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| Home > Statutes > Usa Oregon |
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USA Statutes : oregon
Title : TITLE 51 LABOR AND EMPLOYMENT
Chapter : Chapter 697 Collection Agencies; Debt Consolidating Agencies
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As used in ORS
697.005 to 697.095:
(1)(a) “Collection agency” means:
(A) Any person directly or indirectly engaged in soliciting claims
for collection, or collecting or attempting to collect claims owed, due
or asserted to be owed or due to another person or to a public body;
(B) Any person who directly or indirectly furnishes, attempts to
furnish, sells or offers to sell forms represented to be a collection
system even though the forms direct the debtor to make payment to the
creditor and even though the forms may be or are actually used by the
creditor in the creditor’s own name;
(C) Any person who in attempting to collect or in collecting the
person’s own claim uses a fictitious name or any name other than the
person’s own that indicates to the debtor that a third person is
collecting or attempting to collect the claim;
(D) Any person in the business of engaging in the solicitation of
the right to repossess or in the repossession of collateral security due
or asserted to be due to another person; or
(E) Any person who in the collection of claims from another person:
(i) Uses any name other than the name regularly used in the conduct
of the business out of which the claim arose; and
(ii) Engages in any action or conduct that tends to convey the
impression that a third party has been employed or engaged to collect the
claim.
(b) “Collection agency” does not include:
(A) Any individual engaged in soliciting claims for collection, or
collecting or attempting to collect claims on behalf of a registrant
under ORS 697.005 to 697.095, if the individual is an employee of the
registrant;
(B) Any individual collecting or attempting to collect claims for
not more than three employers, if all collection efforts are carried on
in the name of the employer and the individual is an employee of the
employer;
(C) Any person who prepares or mails monthly or periodic statements
of accounts due on behalf of another person if all payments are made to
that other person and no other collection efforts are made by the person
preparing the statements of accounts;
(D) Any attorney-at-law rendering services in the performance of
the duties of an attorney-at-law;
(E) Any licensed certified public accountant or public accountant
rendering services in the performance of the duties of a licensed
certified public accountant or public accountant;
(F) Any bank, mutual savings bank, consumer finance company, trust
company, savings and loan association, credit union or debt consolidation
agency;
(G) Any real estate licensee or escrow agent licensed under the
provisions of ORS chapter 696, as to any collection or billing activity
involving a real estate transaction or collection escrow transaction of
the licensee or escrow agent;
(H) Any individual regularly employed as a credit person or in a
similar capacity by one person, firm or corporation that is not a
collection agency as defined in this section;
(I) Any public officer or any person acting under order of any
court;
(J) Any person acting as a property manager in collecting or
billing for rent, fees, deposits or other sums due landlords of managed
units;
(K) Any person while the person is providing billing services. A
person is providing billing services for the purposes of this
subparagraph if the person engages, directly or indirectly, in the
business or pursuit of collection of claims for other persons, whether in
the other person’s name or any other name, by any means that:
(i) Is an accounting procedure, preparation of mail billing or any
other means intended to accelerate cash flow to the other person’s bank
account or to any separate trust account; and
(ii) Does not include any personal contact or contact by telephone
with the person from whom the claim is sought to be collected;
(L) Any person while the person is providing factoring services. A
person is providing factoring services for the purposes of this
subparagraph if the person engages, directly or indirectly, in the
business or pursuit of:
(i) Lending or advancing money to commercial clients on the
security of merchandise or accounts receivable and then enforcing
collection actions or procedures on such accounts; or
(ii) Soliciting or collecting on accounts that have been purchased
from commercial clients under an agreement whether or not the agreement:
(I) Allows recourse against the commercial client;
(II) Requires the commercial client to provide any form of
guarantee of payment of the purchased account; or
(III) Requires the commercial client to establish or maintain a
reserve account in any form;
(M) Any individual employed by another person who operates as a
collection agency if the person does not operate as a collection agency
independent of that employment;
(N) Any mortgage banker as defined in ORS 59.840;
(O) Any public utility, as defined in ORS 757.005, any
telecommunications utility, as defined in ORS 759.005, any people’s
utility district, as defined in ORS 261.010, and any cooperative
corporation engaged in furnishing electric or communication service to
consumers;
(P) Any public body or any individual collecting or attempting to
collect claims owed, due or asserted to be owed or due to any public
body, if the individual is an employee of the public body; or
(Q) Any person for whom the Director of the Department of Consumer
and Business Services determines by order or by rule that the protection
of the public health, safety and welfare does not require registration
with the department as a collection agency.
(2) “Collection system” means a scheme intended or calculated to be
used to collect claims sent, prepared or delivered by:
(a) A person who in collecting or attempting to collect the
person’s own claim uses a fictitious name or any name other than the
person’s own that indicates to the debtor that a third person is
collecting or attempting to collect the claim; or
(b) A person directly or indirectly engaged in soliciting claims
for collection, or collecting or attempting to collect claims owed or due
or asserted to be owed or due another person.
(3) “Claim” means any obligation for the payment of money or thing
of value arising out of any agreement or contract, express or implied.
(4) “Client” or “customer” means any person authorizing or
employing a collection agency to collect a claim.
(5) “Debtor” means any person owing or alleged to owe a claim.
(6) “Debts incurred outside this state” means any action or
proceeding that:
(a) Arises out of a promise, made anywhere to the plaintiff or a
third party for the plaintiff’s benefit, by the defendant to perform
services outside of this state or to pay for services to be performed
outside of this state by the plaintiff;
(b) Arises out of services actually performed for the plaintiff by
the defendant outside of this state or services actually performed for
the defendant by the plaintiff outside of this state, if the performance
outside of this state was authorized or ratified by the defendant;
(c) Arises out of a promise, made anywhere to the plaintiff or a
third party for the plaintiff’s benefit, by the defendant to deliver or
receive outside of this state or to send from outside of this state
goods, documents of title or other things of value;
(d) Relates to goods, documents of title or other things of value
sent from outside of this state by the defendant to the plaintiff or a
third person on the plaintiff’s order or direction;
(e) Relates to goods, documents of title or other things of value
actually received outside of this state by the plaintiff from the
defendant or by the defendant from the plaintiff, without regard to where
delivery to carrier occurred; or
(f) Where jurisdiction at the time the debt was incurred was
outside of this state.
(7) “Department” means the Department of Consumer and Business
Services.
(8) “Director” means the Director of the Department of Consumer and
Business Services.
(9) “Out-of-state collection agency” means a collection agency
located outside of this state whose activities within this state are
limited to collecting debts incurred outside of this state from debtors
located in this state. As used in this subsection, “collecting debts”
means collecting by means of interstate communications, including
telephone, mail or facsimile transmission from the collection agency
location in another state on behalf of clients located outside of this
state.
(10) “Person” includes an individual, firm, partnership, trust,
joint venture, association, limited liability company or corporation.
