Usa Oregon

USA Statutes : oregon
Title : TITLE 09 MORTGAGES AND LIENS
Chapter : Chapter 86 Mortgages; Trust Deeds
A mortgage of real property
is not a conveyance so as to enable the owner of the mortgage to recover
possession of the property without a foreclosure and sale. This section
is not intended as a limitation upon the right of the owner of real
property to mortgage or pledge the rents and profits thereof, nor as
prohibiting the mortgagee or pledgee of such rents and profits, or any
trustee under a mortgage or trust deed from entering into possession of
any real property, other than farmlands or the homestead of the mortgagor
or successor in interest, for the purpose of operating the same and
collecting the rents and profits thereof for application in accordance
with the provisions of the mortgage or trust deed or other instrument
creating the lien, nor as any limitation upon the power of a court of
equity to appoint a receiver to take charge of the property and collect
the rents and profits thereof. No mortgage shall be
construed as implying a covenant for the payment of the sum thereby
secured. When there is no express covenant for such payment contained in
the mortgage, and no bond or other separate instrument to secure such
payment shall have been given, the remedies of the mortgagee shall be
confined to the lands mentioned in the mortgage. When a deed purports to be an
absolute conveyance in terms, but is made or intended to be made
defeasible by a deed of defeasance or other instrument, the original
conveyance shall not be thereby defeated or affected as against any
person other than the maker of the defeasance, or the heirs or devisees
of the maker, or persons having actual notice thereof, unless the
instrument of defeasance is recorded with the recording officer of the
county where the lands lie. No person shall sell,
dispose of, remove or damage any building or other improvements upon
mortgaged lands. All such improvements are deemed a part of the mortgaged
property and are subject to the mortgage lien. When any improvements are
removed from the mortgaged premises in violation of this section, the
mortgagee may follow and regain possession of such improvements wherever
found or may recover the reasonable value thereof from the person
removing them. Whenever a
mortgagor fails to pay when due any taxes, assessments, interest on prior
mortgages, insurance premiums or other charges necessary to be paid for
the protection of the lien of a mortgagee, the mortgagee may pay the
same, and such payments shall be added to the mortgage debt and secured
by the mortgage held by the mortgagee, and shall bear interest at the
same rate as specified in the mortgage. This section applies only to
mortgages executed after June 3, 1929, and does not affect the right of
parties to specifically contract otherwise than as provided in this
section. Mortgages may be assigned by an
instrument in writing, executed and acknowledged with the same formality
as required in deeds and mortgages of real property, and recorded in the
records of mortgages of the county where the land is situated. The recording
of the assignment of a mortgage is not of itself notice of such
assignment to the mortgagor, or the heirs or personal representatives of
the mortgagor, so as to invalidate a payment made by any of them to the
mortgagee.
(1) Actions that do not affect the priority granted to the lien of a
credit instrument at the time it is first received for recordation shall
include but shall not be limited to:

(a) Renegotiation or adjustment of the initial interest rate
provided in the note or the credit instrument, upward or downward, which
may increase or decrease the amount of periodic payments or may extend or
shorten the term of the credit instrument, or both;

(b) An increase in the underlying obligation secured by the credit
instrument during any part of the term of the credit instrument as a
result of deferment of all or a portion of the interest payments and the
addition of such payments to the outstanding balance of the obligation;

(c) Execution of new notes at designated intervals during the term
of the credit instrument that reflect changes made pursuant to paragraph
(a) or (b) of this subsection;

(d) Extension of the term of the credit instrument;

(e) Substitution of a note if there is no increase in the principal
amount to be paid under the note;

(f) Modification of periodic payments required under the note if
there is no increase in the principal amount due under the note; or

(g) Advances made under ORS 86.155.

(2) As used in this section, the addition of accrued interest to
the principal amount of the underlying obligation is not an increase in
the principal amount.

(3) As used in this section, “credit instrument” includes a
mortgage, a line of credit instrument, a deed of trust and a contract for
sale of real property. [1981 c.304 §2; 1987 c.716 §2; 1991 c.246 §1; 2001
c.20 §1] Any mortgage shall be discharged of
record whenever there is presented to the recording officer a certificate
executed by the mortgagee, or the personal representatives or assigns of
the mortgagee, acknowledged or proved and certified as prescribed by law
to entitle conveyances to be recorded, specifying that such mortgage has
been paid or otherwise discharged. Every such certificate, and the proof
or acknowledgment thereof, shall be recorded at full length. [Amended by
1965 c.252 §2](1) Whenever a promissory note secured by
mortgage on real property is transferred by indorsement without a formal
assignment of the mortgage, and the mortgage is recorded, the mortgage,
upon payment of the promissory note, may be discharged of record by the
owner and holder of the promissory note making and filing with the
appropriate recording officer a certificate, verified by oath, proving
the satisfaction of mortgage and declaring, in substance, that the owner
and holder is the owner and holder of the note secured by the mortgage by
indorsement of the mortgagee and that the note has been fully paid and
proving that fact to the satisfaction of the recording officer.

(2) Upon receiving the certificate, the recording officer shall
record the document and index the document as a satisfaction of mortgage.
The record shall have the same effect as a deed of release of the
mortgagee duly acknowledged and recorded. [Amended by 1965 c.252 §3; 2001
c.577 §1]
No mortgage upon real property shall be discharged except as provided in
ORS 86.110 or by the person appearing upon the records of the county
where the mortgage is recorded to be the owner thereof. A discharge of
the mortgage by such person shall operate to free the land described in
the mortgage from the lien of the mortgage as against all subsequent
purchasers and incumbrances for value and without notice.Foreign executors, administrators, conservators and
guardians may discharge mortgages upon the records of any county upon
recording with the recording officer of the county in which the mortgage
is recorded a certified copy of their letters testamentary, or of
administration, or of guardianship or of conservatorship. The certificate
shall include a statement that the letters are in effect, and the
certificate shall be recorded in the mortgage records. [Amended by 1973
c.506 §§2,44] If
any mortgagee or the personal representative or assignee of the
mortgagee, after full performance of the condition of the mortgage before
or after a breach thereof, shall, within 30 days after being thereto
requested, and after tender of reasonable charges, fail to discharge the
same, or to execute and acknowledge a certificate of discharge or release
thereof, that person shall be liable to the mortgagor, or the heirs or
assigns of the mortgagor, in the sum of $500 damages and also for all
actual damages occasioned by such failure, to be recovered in an action
at law. The owner and holder of the promissory note referred to in ORS
86.110 is deemed the personal representative of the mortgagee for the
purposes of this section. [Amended by 1955 c.29 §1; 1955 c.512 §1; 1993
c.648 §1](1) Any person making a loan having a loan
period of more than three years secured by a mortgage or by a trust deed
on real property located in this state shall, with respect to such loan,
expressly and clearly state on the loan agreement and promissory note any
maximum prepayment privilege penalty. The statement shall include the
maximum prepayment penalty applicable for prepayment during the first
year of the loan period and for each year thereafter.

(2) Violation of subsection (1) of this section with respect to a
loan agreement or promissory note shall render any prepayment privilege
penalty provision in the agreement void.

(3) “Loan agreement” as used in this section means a written
document issued in connection with a particular loan which sets forth the
terms upon which the loan will be made. “Loan agreement” does not include
a mortgage or trust deed which secures a promissory note. Nothing in this
section shall be deemed to require a lender to issue a loan agreement.

