed upon, the schedule or rate by which
the service charge will be computed, and that the buyer may at any time
pay the total unpaid balance. If this information is given orally, the
seller shall, upon approval of the buyer’s credit, deliver to the buyer
or mail to the buyer at the address of the buyer, a memorandum setting
forth this information.
(2) The seller or holder of a retail charge agreement shall
promptly supply the buyer with a statement as of the end of each monthly
period (which need not be a calendar month) or other regular period
agreed upon, in which there is any unpaid balance thereunder, which
statement shall set forth the following:
(a) The unpaid balance under the retail charge agreement at the
beginning and at the end of the period;
(b) Unless otherwise furnished by the seller to the buyer by sales
slip, memorandum, or otherwise, a description or identification of the
goods or services purchased during the period, the cash sale price and
the date of each purchase;
(c) The payments made by the buyer to the seller and any other
credits to the buyer during the period;
(d) The amount, if any, of any service charge for such period; and
(e) A legend to the effect that the buyer may at any time pay the
total unpaid balance. [1963 c.489 §12] The service charge
shall be inclusive of all charges incident to investigating and making
the retail installment contract or charge agreement and for the privilege
of making the installment payments thereunder and no other fee, expense
or charge whatsoever shall be taken, received, reserved or contracted
therefor. [1963 c.489 §13] (1)
Notwithstanding any other provision of ORS 83.010 to 83.190 and 83.820 to
83.895, a retail seller in a retail installment contract may contract for
and charge, receive and collect a service charge computed by the
actuarial method.
(2) When a retail installment contract provides for a service
charge computed by the actuarial method:
(a) The retail installment contract may provide for any other
charge, cost or fee allowed under ORS 83.010 to 83.190 and 83.820 to
83.895, in addition to the service charge.
(b) The amount to be disclosed as the service charge and used as
the service charge component of the other amounts disclosed pursuant to
ORS 83.010 to 83.190 and 83.820 to 83.895 shall be the amount of the
service charge to be paid assuming all payments are made exactly as
agreed.
(c) The refund credit provisions of ORS 83.130 shall not apply.
[1983 c.432 §4](1) Except as provided in ORS 20.082, the holder of any retail
installment contract or retail charge agreement may not collect any
delinquency or collection charges, including any attorney’s fee and court
costs and disbursements, unless the contract or charge agreement so
provides. In such cases, the charges shall be reasonable, and no
attorney’s fee may be recovered unless the contract or charge agreement
is referred for collection to an attorney not a salaried employee of the
holder.
(2) The contract or charge agreement may contain other provisions
not inconsistent with the purposes of ORS 83.010 to 83.190, including but
not limited to provisions relating to refinancing, transfer of the
buyer’s equity, construction permits and title reports. [1963 c.489 §9;
2001 c.542 §7] (1) If the cost of any insurance is included in
the retail installment contract or retail charge agreement:
(a) The contract or agreement shall state the nature, purpose, term
and amount of such insurance.
(b) The contract or agreement shall state whether the insurance is
to be procured by the buyer or the seller.
(c) The amount included for such insurance shall not exceed the
premiums chargeable in accordance with the rate fixed for such insurance
by the insurer, except where the amount is less than $1.
(2) Except as provided in ORS 743.377, if the insurance is to be
procured by the seller or holder, the seller or holder shall, within 45
days after delivery of the goods or furnishing of the services under the
contract, deliver, mail or cause to be mailed to the buyer, at the
address as specified in the contract, a notice thereof or a copy of the
policy or policies of insurance or a certificate or certificates of the
insurance so procured. [1963 c.489 §14; 1967 c.359 §676] A buyer shall be given a
written receipt for any payment when made in cash. Upon written request
of the buyer, the holder of a retail installment contract shall give or
forward to the buyer a written statement of the dates and amounts of
payments and the total amount unpaid under the contract. Such a statement
shall be given the buyer once without charge. If any additional statement
is requested by the buyer, it shall be supplied by the holder at a charge
not in excess of $1 for each additional statement so supplied. [1963
c.489 §10] (1) Notwithstanding
the provisions of any retail installment contract to the contrary, and if
the rights of the purchaser have not been terminated or forfeited under
the terms of the contract, any buyer may prepay in full the unpaid time
balance thereof at any time before its final due date. If the buyer does
so, and if the contract is not in default more than two months under any
term or condition of the contract, the buyer shall receive a refund
credit of the unearned portion of the service charge for the prepayment.
The amount of the refund credit shall be not less than the total service
charge contracted for to maturity, less the greater of:
(a) Ten percent of the amount financed or $75, whichever is less; or
(b) Either of the following, at the discretion of the seller or
holder:
(A) The service charge earned to the date of prepayment, computed
by applying the effective rate on the contract to the actual principal
balances outstanding, for the periods of time the balances were actually
outstanding. In determining the effective rate, the holder may apply to
the scheduled payments the actuarial method by which each scheduled
payment is applied first to the accrued and unpaid service charges and
any amount remaining is applied to the reduction of the principal balance.
(B) The service charge earned to the installment due date nearest
the date of prepayment, computed by applying the effective rate on the
contract to the actual principal balances outstanding, for the periods of
time the balances were actually outstanding. For purposes of rebate
computations under this subparagraph, the installment due date preceding
the date of prepayment shall be considered to be nearest if prepayment
occurs 15 days or less after that installment date. If prepayment occurs
more than 15 days after the preceding installment due date, the next
succeeding installment due date shall be considered to be nearest to the
date of prepayment. In determining the effective rate, the seller may
apply to the scheduled payments the actuarial method, by which each
scheduled payment is applied first to the accrued and unpaid service
charges and any amount remaining is applied to reduction of the principal
balance.
(2) When the amount of the refund credit is less than $2, no refund
need be made. [1963 c.489 §8; 1981 c.910 §1; 1983 c.432 §1] (1) If, in a
retail installment transaction, a retail buyer makes any subsequent
purchases of goods or services from a retail seller from whom the buyer
has previously purchased goods or services under one or more retail
installment contracts, and the amounts under such previous contract or
contracts have not been fully paid, the subsequent purchases may, at the
seller’s option, be included in and consolidated with one or more of the
previous contracts. All the provisions of ORS 83.010 to 83.190 with
respect to retail installment contracts shall be applicable to such
subsequent purchases except as otherwise provided in this subsection. In
the event of such consolidation, in lieu of the buyer’s executing a
retail installment contract respecting each subsequent purchase, as
provided in this section, it shall be sufficient if the seller shall
prepare a written memorandum of each such subsequent purchase, in which
case the provisions of ORS 83.020, 83.030 and 83.070 shall not be
applicable. Unless previously furnished in writing to the buyer by the
seller, by sales slip, memorandum or otherwise, such memorandum shall set
forth, with respect to each subsequent purchase, items required in ORS
83.030 (1) to (7), and in addition, the amount of the time balance owed
by the buyer to the seller for the subsequent purchase, the outstanding
balance of the previous contract or contracts, the consolidated time
balance, and the revised installments applicable to the consolidated time
balance, if any, in accordance with ORS 83.030. The seller shall deliver
to the buyer a copy of such memorandum prior to the due date of the first
installment of such consolidated contract.