(11) “Public body” means:
(a) The state and any branch, department, agency, board or
commission of the state;
(b) Any city, county, district or other political subdivision or
municipal or public corporation and any instrumentality thereof; and
(c) Any intergovernmental agency, department, council, joint board
of control created under ORS 190.125 or other like entity, which is
created under ORS 190.003 to 190.130 and which does not act under the
direction and control of any single member government.
(12) “Registered” or “registrant” means any person registered under
ORS 697.005 to 697.095 or registered or licensed as a collection agency
under the laws of another state.
(13) “Statement of account” means a report setting forth amounts
billed, invoices, credits allowed or aged balance due. [1981 c.85 §2;
1987 c.373 §43; 1993 c.744 §20; 1995 c.622 §1; 1999 c.468 §1; 2001 c.917
§5] A
person shall not operate as a collection agency in this state unless the
person registers with the Department of Consumer and Business Services
under ORS 697.031 and maintains the registration in accordance with that
section. [1981 c.85 §3; 1995 c.622 §2](1) The Director
of the Department of Consumer and Business Services shall establish by
rule a program for registration of persons operating as collection
agencies that are required to register with the Department of Consumer
and Business Services under ORS 697.015. The program shall include a
requirement that persons registering with the department file and
maintain with the department current information the department requires
by rule. The department may require any information necessary to carry
out the program, including but not limited to the following:
(a) The name and address of the person operating as a collection
agency.
(b) The name and address of the collection agency.
(c) Any assumed names or business names used by the collection
agency.
(d) Names of persons who perform the solicitation or collection of
claims or who perform the solicitation of the right to repossess or the
repossession of collateral security for the collection agency.
(e) Names of persons who are agents of the collection agency for
purposes of service of legal process.
(2)(a) The director shall require any person who applies for
registration as a collection agency, other than an out-of-state
collection agency, to file with the director a bond or an irrevocable
letter of credit in the sum of $10,000 executed by the applicant as
obligor, together with one or more corporate sureties or financial
institutions authorized to do business in this state. The bond or an
irrevocable letter of credit shall be executed to the State of Oregon and
for the use of the state and of any person who may have a cause of action
against the obligor of the bond or an irrevocable letter of credit under
ORS 697.005 to 697.095. The bond or an irrevocable letter of credit shall
be conditioned that the obligor will faithfully conform to and abide by
the provisions of ORS 697.005 to 697.095 and all rules lawfully made by
the director under ORS 697.005 to 697.095, and will pay to the state and
to any such person any and all moneys that may become due or owing to the
state or to such person from the obligor under and by virtue of the
provisions of ORS 697.005 to 697.095.
(b) If any person is aggrieved by the misconduct of a registrant
required to file a bond or an irrevocable letter of credit under
paragraph (a) of this subsection or by the registrant’s violation of any
law or rule lawfully made by the director under ORS 697.005 to 697.095
and recovers judgment therefor, the person may, after the return
unsatisfied either in whole or in part of any execution issued upon the
judgment, maintain an action for the person’s own use upon the bond or
irrevocable letter of credit of the registrant in any court having
jurisdiction of the amount claimed.
(c) The bond or an irrevocable letter of credit required by this
subsection shall be continuously maintained in the amount required by
this subsection. The aggregate liability of the surety under the bond for
claims against the bond shall not exceed the penal sum of the bond no
matter how many years the bond is in force. No extension by continuation
certificate, reinstatement, reissue or renewal of the bond shall increase
the liability of the surety.
(3) The director may include any of the following in the program
for registration established under this section:
(a) The director may require any filings with the department that
the director determines to be necessary to maintain current the
information required for registration. Filings required under this
subsection may include renewal of registration at reasonable intervals,
filings within a reasonable time after changes in a collection agency or
other filings the director determines to be necessary. In requiring
filings under this subsection, the director shall attempt to minimize
burdens the filings might place on persons required to file.
(b) Except as provided in subsection (4) of this section, the
director may establish and require persons filing with the department
under this section to pay fees for any registration or filing made with
the department. The director shall not establish fees for more than an
amount necessary to cover the administrative costs of the filing or
registration.
(c) The program may be established in any division of the
department the director determines to be best able to administer the
program.
(d) The director may issue, but may not require, certificates of
registration or other indicia of registration that the director
determines will be of assistance to persons operating as a collection
agency in establishing that the persons are registered with the
department.
(4) An out-of-state collection agency is exempt from the
registration fee under this section if the out-of-state collection agency
is registered in another state and that state does not require payment of
an initial fee by a person who collects debts in that state only by means
of interstate communications from the person’s location in another state.
(5) If an out-of-state collection agency is not exempt from payment
of a registration fee under this section, the registration fee for the
out-of-state collection agency shall be not less than the fee charged by
the state in which the out-of-state collection agency is located to a
person who collects debts in that state only by means of interstate
communications from the person’s location in another state.
(6) If the director determines that the state where an out-of-state
collection agency is located and registered, if required to be
registered, exempts a collection agency located and registered in this
state from registration requirements in that state, the director shall
exempt out-of-state collection agencies located in that state from the
registration requirements of ORS 697.005 to 697.095.
(7) The department shall maintain current records of the
information required for registration under this section. [1981 c.85 §5;
1983 c.69 §1; 1991 c.627 §1; 1995 c.622 §3; 1997 c.249 §211](1) The Director of the Department of Consumer and Business
Services may refuse to issue or renew or may revoke or suspend any
registration under ORS 697.031 if the director determines that:
(a) Any information a person files with the director under ORS
697.031 is false or untruthful;
(b) A person has violated any of the rules of the director for
registration under ORS 697.031;
(c) A person has violated the provisions of ORS 697.045 or 697.058;
(d) A person has failed to maintain in effect the bond or an
irrevocable letter of credit required under ORS 697.031;
(e) A person has died or become incapacitated;
(f) A person has engaged in dishonest, fraudulent or illegal
practices or conduct in any business or profession; or
(g) A person has been convicted of a felony or misdemeanor, an
essential element of which is fraud.
(2) A revocation or suspension under this section may be for a time
certain or upon condition that certain acts be performed.
(3) If the director issued an initial order of revocation of a
registration before the expiration of the registration, the director may
enter a final order of revocation even though the registration has
expired.
(4) Actions of the director under this section are subject to the
provisions of ORS chapter 183. [1981 c.85 §6; 1991 c.627 §2; 1995 c.622
§4; 1999 c.413 §1; 2005 c.338 §11](1) A registered collection agency has a
property right in any claim or account assigned to the agency in writing
for collection. Except as may be otherwise provided in writing between
the assignor of the claim or account and the registered collection
agency, the registered collection agency as assignee of the claim or
account, in its own name, may:
(a) Collect the claim or account;
(b) Compromise or accept settlement of the claim or account;
(c) Bring and maintain an action to recover the amount owing from
the claim or account; and
(d) With prior written approval of the assignor, transfer or
forward the claim or account to another collection agency for collection.
(2) Except as may be otherwise provided in writing between the
assignor of the claim or account and the registered collection agency,
the assignor may withdraw the claim or account from the agency at any
time without condition or charge.
