Non-Judicial Foreclosure – Oregon Revised Statutes 86.735 et seq


86.735 Foreclosure by advertisement and sale.

The trustee may foreclose a trust deed by advertisement and sale in the manner provided in ORS 86.740 to 86.755 if:

(1) The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated; and

(2) There is a default by the grantor or other person owing an obligation, the performance of which is secured by the trust deed, or by their successors in interest with respect to any provision in the deed which authorizes sale in the event of default of such provision; and

(3) The trustee or beneficiary has filed for record in the county clerk’s office in each county where the trust property, or some part of it, is situated, a notice of default containing the information required by ORS 86.745 and containing the trustee’s or beneficiary’s election to sell the property to satisfy the obligation; and

(4) No action has been instituted to recover the debt or any part of it then remaining secured by the trust deed, or, if such action has been instituted, the action has been dismissed, except that:

(a) Subject to ORS 86.010 and the procedural requirements of ORCP 79 and 80, an action may be instituted to appoint a receiver or to obtain a temporary restraining order during foreclosure of a trust deed by advertisement and sale, except that a receiver shall not be appointed with respect to a single-family residence which is occupied as the principal residence of the grantor, the grantor’s spouse or the grantor’s minor or dependent child.

(b) An action may be commenced for the judicial or nonjudicial foreclosure of the same trust deed as to any other property covered thereby, or any other trust deeds, mortgages, security agreements or other consensual or nonconsensual security interests or liens securing repayment of the debt. [1959 c.625 §§4,5; 1965 c.457 §2; 1983 c.719 §3; 1985 c.817 §2; 1989 c.190 §2]


86.737 Notice to grantor; requirements; additional forms; rules.


(1) If a notice of default is recorded for property that is subject to a residential trust deed, the sender of a notice of sale under ORS 86.740 shall, on or before the date the notice of sale is served or mailed, give notice under this section to the grantor by both first class and certified mail with return receipt requested. Subject to any rules adopted under subsection (2) of this section, the notice must be in substantially the following form and printed in at least 14-point type:

______________________________________________________________________________

NOTICE:

YOU ARE IN DANGER OF LOSING

YOUR PROPERTY IF YOU DO NOT

TAKE ACTION IMMEDIATELY

This notice is about your mortgage loan on your property at _________ (address).

Your lender has decided to sell this property because the money due on your mortgage loan has not been paid on time or because you have failed to fulfill some other obligation to your lender. This is sometimes called “foreclosure.”

The amount you would have had to pay as of _____ (date) to bring your mortgage loan current was $_____. The amount you must now pay to bring your loan current may have increased since that date.

By law, your lender has to provide you with details about the amount you owe, if you ask. You may call _________ (telephone number) to find out the exact amount you must pay to bring your mortgage loan current and to get other details about the amount you owe. You may also get these details by sending a request by certified mail to: _________.

THIS IS WHEN AND WHERE

YOUR PROPERTY WILL BE SOLD

IF YOU DO NOT TAKE ACTION:

Date and time: _________, 2_____ at _________

Place: _________

THIS IS WHAT YOU CAN DO

TO STOP THE SALE:

1. You can pay the amount past due or correct any other default, up to five days before the sale.

2. You can refinance or otherwise pay off the loan in full anytime before the sale.

3. You can request that your lender give you more time or change the terms of your loan.

4. You can sell your home, provided the sale price is enough to pay what you owe.

There are government agencies and nonprofit organizations that can give you information about foreclosure and help you decide what to do. For the name and telephone number of an organization near you, please call the statewide telephone contact number at _________. You may also wish to talk to a lawyer. If you need help finding a lawyer, you may call the Oregon State Bar’s Lawyer Referral Service at _________ or toll-free in Oregon at _________ or you may visit its website at: _________. Legal assistance may be available if you have a low income and meet federal poverty guidelines. For more information and a directory of legal aid programs, go to _________.

Your lender may be willing to modify your loan to reduce the interest rate, reduce the monthly payments or both. You can get information about possible loan modification programs by contacting your lender at _________. If you can’t reach your lender, you may contact the trustee at the telephone number at the bottom of this notice. If you have already entered into a loan modification with your lender, it is possible that you will not be able to modify your loan again unless your circumstances have changed. Your lender is not obligated to modify your loan.

You may request to meet with your lender to discuss options for modifying your loan. During discussions with your lender, you may have the assistance of a lawyer, a housing counselor or another person of your choosing. To receive a referral to a housing counselor or other assistance available in your community, call this toll-free consumer mortgage foreclosure information number: _________. Many lenders participate in new federal loan modification programs. You can obtain more information about these programs at: _______________.

IF YOU WANT TO APPLY TO MODIFY YOUR LOAN, YOU MUST FILL OUT AND MAIL BACK THE ENCLOSED “MODIFICATION REQUEST FORM.” YOUR LENDER MUST RECEIVE THE FORM BY _________, WHICH IS 30 DAYS AFTER THE DATE SHOWN BELOW.

WARNING: You may get offers from people who tell you they can help you keep your property. You should be careful about those offers. Make sure you understand any papers you are asked to sign. If you have any questions, talk to a lawyer or one of the organizations mentioned above before signing.