(4) This section does not apply to any loan agreement executed on
or before September 13, 1967, or any loan not primarily for personal,
family or household use. [1967 c.336 §§1,2; 1987 c.716 §3](1) As used in this section:

(a) “Credit agreement” means any promissory note, loan agreement or
other agreement which provides for advances subsequent to the date of
recording of the line of credit instrument which secures such note or
agreement.

(b) “Line of credit instrument” means a mortgage or trust deed
which secures a consumer or commercial credit agreement and creates a
lien on specified real property up to a stated amount, provided that the
front page of the mortgage or trust deed, or a memorandum thereof:

(A) Contains the legend “line of credit mortgage,” “line of credit
trust deed” or “line of credit instrument” either in capital letters or
underscored above the body of the mortgage or trust deed;

(B) States the maximum principal amount to be advanced pursuant to
the credit agreement; and

(C) States the term or maturity date, if any, of the credit
agreement exclusive of any option to renew or extend such term of
maturity date.

(c) “Residential line of credit instrument” means any line of
credit instrument creating a lien on real property upon which are
situated or will be constructed four or fewer residential units, one of
which, at the time the credit agreement is entered into, is the
borrower’s residence or is intended, following construction, to be a
residence of the borrower.

(2) A line of credit instrument shall have priority, regardless of
the knowledge of the lienholder of any intervening lien, as of its date
of recording as to the following advances whether such advances are
optional or obligatory advances:

(a) Principal advances made any time pursuant to the credit
agreement, to the extent the total outstanding advances do not exceed the
maximum principal amount stated in the line of credit instrument under
subsection (1)(b)(B) of this section;

(b) Interest, lawful charges and advances made any time pursuant to
the credit agreement for the reasonable protection of the real property
including, but not limited to, advances to pay real property taxes,
hazard insurance premiums, maintenance charges imposed under a
declaration or restrictive covenant and reasonable attorney fees, whether
or not such interest, lawful charges or advances shall exceed the maximum
principal amount stated in the line of credit instrument under subsection
(1)(b)(B) of this section; and

(c) Advances made any time after the date of recording and pursuant
to a credit agreement that is not secured by a residential line of credit
instrument to complete construction of previously agreed-upon
improvements on the real property, whether or not such advances exceed
the maximum principal amount stated in the line of credit instrument
under subsection (1)(b)(B) of this section provided, however, that the
front page of the instrument states that the maximum principal amount to
be advanced pursuant to the credit agreement may be exceeded by advances
to complete construction pursuant to this subsection.

(3) Actions that do not affect the priority granted to the advances
set forth in subsection (2) of this section shall include, but not be
limited to, those actions set forth in ORS 86.095 (1). If any
modification to a credit agreement increases the maximum principal amount
to be advanced pursuant to the credit agreement, then principal advances
that are made that exceed the original maximum principal amount stated in
the line of credit instrument shall have priority as of the date of
recording an amendment to the line of credit instrument that states the
increased maximum principal amount.

(4) In the case of a residential line of credit instrument, the
debtor may limit the indebtedness secured by that line of credit
instrument to the amount of the credit outstanding by delivering a notice
by personal service upon the lienholder or trust deed beneficiary or by
mailing a notice by certified mail, return receipt requested, to the
lienholder or trust deed beneficiary at the address given for payment or,
if none, to the address of the lienholder or trust deed beneficiary
indicated in the line of credit instrument or deed of trust. To be
sufficient to limit indebtedness under this subsection, the notice must:

(a) State that it is made under this section;

(b) Contain the legal description in the line of credit instrument
or the street address of the real property;

(c) Provide the information necessary to locate the line of credit
instrument in the public record;

(d) State the debtor’s intention to limit the amount of credit
secured by the line of credit instrument to the amount owed at the time
the notice is received;

(e) State the date sent; and

(f) Be signed and acknowledged by all debtors obligated under the
line of credit instrument.

(5) Not later than the 20th day after receipt of the notice
described in subsection (4) of this section, the lienholder or trust deed
beneficiary shall:

(a) Indorse on the notice, or on an addendum to the notice, the
principal amount of the indebtedness secured by the line of credit
instrument on the date the lienholder or trust deed beneficiary received
notice;

(b) Sign and acknowledge the notice or the addendum, if applicable;
and

(c) Record the notice and addendum in the public record where the
line of credit instrument was originally recorded.

(6) If the lienholder or trust deed beneficiary fails to record the
notice and addendum, if applicable, within the time period specified in
subsection (5) of this section, the debtor may record the notice in the
public record where the line of credit instrument was originally
recorded, together with proof of receipt by, or personal delivery to, the
lienholder or trust deed beneficiary.

(7) Notwithstanding subsection (4) of this section, the line of
credit instrument shall continue to have priority as of its date of
recording as to:

(a) Principal advances, including any advance the creditor is
required to honor, that were made before a notice under subsection (4) of
this section is received;

(b) Interest, lawful charges and advances described in subsection
(2)(b) and (c) of this section; and

(c) All advances made after a notice under subsection (4) of this
section is received which are within the amount owed at the time the
notice under subsection (4) of this section is given. [1987 c.716 §4;
1989 c.198 §1; 1991 c.313 §1; 1991 c.438 §1; 1997 c.152 §1; 2001 c.20 §2]LATE CHARGES

(1) “Late charge” means a sum payable by a mortgagor to the holder
of a mortgage pursuant to a note or mortgage to compensate the holder for
servicing and other costs attributable to the receipt of mortgage
payments from the mortgagor after the date upon which payment is due.

(2) “Mortgagor” includes the grantor under a deed of trust.

(3) “Mortgage” includes a deed of trust.

(4) “Residential real property” means a single-family,
owner-occupied dwelling and appurtenances. [1977 c.427 §1] No lender may impose a late charge:

(1) With respect to any periodic installment payment received by it
within 15 days after the due date. However, if the 15-day period ends on
a Saturday, Sunday or legal holiday the 15-day period is extended to the
next business day.

(2) In a dollar amount which exceeds five percent of the sum of
principal and interest of the delinquent periodic installment payment or
the amount provided in the note or mortgage held by the lender, whichever
is the lesser.

(3) Unless the note or mortgage held by the lender provides for
payment of a late charge on delinquent periodic installments and a
monthly billing, coupon or notice is provided by the lender disclosing
the date on which periodic installments are due and that a late charge
may be imposed if payment is not received by lender within 15 days
thereafter. However, if the lender and the borrower have provided in the
note or other written loan agreement that the payments on the loan shall
be made by the means of automatic deductions from a deposit account
maintained by the borrower, the lender shall not be required to provide
the borrower with a monthly billing, coupon or notice under this
subsection with respect to any occasion on which there are insufficient
funds in the borrower’s account to cover the amount of a loan payment on
the date the loan payment becomes due and within the period described in
subsection (1) of this section.

(4) More than once on any single installment. [1977 c.427 §2; 1979
c.101 §1; 1993 c.280 §1] Any provision in a mortgage
for a late charge except as authorized by ORS 86.160 to 86.185 shall be
invalid. [1977 c.427 §3; 1997 c.631 §384]ORS 86.160 to 86.185 shall be applicable only to late
charges on loans secured by residential real property. [1977 c.427 §4]
notice to borrowers. Nothing in ORS 86.160 to 86.185 shall pertain to a
mortgage banking company or mortgage servicing company except that if the
terms of the mortgage do not conform to the requirements of ORS 86.165,
the borrower shall be notified prior to the execution of the mortgage.
[1977 c.427 §5]
Nothing in ORS 86.160 to 86.185 shall apply to loans insured, guaranteed
or purchased by an instrumentality of the federal government, whose
regulations establish late charge limitations. [1977 c.427 §6]REAL ESTATE LOANS; SECURITY PROTECTION

(1) “Borrower” means any person who becomes obligated on a real
estate loan agreement, either directly or indirectly, and includes, but
is not limited to, mortgagors, grantors under trust deeds, vendees under
conditional land sales contracts, and persons who purchase real property
securing a real estate loan agreement, whether the persons assume the
loan or purchase the property subject to the loan.