(2) When such subsequent purchases are made, if the seller has
retained title or taken a lien or other security interest in any of the
goods purchased under any one of the contracts included in the
consolidation:
(a) The entire amount of all payments made prior to such subsequent
purchases shall be deemed to have been applied on the previous purchases;
and
(b) The amount of any down payment on the subsequent purchase shall
be allocated in its entirety to such subsequent purchase.
(3) The provisions of subsection (2) of this section shall not
apply to cases where such previous and subsequent purchases involve
equipment, parts or other goods attached or affixed to goods previously
purchased and not fully paid, or to services in connection therewith
rendered by the seller at the buyer’s request. [1963 c.489 §11] No provision of a retail
installment contract or retail charge agreement shall be valid:
(1) By which the buyer agrees not to assert against the seller or
against an assignee a claim or defense arising out of the sale.
(2) That provides for a wage assignment. [1963 c.489 §15; 1971
c.232 §1] No act or agreement
of the retail buyer before or at the time of the making of a retail
installment contract, retail charge agreement or purchases thereunder
shall constitute a valid waiver of any of the provisions of ORS 83.010 to
83.190 or of any remedies granted to the buyer by law. [1963 c.489 §16] Any
seller who enters into any contract or agreement which does not comply
with the provisions of ORS 83.010 to 83.190 or who violates any provision
of ORS 83.010 to 83.190 except as a result of an accidental or bona fide
error shall be barred from the recovery of any service charge, official
fees or any delinquency or collection charge under or in connection with
the related retail installment contract or purchases under a retail
charge agreement; but the seller may nevertheless recover from the buyer
an amount equal to the cash price of the goods or services and the cost
to the seller of any insurance included in the transaction. [1963 c.489
§18] The Attorney General of
the State of Oregon or a district attorney may bring an action in the
name of the state against any person to restrain and prevent any
violation of ORS 83.010 to 83.190. [1963 c.489 §§19, 20; 1975 c.437 §6] Any person who violates any order or
injunction issued pursuant to ORS 83.010 to 83.190 shall forfeit and pay
a civil penalty of not more than $1,000. For the purpose of this section
the circuit court issuing any injunction shall retain jurisdiction, and
the cause shall be continued, and in such cases the Attorney General
acting in the name of the state may petition for the recovery of civil
penalties. [1963 c.489 §21]MOTOR VEHICLES; MOBILE HOMES
(1) “Cash sale price” means the price for which the motor vehicle
dealer would sell to the buyer, and the buyer would buy from the motor
vehicle dealer, the motor vehicle that is covered by the retail
installment contract, if the sale were a sale for cash instead of a
retail installment sale. The cash sale price may include any taxes,
registration, license and other fees and charges for accessories and
their installation and for delivering, servicing, repairing or improving
the motor vehicle.
(2) “Finance charge” means that part of the time sale price that
exceeds the aggregate of the cash sale price, the amounts, if any,
included in a retail installment sale for insurance and other benefits,
and official fees.
(3)(a) “Financing agency” means a person engaged, in whole or in
part, in purchasing or otherwise acquiring retail installment contracts
or retail lease agreements from one or more motor vehicle dealers or
retail lessors. “Financing agency” includes, but is not limited to,
financial institutions, as defined in ORS 706.008, and consumer credit
companies, if so engaged. “Financing agency” also includes a motor
vehicle dealer or retail lessor engaged, in whole or in part, in the
business of holding retail installment contracts or retail lease
agreements acquired from retail buyers or retail lessees.
(b) “Financing agency” does not include the pledgee or other holder
of more than one retail installment contract or retail lease agreement
pledged or otherwise given by a motor vehicle dealer or a transferee from
the motor vehicle dealer to a lender as collateral security for a loan
made to the motor vehicle dealer or transferee of the motor vehicle
dealer.
(4) “Holder” of a retail installment contract or retail lease
agreement means the motor vehicle dealer or retail lessor of the motor
vehicle covered by the contract or lease or, if the contract or lease is
purchased or otherwise acquired by a financing agency or other assignee,
the financing agency or other assignee.
(5) “Mobile home” means a structure, transportable in one or more
sections, that is eight body feet or more in width and 32 body feet or
more in length, and that is built on a permanent chassis and designed to
be used as a dwelling with or without a permanent foundation when
connected to the required utilities. “Mobile home” includes the plumbing,
heating, air conditioning and electrical systems contained within the
structure.
(6)(a) “Motor vehicle” or “vehicle” means:
(A) A self-propelled device used for transportation of person or
property upon a public highway.
(B) A trailer, semitrailer, mobile home or trailer home.
(b) “Motor vehicle” or “vehicle” does not include tractors, power
shovels, road machinery, agricultural machinery, boat trailers or other
machinery not designed primarily for highway transportation, which may be
used incidentally to transport persons or property on a public highway,
or devices that move upon or are guided by a track or travel through the
air.
(7) “Motor vehicle dealer” means any person who sells, trades,
leases, displays or offers for sale, trade, lease or exchange motor
vehicles pursuant to a retail installment contract or retail lease
agreement or who offers to negotiate or purchase motor vehicles on behalf
of third parties pursuant to a retail installment contract or retail
lease agreement.
(8) “Official fees” means the filing or other fees required by law
to be paid to a public officer to perfect the interest or lien, in or on
a motor vehicle, retained or taken by a motor vehicle dealer under a
retail installment contract or retail lease agreement, and to file or
record a release, satisfaction or discharge of the contract.
(9) “Person” means individual, partnership, corporation,
association or other group, however organized.
(10) “Retail buyer” or “buyer” means a person who buys a motor
vehicle from a motor vehicle dealer and who executes a retail installment
contract in connection therewith.