DATED: _____, 2_____

Trustee name: _________ (print)

Trustee signature: _________

Trustee telephone number: _________

______________________________________________________________________________

(2) The Department of Consumer and Business Services may adopt rules prescribing the format, font size and other physical characteristics of the notice form set forth in subsection (1) of this section. The department shall adopt rules specifying the resource telephone contact numbers and website addresses the sender is to insert in completing the notice.

(3) When filling blanks in the notice form set forth in subsection (1) of this section, the sender of the notice shall include, stated in plain language:

(a) The amount of payment that was needed to bring the mortgage loan current as of the date stated in the notice; and

(b) One or more telephone numbers consisting of:

(A) A telephone number that will allow the grantor access during regular business hours to details regarding the grantor’s loan delinquency and repayment information; and

(B) A telephone number that will allow the grantor access during regular business hours to person-to-person consultation with an individual authorized by the beneficiary to discuss the grantor’s payment and loan term negotiation and modification options.

(4) Telephone numbers described in subsection (3) of this section must be toll-free numbers unless the beneficiary:

(a) Made the loan with the beneficiary’s own money;

(b) Made the loan for the beneficiary’s own investment; and

(c) Is not in the business of making loans secured by an interest in real estate.

(5) If the sender giving notice under subsection (1) of this section has actual knowledge that the grantor is not the occupant of the residential real property, the sender shall also give notice to the occupant of the property by both first class and certified mail with return receipt requested.

(6) The notice required under subsection (1) of this section must be accompanied by a form to request a loan modification. The form must include the address to which and state the date by which the grantor must return the form. The date must be 30 days after the date on which the trustee signs the notice. The form may state that the grantor must disclose current information about the grantor’s income and expenses, the grantor’s address, phone number and electronic mail address and other facts that may affect the grantor’s eligibility for a loan modification. [2008 c.19 §20; 2009 c.864 §1]

Note: The amendments to 86.737 by section 4, chapter 864, Oregon Laws 2009, become operative January 2, 2012. See section 9, chapter 864, Oregon Laws 2009. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

86.737. (1) If a notice of default is recorded for property that is subject to a residential trust deed, the sender of a notice of sale under ORS 86.740 shall, on or before the date the notice of sale is served or mailed, give notice under this section to the grantor by both first class and certified mail with return receipt requested. Subject to any rules adopted under subsection (2) of this section, the notice must be in substantially the following form and printed in at least 14-point type:

______________________________________________________________________________

NOTICE:

YOU ARE IN DANGER OF LOSING

YOUR PROPERTY IF YOU DO NOT

TAKE ACTION IMMEDIATELY

This notice is about your mortgage loan on your property at _________ (address).

Your lender has decided to sell this property because the money due on your mortgage loan has not been paid on time or because you have failed to fulfill some other obligation to your lender. This is sometimes called “foreclosure.”

The amount you would have had to pay as of _____ (date) to bring your mortgage loan current was $_____. The amount you must now pay to bring your loan current may have increased since that date.

By law, your lender has to provide you with details about the amount you owe, if you ask. You may call _________ (telephone number) to find out the exact amount you must pay to bring your mortgage loan current and to get other details about the amount you owe. You may also get these details by sending a request by certified mail to: _________.

THIS IS WHEN AND WHERE

YOUR PROPERTY WILL BE SOLD

IF YOU DO NOT TAKE ACTION:

Date and time: _________, 2_____ at _________

Place: _________

THIS IS WHAT YOU CAN DO

TO STOP THE SALE:

1. You can pay the amount past due or correct any other default, up to five days before the sale.

2. You can refinance or otherwise pay off the loan in full anytime before the sale.

3. You can call _________ (name) at _________ (telephone number) to find out if your lender is willing to give you more time or change the terms of your loan.

4. You can sell your home, provided the sale price is enough to pay what you owe.

There are government agencies and nonprofit organizations that can give you information about foreclosure and help you decide what to do. For the name and telephone number of an organization near you, please call the statewide telephone contact number at _________. You may also wish to talk to a lawyer. If you need help finding a lawyer, you may call the Oregon State Bar’s Lawyer Referral Service at _________ or toll-free in Oregon at _________ or you may visit its website at: _________. Legal assistance may be available if you have a low income and meet federal poverty guidelines. For more information and a directory of legal aid programs, go to _________.

WARNING: You may get offers from people who tell you they can help you keep your property. You should be careful about those offers. Make sure you understand any papers you are asked to sign. If you have any questions, talk to a lawyer or one of the organizations mentioned above before signing.

DATED: _____, 2_____

Trustee name: _________(print)

Trustee signature: _________

Trustee telephone number: _________

______________________________________________________________________________

(2) The Department of Consumer and Business Services may adopt rules prescribing the format, font size and other physical characteristics of the notice form set forth in subsection (1) of this section. The department shall adopt rules specifying the resource telephone contact numbers and website addresses the sender is to insert in completing the notice.

