2017 ORS 86.726¹
Resolution conference for foreclosure
  • exemptions
  • procedure to request conference
  • fee

(1)(a) Except as provided in paragraph (b) of this subsection and subsection (5) of this section, a beneficiary that intends to foreclose a residential trust deed shall first request a resolution conference with the grantor before the beneficiary or the trustee files a notice of default under ORS 86.752 (Foreclosure by advertisement and sale) or before the beneficiary brings suit under ORS 88.010 (Foreclosure of lien by suit).

(b)(A) The requirement to request or participate in a resolution conference with a grantor in accordance with subsection (2) or (3) of this section does not apply to a beneficiary if the beneficiary submits to the Attorney General a sworn affidavit that states that during the preceding calendar year the beneficiary did not commence or cause an affiliate, subsidiary or agent of the beneficiary to commence more than 175 actions to foreclose a residential trust deed by advertisement and sale under ORS 86.752 (Foreclosure by advertisement and sale) or by suit under ORS 88.010 (Foreclosure of lien by suit). A beneficiary that is a trustee shall include as part of the total number of foreclosure actions that the beneficiary commenced in the previous calendar year all foreclosure actions that the beneficiary commenced under ORS 86.752 (Foreclosure by advertisement and sale) or 88.010 (Foreclosure of lien by suit) in the beneficiary’s capacity as a trustee. A beneficiary that intends to claim an exemption under this subparagraph shall submit the affidavit in a form and with the contents the Attorney General specifies by rule either:

(i) Not later than January 31 in any calendar year in which the beneficiary intends to claim the exemption for the remainder of the calendar year; or

(ii) At the time the beneficiary files a notice of default under ORS 86.752 (Foreclosure by advertisement and sale) or brings suit under ORS 88.010 (Foreclosure of lien by suit).

(B) An exemption under subparagraph (A) of this paragraph expires at the end of the calendar year in which the beneficiary claims the exemption.

(c) Except as provided in subsection (5) of this section, a beneficiary that claims an exemption under this subsection is not exempt from the requirements set forth in ORS 86.748 (Determination of ineligibility for foreclosure avoidance measure).

(2) The beneficiary shall request a resolution conference through the service provider. The beneficiary shall submit the request to the service provider electronically, by facsimile or by mail and shall submit a processing fee in an amount and in a manner that the Attorney General specifies by rule. The service provider shall pay to the Attorney General, for deposit into the Foreclosure Avoidance Fund established under ORS 86.744 (Foreclosure Avoidance Fund), moneys the service provider receives from the beneficiary under this subsection. The beneficiary’s request under this subsection must identify the residential trust deed that the beneficiary intends to foreclose and list the name, title, address, telephone number and other available contact information for:

(a) The beneficiary;

(b) Any agent of the beneficiary that will attend the resolution conference;

(c) Any person other than a person identified in paragraph (a) or (b) of this subsection that will receive, on the beneficiary’s behalf, notices or other communications related to the resolution conference; and

(d) The grantor.

(3)(a) If a beneficiary does not request a resolution conference under subsection (1) of this section, a grantor may request a resolution conference with the beneficiary if:

(A) The beneficiary or the trustee has not filed a notice of default under ORS 86.752 (Foreclosure by advertisement and sale) or the beneficiary has not commenced a suit under ORS 88.010 (Foreclosure of lien by suit); and

(B) The grantor first obtains from a housing counselor a certification in writing that the grantor is more than 30 days in default on the obligation that the residential trust deed secures or, if the grantor is not in default, that the grantor has a financial hardship that the housing counselor believes may qualify the grantor for a foreclosure avoidance measure.

(b) A grantor shall request a resolution conference through the service provider. The grantor shall submit the request to the service provider electronically, by facsimile or by mail and shall enclose with the request the written certification the housing counselor provides under paragraph (a)(B) of this subsection. The Attorney General by rule shall specify the information that the request must include.

(c) A beneficiary that receives a notice from a service provider after the service provider receives a request from a grantor under paragraph (b) of this subsection is subject to the requirements set forth in this section and ORS 86.729 (Scheduling and notice for resolution conference), 86.732 (Attendance at resolution conference), 86.736 (Certificate of compliance) and 86.748 (Determination of ineligibility for foreclosure avoidance measure).

(d) This subsection does not apply to a beneficiary that has submitted an affidavit and is exempt under subsection (1)(b) of this section.

(4) A beneficiary that submitted an affidavit in accordance with subsection (1)(b) of this section may, without waiving the exemption the beneficiary claimed in the affidavit, request a resolution conference with a grantor. The beneficiary shall submit a request under this subsection in accordance with the requirements set forth in subsection (2) of this section, except that submitting the request does not require a processing fee.

(5) The requirement to request or participate in a resolution conference with a grantor in accordance with subsection (2) or (3) of this section does not apply to the Department of Veterans’ Affairs in its capacity as a beneficiary of loans made under ORS 407.125 (Loans to qualified person). [2013 c.304 §2; 2015 c.382 §1]

Notes of Decisions

For purposes of Oregon Trust Deed Act, beneficiary of trust deed is per­son named or otherwise designated in trust deed as per­son to whom secured obliga­tion is owed. Niday v. GMAC Mortgage, LLC, 251 Or App 278, 284 P3d 1157 (2012), aff’d on other grounds, 353 Or 648, 302 P3d 444 (2013)

Statutes regulating trust deeds do not regulate transfers of promissory notes. Sovereign v. Deutsche Bank, 856 F. Supp. 2d 1203 (D. Or. 2012)

Statutes regulating trust deeds are not preempted by federal Home Owner’s Loan Act. Higley v. Flagstar Bank, FSB, 910 F. Supp. 2d 1249 (D. Or. 2012)

For purposes of Oregon Trust Deed Act, “beneficiary” is lender to whom obliga­tion that trust deed secures is owed or lender’s successor in interest; an entity that is not a lender may not be trust deed’s “beneficiary” unless it is lender’s successor in interest. Niday v. GMAC Mortgage, LLC, 353 Or 648, 302 P3d 444 (2013); Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

For purposes of Oregon Trust Deed Act, only pertinent interests in trust deed are beneficial interest of beneficiary and legal interest of trustee. Brandrup v. ReconTrust Co., 353 Or 668, 303 P3d 301 (2013)

Law Review Cita­tions

23 WLR 37, 55 (1987); 67 OLR 306 (1988); 69 OLR 851 (1990)

1 Legislative Counsel Committee, CHAPTER 86—Mortgages; Trust Deeds, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors086.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 86, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano086.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.