(2) “Direct reduction provision” or “capitalization provision”
means any provision which is part of a real estate loan agreement,
whether incorporated into the agreement or as part of a separately
executed document, whereby the borrower makes periodic prepayment of
property taxes, insurance premiums and similar charges to the lender or
the designee of the lender, who applies such prepayments first to accrued
interest and then to the principal amount of the loan, and upon payment
of such charges, adds the amount of such payment to the principal amount
of the loan.

(3) “Escrow account” means any account which is a part of a real
estate loan agreement, whether incorporated into the agreement or as part
of a separately executed document, whereby the borrower makes periodic
prepayment to the lender or the designee of the lender of taxes,
insurance premiums, and similar charges, and the lender or the designee
of the lender pays the charges out of the account at the due dates.

(4) “Lender” means any person who makes, extends, or holds a real
estate loan agreement and includes, but is not limited to, mortgagees,
beneficiaries under trust deeds, and vendors under conditional land sales
contracts.

(5) “Lender’s security protection provision” means any provision
which is a part of a real estate loan agreement, whether incorporated
into the agreement or as part of a separately executed document, whereby
the borrower prepays, pledges or otherwise commits cash or other assets
owned by the borrower in advance of due dates for payments of property
taxes, insurance premiums and similar charges relating to the property
securing the loan in order to assure timely payment of the charges and
protect the lender’s security interest in the property, and includes, but
is not limited to, escrow accounts, direct reduction provisions,
capitalization provisions, and pledges of savings accounts.

(6) “Person” means individuals, corporations, associations,
partnerships and trusts, and includes, but is not limited to, financial
institutions as defined in ORS 706.008, investment companies, insurance
companies, pension funds, and mortgage companies.

(7) “Real estate loan agreement” or “real estate loan” means any
agreement providing for a loan on residential property, including
multifamily, occupied by the borrower in the amount of $100,000 or less,
secured in whole or in part by real property, or any interest therein,
located in this state, and includes, but is not limited to, mortgages,
trust deeds and conditional land sales contracts. [1975 c.337 §1; 1997
c.631 §385] A
lender may require a lender’s security protection provision under ORS
86.205 to 86.275 either as a direct reduction provision, an escrow
account, or a pledge of an interest-bearing savings account in an amount
not to exceed the maximum amount which a lender may require a borrower to
deposit in a lender’s security protection provision under ORS 86.240 and
bearing interest at a rate not less than the rate required on lender’s
security protection provisions by ORS 86.245. [1975 c.337 §2; 1987 c.577
§1] To the extent not inconsistent with provisions of existing
real estate loan agreements and provided such agreements are not silent
with regard to a lender’s security protection provision, the provisions
of ORS 86.210, 86.245 and this section shall apply to real estate loan
agreements entered into prior to, on and after October 1, 1987. To the
extent that the provisions of existing real estate loan agreements are
inconsistent with the provisions of ORS 86.210, 86.245 and this section,
the existing real estate loan agreements are silent as to a lender’s
security protection provision, or any part of ORS 86.210, 86.245 and this
section is declared unconstitutional as to existing real estate loan
agreements, the provisions of ORS 86.205 to 86.275 (1985 Replacement
Part) shall govern and be in full force and effect. [1987 c.577 §4](1) No lender, in connection with a real estate loan
agreement, shall require a borrower or prospective borrower:

(a) To deposit in any escrow account which may be established in
connection with the agreement, prior to or upon the date of settlement, a
sum in excess of the estimated total amount of property taxes, insurance
premiums, and similar charges which actually will be due and payable on
the date of settlement, and the pro rata portion thereof which has
accrued, plus one-sixth of the estimated total amount of the charges
which will become due and payable during the 12-month period beginning on
the date of settlement; or

(b) To deposit in any escrow account, which may be established in
connection with the agreement, in any month beginning after the date of
settlement a sum in excess of one-sixth of the total amount of estimated
property taxes, insurance premiums or similar charges which will become
due and payable during the 12-month period beginning on the first day of
the month, except that in the event the lender determines there will be a
deficiency on the due date, the lender shall not be prohibited from
requiring additional monthly deposits in the escrow account of pro rata
portions of the deficiency corresponding to the number of months from the
date of the lender’s determination of the deficiency to the date upon
which the charges become due and payable.

(2) For real estate loan agreements subject to the federal Real
Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601 et seq.) and to
Regulation X of the federal Department of Housing and Urban Development
(24 C.F.R. 3500.1 et seq.), compliance with the Real Estate Settlement
Procedures Act and with Regulation X shall be considered to be compliance
with this section. [1975 c.337 §13; 1995 c.182 §1] (1) As
used in this section, “discount rate” means the auction average rate on
91-day United States Treasury bills, as established by the most recent
auction of such Treasury bills, as published by the United States
Department of the Treasury, Bureau of the Public Debt, less 100 basis
points.

(2) Except as provided in subsections (5) and (7) of this section,
any lender who requires a lender’s security protection provision in
connection with a real estate loan agreement shall pay interest to the
borrower on funds deposited in the account at a rate not less than the
discount rate. The discount rate shall be determined with reference to
the most recent auction date before May 15 and November 15 each year.

(3) The rate of interest payable on the account shall be adjusted
semiannually to reflect changes in the discount rate. These adjustments
shall be calculated on May 15 and November 15 each year. Adjustments
calculated on May 15 shall take effect on the following July 1, and
adjustments calculated on November 15 shall take effect on the following
January 1.

(4) Interest shall be computed on the average monthly balance in
the account and shall be paid not less than quarterly to the borrower by
crediting to the escrow account the amount of the interest due.

(5) Except as provided in subsection (6) of this section, this
section does not apply to real estate loan agreements entered into prior
to September 1, 1975, or on which the payment of interest on a lender’s
security protection provision violates any state or federal law or
regulation.

(6) If federal law or regulation does not prohibit the payment of
interest on a lender’s security protection provision by federally
chartered or organized lenders, this section applies to the federally
chartered or organized lenders and the state chartered or organized
lenders that are similar to the federally chartered or organized lenders
with respect to a lender’s security protection provision executed in
connection with real estate loan agreement entered into prior to and in
existence on September 1, 1975.

(7) This section does not apply to real estate loan agreements made
by, held for sale to or sold to the State of Oregon. [1975 c.337 §8; 1979
c.327 §29; 1983 c.492 §1; 1987 c.577 §2; 1995 c.182 §2; 1997 c.68 §1;
2005 c.3 §1] No lender
requiring a lender’s security protection provision with respect to which
interest is required to be paid by the lender under ORS 86.245 shall
impose a service charge in connection with such provision. [1975 c.337 §9]In any real estate loan agreement with
respect to which a lender does not require a lender’s security protection
provision, the parties may mutually agree to any arrangement whereby the
borrower prepays, pledges or otherwise commits assets in advance of due
dates for payment of property taxes, insurance premiums and similar
charges relating to the real property in order to assist the borrower in
making timely payments of the charges. Prior to entering any such
arrangement, the lender shall furnish the borrower a statement in
writing, which may be set forth in the loan application:

(1) That the arrangement is not a condition to the real estate loan
agreement;

(2) If it is an escrow account, whether or not the lender will pay
interest and if interest is to be paid, the rate of interest; and

(3) Whether or not the borrower must pay the lender a charge for
the service. If a charge is agreed to, the charge shall not exceed the
amount of interest income earned under subsection (2) of this section.
[1975 c.337 §10](1) If a lender has a requirement that the borrower pay funds
into a lender’s security protection provision for the payment of property
taxes on property that is the security for the real estate loan
agreement, insurance premiums, and similar charges, and there are funds
in the account, the lender shall pay the taxes or the amount in the
account if less than the taxes due, in time to take advantage of any
discount authorized by ORS 311.505, and all other charges on or before
the due dates for payments.