(3) When filling blanks in the notice form set forth in subsection (1) of this section, the sender of the notice shall include, stated in plain language:

(a) The amount of payment that was needed to bring the mortgage loan current as of the date stated in the notice; and

(b) One or more telephone numbers consisting of:

(A) A telephone number that will allow the grantor access during regular business hours to details regarding the grantor’s loan delinquency and repayment information; and

(B) A telephone number that will allow the grantor access during regular business hours to person-to-person consultation with an individual authorized by the beneficiary to discuss the grantor’s payment and loan term negotiation and modification options.

(4) Telephone numbers described in subsection (3) of this section must be toll-free numbers unless the beneficiary:

(a) Made the loan with the beneficiary’s own money;

(b) Made the loan for the beneficiary’s own investment; and

(c) Is not in the business of making loans secured by an interest in real estate.

(5) If the sender giving notice under subsection (1) of this section has actual knowledge that the grantor is not the occupant of the residential real property, the sender shall also give notice to the occupant of the property by both first class and certified mail with return receipt requested.

Note: Sections 2, 3 and 10, chapter 864, Oregon Laws 2009, provide:

Sec. 2. Section 3 of this 2009 Act is added to and made a part of ORS 86.705 to 86.795. [2009 c.864 §2]

Sec. 3. (1) If a grantor returns the form identified in section 20 (6), chapter 19, Oregon Laws 2008 [86.737 (6)], to the lender by the date specified on the form, the beneficiary or an agent of the beneficiary shall review the information the grantor provided in the form and, in good faith, shall process the grantor’s request. The beneficiary or the beneficiary’s agent, as soon as reasonably practicable but not later than 45 days after receiving the form, shall notify the grantor whether the beneficiary approves or denies the request or requires additional information. A trustee’s sale for the property subject to the loan may not occur until after the beneficiary or the beneficiary’s agent timely responds to the grantor. During the 45-day period, the beneficiary or the beneficiary’s agent may request the grantor to provide additional information required to determine whether the loan can be modified.

(2)

(a) Except as provided in paragraph (b) of this subsection, if the grantor timely requests a meeting with the beneficiary, the beneficiary or the beneficiary’s agent shall meet with the grantor in person or shall speak to the grantor by telephone before the beneficiary or the beneficiary’s agent responds to the grantor’s request to modify the loan. If the grantor requests the meeting, the beneficiary or the beneficiary’s agent shall take reasonable steps to schedule the meeting by contacting the grantor at the grantor’s last known address or telephone number or at the grantor’s electronic mail address, if the grantor indicates on the loan modification form that the beneficiary or the beneficiary’s agent can contact the grantor at the electronic mail address.

(b) A beneficiary or the beneficiary’s agent complies with the provisions of paragraph (a) of this subsection even if the beneficiary or beneficiary’s agent does not speak to or meet with the grantor if, within seven business days after the beneficiary or beneficiary’s agent attempts to contact the grantor, the grantor does not respond.

(c) The beneficiary or the beneficiary’s agent that meets with the grantor shall have or be able to obtain authority to modify the loan.

(3)

(a) The beneficiary or the beneficiary’s agent shall provide the trustee with the affidavit described in ORS 86.750 (5). In the affidavit, the beneficiary or the beneficiary’s agent shall describe how the beneficiary or the beneficiary’s agent has complied with subsections (1) and (2) of this section.

(b) The trustee shall record the affidavit described in paragraph (a) of this subsection.

(4) Subsections (1) and (2) of this section do not apply to a beneficiary that determines in good faith, after considering the most current financial information the grantor provides, that the grantor is not eligible for a loan modification, provided that the beneficiary informs the grantor that the grantor is not eligible. [2009 c.864 §3]

Sec. 10. Section 3 of this 2009 Act is repealed on January 2, 2012. [2009 c.864 §10]


86.739 Failure to give notice to grantor; remedy.

(1) A grantor shall have the same rights possessed by the holder of a junior lien or interest who was omitted as a party defendant in a judicial foreclosure proceeding if:

(a) The notice required by ORS 86.737 is not sent to the grantor;

(b) The grantor does not actually receive a copy of the notice at least 25 days before the date on which the trustee conducts the sale; and

(c) The grantor informs the trustee, the purchaser, the beneficiary or any loan servicer in writing not later than 60 days after the purchaser takes possession of the property upon which a trust deed was foreclosed that the grantor did not receive the notice and did not have actual notice of the sale.

(2) The purchaser at the trustee’s sale, or the purchaser’s heirs, assigns or transferees, shall have the same rights possessed by a purchaser at a sheriff’s sale following a judicial foreclosure. [2008 c.19 §21; 2009 c.229 §3]


86.740 Notice of sale to be given to certain persons.


(1) Subsequent to recording notice of default as provided in ORS 86.735 and at least 120 days before the day the trustee conducts the sale, notice of the sale shall be served pursuant to ORCP 7 D(2) and 7 D(3) or mailed by both first class and certified mail with return receipt requested, to the last-known address of the following persons or their legal representatives, if any:

(a) The grantor in the trust deed.

(b) Any successor in interest to the grantor whose interest appears of record, or of whose interest the trustee or the beneficiary has actual notice.