(11) “Retail installment contract” or “contract” means an
agreement, entered into in this state, pursuant to which the title to,
the property in or a lien upon a motor vehicle, which is the subject
matter of a retail installment sale, is retained or taken by a motor
vehicle dealer from a retail buyer as security, in whole or in part, for
the buyer’s obligation. “Retail installment contract” or “contract”
includes a chattel mortgage, a conditional sales contract and a contract
for the bailment or leasing of a motor vehicle by which the bailee or
lessee contracts to pay as compensation for its use a sum substantially
equivalent to or in excess of its value and by which it is agreed that
the bailee or lessee is bound to become, or for no other or for a merely
nominal consideration has the option of becoming, the owner of the motor
vehicle upon full compliance with the terms of the contract.
(12)(a) “Retail installment sale” or “sale” means a sale of a motor
vehicle by a motor vehicle dealer to a retail buyer for a time sale price
payable in one or more installments, payment of which is secured by a
retail installment contract. “Retail installment sale” or “sale” includes
a bailment or leasing as described in subsection (11) of this section.
(b) “Retail installment sale” or “sale” does not include a sale of
a motor vehicle for resale in the ordinary course of the buyer’s business.
(13) “Retail lease” means a lease of a motor vehicle by a retail
lessor to a retail lessee, payment of which is secured by a retail lease
agreement. “Retail lease” does not include a lease that constitutes a
retail installment contract.
(14) “Retail lease agreement” means an agreement entered into in
this state between a retail lessor and a retail lessee for the lease of a
motor vehicle. The agreement shall be in the form of a bailment or lease
for the use of a motor vehicle by an individual for personal, family or
household purposes, whether or not the retail lessee has the option to
purchase or otherwise become the owner of the motor vehicle at the
expiration of the lease.
(15) “Retail lessee” means a person who leases a motor vehicle from
a retail lessor by entering into a retail lease agreement.
(16) “Retail lessor” means a motor vehicle dealer who transfers an
interest in or supplies a motor vehicle to a retail lessee, regardless of
whether or not the motor vehicle dealer is identified as the retail
lessor on the retail lease agreement.
(17) “Time sale price” means the aggregate of the cash sale price
of the motor vehicle, the amount, if any, included for insurance and
other benefits, official fees and the finance charge. [1957 c.625 §1;
1979 c.304 §1; 1979 c.816 §1a; 1987 c.674 §1; 1997 c.631 §383; 2001 c.104
§25; 2001 c.117 §1] (1) A
retail installment contract shall be in writing, shall contain all the
agreements of the parties, shall contain the names of the motor vehicle
dealer and the buyer, the place of business of the motor vehicle dealer,
the residence or place of business of the buyer as specified by the buyer
and a description of the motor vehicle including its make, year model,
model and identification numbers or marks, and shall be signed by the
buyer and the motor vehicle dealer.
(2) The printed portion of the contract shall be in at least
8-point type. The contract shall contain in printing or writing of a size
equal to at least 10-point bold type, the following:
(a) Both at the top of the contract and directly above the space
reserved for the signature of the buyer, the words “RETAIL INSTALLMENT
CONTRACT”;
(b) A specific statement that liability insurance coverage for
bodily injury and property damage caused to others is not included, if
that is the case; and
(c) The following notice:
___________________________________________________________________________
___NOTICE TO THE BUYER
Do not sign this contract before you read it or if it contains any
blank space, except that:
(1) If delivery of the motor vehicle or mobile home is to be made
to you after this contract is signed, the serial number or other
identifying information and the due date of the first installment may be
filled in at the time of delivery; and
(2) If the name of the financing agency is not known at the time
the contract is executed, the name of the financing agency may be
inserted in the contract on or about the date the name of the financing
agency is known.
You are entitled to a copy of this contract.
You have the right to pay off in advance the full amount due and to
obtain a partial refund of the finance charge.
___________________________________________________________________________
___
(3) The contract shall contain the following items:
(a) The cash sale price of the motor vehicle which is the subject
matter of the retail installment sale.
(b) The amount of the buyer’s down payment, itemizing the amounts,
if any, paid or credited in money or in goods and containing a brief
description of the goods traded in.
(c) The difference between the items set forth in paragraphs (a)
and (b) of this subsection.
(d) The amount, if any, included for insurance and other benefits,
specifying the coverages and benefits. For purposes of this paragraph,
“other benefits” includes any amounts actually paid or to be paid by the
motor vehicle dealer pursuant to an agreement with the buyer to discharge
a security interest, lien or lease interest on property traded in.
(e) The amount, if any, of official fees.
(f) The principal balance, which is the sum of the items set forth
in paragraphs (c), (d) and (e) of this subsection.
(g) The amount of the finance charge.
(h) The time balance, which is the sum of the items set forth in
paragraphs (f) and (g) of this subsection.
(i) The time sale price.
(j) A plain and concise statement of the amount in dollars of each
installment or future payment to be made by the buyer, the number of
installments required, and the date or dates at which, or period or
periods in which, the installments are due.
(4) The contract may contain additional items to explain the
calculations involved in determining the stated time balance to be paid
by the buyer. [1957 c.625 §§2, 3, 5; 1979 c.816 §2; 1995 c.519 §3; 1999
c.525 §1; 2001 c.117 §5] (1) Except as provided in subsection (2) of
this section, a retail installment contract shall not be signed by any
party to the contract when the contract contains blank spaces to be
filled in after the contract is executed.
(2) A retail installment contract may be signed by any party to the
contract when the contract contains blank spaces to be filled in after
the contract is executed under the following conditions:
(a) If delivery of the motor vehicle is not made at the time of
execution, the identifying numbers or marks of the motor vehicle or
similar information and the due date of the first installment may be
inserted in the contract on or about the date of delivery.
(b) If the name of the financing agency is not known at the time
the contract is executed, the name of the financing agency may be
inserted in the contract on or about the date the name of the financing
agency is known. [1957 c.625 §8; 1995 c.519 §4] The motor vehicle
dealer shall deliver to the buyer, or mail to the buyer at the address
shown on the contract, a copy of the contract signed by the motor vehicle
dealer. Until the motor vehicle dealer does so, a buyer who has not
received delivery of the motor vehicle shall have an unconditional right
to cancel the contract and to receive immediate refund of any amount paid
and redelivery of all goods delivered or traded in to the motor vehicle
dealer on account of or in contemplation of the contract. An
acknowledgment by the buyer of delivery of a copy of the contract shall
be printed or written in a size equal to at least 10-point bold type and,
if contained in the contract, shall also appear directly above the legend
required above the buyer’s signature by ORS 83.520 (2)(a). [1957 c.625
§4; 2001 c.117 §6] A motor vehicle dealer may, in a retail
installment contract, contract for and charge, receive and collect a
finance charge agreed upon by the motor vehicle dealer and buyer. [1957
c.625 §§19,20,21; 1979 c.816 §3; 1981 c.412 §2; 2001 c.117 §7](1) Notwithstanding any other provision of ORS 83.510 to 83.680
and 83.820 to 83.895, a motor vehicle dealer, in a retail installment
contract, may contract for and charge, receive and collect a finance
charge computed by the actuarial method.