(3) Notwithstanding ORS 9.160 and 9.320, in any action in the small
claims department of a circuit court or justice court a registered
collection agency may appear as a party without appearance by attorney
for the purpose of recovering the amount owing on a claim or account
assigned to the agency in writing for collection. The provisions of this
subsection apply to any supplementary proceeding in aid of execution
after entry of a judgment in the small claims department.
(4) No collection agency is entitled to bring or maintain an action
involving the collection of a claim or account on behalf of its customers
in any courts of this state without alleging and proving that it is duly
registered under ORS 697.015 and 697.031. A registration certificate or a
certification of registration by the Director of the Department of
Consumer and Business Services for any designated time period shall be
received by the court as prima facie evidence of the collection agency’s
registration for the time period designated. [1981 c.85 §7; 2003 c.78 §1]
The provisions of ORS 697.015 and 697.031 are exclusive and no political
subdivision or agency of this state may require of a collection agency
any registration, license or fee for any collection agency duly
registered under ORS 697.015 and 697.031. Nothing in this section limits
the authority of any political subdivision to levy and collect a general
and nondiscriminatory license or registration fee upon all businesses in
the political subdivision or to levy a tax based upon the business
conducted by any registered collection agency within the political
subdivision. [1981 c.85 §8](1)
Except as provided in subsection (9) of this section, every collection
agency shall keep a record of all sums collected by it, and of all
disbursements made by it, and shall maintain and keep all such records
and all customers’ funds within this state. Collection agencies shall
maintain accounting records of collections for and payments to customers
for a period of six years from the date of the last entry thereon.
Collection agencies shall keep other records for a period of two years
from the date of the last entry thereon. Collection agencies, or any
employee thereof, shall not intentionally make any false entry in any
collection agency record or intentionally mutilate, destroy or otherwise
dispose of any such record within the time limits provided in this
section. This subsection does not apply to out-of-state collection
agencies.
(2) Except as provided in subsection (9) of this section, every
collection agency shall establish and maintain a regular, active business
office in this state for the purpose of conducting business in this
state. The office shall be open to the public during reasonable, stated
business hours. This subsection does not apply to out-of-state collection
agencies.
(3) A collection agency shall not commingle the money of customers
with other moneys.
(4) Except as provided in subsection (9) of this section, a
collection agency shall maintain a separate trust account in this state
for customers’ funds and shall keep funds in such trust account until
disbursed to the customer. This subsection does not apply to out-of-state
collection agencies.
(5) Except as provided in subsection (9) of this section, every
collection agency that requires customers to pay an amount for services
prior to the time that the services are rendered shall maintain a
separate trust account in this state for prepayments and shall keep
prepayment funds in the trust account for 180 days or until the services
for which prepayment is made are performed, whichever occurs first.
(6) Every collection agency, within 30 days after the close of each
calendar or fiscal month, shall report and pay to its customers the net
proceeds due and payable of all collections made during that calendar or
fiscal month. When the net proceeds are less than $5 at the end of any
calendar or fiscal month, payments may be deferred for a period not to
exceed three months.
(7) Upon the motion of the Director of the Department of Consumer
and Business Services or upon receipt of a complaint by a customer of the
collection agency, the director may audit the collection agency’s trust
accounts with respect to any violation by the collection agency of this
section. If the director finds any discrepancy in the trust accounts, the
director also may audit the operating account of the collection agency.
The collection agency shall pay the reasonable cost of an audit under
this section, as determined by the director.
(8) If a collection agency does not pay the cost of the audit
determined under subsection (7) of this section, the director may assign
the delinquent account to the Department of Revenue for collection in the
manner that other debts are collected under ORS 293.250.
(9) The director, by rule or order, may exempt a collection agency
from the requirements of subsection (1), (2), (4) or (5) of this section
if the collection agency:
(a) Satisfies the director that the books, records and trust
accounts of the collection agency may be examined by the director without
undue delay or expense;
(b) Provides for timely and convenient remittance of debtor
payments and funds owed to the customer; and
(c) Complies with all conditions the director may require relating
to additional bonding requirements and to provisions for auditing
financial statements of trust accounts, receiving payments from and
communicating with debtors, and remitting funds to customers. [1981 c.85
§9; 1983 c.69 §2; 1995 c.622 §9; 1999 c.413 §2; 1999 c.468 §2](1)
When the Director of the Department of Consumer and Business Services
revokes a registration, the director may take possession of all business
records and all bank accounts of the registrant and retain possession of
them pending the further proceedings specified in this section. The
director shall inventory all the business records and all bank accounts
of the registrant. The director shall file one copy of the inventory in
the office of the director and one copy in the office of the clerk of the
circuit court of the county in which the principal place of business of
the registrant is located and shall mail one copy to each shareholder or
partner of the registrant at the last-known address of the shareholder or
partner. The clerk of the court shall file the inventory as a pending
proceeding and give it a case number. The director by rule may delegate
the director’s authority under this section relating to the inventory of
business records and bank accounts of a registrant.
(2) If any person refuses to permit the director to take possession
of business records and bank accounts under subsection (1) of this
section, the director may apply to the circuit court of the county in
which the principal place of business of the registrant is located for an
order appointing a receiver, who may be the director, to take possession.
(3) The business records and bank accounts of the registrant shall
be liquidated. If a receiver has not been appointed, the director shall
apply for appointment by the court in which the inventory was filed. The
liquidation shall proceed as provided by law for liquidation of a private
corporation in receivership.
(4) The expenses of the receiver and attorney fees, as well as all
expenditures required in the liquidation proceedings, shall be fixed by
the director, subject to the approval of the court, and, upon
certification by the director, shall be paid out of the funds in the
hands of the director as such receiver. [1995 c.622 §6; 2003 c.576 §218] The Director of the Department of Consumer and
Business Services may adopt rules for the administration and enforcement
of ORS 697.005 to 697.095, 697.105 and 697.115. [1983 c.69 §5; 2005 c.338
§12] (1) The
Director of the Department of Consumer and Business Services shall adopt
rules that regulate the practices of a collection agency that enters into
an agreement with an obligee to collect child support payments as
provided in ORS 25.020.
(2) The rules adopted by the director under this section shall be
as consistent as practicable with the provisions of 15 U.S.C. 1692c to
1692f. [2003 c.421 §4]
(1) Any person injured as a result of the violation of any provision of
ORS 697.015 or 697.058 or any rule adopted under ORS 697.031 or 697.085
may bring an action in an appropriate court to enjoin the practice or to
recover actual damages or $200, whichever is greater. The court or the
jury may award punitive damages and the court may provide such equitable
relief as it deems necessary or proper.
(2) Notwithstanding any other actions provided by law, the Attorney
General of the State of Oregon or the prosecuting attorney of any county
may bring an action in the name of the state against any person to
restrain and prevent violation of any provision of ORS 697.005 to 697.095.