(c) Any person, including the Department of Revenue or any other state agency, having a lien or interest subsequent to the trust deed if the lien or interest appears of record or the beneficiary has actual notice of the lien or interest.

(d) Any person requesting notice as provided in ORS 86.785.

(2) A notice served by mail under subsection (1) of this section is effective when the notice is mailed.

(3)

(a) The disability, insanity or death of any person to whom notice of sale must be given under this section does not delay or impair in any way the trustee’s right under a trust deed to foreclose under the deed. If the disability, insanity or death occurs prior to the recording of notice of default, the notice shall be given instead to the guardian, the conservator of the estate of the person or the administrator or personal representative of the person, as the case may be, in the manner and by the time set forth in this section.

(b) If the disability, insanity or death of any person to whom notice of sale must be given under this section occurs on or after the recording of notice of default, the trustee shall, if and when the trustee has knowledge of the disability, insanity or death, promptly give the guardian, conservator of the estate or the administrator or personal representative, as the case may be, the notice provided in ORS 86.745. This notice shall be given by first class and certified mail with return receipt requested, to the last-known address of the guardian, conservator or administrator or personal representative.

(c) In the event there is no administrator or personal representative of the estate of the person to whom notice of sale must be given under this section, the notice may be given instead to the heirs at law or devisees of the deceased person in the manner and by the time set forth in this section. [1959 c.625 §6; 1961 c.616 §3; 1965 c.457 §3; 1973 c.823 §95; 1979 c.879 §2; 1983 c.719 §4; 1989 c.190 §3; 2005 c.129 §1]


86.742 Failure to give notice of sale; action by omitted person; defense; pleading and proving knowledge of sale; attorney fees; exclusive remedy.

(1) If the trustee fails to give notice of the sale to any person entitled to notice under ORS 86.740 (1)(c), and such person did not have actual notice of the sale at least 25 days prior to the date the trustee conducted the sale, such omitted person shall have the same rights possessed by the holder of a junior lien or interest who was omitted as a party defendant in a judicial foreclosure proceeding, and the purchaser at the trustee’s sale or the purchaser’s heirs, assigns or transferees, shall have the same rights possessed by a purchaser at a sheriff’s sale following a judicial foreclosure.

(2) The omitted person may also commence an action against the trustee in the circuit court in the county where the real property is located. In an action against the trustee, the omitted person shall be entitled to damages upon proof that:

(a) The trustee did not give notice of the sale to the omitted person in the manner required by ORS 86.740 (1)(c) and 86.750;

(b) A search of the record under the name of the grantor as it appears on the trust deed, or the name of the grantor’s successor in interest, would have revealed the omitted person’s interest;

(c) The omitted person could and would have cured the default under ORS 86.753; and

(d) The omitted person sustained actual damages as a result of such person’s loss of the opportunity to cure the default under ORS 86.753 (1).

(3) In an action against the trustee under subsection (2) of this section, any defendant or third party defendant may move for dismissal on the ground that the omitted person would not or could not have cured the default and reinstated the trust deed if the omitted person had received the notice required by ORS 86.740 (1)(c). The court shall hold a hearing on such motion prior to any hearing on any motion for summary judgment, and prior to trial of the action. The court shall deny the motion only if the omitted person produces affidavits or other evidence sufficient for a reasonable jury to find, applying a standard of clear and convincing evidence, that the omitted person had the financial ability to cure the default under ORS 86.753 prior to the date of the trustee’s sale, and that the omitted person would have done so had the omitted person received the notice required by ORS 86.740 (1)(c). If the court grants the motion to dismiss it shall award attorney fees pursuant to subsection (5) of this section.

(4) In any action against the trustee or any other party under this section the omitted person shall plead that the omitted person did not have actual knowledge of the sale at least 25 days prior to the date the trustee conducted the sale, but thereafter the defendant shall have the burden of proving that the omitted person did have such notice.

(5) In all suits brought under this section, the applicable court may, upon entering judgment, allow to the prevailing party as a part of the costs a reasonable amount for attorney fees at trial and on appeal.

(6) The remedies described in subsections (1) to (5) of this section shall be the sole remedies available to a person entitled to notice of foreclosure by advertisement and sale under ORS 86.740 (1)(c), who failed to receive such notice. Such a person’s failure to redeem or to commence an action against the trustee within five years of the date of a trustee’s sale under ORS 86.755 shall bar any action under this section or any other applicable law. [1985 c.817 §9; 1995 c.618 §51]



86.745 Contents of notice of sale; additional notices; contents and requirements. The notice of sale shall:

(1) List the names of the grantor, trustee and beneficiary in the trust deed, and the mailing address of the trustee.

(2) Describe the property the trust deed covers.

(3) Identify the book and page of the mortgage records that record the trust deed.

(4) State the default for which the foreclosure is made.

(5) State the sum owing on the obligation that the trust deed secures.

(6) State that the property will be sold to satisfy the obligation.

(7) Set forth the date, time and place of the sale.