(2)(a) If the lender fails to pay the taxes in accordance with
subsection (1) of this section resulting in a loss of discount to the
borrower, the lender shall credit the lender’s security protection
provision in an amount equal to the amount of discount denied on account
of such failure, together with any interest that has accrued on the
unpaid property taxes to the date the property taxes are finally paid.

(b) If the failure of the lender to comply with subsection (1) of
this section is willful and results in the loss to the borrower of the
discount, or if the failure to comply was not willful but upon discovery
of the failure to comply and the loss of discount, the lender fails to
credit the lender’s security protection provision required by paragraph
(a) of this subsection, the borrower shall have a cause of action against
the lender to recover an amount equal to 15 times the amount of discount
the borrower would have received, together with any interest that accrued
on the unpaid property taxes to the date of recovery. The court may award
reasonable attorney fees to the prevailing party in an action under this
section. [1975 c.337 §11; 1979 c.703 §15; 1981 c.897 §18; 1995 c.618 §48] A
violation of ORS 86.205 to 86.275 by a lender shall render the lender’s
security protection provision voidable at the option of the borrower, and
the lender shall be liable to the borrower in an amount equal to:

(1) The borrower’s actual damages or $100, whichever is greater, and

(2) In the case of any successful action to enforce the foregoing
liability, the court costs of the action together with reasonable
attorney fees at trial and on appeal as determined by the court if the
court finds that written demand for the payment of the borrower’s claim
was made on the lender not less than 10 days before the commencement of
the action. No attorney fees shall be allowed to the borrower if the
court finds that the lender tendered to the borrower, prior to the
commencement of the action, an amount not less than the damages awarded
to the borrower. [1975 c.337 §14; 1981 c.897 §19]ORS 86.205 to 86.275 shall not apply to a
real estate loan agreement which is serviced or held for sale within one
year by a mortgage servicing company neither affiliated with nor owned in
whole or in part by the purchaser and which is made, extended or held by
a purchaser whose principal place of business is outside this state;
provided that if the purchaser requires a lender’s security protection
provision, prior to entering into such agreement, the mortgage servicing
company shall furnish the borrower a statement in writing, which may be
set forth in the loan application, that the mortgage servicing company is
not required by the laws of this state to pay interest on the lender’s
security protection provision, and specifically informing the borrower
why the borrower is not entitled to interest on the account. [1975 c.337
§15]If any section of ORS 86.205 to 86.275, or the
application of any section to any real estate loan agreement shall be
held invalid, the remainder of ORS 86.205 to 86.275, and the application
of ORS 86.205 to 86.275 to any real estate loan agreement other than the
one or those to which it is held invalid, shall not be affected thereby.
[1975 c.337 §12]CHATTEL MORTGAGESUpon the payment of a fee of 50 cents for
each name to be searched for chattel mortgages filed under former ORS
86.370 or 86.390, prior to September 1, 1963, the Secretary of State
shall furnish to any person applying therefor a statement of any
mortgages noted on the indexes created under former ORS 86.380, or if no
mortgages are noted, a statement to that effect. All such fees received
by the Secretary of State shall be promptly paid to the State Treasurer
and placed in the General Fund. [1961 c.726 §409]Whenever any mortgage recorded under the provisions of ORS
86.350 (1959 Replacement Part) is paid or otherwise satisfied, it shall
be discharged by the recording with the recording officer of a
certificate of such owner, executed and acknowledged with the same
formalities as are prerequisite to the recording of any such mortgage,
showing the date of execution, date of recording, and recording number of
the record thereof, and that such mortgage has been fully discharged.
[Amended by 1999 c.654 §4] In
the event of the satisfaction or release of any chattel mortgage, a
certified copy of which has been filed with the Secretary of State prior
to September 1, 1963; the person so satisfying or releasing the mortgage
shall send a duly executed discharge or certified copy thereof, with a
fee of 25 cents, to the Secretary of State, who shall note such discharge
in an appropriate column of the index kept by the Secretary of State. All
such fees received by the Secretary of State shall be promptly paid to
the State Treasurer and placed in the General Fund. [Amended by 1961
c.726 §407]The
recording officer of counties having less than 50,000 population on the
last day of each calendar month, and the recording officer of counties
having more than 50,000 population on the last day of each calendar week,
shall notify the Department of Transportation, upon forms to be provided
by the department, of the partial or full satisfaction, assignment or
foreclosure during such period of all mortgages theretofore certified to
the department prior to September 1, 1963, as formerly provided in ORS
86.390. The notice shall completely identify the mortgage so satisfied,
assigned or foreclosed; and the department thereupon shall note on each
index margin such satisfaction, assignment or foreclosure. [Amended by
1961 c.726 §408]INVESTMENTS; FEDERAL HOUSING ADMINISTRATORFinancial institutions as defined in ORS 706.008, trustees, guardians,
conservators, executors, administrators, other fiduciaries and all other
persons, associations and corporations, subject to the laws of this
state, may make such loans, secured by real property or leasehold, as the
Federal Housing Administrator insures or makes a commitment to insure,
and may obtain such insurance. [Amended by 1967 c.359 §678; 1973 c.823
§93; 1997 c.631 §386]Financial institutions as defined in ORS 706.008,
trustees, guardians, conservators, executors, administrators, other
fiduciaries and all other persons, associations and corporations, subject
to the laws of this state, may invest their funds, and the money in their
custody or possession, eligible for investment, in bonds and mortgages on
real property insured by the Federal Housing Administrator, in debentures
issued by the Federal Housing Administrator, and in obligations of
national mortgage associations. [Amended by 1967 c.359 §679; 1973 c.823
§94; 1997 c.631 §387]No law of this state requiring security upon which
loans or investments may be made, or prescribing the nature, amount or
form of such security, or prescribing or limiting the period for which
loans or investments may be made, shall apply to loans or investments
made pursuant to ORS 86.610 and 86.620.TRUST DEEDS

(1) “Beneficiary” means the person named or otherwise designated in
a trust deed as the person for whose benefit a trust deed is given, or
the person’s successor in interest, and who shall not be the trustee
unless the beneficiary is qualified to be a trustee under ORS 86.790
(1)(d).

(2) “Grantor” means the person conveying an interest in real
property by a trust deed as security for the performance of an obligation.

(3) “Residential trust deed” means a trust deed on property upon
which are situated four or fewer residential units and one of the
residential units is occupied as the principal residence of the grantor,
the grantor’s spouse or the grantor’s minor or dependent child at the
time a trust deed foreclosure is commenced.

(4) “Residential unit” means an improvement designed for
residential use.

(5) “Trust deed” means a deed executed in conformity with ORS
86.705 to 86.795, and conveying an interest in real property to a trustee
in trust to secure the performance of an obligation owed by the grantor
or other person named in the deed to a beneficiary.