(3) In any action brought by a person under this section, the court
may award, in addition to the relief provided, reasonable attorney fees
at trial and on appeal and costs. If the defendant prevails, the court
may award reasonable attorney fees at trial and on appeal and costs if it
finds the action to be frivolous.
(4) Actions brought under this section shall be commenced within
one year from the date the violation occurs. [1995 c.622 §7](1) A person who violates any provision of ORS 697.015 or
697.058 or any rule adopted under ORS 697.031 or 697.085 shall not charge
or receive any fee or compensation on any moneys received or collected
while in violation of any provision of ORS 697.015 or 697.058 or any rule
adopted under ORS 697.031 or 697.085.
(2) A person shall not charge or receive any fee or compensation on
any moneys received or collected while operating in accordance with any
provision of ORS 697.015 or 697.058 or any rule adopted under ORS 697.031
or 697.085 but that is received or collected as a result of the person’s
acts as a collection agency or out-of-state collection agency operating
in violation of any provision of ORS 697.015 or 697.058 or any rule
adopted under ORS 697.031 or 697.085.
(3) All moneys collected or received in violation of this section
shall be immediately returned to the assignors, or their assigns, of the
account on which the moneys were paid. [1995 c.622 §8] (1) The Director of the Department of Consumer
and Business Services may:
(a) Undertake the investigations, including investigations outside
this state, that the director considers necessary to determine whether a
person has:
(A) Violated, is violating or is about to violate:
(i) ORS 697.015, 697.031, 697.045, 697.058, 697.091, 697.105 or
697.115;
(ii) A rule adopted under ORS 697.031, 697.085 or 697.086; or
(iii) An order issued under this section;
(B) Filed information under ORS 697.031 that is false or
untruthful; or
(C) Failed to maintain in effect the bond or an irrevocable letter
of credit required under ORS 697.031.
(b) Require a person to file a statement in writing, under oath or
otherwise, concerning the matter being investigated.
(c) Take evidence from witnesses and compel the attendance of
witnesses and the production of books, papers, correspondence, memoranda,
agreements or other documents or records that the director considers
relevant or material to an investigation or proceeding.
(d) If the director has reason to believe that a person has:
(A) Violated, is violating or is about to violate ORS 697.015,
697.031, 697.045, 697.058, 697.091, 697.105 or 697.115 or a rule adopted
under ORS 697.031, 697.085 or 697.086, issue an order to cease and desist
from the violation.
(B) Filed information under ORS 697.031 that is false or
untruthful, issue an order to correct the filing.
(C) Failed to maintain in effect the bond or an irrevocable letter
of credit required under ORS 697.031, issue an order to remedy the
failure.
(2) The authority conferred by this section is in addition to and
not in lieu of any other authority conferred on the director. [2005 c.338
§9] (1) The Director of the
Department of Consumer and Business Services shall serve an order under
ORS 697.093 on the person named in the order.
(2) An order issued under ORS 697.093 becomes effective upon
service on the person named in the order.
(3) ORS 183.413 to 183.470 apply to an order issued under ORS
697.093.
(4) Notwithstanding subsection (3) of this section, a person may
not obtain a hearing on the order unless the person requests the hearing
in writing within 20 days after service of the order.
(5) A person who does not request a contested case hearing may not
obtain judicial review of the order.
(6) The director may vacate or modify an order issued under ORS
697.093. A modified order is effective upon service on the person named
in the order. [2005 c.338 §10] (1) In addition to any other penalty
provided by law, a person who violates any provision of ORS 697.015 or
697.058 or any rule adopted under ORS 697.031, 697.085 or 697.086 is
subject to forfeiture and payment of a civil penalty to the Department of
Consumer and Business Services in an amount of not more than $1,000 for
each offense.
(2) Civil penalties under this section shall be imposed as provided
in ORS 183.745.
(3) All penalties recovered shall be deposited in the Consumer and
Business Services Fund created by ORS 705.145. [1983 c.69 §4; 1987 c.373
§44; 1991 c.734 §87; 2005 c.338 §13](1) Except as provided in ORS 1.202 and 293.231, if a
public body, as defined in ORS 174.109, uses a private collection agency
to collect a debt owed to the public body, the public body may add a
reasonable fee to the amount of the debt, payable by the debtor, for the
collection agency fee incurred or to be incurred.
(2) A fee may not be added under subsection (1) of this section
unless the public body has provided notice to the debtor:
(a) Of the existence of the debt;
(b) That the debt may be assigned to a private collection agency
for collection; and
(c) Of the amount of the fee that may be added to the debt under
subsection (1) of this section.
(3) Except as provided by federal law, the public body may not add
a fee under this section that exceeds the collection fee of the private
collection agency. [2003 c.66 §1] (1)
As used in this section, “commercial debt” means any obligation for
payment of money or thing of value arising out of an agreement or
contract, express or implied, in which the transaction that is the
subject of the agreement or contract is not primarily for personal,
family or household purposes.
(2) A person using a private collection agency to collect a
commercial debt owed to the person may add a reasonable fee to the amount
of the commercial debt, payable by the debtor, for the collection agency
fee incurred or to be incurred. A person may not add a fee under this
section that:
(a) Exceeds the collection fee of the private collection agency; or
(b) Was not authorized in the agreement or contract creating the
commercial debt. [2003 c.66 §2]DEBT CONSOLIDATING AGENCIES As used in ORS
697.602 to 697.842:
(1) “Client” means a debtor on whose behalf a debt consolidating
agency is performing the services of a debt consolidating agency as
described in ORS 697.612.
(2) “Director” means the Director of the Department of Consumer and
Business Services. [1983 c.17 §2; 1987 c.373 §45; 1993 c.744 §21](1) A person shall not operate as a debt consolidating agency or
in any way purport to be a debt consolidating agency unless the person is
first registered with the Director of the Department of Consumer and
Business Services under ORS 697.632. For purposes of this section, a
person operates as a debt consolidating agency and is subject to ORS
697.602 to 697.842 if the person in the regular course of the person’s
business directly or indirectly solicits, offers to take or takes
anything of value belonging to the debtor or an assignment of the wages,
salary, income, credits or any other thing of value of a debtor for the
purpose of paying to any creditor of the debtor the debtor’s wages,
salary, income, credits or things of value, or the proceeds from the sale
of the things of value.
(2) An employee of a debt consolidating agency is not required to
register with the director under subsection (1) of this section if the
debt consolidating agency is registered under ORS 697.632.
(3) Subsection (1) of this section is subject to the exemptions in
ORS 697.622.
(4) A person who violates subsection (1) of this section is subject
to ORS 697.762, 697.832 and 697.990 (3). [1983 c.17 §3]
The following are not required to comply with ORS 697.602 to 697.842:
(1) Attorneys-at-law rendering services in the performance of
duties as attorneys.
(2) Financial institutions and trust companies, as those terms are
defined in ORS 706.008.
(3) Savings and loan associations, credit unions and mutual savings
banks.
(4) Consumer finance companies licensed under ORS chapter 725.