(8) State that the right exists under ORS 86.753 to have the proceeding dismissed and the trust deed reinstated by paying the entire amount then due, together with costs, trustee’s fees and attorney fees, and by curing any other default complained of in the notice of default, at any time that is not later than five days before the date last set for the sale.

(9) Include a notice addressed clearly to any person who occupies the property and who is or might be a tenant. The notice required under this subsection must:

(a) Include contact information for the Oregon State Bar and a person or organization that provides legal help to individuals at no charge to the individual;

(b) Include information concerning the right the person has to notice under ORS 86.755 (5) and state that the person may have additional rights under federal law;

(c) Be set apart from other text in the notice of sale; and

(d) Be in substantially the following form:

______________________________________________________________________________

NOTICE TO TENANTS:

If you are a tenant of this property, foreclosure could affect your rental agreement. A purchaser who buys this property at a foreclosure sale has the right to require you to move out after giving you notice of the requirement.

If you do not have a fixed-term lease, the purchaser may require you to move out after giving you a 30-day notice on or after the date of the sale.

If you have a fixed-term lease, you may be entitled to receive after the date of the sale a 60-day notice of the purchaser’s requirement that you move out.

To be entitled to either a 30-day or 60-day notice, you must give the trustee of the property written evidence of your rental agreement at least 30 days before the date first set for the sale. If you have a fixed-term lease, you must give the trustee a copy of the rental agreement. If you do not have a fixed-term lease and cannot provide a copy of the rental agreement, you may give the trustee other written evidence of the existence of the rental agreement. The date that is 30 days before the date of the sale is____________. The name of the trustee and the trustee’s mailing address are listed on this notice.

Federal law may grant you additional rights, including a right to a longer notice period. Consult a lawyer for more information about your rights under federal law.

You have the right to apply your security deposit and any rent you prepaid toward your current obligation under your rental agreement. If you want to do so, you must notify your landlord in writing and in advance that you intend to do so.

If you believe you need legal assistance with this matter, you may contact the Oregon State Bar and ask for the lawyer referral service. Contact information for the Oregon State Bar is included with this notice. If you have a low income and meet federal poverty guidelines, you may be eligible for free legal assistance. Contact information for where you can obtain free legal assistance is included with this notice.

______________________________________________________________________________

[1959 c.625 §7; 1961 c.616 §4; 1965 c.457 §4; 1983 c.719 §5; 1985 c.817 §3; 2003 c.251 §4; 2009 c.510 §2]


86.750 Service and publication of notice; recording proof of compliance.

(1)

(a) Except as provided in paragraph (b) of this subsection, the notice prescribed in ORS 86.745 shall be served upon an occupant of the property described in the trust deed in the manner in which a summons is served pursuant to ORCP 7 D(2) and 7 D(3) at least 120 days before the day the trustee conducts the sale.

(b)

(A) If service cannot be effected on an occupant as provided in paragraph (a) of this subsection on the first attempt, the person attempting service shall post a copy of the notice in a conspicuous place on the property on the date of the first attempt. The person attempting service shall make a second attempt to effect service on a day that is at least two days after the first attempt.

(B) If service cannot be effected on an occupant as provided in paragraph (a) of this subsection on the second attempt, the person attempting service shall post a copy of the notice in a conspicuous place on the property on the date of the second attempt. The person attempting service shall make a third attempt to effect service on a day that is at least two days after the second attempt.

(C) If service cannot be effected on an occupant as provided in paragraph (a) of this subsection on the third attempt, the person attempting service shall send a copy of the notice, bearing the word “occupant” as the addressee, to the property address by first class mail with postage prepaid.

(c) Service on an occupant is deemed effected on the earlier of the date that notice is served as provided in paragraph (a) of this subsection or the first date on which notice is posted as described in paragraph (b)(A) of this subsection.


(2) A copy of the notice of sale shall be published in a newspaper of general circulation in each of the counties in which the property is situated once a week for four successive weeks. The last publication shall be made more than 20 days prior to the date the trustee conducts the sale.


(3) On or before the date the trustee conducts the sale, the trustee shall file the following with respect to the notice of sale for recording in the official record of the county or counties in which the property described in the deed is situated:

(a) An affidavit of mailing, if any;

(b) An affidavit of service, if any;

(c) An affidavit of service attempts and posting, if any; and

(d) An affidavit of publication. [1959 c.625 §8; 1961 c.616 §5; 1965 c.457 §5; 1979 c.879 §3; 1983 c.719 §6; 1985 c.817 §4; 2007 c.165 §1]

(4) On or before the date the trustee conducts the sale, the trustee shall file for recording in the official record of the county or counties in which the property described in the deed is situated an affidavit of mailing with respect to the notice to the grantor required under ORS 86.737.