(2) When a retail installment contract provides for a finance
charge computed by the actuarial method:
(a) The retail installment contract may provide for any other
charge, cost or fee allowed under ORS 83.510 to 83.680 and 83.820 to
83.895, in addition to the finance charge.
(b) The amount to be disclosed as the finance charge and used as
the finance charge component of the other amounts disclosed pursuant to
ORS 83.510 to 83.680 and 83.820 to 83.895 shall be the amount of the
finance charge to be paid assuming all payments are made exactly as
agreed.
(c) The retail installment contract for the sale of a mobile home
may provide that the holder may refuse to accept prepayments of less than
the entire amount owed under the retail installment contract if the
prepayments:
(A) Are tendered on dates other than a specified date each month;
and
(B) Are not in amounts equal to the principal portion of one or
more of the earliest unmatured monthly installments.
(d) The contract shall contain the following notice in printing or
writing of a size equal to at least 10-point bold type, in lieu of the
notice required by ORS 83.520 (2)(c):
___________________________________________________________________________
___NOTICE TO THE BUYER
Do not sign this contract before you read it or if it contains any
blank space, except that:
(1) If delivery of the motor vehicle or mobile home is to be made
to you after this contract is signed, the serial number or other
identifying information and the due date of the first installment may be
filled in at the time of delivery; and
(2) If the name of the financing agency is not known at the time
the contract is executed, the name of the financing agency may be
inserted in the contract on or about the date the name of the financing
agency is known.
You are entitled to a copy of this contract.
You have the right to pay in advance the full amount due and if you
do so you may save a portion of the finance charge.
___________________________________________________________________________
___
(e) The refund credit provisions of ORS 83.620 shall not apply.
[1981 c.910 §4; 1995 c.519 §5; 2001 c.117 §8] (1) The amount, if any, included for automobile
insurance, shall not exceed the premiums chargeable in accordance with
rate filings made by the insurer with the Director of the Department of
Consumer and Business Services for such insurance.
(2) The amount, if any, included for life, health and accident or
other insurance, other than automobile insurance, shall not exceed the
premiums charged by the insurer.
(3) Except as provided in ORS 743.377, the motor vehicle dealer or
financing agency, if an amount for automobile or other insurance on the
motor vehicle is included in a retail installment contract, shall within
30 days after execution of the retail installment contract send or cause
to be sent to the buyer a policy or policies or certificate of insurance,
written by an insurance company authorized to do business in this state,
clearly setting forth the amount of the premium, the kind or kinds of
insurance and the scope of the coverage and all the terms, exceptions,
limitations, restrictions and conditions of the contract or contracts of
insurance. The buyer of a motor vehicle under a retail installment
contract shall have the privilege of purchasing such insurance from an
insurance producer of the selection of the buyer and of selecting an
insurance company acceptable to the motor vehicle dealer; provided,
however, that the inclusion of the insurance premium in the retail
installment contract when the buyer selects the insurance producer or
company, shall be optional with the motor vehicle dealer and in such case
the motor vehicle dealer or financing agency shall have no obligation to
send, or cause to be sent, to the buyer the policy or certificate of
insurance.
(4) If an insurance policy or certificate that was obtained for an
amount included in the retail installment contract is canceled, the
unearned insurance premium refund received by the holder of the contract
shall be credited to the last maturing installments of the retail
installment contract except to the extent applied toward payment for
similar insurance protecting the interests of the buyer or of the buyer
and the holder of the contract. [1957 c.625 §6; 1967 c.359 §677; 2001
c.117 §9; 2003 c.364 §48] The holder of a retail
installment contract, if the contract so provides, may collect a
delinquency charge on each installment in default for a period of 10 days
or longer. The delinquency charge for any installment shall not exceed
five percent of the delinquent installment. In addition to the
delinquency charge, the retail installment contract may provide for the
payment of reasonable collection costs. The collection costs may include
the payment of reasonable attorney fees, if the contract is referred to
an attorney not a salaried employee of the holder of the contract for
collection, plus the court costs and disbursements. [1957 c.625 §7; 1981
c.552 §1] Upon written request from
the buyer, the holder of a retail installment contract shall give or
forward to the buyer a written statement of the dates and amounts of
payments made and the total amount unpaid on the contract. A buyer shall
be given a written receipt for any payment when made in cash. [1957 c.625
§12]After the payment of all sums for which the buyer is
obligated under a retail installment contract or other security
agreement, as defined in ORS 79.0102, and upon written demand made by the
buyer, the holder of such contract or agreement shall mail to the buyer
at the buyer’s last-known address, good and sufficient instruments to
indicate payment in full and to release all security in the motor
vehicle. This section is supplementary to and is not restrictive of ORS
86.440, 86.460 and 803.097 or of ORS chapter 79. [1957 c.625 §23; 1961
c.726 §400; 1983 c.338 §880; 1989 c.148 §5; 2001 c.445 §161]Note: For transition provisions regarding secured transactions, see
notes under 79.0628. (1) Notwithstanding
the provisions of a retail installment contract to the contrary, the
buyer may pay in full at any time before maturity the obligation
contained in the retail installment contract. Upon the premature payment,
the buyer shall receive a refund credit. The amount of the refund credit
shall not be less than the total finance charge to maturity provided for
in the contract, less the greater of:
(a) Ten percent of the amount financed or $75, whichever is less; or
(b) Either of the following, at the discretion of the motor vehicle
dealer or holder:
(A) The finance charge earned to the date of prepayment, computed
by applying the effective rate on the contract to the actual principal
balances outstanding, for the periods of time such balances were actually
outstanding. In determining the effective rate, the holder may apply to
the scheduled payments the actuarial method by which each scheduled
payment is applied first to the accrued and unpaid finance charges and
any amount remaining is applied to the reduction of the principal balance.