(5) Escrow agents licensed under ORS 696.505 to 696.590.
(6) Any public officer or any person acting under an order of
court. [1983 c.17 §4; 1997 c.631 §525] (1)
Subject to ORS chapter 183, the Director of the Department of Consumer
and Business Services shall establish by rule a program for registration
of persons required to register with the director by ORS 697.612. The
program shall include a requirement that a person who registers with the
director must file and maintain with the director current information
that the director requires by rule. The director shall require the
following information for registration under this section:
(a) The name and address of the person engaging in business as a
debt consolidating agency.
(b) The name and address of the debt consolidating agency.
(c) Any assumed names or business names used by the debt
consolidating agency.
(d) The names of persons who act as agents in the business of the
debt consolidating agency.
(e) The names of persons who are agents of the debt consolidating
agency for purposes of service of legal process, or an appointment of the
director as agent for the debt consolidating agency for the service of
process.
(f) If a person has been convicted for a criminal offense, an
essential element of which is fraud, information relating to the
circumstances of the conviction as required by the director.
(g) Any other information required by rules adopted by the director.
(h) That a bond has been obtained and that the bond satisfies the
applicable requirements of ORS 697.642.
(2) The director may include any of the following in the program
for the registration established under this section:
(a) The director may require any filings with the director that the
director determines to be necessary to maintain current information
required for registration. Filings required under this subsection may
include renewal of registration at reasonable intervals, filings within a
reasonable time after changes in a debt consolidating agency business and
other filings the director determines to be necessary. In requiring
filings under this subsection, the director shall attempt to minimize
burdens the filings might place on persons required to file.
(b) The director may issue certificates of registration or other
indicia of registration that the director determines will be of
assistance to persons engaged in a debt consolidating agency business in
establishing that the persons are registered under this section.
(3) The director shall collect a biennial registration fee of $200.
(4) The director shall maintain current records of the information
required for registration under this section. [1983 c.17 §5; 1989 c.209
§1] (1) A person who applies for registration as
a debt consolidating agency shall file with the Director of the
Department of Consumer and Business Services a bond with one or more
corporate sureties authorized to do business in this state. The bond:
(a) Must be in the amount of $10,000.
(b) Must require the surety company to provide written notice to
the director by registered or certified mail of any cancellation or
revocation of the bond:
(A) At least 30 days in advance of the cancellation or revocation;
or
(B) Upon any payment made for a loss under the bond.
(c) Must satisfy the provisions of subsection (2) or (3) of this
section, whichever is applicable to the debt consolidating agency.
(2) If the debt consolidating agency for which registration is
sought is not incorporated under subsection (c) of section 501 of the
Internal Revenue Code of 1954 (as amended and in effect on April 1,
1983), the bond required under subsection (1) of this section shall be a
surety bond payable to the order of the director and be conditioned that
the applicant shall pay all amounts, upon order of a court or order of
the director, resulting from any violation by the debt consolidating
agency of its statutory duties and obligations to its clients under ORS
697.652 to 697.702.
(3) If the debt consolidating agency for which registration is
sought is incorporated under subsection (c) of section 501 of the
Internal Revenue Code of 1954 (as amended and in effect on April 1,
1983), the bond required under subsection (1) of this section shall be a
fidelity bond, and shall be payable to the applicant.
(4) If the director has cause to believe that the proceeds of the
fidelity bond required under subsection (3) of this section are not being
used to pay damages to a client, then either upon order of a court or
order of the director upon the holder of the proceeds of the bond, the
proceeds shall be paid to the director to pay the damages for the purpose
of satisfying the requirements of ORS 697.772 to 697.812.
(5) The bond required by this section shall be continuously on file
with the director in the amount required by this section. Upon
termination or cancellation of the bond or reduction of the bond to less
than the required amount, the debt consolidating agency immediately:
(a) Shall file a replacement bond; or
(b) Shall surrender its registration to the director and cease
operating as a debt consolidating agency. [1983 c.17 §6; 1989 c.209 §2](1) A debt consolidating agency improperly
makes a contract or an agreement with a client if the debt consolidating
agency does not comply with the requirements of subsection (2) or (3) of
this section.
(2) A debt consolidating agency shall include the following items
in each debt consolidating contract or agreement with a client:
(a) The name and address of the debt consolidating agency and of
the client.
(b) A listing of every debt to be consolidated. The listing must
disclose the creditor’s name and address and the approximate total of all
such debts.
(c) A statement, in precise terms, of payments reasonably within
the ability of the client to pay.
(d) A statement, in precise terms, of the rate to be charged by the
debt consolidating agency.
(e) A statement of the approximate number of installments and the
amount of each installment, in the form of a schedule showing the ratio
or other arrangement made to pay the debts in full.
(f) A provision allowing the client to examine the client’s account
in the office of the debt consolidating agency during office hours.
(g) A provision that the debt consolidating agency may cancel a
debt consolidating contract or agreement without the client’s written
authorization while the client is employed and the client’s salary is
subject to any wage assignment made to the debt consolidating agency, if
the client fails or refuses to make all of the client’s debts subject to
the contract or agreement, if the client knowingly enters into new credit
obligations while subject to a debt consolidating contract or agreement
without the prior approval of the debt consolidating agency or if the
client by any means knowingly withholds from the debt consolidating
agency any wages that are subject to wage assignment.
(3) A debt consolidating agency shall deliver a legible copy of a
contract or agreement between the debt consolidating agency and the
client to the client immediately after the client executes it. The
client’s copy shall be executed by the debt consolidating agency.
(4) A debt consolidating agency which improperly makes a contract
or agreement with a client is subject to ORS 697.752, 697.762, 697.832
and 697.990 (3).
(5) A contract or agreement is not effective until a client has
made a payment or a payment has been made under a wage assignment to the
debt consolidating agency for distribution to the client’s creditors.
[1983 c.17 §7] (1) A debt consolidating agency
commits an improper debt consolidating practice when the debt
consolidating agency does any of the following:
(a) Takes a contract, promise to pay or other instrument that has
any blank spaces when it is signed by a client.
(b) Takes a negotiable instrument, other than a check or draft, as
payment or security for the charges of the debt consolidating agency.
(c) Takes a wage assignment, real estate mortgage, purchase money
security interest or other security, all or any part of which is an
amount greater than that provided in ORS 697.692, to secure the charges
of the debt consolidating agency.
(d) Takes a confession of judgment or a power of attorney to
confess judgment against the client or to appear for the client in a
judicial proceeding.
(e) Takes a release from a client of an obligation to be performed
on the part of the debt consolidating agency.
(f) Makes any contract or agreement with a client that provides for
later charges or reserves for liquidated damages.
(g) Commingles a client’s wages, salaries, income, credits or
property held by the debt consolidating agency with the property or funds
of the debt consolidating agency.
(h) Except as authorized in ORS 697.712, cancels a debt
consolidating contract or agreement without a client’s written
authorization.
(i) Violates ORS 697.707.