86.753 Discontinuance of foreclosure proceedings after cure of default.


(1) Where a trustee has commenced foreclosure of a trust deed by advertisement and sale, the grantor, the grantor’s successor in interest to all or any part of the trust property, any beneficiary under a subordinate trust deed, or any person having a subordinate lien or encumbrance of record on the property, may cure the default or defaults at any time prior to five days before the date last set for the sale. If the default consists of a failure to pay, when due, sums secured by the trust deed, the default may be cured by paying the entire amount due at the time of cure under the terms of the obligation, other than such portion as would not then be due had no default occurred. Any other default of the trust deed obligation that is capable of being cured may be cured by tendering the performance required under the obligation or trust deed. In any case, and in addition to paying the sums or tendering the performance necessary to cure the default, the person effecting the cure shall pay to the beneficiary all costs and expenses actually incurred in enforcing the obligation and trust deed, together with trustee’s and attorney fees in the amount of:

(a) A total of $1,000 for both trustee’s fees and attorney fees, or the amount actually charged by the trustee and attorney, whichever is less, if the trust deed is a residential trust deed; or

(b) Reasonable attorney fees and trustee’s fees actually charged by the trustee and attorney if the trust deed is not a residential trust deed. Any person entitled to cure the default may, either before or after reinstatement, request any court of competent jurisdiction to determine the reasonableness of the fee demanded or paid as a condition of reinstatement. The court may award attorney fees to the prevailing party. An action to determine reasonable attorney fees or trustee’s fees under this section shall not forestall any sale or affect its validity.

(2) After cure of the default under subsection (1) of this section, all proceedings under ORS 86.740 to 86.755 shall be dismissed by the trustee, and the obligation and trust deed shall be reinstated and shall remain in force the same as if no acceleration had occurred. [1983 c.719 §11; 1985 c.817 §5; 1989 c.190 §4; 1999 c.561 §1]



86.755 Sale of property; obtaining possession after sale; procedures; notices required.

(1) The trustee shall hold the trustee’s sale on the date and at the time and place designated in the notice of sale, which must be at a designated time after 9 a.m. and before 4 p.m., based on the standard of time set forth in ORS 187.110 and at a designated place in the county or one of the counties where the property is situated. The trustee may sell the property in one parcel or in separate parcels and shall sell the parcel or parcels at auction to the highest bidder for cash. Any person, including the beneficiary under the trust deed, but excluding the trustee, may bid at the trustee’s sale. The attorney for the trustee, or an agent that the trustee or the attorney designates, may conduct the sale and act in the sale as the trustee’s auctioneer.


(2) The trustee or the attorney for the trustee, or an agent that the trustee or the attorney conducting the sale designates, may postpone the sale for one or more periods totaling not more than 180 days from the original sale date, giving notice of each adjournment by public proclamation made at the time and place set for sale. The trustee, the attorney or an agent that the trustee or the attorney designates may make the proclamation.

(3) The purchaser shall pay at the time of sale the price bid, and, within 10 days following payment, the trustee shall execute and deliver the trustee’s deed to the purchaser.

(4) The trustee’s deed shall convey to the purchaser the interest in the property that the grantor had, or had the power to convey, at the time the grantor executed the trust deed, together with any interest the grantor or the grantor’s successors in interest acquire after the execution of the trust deed.

(5)

(a) The purchaser at the trustee’s sale is entitled to possession of the property on the 10th day after the sale. A person that remains in possession after the 10th day under any interest, except an interest prior to the trust deed or an interest the grantor or a successor of the grantor created voluntarily is a tenant at sufferance. The purchaser may obtain possession of the property from a tenant at sufferance by following the procedures set forth in ORS 105.105 to 105.168 or other applicable judicial procedure.

(b) Except as provided in paragraph (c) of this subsection, at any time after the trustee’s sale the purchaser may follow the procedures set forth in ORS 105.105 to 105.168 or other applicable judicial procedure to obtain possession of the property from a person that holds possession under an interest that the grantor or a successor of the grantor created voluntarily if, not earlier than 30 days before the date first set for the sale, the person was served with not less than 30 days’ written notice of the requirement to surrender or deliver possession of the property.

(c) If the property purchased at the trustee’s sale is a dwelling unit, as defined in ORS 90.100 (9), that the person holds under a tenancy that the grantor or a successor of the grantor created voluntarily and in good faith, the purchaser may follow the procedures set forth in ORS 105.105 to 105.168 or other applicable judicial procedure to obtain possession if after the sale the purchaser terminates the tenancy in a written notice given to the person:

(A) At least 60 days before the termination date specified in the notice, if the tenancy is a fixed term tenancy, as defined in ORS 90.100, and at least 30 days before the date first set for the trustee’s sale the person provided the trustee with a copy of the rental agreement that established the fixed term tenancy. The provisions of this subparagraph do not apply to a purchaser that does not intend to terminate a fixed term tenancy before the date on which the fixed term tenancy ends.

(B) At least 30 days before the termination date specified in the notice, if:

(i) The tenancy is a month-to-month tenancy or week-to-week tenancy, as those terms are defined in ORS 90.100, and at least 30 days before the date first set for the trustee’s sale the person provided the trustee with a copy of the rental agreement that established the tenancy or with other written evidence of the existence of a rental agreement, if the person cannot provide the rental agreement; or

(ii) The tenancy is a fixed term tenancy for which the person has provided notice to the trustee as provided in subparagraph (A) of this paragraph and the purchaser intends to occupy the property that is subject to the fixed term tenancy as the purchaser’s primary residence.