(6) “Trustee” means a person, other than the beneficiary, to whom
an interest in real property is conveyed by a trust deed, or such
person’s successor in interest. The term includes a person who is an
employee of the beneficiary, if the person is qualified to be a trustee
under ORS 86.790. [1959 c.625 §1; 1961 c.616 §1; 1975 c.618 §1; 1983
c.719 §1; 1985 c.817 §1; 1989 c.190 §1]Transfers in trust of an
interest in real property may be made to secure the performance of an
obligation of a grantor, or any other person named in the deed, to a
beneficiary. Where any transfer in trust of an interest in real property
is made pursuant to the provisions of ORS 86.705 to 86.795 to secure the
performance of an obligation, a power of sale is conferred upon the
trustee. The power of sale may be exercised after a breach of the
obligation for which the transfer is security; and a trust deed, executed
in conformity with ORS 86.705 to 86.795, may be foreclosed by
advertisement and sale in the manner provided in ORS 86.705 to 86.795,
or, at the option of the beneficiary, may be foreclosed by the
beneficiary as provided by law for the foreclosure of mortgages on real
property. [1959 c.625 §2; 1961 c.616 §2; 1965 c.457 §1; 1975 c.618 §2;
1979 c.879 §1; 1983 c.719 §2; 1987 c.480 §1]A trust deed is deemed to be a mortgage
on real property and is subject to all laws relating to mortgages on real
property except to the extent that such laws are inconsistent with the
provisions of ORS 86.705 to 86.795, in which event the provisions of ORS
86.705 to 86.795 shall control. For the purpose of applying the mortgage
laws, the grantor in a trust deed is deemed the mortgagor and the
beneficiary is deemed the mortgagee. [1959 c.625 §21](1) Within 30 days after performance of
the obligation secured by the trust deed, the beneficiary shall deliver a
written request to the trustee to reconvey the estate of real property
described in the trust deed to the grantor. Within 30 days after the
beneficiary delivers the written request to reconvey to the trustee, the
trustee shall reconvey the estate of real property described in the trust
deed to the grantor. In the event the obligation is performed and the
beneficiary refuses to request reconveyance or the trustee refuses to
reconvey the property, the beneficiary or trustee so refusing shall be
liable as provided by ORS 86.140 in the case of refusal to execute a
discharge or satisfaction of a mortgage on real property. The trustee may
charge a reasonable fee for all services involved in the preparation,
execution and recordation of any reconveyance executed pursuant to this
section.

(2) If a full reconveyance of a trust deed has not been executed
and recorded pursuant to the provisions of subsection (1) of this section
within 60 calendar days of the date the obligation secured by the trust
deed was fully satisfied, then:

(a) If the obligation was satisfied by a title insurance company or
insurance producer or by payment through an escrow transacted by a title
insurance company or insurance producer, upon the written request of the
grantor or the grantor’s successor in interest, the tender of reasonable
charges and the compliance with the notice requirements of subsection (3)
of this section, the title insurance company or insurance producer shall
prepare, execute and record a release of trust deed.

(b) Upon compliance with the notice requirements of subsection (3)
of this section, any title insurance company or insurance producer may
prepare, execute and record a release of trust deed.

(3) Prior to the issuance and recording of a release pursuant to
this section, the title insurance company or insurance producer shall
give notice of the intention to record a release of trust deed to the
beneficiary of record and, if different, the party to whom the full
satisfaction payment was made. The notice shall:

(a) Provide that the parties to whom the notice is sent shall have
a period of 30 days from the date of mailing to send to the title
insurance company or insurance producer their written objections to the
execution and recording of the release of trust deed;

(b) Be sent by first class mail with postage prepaid, addressed to
the named interested parties at their last-known addresses; and

(c) Identify the trust deed by the name of the original grantor and
any successor in interest on whose behalf payment was made and by the
recording reference.

(4) The release of trust deed shall recite on the first page that
it has been executed and recorded pursuant to the provisions of this
section. The release shall be properly acknowledged and shall set forth:

(a) The name of the beneficiary to whom the payment was made;

(b) The name of the original grantor of the trust deed and any
successor in interest on whose behalf payment was made;

(c) The recording reference to the trust deed that is to be
released;

(d) A recital that the obligation secured by the trust deed has
been paid in full;

(e) The date and amount of payment;

(f) The date of mailing of notice required by this section; and

(g) A recital that no written objections were received by the title
insurance company or insurance producer.

(5) The release of trust deed executed pursuant to this section
shall be entitled to recordation and, when recorded, shall be deemed to
be the equivalent of a reconveyance of a trust deed.

(6) The title insurance company or insurance producer shall not
record or cause to be recorded a release of trust deed when any of the
following circumstances exist:

(a) The 30-day period following notice given under this section has
not expired; or

(b) Written objection to such recordation has been received by the
title insurance company or insurance producer from any of the parties to
whom notice was sent.

(7) The trustee, title insurance company or insurance producer may
charge a reasonable fee for all services involved in the preparation,
execution, recordation and compliance with this section, to effect the
release of trust deed.

(8) Subsection (2) of this section does not excuse the beneficiary
or trustee from compliance with subsection (1) of this section.

(9) In addition to any other remedy provided by law, a title
insurance company or insurance producer preparing, executing or recording
a release of trust deed shall be liable to any party for damages that the
party sustains by reason of the negligence or willful misconduct of the
title insurance company or insurance producer in connection with the
issuance, execution or recording of the release pursuant to this section.
Except as provided in subsection (10) of this section, the court may
award reasonable attorney fees to the prevailing party in an action under
this section.

(10) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (9) of this section if the
action under this section is maintained as a class action pursuant to
ORCP 32.

(11) As used in this section, “insurance producer” means an
authorized issuer of title insurance policies of a title insurance
company who is licensed as an insurance producer for that purpose
pursuant to ORS chapter 744.

(12) Subsections (2) to (11) of this section shall be applicable
only to full reconveyances of the property described in the trust deed
and not to reconveyances of parts or portions of the property.

(13) Subsections (1) to (12) of this section are applicable to all
trust deeds, whether executed before, on or after November 4, 1993.

(14) A title insurance company or agent is not required to prepare,
execute and record a release of trust deed under subsections (2) to (12)
of this section if the obligation secured by the trust deed was satisfied
prior to November 4, 1993. [1959 c.625 §18; 1993 c.648 §2; 1995 c.696
§15; 2001 c.254 §1; 2003 c.364 §49] The
foreclosure of a trust deed by advertisement and sale or the foreclosure
of a trust deed by judicial procedure shall be commenced within the time,
including extensions, provided by ORS 88.110 and 88.120 for the
foreclosure of a mortgage on real property. [1959 c.625 §20] The trustee may
foreclose a trust deed by advertisement and sale in the manner provided
in ORS 86.740 to 86.755 if:

(1) The trust deed, any assignments of the trust deed by the
trustee or the beneficiary and any appointment of a successor trustee are
recorded in the mortgage records in the counties in which the property
described in the deed is situated; and

(2) There is a default by the grantor or other person owing an
obligation, the performance of which is secured by the trust deed, or by
their successors in interest with respect to any provision in the deed
which authorizes sale in the event of default of such provision; and

(3) The trustee or beneficiary has filed for record in the county
clerk’s office in each county where the trust property, or some part of
it, is situated, a notice of default containing the information required
by ORS 86.745 and containing the trustee’s or beneficiary’s election to
sell the property to satisfy the obligation; and

(4) No action has been instituted to recover the debt or any part
of it then remaining secured by the trust deed, or, if such action has
been instituted, the action has been dismissed, except that:

(a) Subject to ORS 86.010 and the procedural requirements of ORCP
79 and 80, an action may be instituted to appoint a receiver or to obtain
a temporary restraining order during foreclosure of a trust deed by
advertisement and sale, except that a receiver shall not be appointed
with respect to a single-family residence which is occupied as the
principal residence of the grantor, the grantor’s spouse or the grantor’s
minor or dependent child.