(B) The finance charge earned to the installment due date nearest
the date of prepayment, computed by applying the effective rate on the
contract to the actual principal balances outstanding, for the periods of
time the balances were actually outstanding. For purposes of rebate
computations under this subparagraph, the installment due date preceding
the date of prepayment shall be considered to be nearest if prepayment
occurs 15 days or less after that installment date. If prepayment occurs
more than 15 days after the preceding installment due date, the next
succeeding installment due date shall be considered to be nearest to the
date of prepayment. In determining the effective rate, the holder may
apply to the scheduled payments the actuarial method, by which each
scheduled payment is applied first to the accrued and unpaid finance
charges and any amount remaining is applied to reduction of the principal
balance.
(2) When the amount of the credit for premature payment is less
than $2, no refund need be made.
(3) This section does not prohibit the holder of a retail
installment contract from collecting any charge, cost or fee under ORS
83.590. [1957 c.625 §24; 1977 c.692 §1; 1981 c.910 §2; 1983 c.432 §2;
2001 c.117 §10]The holder of a retail installment contract,
upon agreement with the buyer, may extend the scheduled due date or defer
the scheduled payment of all or part of any installment or installments.
In any such case, the holder may restate the amount of the installments
and the time schedule therefor, and collect as a refinance charge for the
extension or deferment, a flat service fee not to exceed $15 and a total
additional charge on the balance being extended not exceeding an amount
equal to one-twelfth of the annual percentage rate originally charged on
the agreement for each month the payments on the agreement are being
extended or deferred. [1957 c.625 §25; 1981 c.552 §2; 1995 c.519 §6] If a
retail installment contract for the purchase of a motor vehicle meets the
requirements of ORS 83.510 to 83.680 and contains information required by
federal law to be disclosed in a retail installment contract for the
purchase of a motor vehicle, the retail installment contract shall be
accepted for consideration by any lender, except for lenders licensed and
regulated under the provisions of ORS chapter 725, to whom application
for credit relating to the retail installment contract is made. [1995
c.519 §2](1) No retail installment contract shall require or
entail the execution, by the buyer, of any note or series of notes, which
when separately negotiated will cut off as against third parties any
right of action or defense which the buyer may have against the motor
vehicle dealer.
(2) The rights of a holder in due course of any negotiable
instrument executed contrary to subsection (1) of this section are not
impaired by reason of the violation of subsection (1) of this section,
but the buyer may bring an action against the motor vehicle dealer for
the recovery of any loss or expense incurred by reason of the violation
of subsection (1) of this section. The buyer’s action may be joined with
any other right of action the buyer has against the motor vehicle dealer
arising out of the installment sale. The court may award reasonable
attorney fees to the prevailing party in an action under this section.
[1957 c.625 §9; 1995 c.618 §47; 2001 c.117 §11] No provision in a retail installment
contract by which, in the absence of the buyer’s default, the holder may,
arbitrarily and without reasonable cause, accelerate the maturity of any
part or all of the time balance is enforceable. This section does not
prohibit provisions in a retail installment contract accelerating any
part or all of the time balance in the event of sale or transfer, or
removal outside the state of the motor vehicle covered by the contract.
[1957 c.625 §13] (1) No provision in a
retail installment contract for confession of judgment, power of attorney
therefor, or wage assignment is enforceable.
(2) No provision in a retail installment contract that authorizes a
motor vehicle dealer or holder of the contract or other person acting on
the behalf of the motor vehicle dealer or holder to enter upon the
buyer’s premises unlawfully, or to commit any breach of the peace in the
repossession of a motor vehicle is enforceable.
(3) No provision in a retail installment contract by which the
buyer waives any right of action against the motor vehicle dealer or
holder of the contract, or other person acting on the behalf of the motor
vehicle dealer or holder, for any illegal act committed in the collection
of payments under the contract or in the repossession of the motor
vehicle is enforceable.
(4) No provision in a retail installment contract by which the
buyer executes a power of attorney appointing the motor vehicle dealer or
holder of the contract, or other person acting on the behalf of the motor
vehicle dealer or holder, as the buyer’s agent in collection of payments
under the contract or in the repossession of the motor vehicle, is
enforceable.
(5) No provision in a retail installment contract relieving the
motor vehicle dealer from liability for any legal remedies that the buyer
may have had against the motor vehicle dealer under the contract, or any
separate instrument executed in connection therewith, is enforceable.
[1957 c.625 §§14,15,16,17,18; 2001 c.117 §12] Any
waiver of the provisions of ORS 83.510 to 83.680 shall be unenforceable
and void. [1957 c.625 §28]HOME SOLICITATION SALES
(1) Except as provided in this section, no enforceable agreement may be
formed by a telephone solicitation sale.
(2) To form a binding agreement by telephone solicitation sale, the
seller must receive from the buyer a signed, written contract that
contains all of the terms of the agreement between the seller and the
buyer. The seller must provide a copy of the completed contract to the
buyer.
(3) Any term or agreement between a buyer and seller in a telephone
solicitation sale is void and unenforceable unless it is contained in the
contract required by subsection (2) of this section.
(4) A contract required by subsection (2) of this section shall
contain the following notice on a separate sheet that contains no other
provision:
___________________________________________________________________________
___
This contract is a contract made pursuant to a telephone
solicitation sale regulated by Oregon Revised Statutes 83.710 to 83.750.
The person offering to buy goods or services under this contract
understands that:
(1) No discussions or agreements between the buyer and the person
offering to sell goods or services formed a binding agreement except as
provided by this contract;
(2) There is no binding agreement between the buyer and seller
until the seller receives a copy of this contract signed by the buyer; and
(3) All of the terms of the agreement between the buyer and the
seller are contained, in writing, in this contract.
___________________________________________________________________________
___[1979 c.503 §3]
(1) Except as provided in subsection (5) of this section, in addition to
any other right to revoke an offer or rescind a transaction that the
buyer may have, the buyer has the right to cancel a home solicitation
sale until 12 midnight of the third business day after the day on which
the buyer signs an agreement or offer to purchase that complies with ORS
83.710 to 83.750 or pays by cash or check.
(2) Cancellation occurs when the buyer gives written notice of
cancellation to the seller at the address stated in the agreement or
offer to purchase.
(3) Notice of cancellation, if given by mail, is given when it is
deposited in a mailbox properly addressed and postage prepaid.
(4) Notice of cancellation given by the buyer need not take a
particular form and is sufficient if it indicates by a form of written
expression the intention of the buyer not to be bound by the home
solicitation sale.