(2) A person commits an improper debt consolidating practice if the
person advertises, prints, displays, publishes, distributes or
broadcasts, or causes to be advertised, printed, displayed, published,
distributed or broadcasted, any false or misleading statement or
representation with regard to the rates, terms or services of a debt
consolidating agency.
(3) A debt consolidating agency that commits an improper debt
consolidating practice under this section is subject to ORS 697.752,
697.762, 697.832 and 697.990 (3).
(4) A person other than a debt consolidating agency that commits an
improper debt consolidating practice under subsection (2) of this section
is subject to ORS 697.762, 697.832 and 697.990 (3). [1983 c.17 §8; 2005
c.309 §4] (1) A debt consolidating
agency improperly maintains records when the debt consolidating agency
does not comply with the following requirements:
(a) A debt consolidating agency shall maintain a record of all
wages, salaries, income, credits and property of a client that are
received by the debt consolidating agency, and a record of all property
of the client sold by the debt consolidating agency, for the purpose of
remitting the proceeds to creditors of the client.
(b) A debt consolidating agency shall maintain a record of all
disbursements that the debt consolidating agency has made to creditors of
the client.
(c) A debt consolidating agency shall maintain records described in
paragraphs (a) and (b) of this subsection for a period of three years
from the date of the last entry on the records.
(d) The debt consolidating agency shall allow the Director of the
Department of Consumer and Business Services or any authorized agent of
the director to inspect all records described in paragraphs (a) and (b)
of this subsection.
(e) The debt consolidating agency shall allow a client to inspect
records of the client during the business hours of the debt consolidating
agency.
(2) A debt consolidating agency that improperly maintains records
under this section is subject to ORS 697.752, 697.762, 697.832 and
697.990 (3).
(3) A debt consolidating agency may dispose of records to which
this section applies after the three-year period provided in subsection
(1) of this section has expired. [1983 c.17 §9] (1) A debt consolidating agency
improperly handles funds when the debt consolidating agency does not
comply with the following requirements:
(a) The debt consolidating agency shall keep either a separate
trust account for each client or a single account for all clients. If a
single account is kept for all clients, the debt consolidating agency
shall keep a separate ledger or other record on receipts and
disbursements for each client. The debt consolidating agency shall
maintain the trust account or accounts in this state.
(b) The debt consolidating agency shall deposit in the trust
account all wages, salaries, income, credits or property received from
the client and all proceeds received from property of the client.
(c) The debt consolidating agency shall make all disbursements to
the client or on behalf of the client, including any fees charged by the
debt consolidating agency, from the client’s trust account.
(d) Upon request of a client, a debt consolidating agency shall
provide to the client without charge a statement of the money or property
received from or on behalf of the client and the disbursements made by
the debt consolidating agency under the debt consolidating agreement or
contract for the period of time requested.
(2) A debt consolidating agency that improperly handles funds under
this section is subject to ORS 697.752, 697.762, 697.832 and 697.990 (3).
[1983 c.17 §10] (1) A debt consolidating agency:
(a) May charge a client an initial set-up fee of not more than $25.
(b) May charge for services performed for the client in an amount
of not more than 15 percent of the amount actually received by the debt
consolidating agency on behalf of a client for payment to creditors. A
debt consolidating agency may not receive an amount from the client under
this paragraph until the first installment under the contract or
agreement with the client is paid to any creditor of the client.
(c) May not charge a person for any discussion with that person
that may or may not result in an agreement for services of a debt
consolidating agency.
(d) Notwithstanding paragraph (c) of this subsection, may charge a
fee to cover the expenses for education classes if:
(A) The classes are approved by the Director of the Department of
Consumer and Business Services, or the classes are required by rule or
order of a federal or state agency and the debt consolidating agency is
certified by the federal or state agency to provide the education; and
(B) A request to charge the fee has been approved in writing by the
director.
(2) Notwithstanding subsection (1)(c) of this section, a debt
consolidating agency that is a nonprofit organization may charge a fee in
an amount set by the director by rule to cover the expenses of credit
counseling if:
(a) The debt consolidating agency demonstrates to the director the
need for the fee or the credit counseling is required by rule or order of
a federal or state agency and the debt consolidating agency is certified
by the federal or state agency to provide the credit counseling; and
(b) A request to charge the fee has been approved in writing by the
director.
(3) A debt consolidating agency that charges a fee not authorized
under this section is subject to ORS 697.752, 697.762, 697.832 and
697.990 (3).
(4) As used in this section, “nonprofit organization” means an
organization described in section 501(c)(3) of the Internal Revenue Code
that is exempt from income tax under section 501(a) of the Internal
Revenue Code. [1983 c.17 §11; 1999 c.483 §1; 2005 c.309 §1] (1)
A person commits the offense of interfering with records of a debt
consolidating agency if the person does either of the following to a
record to which ORS 697.672 applies:
(a) Intentionally makes a false entry in the record.
(b) Intentionally mutilates, destroys or otherwise disposes of the
record.
(2) Subsection (1)(b) of this section does not apply to the
disposal of records by a debt consolidating agency that occurs after the
expiration of the retention period in ORS 697.672. [1983 c.17 §12; 2005
c.338 §16] (1) A debt consolidating agency
may not charge or receive from a client a fee authorized under ORS
697.692 for any services provided by the agency to the client before the
agency provides the disclosure required under this section.
(2) A debt consolidating agency shall disclose in writing to each
client on a separate form:
(a) The maximum amount the debt consolidating agency may charge for
services performed for the client; and
(b) That the client is responsible for payment of the amount
charged.
(3) The form described in subsection (2) of this section must
contain a space for the client to sign the form, indicating that the
client has read and understands the information disclosed on the form.
[2005 c.309 §3]A debt consolidating agency may cancel a debt
consolidating contract or agreement without the authorization of a client
if the client does any of the following:
(1) The client does not make all of the client debts subject to the
contract or agreement as provided in the contract or agreement;
(2) The client knowingly withholds from the debt consolidating
agency any wages or other funds that the client has agreed to pay to the
debt consolidating agency; or
(3) The client knowingly enters into new credit obligations while
subject to a debt consolidating contract or agreement without the prior
approval of the debt consolidating agency. [1983 c.17 §13] Funds in a
trust account maintained by a debt consolidating agency under ORS 697.682
are not subject to execution or attachment on any claim against the debt
consolidating agency. [1983 c.17 §14](1) To enforce ORS 697.612 and 697.642 to
697.702, the Director of the Department of Consumer and Business Services
may:
(a) Upon the director’s own motion or upon receipt of a complaint
by a client of a debt consolidating agency or of a person acting as a
debt consolidating agency without registration, audit the trust accounts
of the agency or person for the purpose of investigating any violation of
ORS 697.642 to 697.702. The debt consolidating agency or person acting as
a debt consolidating agency without registration shall pay the reasonable
cost of the audit, as determined by the director.