(b) An action may be commenced for the judicial or nonjudicial
foreclosure of the same trust deed as to any other property covered
thereby, or any other trust deeds, mortgages, security agreements or
other consensual or nonconsensual security interests or liens securing
repayment of the debt. [1959 c.625 §§4,5; 1965 c.457 §2; 1983 c.719 §3;
1985 c.817 §2; 1989 c.190 §2] (1)
Subsequent to recording notice of default as provided in ORS 86.735 and
at least 120 days before the day the trustee conducts the sale, notice of
the sale shall be served pursuant to ORCP 7 D(2) and 7 D(3) or mailed by
both first class and certified mail with return receipt requested, to the
last-known address of the following persons or their legal
representatives, if any:

(a) The grantor in the trust deed.

(b) Any successor in interest to the grantor whose interest appears
of record, or of whose interest the trustee or the beneficiary has actual
notice.

(c) Any person, including the Department of Revenue or any other
state agency, having a lien or interest subsequent to the trust deed if
the lien or interest appears of record or the beneficiary has actual
notice of the lien or interest.

(d) Any person requesting notice as provided in ORS 86.785.

(2) A notice served by mail under subsection (1) of this section is
effective when the notice is mailed.

(3)(a) The disability, insanity or death of any person to whom
notice of sale must be given under this section does not delay or impair
in any way the trustee’s right under a trust deed to foreclose under the
deed. If the disability, insanity or death occurs prior to the recording
of notice of default, the notice shall be given instead to the guardian,
the conservator of the estate of the person or the administrator or
personal representative of the person, as the case may be, in the manner
and by the time set forth in this section.

(b) If the disability, insanity or death of any person to whom
notice of sale must be given under this section occurs on or after the
recording of notice of default, the trustee shall, if and when the
trustee has knowledge of the disability, insanity or death, promptly give
the guardian, conservator of the estate or the administrator or personal
representative, as the case may be, the notice provided in ORS 86.745.
This notice shall be given by first class and certified mail with return
receipt requested, to the last-known address of the guardian, conservator
or administrator or personal representative.

(c) In the event there is no administrator or personal
representative of the estate of the person to whom notice of sale must be
given under this section, the notice may be given instead to the heirs at
law or devisees of the deceased person in the manner and by the time set
forth in this section. [1959 c.625 §6; 1961 c.616 §3; 1965 c.457 §3; 1973
c.823 §95; 1979 c.879 §2; 1983 c.719 §4; 1989 c.190 §3; 2005 c.129 §1](1) If the trustee fails to give notice of the sale to any person
entitled to notice under ORS 86.740 (1)(c), and such person did not have
actual notice of the sale at least 25 days prior to the date the trustee
conducted the sale, such omitted person shall have the same rights
possessed by the holder of a junior lien or interest who was omitted as a
party defendant in a judicial foreclosure proceeding, and the purchaser
at the trustee’s sale or the purchaser’s heirs, assigns or transferees,
shall have the same rights possessed by a purchaser at a sheriff’s sale
following a judicial foreclosure.

(2) The omitted person may also commence an action against the
trustee in the circuit court in the county where the real property is
located. In an action against the trustee, the omitted person shall be
entitled to damages upon proof that:

(a) The trustee did not give notice of the sale to the omitted
person in the manner required by ORS 86.740 (1)(c) and 86.750;

(b) A search of the record under the name of the grantor as it
appears on the trust deed, or the name of the grantor’s successor in
interest, would have revealed the omitted person’s interest;

(c) The omitted person could and would have cured the default under
ORS 86.753; and

(d) The omitted person sustained actual damages as a result of such
person’s loss of the opportunity to cure the default under ORS 86.753 (1).

(3) In an action against the trustee under subsection (2) of this
section, any defendant or third party defendant may move for dismissal on
the ground that the omitted person would not or could not have cured the
default and reinstated the trust deed if the omitted person had received
the notice required by ORS 86.740 (1)(c). The court shall hold a hearing
on such motion prior to any hearing on any motion for summary judgment,
and prior to trial of the action. The court shall deny the motion only if
the omitted person produces affidavits or other evidence sufficient for a
reasonable jury to find, applying a standard of clear and convincing
evidence, that the omitted person had the financial ability to cure the
default under ORS 86.753 prior to the date of the trustee’s sale, and
that the omitted person would have done so had the omitted person
received the notice required by ORS 86.740 (1)(c). If the court grants
the motion to dismiss it shall award attorney fees pursuant to subsection
(5) of this section.

(4) In any action against the trustee or any other party under this
section the omitted person shall plead that the omitted person did not
have actual knowledge of the sale at least 25 days prior to the date the
trustee conducted the sale, but thereafter the defendant shall have the
burden of proving that the omitted person did have such notice.

(5) In all suits brought under this section, the applicable court
may, upon entering judgment, allow to the prevailing party as a part of
the costs a reasonable amount for attorney fees at trial and on appeal.

(6) The remedies described in subsections (1) to (5) of this
section shall be the sole remedies available to a person entitled to
notice of foreclosure by advertisement and sale under ORS 86.740 (1)(c),
who failed to receive such notice. Such a person’s failure to redeem or
to commence an action against the trustee within five years of the date
of a trustee’s sale under ORS 86.755 shall bar any action under this
section or any other applicable law. [1985 c.817 §9; 1995 c.618 §51] The notice of sale shall set
forth:

(1) The names of the grantor, trustee and beneficiary in the trust
deed, and the mailing address of the trustee.

(2) A description of the property covered by the trust deed.

(3) The book and page of the mortgage records where the trust deed
is recorded.

(4) The default for which the foreclosure is made.

(5) The sum owing on the obligation secured by the trust deed.

(6) The election to sell the property to satisfy the obligation.

(7) The date, time and place of the sale, which shall be held at a
designated time after 9 a.m. and before 4 p.m. based on the standard of
time established by ORS 187.110 and at a designated place in the county
or one of the counties where the property is situated.

(8) The right under ORS 86.753 to have the proceeding dismissed and
the trust deed reinstated by payment of the entire amount then due,
together with costs, trustee’s and attorney’s fees, and by curing any
other default complained of in the notice of default, at any time prior
to five days before the date last set for the sale. [1959 c.625 §7; 1961
c.616 §4; 1965 c.457 §4; 1983 c.719 §5; 1985 c.817 §3; 2003 c.251 §4](1) The notice prescribed in ORS 86.745 shall be served upon
an occupant of the property described in the trust deed in the manner in
which a summons is served pursuant to ORCP 7 D(2) and 7 D(3) at least 120
days before the day the trustee conducts the sale.

(2) A copy of the notice of sale shall be published in a newspaper
of general circulation in each of the counties in which the property is
situated once a week for four successive weeks. The last publication
shall be made more than 20 days prior to the date the trustee conducts
the sale.