(5) The buyer may not cancel a home solicitation sale if the buyer
initiates the contact with the seller and the buyer, in a separate signed
writing not furnished by the seller, requests that the seller provide
goods or services without delay because of an emergency, describes the
emergency and expressly acknowledges and waives the right to cancel the
sale within three business days, and:
(a) The seller in good faith makes a substantial beginning of
performance of the contract before the buyer gives notice of
cancellation; and
(b) In case of goods, the goods cannot be returned to the seller in
substantially as good condition as when received by the buyer. [1971
c.744 §21(2); 2005 c.223 §2](1) A home solicitation sale must be
evidenced by a written agreement or offer to purchase signed by the
buyer. At the time a buyer executes the written agreement or offer to
purchase:
(a) The seller must furnish the buyer with a fully completed copy
of the written agreement or offer to purchase.
(b) The written agreement or offer to purchase must:
(A) Designate as the date of the transaction the date on which the
buyer actually signs;
(B) Contain the name of the seller and address of the seller’s
place of business;
(C) Be in the same language as the language that is principally
used in the sales presentation; and
(D) Contain, in immediate proximity to a space reserved for the
signature of the buyer, in at least 10-point boldfaced type, a statement
in substantially the following form:
___________________________________________________________________________
___
You, the buyer, may cancel this transaction at any time prior to
midnight of the third business day after the date of this transaction.
See the attached notice of buyer’s right to cancel for an explanation of
the right to cancel.
___________________________________________________________________________
___
(c) The seller must provide the buyer, by a method chosen by the
seller, with a duplicate copy of the notice of the buyer’s right to
cancel described in subsection (2) of this section so that, if the buyer
cancels the transaction, the buyer can retain a complete copy of the
written agreement or offer to purchase. If both copies of the notice are
not attached to the written agreement or offer to purchase, the seller
shall change the last sentence in the statement required under paragraph
(b)(D) of this subsection to conform to the actual location of the copies
of the notice. Both copies of the notice must contain:
(A) The name of the seller;
(B) The address of the seller’s place of business;
(C) The date of the transaction; and
(D) The date, not earlier than the third business day following the
date of the transaction, by which the buyer may give notice of
cancellation.
(d) The seller must orally inform the buyer of the buyer’s right to
cancel.
(2) The notice of the buyer’s right to cancel must be in
conspicuous type, 10-point or larger, and must read as follows:
___________________________________________________________________________
___NOTICE OF BUYER’S RIGHT TO CANCEL
(1) (Date) You, the buyer, may cancel this agreement without any
penalty, cancellation fee or other financial obligation by mailing or
delivering a notice to the seller within THREE BUSINESS DAYS from the
above date.
(2) If you cancel:
(a) Any property you traded in, any payments you made under the
sales contract and any checks or notes you signed will be returned within
10 business days following receipt by the seller of your notice of
cancellation. Any security interest that arises from the transaction will
be canceled.
(b) You may either make available to the seller at your residence,
in substantially as good condition as when received, any goods delivered
to you under the sales contract or you may comply with the seller’s
instructions regarding the return shipment of the goods at the seller’s
expense and risk.
(c) If you make the goods available to the seller at your residence
and the seller does not pick up the goods within 20 days of the date of
your notice of cancellation, you may keep or discard the goods without
further obligation.
(d) If you do not make the goods available to the seller, or if you
agree to return the goods to the seller and you do not return the goods,
you must perform all of your obligations under the sales contract.
(3) To cancel this transaction, mail or deliver a signed and dated
copy of this notice or other written expression of your intention to
cancel, or send a telegram, to (name of seller) at (address of seller’s
place of business) not later than 12 midnight on (date), the third
business day after you signed the written agreement or offer to purchase.I HEREBY CANCEL THIS TRANSACTION.
_______________________
(Signature of buyer) (Date)___________________________________________________________________________
___
(3) In a home solicitation sale subject to federal rules under 16
C.F.R. part 429, the seller may provide the notice required by the
federal rules in lieu of the notice required under subsection (2) of this
section if the notice required under federal rules contains the
information specified in subsection (1)(c) of this section.
(4) Until the seller has complied with this section the buyer may
cancel the home solicitation sale by notifying the seller in any manner
and by any means of an intention to cancel. [1971 c.744 §21 (3); 1977
c.170 §2; 2005 c.223 §3](1) The seller must tender to the buyer any payments
made by the buyer and any note or other evidence of indebtedness within
10 days after a home solicitation sale has been canceled or an offer to
purchase has been revoked.
(2) If the down payment includes goods traded in, the goods must be
tendered in substantially as good condition as when received by the
seller. If the seller fails to tender the goods as provided by this
section, the buyer may elect to recover an amount equal to the trade-in
allowance stated in the agreement.
(3) The buyer may retain possession of goods delivered to the buyer
by the seller, and has a lien on the goods in the possession or control
of the buyer for any recovery to which the buyer is entitled, until the
seller has complied with the obligations imposed by this section. [1971
c.744 §21 (4); 1977 c.170 §3](1) Except as provided by ORS 83.740
(3), within a reasonable time after a home solicitation sale has been
canceled or an offer to purchase revoked, the buyer must tender to the
seller upon demand any goods delivered by the seller pursuant to the
sale, but the buyer is not obliged to tender at any place other than the
residence of the buyer. If the seller fails to demand possession of goods
within a reasonable time after cancellation or revocation, the goods
become the property of the buyer without obligation to pay for them. For
the purpose of this subsection, 20 days is presumed to be a reasonable
time.
(2) The buyer has a duty to take reasonable care of the goods in
the possession of the buyer before cancellation or revocation and for a
reasonable time thereafter, during which time the goods are otherwise at
the seller’s risk.
(3) If the seller has performed any services pursuant to a home
solicitation sale prior to its cancellation, the seller is entitled to no
compensation. [1971 c.744 §21 (5); 1977 c.170 §4]MISCELLANEOUS(1) The disclosure provisions of ORS
83.010 to 83.680 and 83.990 shall not apply to any motor vehicle dealer
or retail seller entering into a retail installment transaction when:
(a) The motor vehicle dealer or retail seller regularly enters into
retail installment transactions; and
(b) The terms of the retail installment transaction provide for
payment of a service charge or finance charge or for payment by written
agreement in more than four installments.