(b) Undertake investigations, including investigations outside of
this state, that the director considers necessary to:
(A) Determine whether a person has violated, is violating or is
about to violate ORS 697.612 or 697.642 to 697.702 or any rule of the
director adopted under ORS 697.632; or
(B) Aid in the enforcement of ORS 697.612 and 697.642 to 697.702
and in the formulation of rules and forms under ORS 697.632.
(c) Require a person to file a statement in writing, under oath or
otherwise, concerning the matter being investigated.
(2) All debt consolidating agencies and persons acting as debt
consolidating agencies without registration shall provide the director
with free access during all reasonable hours to offices and places of
business, books, accounts, records, papers, files, safes and vaults for
the purpose of investigating violations of ORS 697.612 or 697.642 to
697.702.
(3) The director shall maintain for public inspection records of
any civil penalty imposed under ORS 697.832, any suspension, revocation
or refusal to renew the registration of a debt consolidating agency and
any collection on the bond or deposit of a debt consolidating agency. The
record of each action shall show:
(a) The order of the director or the court relating to the action.
(b) The debt consolidating agency against whom the action was taken.
(c) The grounds for the action.
(4) Except as provided in subsection (3) of this section, records,
reports and other information received or compiled by the director as a
result of investigations under this section are exempt from the public
disclosure required by ORS 192.420. [1983 c.17 §15; 2005 c.338 §17] (1) For the purpose of any
investigation or proceeding under ORS 697.732, the Director of the
Department of Consumer and Business Services or any officer designated by
the director may administer oaths and affirmations, subpoena witnesses,
compel their attendance, take evidence and require the production of any
books, papers, correspondence, memoranda, agreements and other documents
or records which the director considers relevant or material to the
investigation or proceeding.
(2) Any person who is served with a subpoena or is subject to an
order to give testimony orally or in writing or to produce books, papers,
correspondence, memoranda, agreements or other documents or records under
this section may apply to any circuit court in Oregon for protection
against abuse or hardship in the manner provided in ORCP 36 C.
(3) Except to the extent judicial relief is granted under
subsection (2) of this section, if any person disobeys a subpoena issued
under subsection (1) of this section, or if any witness refuses to
testify or produce evidence before the director on any matter on which
the witness may be lawfully interrogated, the circuit court of any
county, upon application of the director, shall compel obedience by
proceedings for contempt as in the case of disobedience of the
requirements of a subpoena issued from that court or a refusal to testify
in that court. [1983 c.17 §17](1) The Director of the Department
of Consumer and Business Services may refuse to issue or renew or may
revoke or suspend the registration of a debt consolidating agency if the
director determines any of the following facts:
(a) The debt consolidating agency has filed false or untruthful
information with the director under ORS 697.632.
(b) The debt consolidating agency has violated any of the rules of
the director adopted under ORS 697.632.
(c) The debt consolidating agency has violated any provision of ORS
697.642 to 697.702.
(d) Any person required to register to engage in the business of
debt consolidating has been convicted of a felony or a misdemeanor, an
essential element of which is fraud.
(e) There has been any lapse in or any reduction of the amount of
any bond filed under ORS 697.642.
(2) A revocation or suspension under this section may be for a time
certain or upon condition that the debt consolidating agency meets
conditions specified by the director.
(3) The conduct of hearings, issuance of orders and judicial review
of orders are governed by ORS chapter 183. [1983 c.17 §16; 1989 c.209 §3;
2005 c.338 §18] (1) If the
Director of the Department of Consumer and Business Services determines
that any person has engaged in, is engaging in or is about to engage in
any act or practice that the director believes is in violation of ORS
697.612 or 697.642 to 697.702, the director may bring suit in the name of
the State of Oregon in any circuit court of this state to enjoin the acts
or practices. Upon a proper showing, the court shall grant a permanent or
temporary injunction or restraining order and may appoint a receiver or
conservator for the defendant or the defendant’s assets. The court may
not require the director to post a bond. The court may award reasonable
attorney fees to the director if the director prevails in an action under
this section. The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court determines that
the director had no objectively reasonable basis for asserting the claim
or no reasonable basis for appealing an adverse decision of the trial
court.
(2) The director may include in any suit authorized by subsection
(1) of this section a claim for damages on behalf of any other person
injured by any act or practice against which an injunction or restraining
order is sought. The court may award appropriate relief to the person if
the court finds that enforcement of the right of the person by private
civil action or suit, whether by class action or otherwise, would be so
burdensome or expensive as to be impracticable. [1983 c.17 §18; 1995
c.696 §46; 2005 c.338 §19] (1) If a
client has obtained a judgment from a court on a claim against a debt
consolidating agency registered under ORS 697.632 and the claim is one
for which the client may seek recovery under the debt consolidating
agency’s bond filed under ORS 697.642, the client may file the judgment
with the Director of the Department of Consumer and Business Services for
the purpose of recovering under the bond.
(2) Except as may be limited under ORS 697.812, the director shall
pay the amount specified in the order of a court as recoverable by the
client under the conditions of the bond of the debt consolidating agency.
If the judgment does not specify the amount recoverable under the bond,
the director shall initiate a hearing to determine that amount. The
claimant, the debt consolidating agency and the corporate surety from
which the bond was obtained shall have the right to appear and be heard
at the hearing. A hearing under this section is subject to ORS chapter
183. The director shall determine and pay the amount of the judgment
recoverable under the bond, subject to ORS 697.812. [1983 c.17 §19; 1989
c.209 §4](1) If a client has a claim against a debt
consolidating agency registered under ORS 697.632, and the claim is one
for which the client may seek recovery under the bond of the debt
consolidating agency, the client may file the claim and a request for
hearing with the Director of the Department of Consumer and Business
Services if the claim:
(a) Has not been determined by proceedings in any court or is not
the subject of proceedings pending in any court; and
(b) Has not been removed from the director under ORS 697.792.
(2) Upon receipt of a claim and request for hearing that qualifies
under this section, the director shall initiate a hearing on the claim.
The parties involved in the claim shall have the right to appear and be
heard at the hearing. A hearing under this section is subject to ORS
chapter 183.
(3) If the director determines that any of the conditions for
payment under the bond of the debt consolidating agency exist and that
the existence of any of the conditions for payment is a basis of the
client’s claim, the director, after final resolution of any appeals
permitted under ORS chapter 183, shall order the debt consolidating
agency to pay within 20 days the claim determined by the director. If the
debt consolidating agency does not pay the claim as required by this
subsection, the director shall order the claim paid out of the bond filed
under ORS 697.642.
(4) The director shall not:
(a) Determine damages under this section in excess of the amount of
the bond filed under ORS 697.642.
(b) Accept for filing or hold hearings under this section on any
claim that does not meet the qualifications under subsection (1) of this
section.
(c) Hold hearings under this section on any claim if the amount of
the bond is not sufficient to pay the claim after payment of other claims
under ORS 697.812. [1983 c.17 §20; 1989 c.209 §5](1) If any claim in an amount of more than $200 is filed with
the Director of the Department of Consumer and Business Services against
a debt consolidating agency under ORS 697.782, the debt consolidating
agency may remove the claim from the director’s determination by filing
within 20 days of the debt consolidating agency’s receipt of notice of
the claim, a request with the director to remove the claim.