(3) On or before the date the trustee conducts the sale, an
affidavit of mailing notice of sale, proof of service (if any), and an
affidavit of publication of notice of sale shall be recorded in the
official records in the county or counties in which the property
described in the deed is situated. [1959 c.625 §8; 1961 c.616 §5; 1965
c.457 §5; 1979 c.879 §3; 1983 c.719 §6; 1985 c.817 §4](1) Where a trustee has commenced foreclosure of a trust deed by
advertisement and sale, the grantor, the grantor’s successor in interest
to all or any part of the trust property, any beneficiary under a
subordinate trust deed, or any person having a subordinate lien or
encumbrance of record on the property, may cure the default or defaults
at any time prior to five days before the date last set for the sale. If
the default consists of a failure to pay, when due, sums secured by the
trust deed, the default may be cured by paying the entire amount due at
the time of cure under the terms of the obligation, other than such
portion as would not then be due had no default occurred. Any other
default of the trust deed obligation that is capable of being cured may
be cured by tendering the performance required under the obligation or
trust deed. In any case, and in addition to paying the sums or tendering
the performance necessary to cure the default, the person effecting the
cure shall pay to the beneficiary all costs and expenses actually
incurred in enforcing the obligation and trust deed, together with
trustee’s and attorney fees in the amount of:

(a) A total of $1,000 for both trustee’s fees and attorney fees, or
the amount actually charged by the trustee and attorney, whichever is
less, if the trust deed is a residential trust deed; or

(b) Reasonable attorney fees and trustee’s fees actually charged by
the trustee and attorney if the trust deed is not a residential trust
deed. Any person entitled to cure the default may, either before or after
reinstatement, request any court of competent jurisdiction to determine
the reasonableness of the fee demanded or paid as a condition of
reinstatement. The court may award attorney fees to the prevailing party.
An action to determine reasonable attorney fees or trustee’s fees under
this section shall not forestall any sale or affect its validity.

(2) After cure of the default under subsection (1) of this section,
all proceedings under ORS 86.740 to 86.755 shall be dismissed by the
trustee, and the obligation and trust deed shall be reinstated and shall
remain in force the same as if no acceleration had occurred. [1983 c.719
§11; 1985 c.817 §5; 1989 c.190 §4; 1999 c.561 §1] (1) The sale shall be held on the date and
at the time and place designated in the notice of sale. The trustee may
sell the property in one parcel or in separate parcels and shall sell the
parcel or parcels at auction to the highest bidder for cash. Any person,
including the beneficiary under the trust deed, but excluding the
trustee, may bid at the trustee’s sale. The attorney for the trustee, or
any agent designated by the trustee or the attorney, may conduct the sale
and act in the sale as the auctioneer of the trustee.

(2) The trustee or the attorney for the trustee, or any agent
designated by the trustee or the attorney conducting the sale, may
postpone the sale for one or more periods totaling not more than 180 days
from the original sale date, giving notice of each adjournment by public
proclamation made at the time and place set for sale. The proclamation
may be made by the trustee, the attorney, or any agent designated by the
trustee or the attorney.

(3) The purchaser shall pay at the time of sale the price bid, and,
within 10 days following payment, the trustee shall execute and deliver
the trustee’s deed to the purchaser.

(4) The trustee’s deed shall convey to the purchaser the interest
in the property which the grantor had, or had the power to convey, at the
time of the execution by the grantor of the trust deed, together with any
interest the grantor or the grantor’s successors in interest acquire
after the execution of the trust deed.

(5) The purchaser at the trustee’s sale shall be entitled to
possession of the property on the 10th day following the sale, and any
persons remaining in possession after that day under any interest, except
one prior to the trust deed or created voluntarily by the grantor or a
successor of the grantor, shall be deemed to be tenants at sufferance.
All persons not holding under an interest prior to the trust deed may be
removed from possession by following the procedures set out in ORS
105.105 to 105.168 or other applicable judicial procedure, provided that
a person holding under an interest created voluntarily by the grantor or
a successor of the grantor must first receive 30 days’ written notice of
the intent to remove that person served no earlier than 30 days before
the date first set for the sale. Notices under this subsection shall be
served by first class mail. “First class mail” for purposes of this
section does not include certified or registered mail, or any other form
of mail which may delay or hinder actual delivery of mail to the
addressee.

(6) Notwithstanding subsection (2) of this section, except when a
beneficiary has participated in obtaining a stay, foreclosure proceedings
that are stayed by order of the court, by proceedings in bankruptcy or
for any other lawful reason shall, after release from the stay, continue
as if uninterrupted, if within 30 days after release the trustee gives
amended notice of sale by registered or certified mail to the last-known
address of those persons listed in ORS 86.740 and 86.750 (1) and to the
address provided by each person who was present at the time and place set
for the sale which was stayed. The amended notice of sale shall:

(a) Be given at least 20 days prior to the amended date of sale;

(b) Set an amended date of sale which may be the same as the
original sale date, or date to which the sale was postponed, provided the
requirements of ORS 86.740, 86.750 and this subsection are satisfied;

(c) Specify the time and place for sale;

(d) Conform to the requirements of ORS 86.745; and

(e) State that the original sale proceedings were stayed and the
date the stay terminated.

(7) If the publication of the notice of sale was not completed
prior to the date the foreclosure proceedings were stayed by order of the
court, by proceedings in bankruptcy or for any other lawful reason, after
release from the stay, in addition to complying with the provisions of
subsection (6) of this section, the trustee shall complete the
publication by publishing an amended notice of sale which states that the
notice has been amended following release from the stay, and which
contains the amended date of sale. The amended notice shall be published
in a newspaper of general circulation in each of the counties in which
the property is situated once a week for four successive weeks, except
that the required number of publications shall be reduced by the number
of publications that were completed prior to the effective date of the
stay. The last publication shall be made more than 20 days prior to the
date the trustee conducts the sale. [1959 c.625 §9; 1965 c.457 §6; 1983
c.719 §7; 1985 c.817 §6; 1989 c.190 §5; 1989 c.506 §1] (1) Not later than 15
days before the date of a sale of property set forth in the notice of
sale under ORS 86.745, the grantor, an occupant, a holder of a junior
lien or any other person interested in bidding at the sale may send a
written request to the trustee requesting that the trustee provide a
written statement of information as described in ORS 86.759.

(2) The written request under subsection (1) of this section shall
be sent to the trustee at the address given in the notice of sale by:

(a) Certified mail, return receipt requested; or

(b) Personal delivery.

(3) The written request under subsection (1) of this section shall
include a mailing address, a facsimile number or an electronic mail
address to which the trustee shall send the written statement of
information.

(4) The trustee is not required to respond to a written request
that does not include an address, facsimile number or electronic mail
address described in subsection (3) of this section.

(5) Upon receiving a written request under subsection (1) of this
section, the trustee shall send the written statement of information to
the address, facsimile number or electronic mail address provided in the
written request at least seven days prior to the date of the sale. If the
person requesting the written statement of information provided a mailing
address, the trustee shall send the written statement of information by
certified mail, return receipt requested and by first class mail. [2003
c.251 §2] (1) The written statement
of information provided by a trustee under ORS 86.757 shall include:

(a) A statement of the exact amount required, as of a specified
date, to cure the default or satisfy the obligation, including the costs
of foreclosure, trustee fees, attorney fees and per diem interest; and

(b) A description of any other performance necessary to cure the
default or satisfy the obligation.

(2) If the amount required to cure the default or satisfy the
obligation is not calculable to an exact amount, the trustee may estimate
the maximum amount required to cure the default or satisfy the obligation.

(3) If the trustee does not provide the written statement of
information within the time specified in ORS 86.757, the trustee may
postpone the sale of the property to provide the person requesting the
written statement of information at least seven days between receipt of
the statement and the date of the sale.

