2013 ORS § 105.148¹
Contesting plaintiffs affidavit or declaration of noncompliance
- • ex parte review of hearing request
- • delaying execution upon judgment of restitution
(1)(a) To contest a plaintiffs affidavit or declaration of noncompliance under ORS 105.146 (Failure of defendant to perform as ordered) and delay expiration of the notice of restitution period or execution upon the judgment of restitution, a defendant shall file a request for hearing with the clerk of the court. The request must be filed prior to issuance by the clerk of a writ of execution of judgment of restitution and must include a statement by the defendant describing how the defendant complied with the order or describing why the defendant should not be required to comply.
(b) A court may, as part of the procedure authorized by ORS 105.146 (Failure of defendant to perform as ordered) (6), require that a defendant submit a hearing request to the court for ex parte review prior to the defendants filing the request with the clerk. If the court provides for ex parte review, the ex parte review must be available every judicial day for appearance by the defendant before the court within the time period between service of the notice of restitution and the date of expiration of the notice of restitution. The notice of restitution must include or have attached to it a description of the requirements for appearing before the court for ex parte review and a copy of the hearing request form. The court may not require that the defendant notify the plaintiff of the defendants intention to appear before the court. If, after hearing the defendant at the ex parte review, the court finds that the reasons given by the defendant for opposing the plaintiffs affidavit or declaration of noncompliance do not relate to the issues listed in ORS 105.149 (Hearing on compliance with order) (2), the court shall deny the request for a hearing.
(2) The clerk shall make available a document providing for a request for hearing by a defendant. The document must be in substantially the following form:
Defendants Request for Hearing to
Contest an Affidavit or Declaration
Case No. _____
Landlord or agent (Plaintiff):
Address of Property:
1. My landlord has filed a statement with the court saying that I have not complied with a court-approved agreement and that as a result my landlord is entitled to possession of the property.
2. I deny the landlord is entitled to possession of the property because (The reason must be one of the following. You must check one or more of these responses and you must explain in section 3.):
_____a. The landlord is wrong. As explained below, I did comply with the agreement.
_____b. Before I could comply with the agreement, the landlord was supposed to do what is explained below, which the landlord did not do.
_____c. The landlord and I changed the agreement and I complied with the agreement as changed. The change we agreed to is explained below.
_____d. The landlord prevented me from keeping the agreement. The way the landlord did that is explained below.
_____e. The agreement was not made in good faith as required by ORS 90.130 (Obligation of good faith). The lack of good faith is explained below.
_____f. The portion of the agreement described below was unconscionable as described in ORS 90.135 (Unconscionability).
_____g. The landlord is required by law or contract to have good cause to force me to move out and my alleged conduct or performance does not meet the standard of good cause, as explained below.
_____h. The landlord is claiming I did not pay rent for a period of time following the date of the agreement. I did not pay that rent because I have claims for money against the landlord to offset the rent. Those claims arise from the landlords violation of the Residential Landlord and Tenant Act or the rental agreement since the date of the court order and are explained below.
3. Here is my explanation for the reason or reasons checked above:
4. I understand that if I lose in court, I may be responsible for the landlords costs, disbursements, any attorney fees and a prevailing party fee.
I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.
(3) As an alternative to the document described in subsection (2) of this section, a defendant may request a hearing by use of a notarized affidavit. [2001 c.596 §11 (105.146 (Failure of defendant to perform as ordered), 105.148 (Contesting plaintiffs affidavit or declaration of noncompliance) and 105.149 (Hearing on compliance with order) enacted in lieu of 105.147); 2003 c.378 §24; 2005 c.391 §35; 2007 c.508 §17]
Note: See note under 105.146 (Failure of defendant to perform as ordered).