(2) A motor vehicle dealer or retail seller regularly enters into
retail installment transactions only if the motor vehicle dealer or
retail seller entered into retail installment transactions more than 25
times in the preceding calendar year, or more than five times in the
preceding calendar year for retail installment transactions secured by a
dwelling. If a motor vehicle dealer or retail seller does not meet these
numerical standards in the preceding calendar year, the numerical
standards shall be applied to the current calendar year. [1991 c.296 §1;
1999 c.240 §2; 2001 c.117 §13]Note: 83.811 and 83.813 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 83 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) The disclosure provisions of ORS
83.010 to 83.680 and 83.990 shall not apply to the assignee of any retail
installment contract when:
(a) The assignor is a motor vehicle dealer or retail seller;
(b) The assignee regularly extends credit to natural persons
primarily for personal, family or household purposes;
(c) The credit is subject to a service charge or finance charge or
is payable by a written agreement in more than four installments; and
(d) The retail installment contract is in the form regularly used
by the assignee in similar transactions.
(2) The assignee of a motor vehicle dealer or retail seller
regularly extends credit to natural persons primarily for personal,
family or household purposes only if the assignee extended credit more
than 25 times in the preceding calendar year or more than five times in
the preceding calendar year for transactions secured by a dwelling. If
the assignee does not meet these numerical standards in the preceding
calendar year, the numerical standards shall be applied to the current
calendar year. [1991 c.296 §2; 1999 c.240 §3; 2001 c.117 §14]Note: See note under 83.811.(1) In any contract for the sale or
lease of motor vehicles on any form of credit, or of consumer goods or
services on credit, entered into between a motor vehicle dealer, retail
seller or retail lessor and a retail buyer or retail lessee, such
contract, note or any instrument or evidence of indebtedness of the buyer
or lessee shall have printed on the face thereof the words “consumer
paper,” and such contract, note, instrument or evidence of indebtedness
with the words “consumer paper” printed thereon shall not be a negotiable
instrument within the meaning of ORS chapter 73. However, this section
shall have no force or effect on the negotiability of any contract,
promissory note, instrument or other evidence of indebtedness owned or
guaranteed or insured by any state or federal governmental agency even
though said contract, note, instrument or other evidence of indebtedness
shall contain the wording required by this subsection.
(2) Notwithstanding the absence of such notice on a contract, note,
instrument or evidence of indebtedness arising out of a consumer credit
sale, consumer lease or the sale or lease of a motor vehicle on any form
of credit as described in this section, an assignee of the rights of the
motor vehicle dealer, seller or lessor is subject to all claims and
defenses of the buyer or lessee against the motor vehicle dealer, seller
or lessor arising out of the sale or lease. Any agreement to the contrary
shall be of no force or effect in limiting the rights of a consumer under
this section. The assignee’s liability under this section may not exceed
the amount owing to the assignee at the time the claim or defense is
asserted against the assignee. The restrictions imposed hereby shall not
apply with respect to any promissory note, contract, instrument or other
evidence of indebtedness owned or guaranteed or insured by any state or
federal governmental agency even though said note, contract, instrument
or other evidence of indebtedness shall contain the words required by
subsection (1) of this section.
(3) An assignee of “consumer paper” who in good faith enforces a
security interest in property held by the buyer or lessee shall not be
liable to such buyer or lessee for punitive damages in an action for
wrongful repossession. The fact that a motor vehicle dealer, seller or
lessor has broken the warranties of the motor vehicle dealer, seller or
lessor with regard to the property sold or leased shall not, of itself,
make an assignee’s repossession wrongful.
(4) Notwithstanding the absence of notice as provided in subsection
(1) of this section, an assignee of the rights of the motor vehicle
dealer, seller or lessor who lends money to the buyer or lessee for the
purpose of paying off the amount owing to the assignee under the
contract, note, instrument or evidence of indebtedness is subject to all
claims and defenses of the buyer or lessee against the motor vehicle
dealer, seller or lessor arising out of the sale or lease. The assignee’s
liability under this subsection may not exceed the amount that would be
owing to the motor vehicle dealer, seller or lessor under the contract,
note, instrument or evidence of indebtedness at the time the claim or
defense is asserted had the obligation not been paid off. Assignee shall
include a parent, subsidiary or other business entity similarly related
to the assignee, and the assignee’s liability shall extend to anyone who
holds the buyer’s or lessee’s new instrument or evidence of indebtedness.
[1971 c.744 §2; 1977 c.195 §11; 1995 c.79 §31; 2001 c.117 §2]
(1) “Financing agency,” “motor vehicle dealer,” “retail lease,”
“retail lessee” and “retail lessor” have the meanings given those terms
in ORS 83.510.
(2) “Goods” has the meaning for that term provided in ORS 83.010.
(3) “Motor vehicle” means a motor vehicle as defined in ORS 83.510
purchased primarily for personal, family or household purposes and not
primarily for business or commercial purposes.
(4) A loan is made “in close connection with a sale of goods or
motor vehicles” if:
(a) The lender directly or indirectly controls, is controlled by or
is under common control with the seller or motor vehicle dealer, unless
the relationship is remote and is not a factor in the transaction;
(b) The lender gives a commission, rebate or credit in any form to
a seller or motor vehicle dealer who refers the borrower to the lender,
other than payment of the proceeds of the loan jointly to the seller or
motor vehicle dealer and the borrower;
(c) The lender is related to the seller or motor vehicle dealer by
blood or marriage;
(d) The seller or motor vehicle dealer directly and materially
assists the buyer in obtaining the loan;
(e) The seller or motor vehicle dealer prepares documents that are
given to the lender and used in connection with the loan; or
(f) The lender supplies documents to the seller or motor vehicle
dealer used by the consumer in obtaining the loan.
(5) A lease is made or funded “in close connection with a retail
lease of a motor vehicle” if:
(a) The retail lessor or financing agency directly or indirectly
controls, is controlled by or is under common control of the motor
vehicle dealer supplying the vehicle to the retail lessee, unless the
relationship is remote and is not a factor in the transaction;
(b) The retail lessor or financing agency gives a commission,
rebate, financing reserve or credit in any form to a motor vehicle dealer
who refers the retail lessee to the retail lessor or financing agency,
other than payment of the proceeds of the lease;
(c) The retail lessor or financing agency is related to the motor
vehicle dealer by blood or marriage;
(d) The motor vehicle dealer directly or materially assists the
retail lessee in obtaining the lease;
(e) The motor vehicle dealer prepares documents that are given to
the retail lessor or financing agency and used in connection with the
lease; or
(f) The retail lessor or financing agency supplies documents to the
motor vehicle dealer used by the retail lessee in obtaining the lease.
