2015 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:

______________________________________________________________________________

IN THE CIRCUIT COURT

FOR THE COUNTY OF

_________

Defendants Request for Hearing to

Contest an Affidavit or Declaration

of Noncompliance

Case No. _____

Landlord or agent (Plaintiff):

__________________

vs.

Tenant/Occupant (Defendant):

__________________

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.

_______________

Date: ________

______________________________________________________________________________

(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).

Atty. Gen. Opinions

Condi­tions under which an attorney may appear, (1976) Vol 38, p 184

Law Review Cita­tions

16 WLR 271 (1979)

Notes of Decisions

Provisions for early trial, posting of security for accruing rent during continuance and restric­tion of triable issues do not violate Due Process or Equal Protec­tion clauses of federal constitu­tion. Lindsey v. Normet, 405 US 56, 92 S Ct 862, 31 L Ed 36 (1972)

Proceedings under the Oregon forcible entry and detainer law, including pro­ceed­ings against nonresident defendants, are not subject to the general statutes relating to service of process. Lexton-Ancira, Inc. v. Kay, 269 Or 1, 522 P2d 875 (1974)

A forcible entry and detainer pro­ceed­ing is a local ac­tion for choice of law purposes. Fry v. D.H. Overmyer Co., 269 Or 281, 525 P2d 140 (1974)

the Defendant Did not State Good Affirmative Defenses By Alleging

a viola­tion of public policy forbidding a franchisor to refuse to renew a franchise except for good cause; A retaliatory evic­tion for a refusal to engage in improper business practices; and an implied agree­ment to renew based upon con­duct and prior dealings. William C. Cornitius, Inc., v. Wheeler, 276 Or 747, 556 P2d 666 (1976)

In forcible entry and detainer ac­tion to recover pos­ses­sion of commercial prop­erty, claim for attorney fees could not be litigated. Grove v. The Hindquarter Corp., 45 Or App 781, 609 P2d 840 (1980)

In forcible entry and detainer ac­tion for pos­ses­sion of commercial premises, landlords could not recover attorney fees. Owen J. Jones & Son, Inc. v. Gospodinovic, 46 Or App 101, 610 P2d 1238 (1980)

Equitable de­fense may be raised in FED pro­ceed­ing. Rose v. Webster, 51 Or App 293, 625 P2d 1329 (1981)

In FED ac­tion to recover commercial prop­erty, defendant cannot assert counterclaim unless counterclaim is authorized by statute. Class v. Carter, 293 Or 147, 645 P2d 536 (1982)

Law Review Cita­tions

16 WLR 291 (1979)

Chapter 105

Atty. Gen. Opinions

Private process server in a forcible entry and detainer ac­tion, (1975) Vol 37, p 869


1 Legislative Counsel Committee, CHAPTER 105—Property Rights, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors105.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 105, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano105.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.