(d) A purchaser may not commence a proceeding under ORS 105.105 to 105.168 that is authorized under this subsection before the later of:

(A) The 10th day after the trustee’s sale;

(B) The date specified in a written notice of the requirement to surrender or deliver possession of the property if the notice is required by and is given to the person in accordance with paragraph (b) of this subsection;

(C) The date specified in a written notice of the purchaser’s intent to terminate a tenancy if the notice is required by and is given to the person in accordance with paragraph (c) of this subsection; or

(D) The date on which the term of a fixed term tenancy ends, if the property is a dwelling unit and the purchaser has not terminated the tenancy in accordance with paragraph (c) of this subsection.

(e) For the purposes of this subsection:

(A) A month-to-month tenancy or a week-to-week tenancy that a grantor or a successor of the grantor first created after a notice of sale was served under ORS 86.750 is presumed not to be a tenancy created in good faith.

(B) A fixed term tenancy that a grantor or a successor of the grantor created after a notice of sale was served under ORS 86.750 is not a tenancy created in good faith.

(6) A purchaser shall serve a notice under subsection (5) of this section by first class mail and not by certified or registered mail or a form of mail that may delay or hinder actual delivery of mail to the addressee. The notice is effective three days after the notice is mailed.

(7)

(a) Notwithstanding the provisions of subsection (5)(c) of this section and except as provided in paragraph (b) of this subsection, the purchaser is not a landlord subject to the provisions of ORS chapter 90 unless the purchaser:

(A) Accepts rent from the person who possesses the property under a tenancy described in subsection (5)(c) of this section;

(B) Enters into a new rental agreement with the person who possesses the property under a tenancy described in subsection (5)(c) of this section; or

(C) Fails to terminate the tenancy as provided in subsection (5)(c) of this section within 30 days after the date of the sale.

(b) The purchaser may act as a landlord for purposes of terminating a tenancy in accordance with the provisions of ORS 90.396.

(8)

(a) Except as provided in paragraph (b) of this subsection, the purchaser is not liable to the person who possesses the property under a tenancy described in subsection (5)(c) of this section for:

(A) Damage to the property or diminution in rental value; or

(B) Returning a security deposit.

(b) A purchaser that is a landlord under the provisions of subsection (7)(a) of this section is liable to the person who possesses the property under a tenancy described in subsection (5)(c) of this section for:

(A) Damage to the property or diminution in rental value that occurs after the date of the trustee’s sale; or

(B) Returning a security deposit the person pays after the date of the trustee’s sale.

(9)

(a) Notwithstanding subsection (2) of this section, except when a beneficiary has participated in obtaining a stay, foreclosure proceedings that are stayed by order of the court, by proceedings in bankruptcy or for any other lawful reason shall, after release from the stay, continue as if uninterrupted, if within 30 days after release the trustee sends amended notice of sale by registered or certified mail to the last-known address of the persons listed in ORS 86.740 and 86.750 (1).

(b) In addition to the notice required under paragraph (a) of this subsection, the trustee shall send amended notice of sale:

(A) By registered or certified mail to:

(i) The address provided by each person who was present at the time and place set for the sale that was stayed; and

(ii) The address provided by each member of the Oregon State Bar who by registered or certified mail requests the amended notice of sale and includes with the request the notice of default or an identification number for the trustee’s sale that would assist the trustee in identifying the property subject to the trustee’s sale and a self-addressed, stamped envelope measuring at least 8.5 by 11 inches in size; or

(B) By posting a true copy or a link to a true copy of the amended notice of sale on the trustee’s Internet website.

(10) The amended notice of sale must:

(a) Be given at least 20 days prior to the amended date of sale;

(b) Set an amended date of sale that may be the same as the original sale date, or date to which the sale was postponed, provided the requirements of this subsection and ORS 86.740 and 86.750 are satisfied;

(c) Specify the time and place for sale;

(d) Conform to the requirements of ORS 86.745; and

(e) State that the original sale proceedings were stayed and the date the stay terminated.

(11) If the publication of the notice of sale was not completed before the date the foreclosure proceedings were stayed by order of the court, by proceedings in bankruptcy or for any other lawful reason, after release from the stay, in addition to complying with the provisions of subsections (9) and (10) of this section, the trustee shall complete the publication by publishing an amended notice of sale that states that the notice has been amended following release from the stay and that contains the amended date of sale. The amended notice must be published in a newspaper of general circulation in each of the counties in which the property is situated once a week for four successive weeks, except that the required number of publications must be reduced by the number of publications that were completed before the effective date of the stay. The last publication must be made more than 20 days before the date the trustee conducts the sale. [1959 c.625 §9; 1965 c.457 §6; 1983 c.719 §7; 1985 c.817 §6; 1989 c.190 §5; 1989 c.506 §1; 2009 c.883 §§1,1a]



86.757 Request for information from trustee.

(1) Not later than 15 days before the date of a sale of property set forth in the notice of sale under ORS 86.745, the grantor, an occupant, a holder of a junior lien or any other person interested in bidding at the sale may send a written request to the trustee requesting that the trustee provide a written statement of information as described in ORS 86.759.