(4) A person requesting a written statement of information under
ORS 86.757 has the rights of an omitted person under ORS 86.742 if:

(a) The person requesting the statement proves that the person sent
a written request under ORS 86.757 at least 15 days before the date of
sale; and

(b) The trustee cannot prove that the trustee sent the written
statement of information at least seven days before the date of the sale.

(5) The provisions of this section and ORS 86.757 do not affect the
duty of beneficiaries to provide information to grantors. [2003 c.251 §3] The trustee shall apply the
proceeds of the trustee’s sale as follows:

(1) To the expenses of the sale, including the compensation of the
trustee, and a reasonable charge by the attorney.

(2) To the obligation secured by the trust deed.

(3) To all persons having recorded liens subsequent to the interest
of the trustee in the trust deed as their interests may appear in the
order of their priority.

(4) The surplus, if any, to the grantor of the trust deed or to the
successor in interest of the grantor entitled to such surplus. [1959
c.625 §11; 1965 c.457 §8] (1) A sale made by a trustee under ORS
86.705 to 86.795 shall foreclose and terminate all interest in the
property covered by the trust deed of all persons to whom notice is given
under ORS 86.740 and 86.750 and of any other person claiming by, through
or under such persons, and such persons shall have no right to redeem the
property from the purchaser at the trustee’s sale. The failure to give
notice to any of these persons shall not affect the validity of the sale
as to persons so notified.

(2) Except as provided in subsection (4) of this section, no other
or further action shall be brought, nor judgment entered for any
deficiency, against the grantor, or the grantor’s successor in interest,
if any, on the note, bond, or other obligation secured by the trust deed
or against any other person obligated on such note, bond or other
obligation after a sale is made:

(a) By a trustee under ORS 86.705 to 86.795; or

(b) Under a judicial foreclosure of a residential trust deed.

(3) Under a judicial foreclosure of a trust deed that is not a
residential trust deed, notwithstanding the purchase money mortgage
provisions of ORS 88.070 and 88.075, the judgment shall provide that if
the sale proceeds are insufficient to satisfy the judgment, execution may
issue, for any amount by which the unpaid balance of the obligation
secured by the trust deed exceeds the net sale proceeds payable to the
beneficiary.

(4) Nothing in this section shall preclude an action judicially or
nonjudicially foreclosing the same trust deed as to any other property
covered thereby, or any other trust deeds, mortgages, security
agreements, or other consensual or nonconsensual security interest or
liens covering any other real or personal property security for the note,
bond or other obligation secured by the trust deed under which a sale has
been made or an action against a guarantor to the extent of any remaining
deficiency following judicial foreclosure. A guarantor of an obligation
secured by a residential trust deed shall not have the right to recover
any deficiency from the grantor or any successor in interest of the
grantor. [1959 c.625 §§12, 13; 1965 c.457 §9; 1981 c.811 §1; 1983 c.719
§8; 1985 c.817 §7; 1989 c.190 §6; 1997 c.786 §1] The trustee’s deed
to the purchaser at the trustee’s sale shall contain, in addition to a
description of the property conveyed, a recital of the facts concerning
the default, the notice given, the conduct of the sale and the receipt of
the purchase money from the purchaser. [1959 c.625 §14]When the trustee’s deed is recorded in the
deed records of the county or counties where the property described in
the deed is situated, the recitals contained in the deed and in the
affidavits required under ORS 86.750 (3) shall be prima facie evidence in
any court of the truth of the matters set forth therein, but the recitals
shall be conclusive in favor of a purchaser for value in good faith
relying upon them. [1959 c.625 §15; 1983 c.719 §12; 1985 c.565 §8]
At any time subsequent to the recordation of a trust deed and prior to a
recording of notice of default under the deed, any person desiring a copy
of any notice of default or any notice of sale under a trust deed as
provided in ORS 86.740 (1) may cause to be filed for record in the county
clerk’s office of the county or counties in which any part or parcel of
the real property is situated, a duly acknowledged request for a copy of
any notice of sale or default where service is made upon the trustee. The
request shall contain the name and address of the person requesting
copies of the notice or notices and shall identify the trust deed by
stating the names of the parties to the deed, the date of recordation of
the deed and the book and page where the deed is recorded. The county
clerk shall immediately make a cross-reference of the request to the
trust deed, either on the margin of the page where the trust deed is
recorded or in some other suitable place. No request, statement or
notation placed on the record pursuant to this section shall affect title
to the property or be deemed notice to any person that any person so
recording the request has any right, title, interest in, lien or charge
upon the property referred to in the trust deed. [1959 c.625 §16](1) The trustee of a trust deed under ORS 86.705 to
86.795 shall not be required to comply with the provisions of ORS
chapters 707 and 709 and shall be:

(a) Any attorney who is an active member of the Oregon State Bar;

(b) A financial institution or trust company, as defined in ORS
706.008, that is authorized to do business under the laws of Oregon or
the United States;

(c) A title insurance company authorized to insure title to real
property in this state, its subsidiaries, affiliates, insurance producers
or branches;

(d) The United States or any agency thereof; or

(e) Escrow agents licensed under ORS 696.505 to 696.590.

(2) An attorney who is a trustee under subsection (1)(a) of this
section may represent the beneficiary in addition to performing the
duties of trustee.

(3) At any time after the trust deed is executed, the beneficiary
may appoint in writing another qualified trustee. If the appointment of
the successor trustee is recorded in the mortgage records of the county
or counties in which the trust deed is recorded, the successor trustee
shall be vested with all the powers of the original trustee.

(4) A trustee or successor trustee is a necessary and proper party
to any proceeding to determine the validity of or enjoin any private or
judicial proceeding to foreclose a trust deed, but a trustee or successor
trustee is neither a necessary nor a proper party to any proceeding to
determine title to the property subject to the trust deed, or to any
proceeding to impose, enforce or foreclose any other lien on the subject
property.

(5) Nothing in ORS 86.705 to 86.795 imposes a duty on the trustee
or successor trustee to notify any person of any proceeding with respect
to such person, except a proceeding initiated by the trustee or successor
trustee.

(6) A trustee or the attorney for the trustee or any agent
designated by the trustee or the attorney may announce and accept a bid
from the beneficiary whether or not the beneficiary is present at the
sale.

(7) The trustee or successor trustee shall have no fiduciary duty
or fiduciary obligation to the grantor or other persons having an
interest in the property subject to the trust deed. The trustee or
successor trustee shall not be relieved of the duty to reconvey the
property subject to the trust deed to the grantor upon request for
reconveyance by the beneficiary. [1959 c.625 §3; 1967 c.359 §680; 1975
c.618 §2a; 1979 c.879 §5; 1981 c.192 §1; 1983 c.719 §9; 1989 c.190 §7;
1997 c.70 §1; 1997 c.631 §388; 2003 c.364 §50] The charge of a trustee for the
performance of powers and duties of foreclosure by advertisement and sale
imposed under ORS 86.705 to 86.795 shall not exceed 50 percent of the
compensation allowable to an executor or administrator under ORS 116.173
or a minimum charge of $100. Such compensation shall be based upon the
amount due on the obligation, both principal and interest, at the time of
the trustee’s sale. [1959 c.625 §19; 1961 c.616 §7; 1965 c.457 §10]PENALTIESViolation of ORS 86.040 is punishable, upon
conviction, by a fine not exceeding $500 or imprisonment in the county
jail not exceeding six months, or both. [Amended by 1961 c.726 §410]

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USA Statutes : oregon