2015 ORS 441.318¹
Trustee accounting
  • deficiencies
  • lien

(1) Within 60 days following the creation of the trust by the court, and every 60 days thereafter, and within 30 days after the termination of the trust, the trustee shall give the court and the Department of Human Services a complete accounting of all property of which the trustee has taken possession, all funds collected under ORS 441.289 (Powers and duties of trustee) and 441.293 (Liability to trustee for goods and services after notice) and all expenses incurred by the trust. The trustee shall prepare and file a report with the court and the department making recommendations concerning the current condition of the facility and projections for future operation of the facility and the conditions of the health and welfare of the patients.

(2)(a) If the funds collected by the trustee under ORS 441.289 (Powers and duties of trustee) and 441.293 (Liability to trustee for goods and services after notice) exceed the reasonable expenses of the trust, the court shall order payment of the surplus to the licensee after reimbursement to the department of amounts contributed from the Facility Fund established under ORS 441.303 (Establishment of Facility Fund).

(b) If the funds are insufficient to cover the reasonable expenses of the trust, the department may move the court for an order requiring the licensee to pay the deficiency to the department. The motion shall contain the following statement in bold:

______________________________________________________________________________

Notice to _________

The Department of Human Services has filed this motion to recover from you costs incurred as a result of the operation of a facility under ORS 441.277 (Definitions for ORS 441.277 to 441.323) to 441.323 (Effect of trust or temporary management on prior obligations or civil or criminal liabilities). The court may enter a money judgment against you if you fail to respond to this motion within 20 days of service of this motion upon you.

______________________________________________________________________________

(c) The department shall serve the motion personally or by first class mail at the last-known address of the licensee. If the licensee fails to file a response to the motion within 20 days of service, the court shall enter an order and judgment accordingly. If the licensee files a timely response, the court shall set a date for a hearing at which the court shall determine whether the expenses incurred by the trust are reasonable.

(d) The licensee is not liable for expenses in excess of what the court finds to be reasonable. The court shall enter a money judgment against the licensee in an amount that does not exceed the reasonable expenses. Payment recovered from the licensee shall be credited to reimburse the Facility Fund established under ORS 441.303 (Establishment of Facility Fund).

(3) The department shall have a lien for any deficiency established under subsection (2) of this section upon any real property and other beneficial interest, direct or indirect, of any licensee, any fixtures, equipment or goods used in the operation of the facility and the proceeds from a conveyance of any such property or interest made by the licensee within the 12 months prior to the filing of the petition for appointment of a trustee.

(4) The lien provided in subsection (3) of this section is prior to any lien or other interest that originates subsequent to the filing of a petition for appointment of a trustee under ORS 441.281 (Petition for appointment of trustee), except for a construction lien arising out of work performed with the express consent of the trustee.

(5) The lien established under subsection (3) of this section may be recorded in the County Clerk Lien Record described in ORS 205.130 (Recording duties of county clerk). [1981 c.868 §12; 1987 c.428 §23; 2009 c.539 §10]

Notes of Decisions

Where costs incurred by state court-appointed trustee are not incurred to remedy health or safety law viola­tion, costs were not incurred to benefit or preserve bankruptcy estate and are not entitled to administrative expense priority. In re Allen Care Centers, Inc., 96 F3d 1328 (9th Cir. 1996)

Law Review Cita­tions

18 WLR 135 (1982)

Chapter 441

Atty. Gen. Opinions

Licensing and phantom beds, (1970) Vol 40, p 171; a hospital's employing a licensed physical therapist as unauthorized practice, (1975) Vol 37, p 963


1 Legislative Counsel Committee, CHAPTER 441—Health Care Facilities, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors441.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 441, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano441.­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.