(6) Credit extended pursuant to a credit card issued by a lender is
not a loan “in close connection with a sale of goods or motor vehicles”
or a loan “in close connection with a retail lease of a motor vehicle”
unless the credit card is issued contemporaneously with the extension of
the credit. [1973 c.626 §1; 2001 c.117 §3](1) If a lender makes a loan in close connection with the sale of
goods or motor vehicles, the lender is subject to all claims and defenses
of the borrower that the borrower as buyer has against the seller or
motor vehicle dealer arising out of the sale, notwithstanding any
agreement to the contrary. However, the lender’s liability to the
borrower shall not exceed the amount owing to the lender, exclusive of
unearned interest, at the time the claim or defense is asserted.
(2) If a lender who makes a loan in close connection with a sale of
goods or motor vehicles negotiates or assigns any note or other
instrument taken as evidence of the obligation of the borrower, the
holder of the note or other instrument shall be subject to the claims or
defenses of the borrowers set forth in subsection (1) of this section.
However, the liability of the holder of the note or other instrument to
the borrower shall not exceed the amount owing to the lender exclusive of
unearned interest at the time the claim or defense is asserted.
(3) If a financing agency makes or funds a lease in close
connection with a retail lease of a motor vehicle, the financing agency
is subject to all claims and defenses that the retail lessee has against
the retail lessor arising out of the retail lease, notwithstanding any
agreement to the contrary. However, the financing agency’s liability to
the retail lessee shall not exceed the amount owing to the financing
agency, exclusive of unearned interest, at the time the claim or defense
is asserted.
(4) If a financing agency that makes or funds a loan in close
connection with a retail lease of a motor vehicle negotiates or assigns
any note or other instrument taken as evidence of the obligation of the
retail lessee, the holder of the note or other instrument shall be
subject to the claims or defenses of a retail lessee set forth in
subsection (3) of this section. However, the liability of the holder of
the note or other instrument to a retail lessee shall not exceed the
amount owing to the financing agency exclusive of unearned interest at
the time the claim or defense is asserted. [1973 c.626 §2; 2001 c.117 §4] As
used in ORS 83.875, 83.880, 83.890 and 83.895:
(1) “Goods” has the meaning for that term provided in ORS 83.010.
(2) “Motor vehicles” means a motor vehicle as defined in ORS
83.510, purchased primarily for personal, family or household purposes
and not primarily for business or commercial purposes.
(3) “Retail charge agreement” has the meaning for that term
provided by ORS 83.010, and includes a revolving charge agreement or
charge agreement.
(4) “Retail installment contract” or “contract” means a retail
installment contract for the sale of motor vehicles, goods or services.
(5) “Seller” includes a motor vehicle dealer as defined in ORS
83.510.
(6) “Services” has the meaning given that term in ORS 83.010. [1977
c.274 §5; 1981 c.910 §5; 2001 c.117 §15]A retail installment contract or retail charge
agreement for the sale of motor vehicles, goods or services constitutes a
bona fide time sale rather than a loan or a use of money; provided that
if the contract covers motor vehicles, goods or services purchased
primarily for personal, family or household use and not primarily for
commercial or business use, the contract also clearly and specifically
discloses both a cash price, using the term “cash price” or “cash sale
price,” and a deferred payment price, using the term “deferred payment
price” or “time sale price,” or if the agreement complies with ORS
83.080. This section shall apply notwithstanding that the contract is
intended to be transferred, or is transferred, to a holder pursuant to a
business relationship characterized by one or more of the following:
(1) All or any part of the seller’s contracts are transferred to
the holder;
(2) The holder provides contract forms to the seller and
instructions for the use of the forms;
(3) The holder investigates the creditworthiness of the buyer
before or after the sale;
(4) The price the holder pays the seller for the contract is more
than, equal to, or less than that which the retail buyer has contracted
to pay to the seller;
(5) The transfer to the holder takes place concurrently with or
within a short time of the sale;
(6) The transfer is with or without recourse to the seller; or
(7) The seller purchases services or borrows money from the holder.
[1977 c.274 §2; 1981 c.910 §6; 1987 c.674 §2]A retail
installment contract for the sale of motor vehicles, other personal
property or services purchased primarily for business or commercial
purposes, which discloses both a cash price and a deferred payment or
time price, constitutes a bona fide time sale rather than a loan or use
of money, notwithstanding that the contract is intended to be
transferred, or is transferred, to a holder pursuant to a business
relationship however characterized. [1977 c.274 §6](1) If the seller intends to transfer the retail installment
contract to a holder, who has agreed with the seller to collect payments
directly from the retail buyer, the contract shall contain the following
notice which shall be in at least 8-point type, or elite typewriter type,
and be located on the same side of the page as the customer’s signature:
___________________________________________________________________________
___
NOTICE: The seller intends to sell this contract to (insert name
and mailing address of holder) which, if it buys the contract, will
become the owner of the contract and your creditor. After the sale of
this contract, all questions concerning either terms of the contract or
payments should be directed to the buyer of the contract at the address
indicated above.
___________________________________________________________________________
___
(2) If the contract is transferred to a holder other than the one
identified in the notice, or is retained by the seller, the seller shall
cause notice in writing of the name and address of the actual holder to
be delivered to the retail buyer within 10 days of the decision. [1977
c.274 §3] Any seller who
violates ORS 83.890 shall be subject to the provisions contained in ORS
83.170. [1977 c.274 §4]PENALTIES (1) Any person who violates any provision of ORS
83.510 to 83.680 commits a Class A violation.
(2) A willful violation of ORS 83.520 to 83.600 or 83.650 to 83.670
by any person shall bar recovery of any finance charge, delinquency or
collection charge or refinancing charge on the retail installment
contract involved.
(3) Notwithstanding the provisions of subsections (1) to (3) of
this section, any failure to comply with any provision of ORS 83.510 to
83.680 may be corrected within 10 days after the holder is notified
thereof in writing by the buyer, and, if so corrected, neither the seller
nor the holder shall be subject to any penalty.
(4) Any person who willfully and intentionally violates any
provision of ORS 83.010 to 83.190 shall, upon conviction, be punished by
a fine of not more than $1,000 or by imprisonment for not more than six
months, or both. Violation of any order or injunction issued pursuant to
ORS 83.010 to 83.190 shall constitute prima facie proof of a violation of
this subsection. [1957 c.625 §27; 1961 c.725 §401; subsection (4) enacted
as 1963 c.489 §17; 1999 c.1051 §148]
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