Oregon Statutes 86.748 – Determination of ineligibility for foreclosure avoidance measure; notice; recording; penalty
(1)(a) Whether or not a beneficiary participates in a resolution conference under ORS § 86.726, if the beneficiary determines that a grantor of a residential trust deed is not eligible for a foreclosure avoidance measure or that the grantor has not complied with the terms of a foreclosure avoidance measure to which the grantor has agreed, the beneficiary shall mail a written notice to the grantor at all of the addresses for the grantor on file with the beneficiary, including post office boxes, within 10 days after making the determination.
Terms Used In Oregon Statutes 86.748
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Grantor: The person who establishes a trust and places property into it.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Trustee: A person or institution holding and administering property in trust.
(b) The notice described in paragraph (a) of this subsection must in plain language explain the basis for the beneficiary’s determination.
(c) This subsection does not impose an affirmative duty on the beneficiary to determine if a grantor is eligible for a foreclosure avoidance measure.
(2) At least five days before the trustee sells the property that is subject to foreclosure, the beneficiary shall record in the mortgage records in the county or in one of the counties in which the property is located an affidavit that states that the beneficiary has complied with the requirements set forth in subsection (1) of this section.
(3)(a) A beneficiary that fails to substantially comply with subsection (1)(b) of this section, or otherwise fails to comply with subsection (1)(a) or (2) of this section, is liable to the grantor in the amount of $500 plus the amount of the grantor’s actual damages for each failure.
(b) A grantor may bring an action against a beneficiary in a circuit court of this state to recover the amounts described in paragraph (a) of this subsection. The grantor shall commence the action within one year after the date on which the beneficiary should have complied, but did not comply, with the provisions of this section.
(c) Notwithstanding an agreement to the contrary, a court may award reasonable attorney fees, costs and disbursements to a grantor that obtains a final judgment in the grantor’s favor. [2012 c.112 § 4a; 2013 c.304 § 9; 2017 c.154 § 2; 2017 c.251 § 4]
[1959 c.625 § 8; 1961 c.616 § 5; 1965 c.457 § 5; 1979 c.879 § 3; 1983 c.719 § 6; 1985 c.817 § 4; 2007 c.165 § 1; 2009 c.229 § 1; 2009 c.864 5,6; 2010 c.28 3,4; 2010 c.40 2,3; renumbered 86.774 in 2013]