ORS 86A.151
Liability of person that employs mortgage loan originator

  • recovery of damages
  • limitations on proceeding
  • action against bond or letter of credit
  • attorney fees

(1)

A person that employs a mortgage loan originator or under the provisions of ORS 86A.200 (Definitions) to 86A.239 (Display of license and unique identifier) should employ a mortgage loan originator is liable as provided in subsection (2) of this section for an ascertainable loss of money or property, real or personal, in a residential mortgage transaction if the person engages in a residential mortgage transaction in which the person:

(a)

Violates a provision of ORS 86A.200 (Definitions) to 86A.239 (Display of license and unique identifier), except ORS 86A.236 (Prohibited activities) (11), or ORS 86A.095 (Short title) to 86A.198 (Materials in languages other than English), except ORS 86A.115 (Grounds for denying, suspending, conditioning or revoking license) (4); or
(b)(A)(i) Makes an untrue statement of a material fact; or
(ii)
Omits from a statement a material fact that would make the statement not misleading in light of the circumstances under which the person makes the statement; and

(B)

Fails to prove that the person did not know, or in the exercise of reasonable care could not have known, of the untrue statement or omission.

(2)

The person suffering ascertainable loss may recover damages in an amount equal to the ascertainable loss.

(3)

A person whose sole function in connection with a residential mortgage transaction is to provide ministerial functions of escrow, custody or deposit services in accordance with applicable law is liable only if the person participates or materially aids in the residential mortgage transaction and the plaintiff sustains the burden of proof that the person knew of the existence of the facts on which liability is based or that the person’s failure to know of the existence of the facts was the result of the person’s recklessness or gross negligence.

(4)

Except as otherwise provided in this subsection, an action or suit may not be commenced under this section more than three years after the residential mortgage transaction. An action under this section for a violation under subsection (1)(b) of this section or ORS 86A.154 (Fraud and deceit with respect to mortgage banker or mortgage broker business) may be commenced within three years after the residential mortgage transaction or two years after the person bringing the action discovered or should have discovered the facts on which the action is based, whichever is later, but not later than five years after the date of the residential mortgage transaction. Failure to commence an action on a timely basis is an affirmative defense.

(5)

A person has a right of action under the corporate surety bond or irrevocable letter of credit required under ORS 86A.106 (Procedures for licensing) or 86A.227 (Corporate surety bond required) if the person:

(a)

Initiates a mortgage banking loan or mortgage loan application; and

(b)

Has a right of action against another person under this section.

(6)

Subsection (3) of this section does not limit a person’s liability:

(a)

For conduct other than in the circumstances described in subsection (3) of this section; or

(b)

Under any other law.

(7)

Except as provided in subsection (8) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

(8)

The court may not award attorney fees to a prevailing defendant under the provisions of subsection (7) of this section if the action under this section is maintained as a class action pursuant to ORCP 32. [Formerly 59.925; 2011 c.9 §5]

Source: Section 86A.151 — Liability of person that employs mortgage loan originator; recovery of damages; limitations on proceeding; action against bond or letter of credit; attorney fees, https://www.­oregonlegislature.­gov/bills_laws/ors/ors86A.­html.

(formerly 59.925)

Notes of Decisions

Any person who suffers ascertainable loss in transaction creating security interest in residential property due to mortgage broker or mortgage banker engaging in misrepresentation or violating provision of [former] ORS 59.840 to 59.980 may claim against bond of broker or banker. American Bankers Insurance Co. v. State of Oregon, 337 Or 151, 92 P3d 117 (2004)

86A.095
Short title
86A.100
Definitions
86A.103
License required to engage in residential mortgage transactions as mortgage banker or mortgage broker
86A.106
Procedures for licensing
86A.109
Expiration of initial license
86A.112
Licensees to keep records
86A.115
Grounds for denying, suspending, conditioning or revoking license
86A.118
Action against applicant or licensee for act or omission of associate
86A.121
Cancellation of license or application
86A.124
Supervisory authority of director over mortgage bankers, mortgage brokers and mortgage loan originators
86A.127
Investigations
86A.130
Enjoining violations
86A.133
Procedures where assets or capital of mortgage banker or mortgage broker found impaired
86A.136
Rules
86A.139
Notice of orders
86A.142
Judicial review of orders
86A.145
Oaths and subpoenas in proceedings before director
86A.148
Copies of documents
86A.151
Liability of person that employs mortgage loan originator
86A.154
Fraud and deceit with respect to mortgage banker or mortgage broker business
86A.157
Clients’ Trust Account
86A.160
Notice to bank regarding Clients’ Trust Account
86A.163
Prohibited advertisements
86A.166
Designation of principal place of business
86A.169
Disclosure required before closing mortgage loan or mortgage banking loan
86A.172
Advisory committee
86A.175
Servicing or collecting mortgage banking loan or mortgage loan by mortgage banker or mortgage broker
86A.178
Legislative findings regarding mortgage loan originators
86A.183
Prohibited conduct for mortgage bankers, mortgage brokers and mortgage loan originators
86A.186
Mortgage loan originator criminal records checks
86A.195
Restrictions on negative amortization loans
86A.196
Notice of reverse mortgage prohibition in homestead property tax deferral program
86A.198
Materials in languages other than English
86A.200
Definitions
86A.203
License and unique identifier for mortgage loan originator
86A.206
Application for license
86A.209
Interim license
86A.212
Findings required for issuing license
86A.215
Education and testing requirements for license
86A.218
License renewal
86A.221
Continuing education requirements for mortgage loan originator
86A.224
Denying, suspending, conditioning, revoking or declining to renew license
86A.227
Corporate surety bond required
86A.230
Contracts or agreements with Nationwide Mortgage Licensing System and Registry and other agencies
86A.233
Production of records
86A.236
Prohibited activities
86A.239
Display of license and unique identifier
86A.242
Rules
86A.300
Short title
86A.303
Definitions
86A.306
License requirement
86A.309
Application for license
86A.312
Licensee’s principal place of business
86A.315
Required liquidity, operating reserves and tangible net worth
86A.318
Required notices to director
86A.321
Director’s supervisory authority
86A.324
Duties of mortgage loan servicer
86A.327
Complaints
86A.330
Violations
86A.333
Additional duties of licensee
86A.336
Suspension or removal of licensee’s director or officer
86A.339
Additional duties of mortgage loan servicer
86A.990
Criminal penalties for violations of ORS 86A.095 to 86A.198
86A.992
Civil penalties for violations of ORS 86A.095 to 86A.198
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