(2) Upon receipt of a request to remove a claim under subsection
(1) of this section, the director shall:
(a) Discontinue hearings procedures under ORS 697.782; and
(b) Notify the person filing the claim that the director cannot
determine the claim but that the person may file the claim in an
appropriate court of this state.
(3) Except as provided in subsection (4) of this section, the court
may award reasonable attorney fees to the prevailing party in an action
on a claim removed from the director under this section.
(4) The court may not award attorney fees to a prevailing defendant
under the provisions of subsection (3) of this section if the action
removed from the director under this section is maintained as a class
action pursuant to ORCP 32.
(5) The director shall provide a debt consolidating agency with
notice of rights and liabilities under this section when the director
gives the debt consolidating agency notice of a claim filed against the
debt consolidating agency under ORS 697.782.
(6) A person whose claim is removed from the director under this
section does not have a claim filed with the director for purposes of
establishing priority under ORS 697.812. [1983 c.17 §21; 1995 c.696 §47] A final
determination on a claim under ORS 697.782 shall have the effect of a
final determination given by a court of this state in any subsequent
proceeding or action. [1983 c.17 §22](1) Claims shall be satisfied from the bond filed under
ORS 697.642 in the order the claims are filed with the Director of the
Department of Consumer and Business Services. For purposes of priority
under this section:
(a) A claim determined by the director under ORS 697.782 is filed
when the claim is first filed with and accepted by the director.
(b) A claim based on a determination by a court is filed when
evidence of liability under a final determination by a court is filed
with the director.
(2) If a claim filed with the director is made part of an action
filed in a court before final determination of the claim by the director:
(a) The director shall dismiss the claim and discontinue any
hearing on the claim; and
(b) The claim shall have priority under this section based on the
time the final determination of the court is filed with the director.
(3) The bond shall not be used to satisfy claims upon a violation
which was alleged to have occurred more than two years prior to the
filing of the claim. [1983 c.17 §23; 1989 c.209 §6] The remedy provided for in ORS
697.782:
(1) Is in addition to and not exclusive of any other remedies
provided by law.
(2) Does not limit any statutory or common-law rights of a person
to bring an action in any court for an act of a debt consolidating
agency, or the right of the state to punish a person for violation of any
law. [1983 c.17 §24] (1) The Director of the Department of
Consumer and Business Services may, if the director has reason to believe
that a person has:
(a) Violated, is violating or is about to violate ORS 697.612 or
697.642 to 697.702, a rule adopted under ORS 697.632 or an order issued
under ORS 697.732 or 697.742, issue an order to cease and desist from the
violation.
(b) Filed information under ORS 697.632 that is false or
untruthful, issue an order to correct the filing.
(c) Failed to maintain in effect the bond required under ORS
697.642, issue an order to remedy the failure.
(2)(a) The director shall serve an order under this section on the
person named in the order.
(b) An order issued under this section becomes effective upon
service on the person named in the order.
(c) ORS 183.413 to 183.470 apply to an order issued under this
section.
(d) Notwithstanding paragraph (c) of this subsection, a person may
not obtain a hearing on the order unless the person requests the hearing
in writing within 20 days after service of the order.
(e) A person who does not request a contested case hearing may not
obtain judicial review of the order.
(f) The director may vacate or modify an order issued under this
section. A modified order is effective upon service on the person named
in the order.
(3) The authority conferred by this section is in addition to and
not in lieu of any other authority conferred on the director. [2005 c.338
§15] (1) In addition to any other liability or
penalty provided by law, the Director of the Department of Consumer and
Business Services may impose a civil penalty on a person in an amount not
to exceed $1,000 for each violation of ORS 697.612 or 697.642 to 697.702,
rules adopted under ORS 697.632 or order issued under ORS 697.825.
(2) The director shall impose a civil penalty on a person under
this section in the manner provided by ORS 183.745.
(3) Notwithstanding ORS 183.745, the person to whom the notice is
addressed shall have 10 days from the date of mailing of the notice in
which to apply for a hearing before the director.
(4) The payment or tendering of payment of a civil penalty imposed
under this section shall not relieve the obligation of a person to comply
with the applicable statute or rule.
(5) All penalties recovered under this section shall be paid into
the State Treasury and credited to the General Fund and are available for
general governmental expenses. [1983 c.17 §24a; 1989 c.706 §25; 1991
c.734 §88; 2005 c.338 §20] All moneys
received by the Director of the Department of Consumer and Business
Services or the department under ORS 697.005 to 697.095 or 697.602 to
697.842, excepting any penalties received under ORS 697.832, shall be
paid into the State Treasury and deposited in the Consumer and Business
Services Fund created by ORS 705.145. [1983 c.17 §25; 1987 c.373 §46;
2001 c.319 §5]Note: The amendments to 697.842 by section 6, chapter 319, Oregon
Laws 2001, become operative January 1, 2008. See section 7, chapter 319,
Oregon Laws 2001. The text that is operative on and after January 1,
2008, is set forth for the user’s convenience.
697.842. All moneys received by the Director of the Department of
Consumer and Business Services or the department under ORS 697.005 to
697.095 or 697.602 to 697.842, excepting any penalties received under ORS
697.832, shall be paid into the State Treasury, deposited in the Consumer
and Business Services Fund created by ORS 705.145 and used exclusively
for the purposes of ORS 697.005 to 697.095 and 697.602 to 697.842.PENALTIES(1) Violation of ORS 697.015 or 697.058 by an
individual is a Class A violation.
(2) Violation of ORS 697.015 or 697.058 by a corporation or
association is a Class A violation. Any officer or agent of a corporation
or association who personally participates in any violation of ORS
697.015 or 697.058 by the corporation or association is subject to the
penalty prescribed in subsection (1) of this section.
(3) Violation of ORS 697.612 or 697.642 to 697.702 is punishable,
upon conviction, as a Class A misdemeanor. [Amended by 1959 c.525 §35;
subsection (1) derived from subsection (1) of 697.990 (1957 Replacement
Part) and subsection (1) of 1959 c.635 §37; subsection (2) derived from
subsection (2) of 697.990 (1957 Replacement Part) and subsection (2) of
1959 c.635 §37; subsection (3) derived from subsection (3) of 1959 c.635
§37; 1981 c.85 §14; 1983 c.17 §31; subsection (3) enacted as 1983 c.17
§26; 1983 c.69 §6; 1999 c.1051 §219; 2005 c.338 §21] Justice courts have concurrent
jurisdiction with circuit courts in all criminal prosecutions for
violation of ORS 697.015, 697.058, 697.612 and 697.642 to 697.702.
[Derived from 697.480 (1957 Replacement Part) and 1959 c.635 §36; 1983
c.17 §32; 1995 c.622 §10; 2005 c.338 §22]
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