(2) The written request under subsection (1) of this section shall be sent to the trustee at the address given in the notice of sale by:

(a) Certified mail, return receipt requested; or

(b) Personal delivery.

(3) The written request under subsection (1) of this section shall include a mailing address, a facsimile number or an electronic mail address to which the trustee shall send the written statement of information.

(4) The trustee is not required to respond to a written request that does not include an address, facsimile number or electronic mail address described in subsection (3) of this section.

(5) Upon receiving a written request under subsection (1) of this section, the trustee shall send the written statement of information to the address, facsimile number or electronic mail address provided in the written request at least seven days prior to the date of the sale. If the person requesting the written statement of information provided a mailing address, the trustee shall send the written statement of information by certified mail, return receipt requested and by first class mail. [2003 c.251 §2]


86.759 Information provided by trustee.

(1) The written statement of information provided by a trustee under ORS 86.757 shall include:

(a) A statement of the exact amount required, as of a specified date, to cure the default or satisfy the obligation, including the costs of foreclosure, trustee fees, attorney fees and per diem interest; and

(b) A description of any other performance necessary to cure the default or satisfy the obligation.

(2) If the amount required to cure the default or satisfy the obligation is not calculable to an exact amount, the trustee may estimate the maximum amount required to cure the default or satisfy the obligation.

(3) If the trustee does not provide the written statement of information within the time specified in ORS 86.757, the trustee may postpone the sale of the property to provide the person requesting the written statement of information at least seven days between receipt of the statement and the date of the sale.

(4) A person requesting a written statement of information under ORS 86.757 has the rights of an omitted person under ORS 86.742 if:

(a) The person requesting the statement proves that the person sent a written request under ORS 86.757 at least 15 days before the date of sale; and

(b) The trustee cannot prove that the trustee sent the written statement of information at least seven days before the date of the sale.

(5) The provisions of this section and ORS 86.757 do not affect the duty of beneficiaries to provide information to grantors. [2003 c.251 §3]

86.760 [1959 c.625 §10; 1961 c.616 §6; 1965 c.457 §7; 1979 c.879 §4; repealed by 1983 c.719 §13]


86.765 Disposition of proceeds of sale.

The trustee shall apply the proceeds of the trustee’s sale as follows:

(1) To the expenses of the sale, including the compensation of the trustee, and a reasonable charge by the attorney.

(2) To the obligation secured by the trust deed.

(3) To all persons having recorded liens subsequent to the interest of the trustee in the trust deed as their interests may appear in the order of their priority.

(4) The surplus, if any, to the grantor of the trust deed or to the successor in interest of the grantor entitled to such surplus. [1959 c.625 §11; 1965 c.457 §8]



86.770 Effect of sa; actions for deficiency; restrictions.

(1) If, under ORS 86.705 to 86.795, a trustee sells property covered by a trust deed, the trustee’s sale forecloses and terminates the interest in the property that belongs to a person that received notice of the sale under ORS 86.740 and 86.750 or to a person that claims an interest by, through or under the person that received notice. A person whose interest the trustee’s sale foreclosed and terminated may not redeem the property from the purchaser at the trustee’s sale. A failure to give notice to a person entitled to notice does not affect the validity of the sale as to persons that were notified.

(2) Except in accordance with subsection (4) of this section, after a trustee’s sale under ORS 86.705 to 86.795 or after a judicial foreclosure of a residential trust deed, an action for a deficiency may not be brought or a judgment entered against the grantor, the grantor’s successor in interest or another person obligated on:

(a) The note, bond or other obligation secured by the residential trust deed for the property that was subject to the trustee’s sale or the foreclosure; or

(b) Any other note, bond or other obligation secured by a residential trust deed for, or mortgage on, the property that was subject to the trustee’s sale or the foreclosure when the debt, of which the note, bond or other obligation is evidence:

(A) Was created at the same time as the note, bond or other obligation secured by the foreclosed residential trust deed; and

(B) Is owed to the beneficiary in the residential trust deed that was subject to the trustee’s sale or the foreclosure.

(3) Notwithstanding ORS 88.070, in a judicial foreclosure of a trust deed that is not a residential trust deed the judgment must provide that if the sale proceeds are insufficient to satisfy the judgment, execution may issue for the amount by which the unpaid balance of the obligation secured by the trust deed exceeds the net sale proceeds payable to the beneficiary.

(4) This section does not preclude:

(a) An action that forecloses, judicially or nonjudicially:

(A) Other property covered by the trust deed that is the subject of the foreclosure; or

(B) Another trust deed, mortgage, security agreement, consensual or nonconsensual security interest or lien that covers other real or personal property that is also used as security for the note, bond or other obligation that is secured by the trust deed for the property that was sold.

(b) An action against a guarantor for a deficiency that remains after a judicial foreclosure.

(5) A guarantor of an obligation secured by a residential trust deed may not recover a deficiency from the grantor or a successor in interest of the grantor. [1959 c.625 §§12, 13; 1965 c.457 §9; 1981 c.811 §1; 1983 c.719 §8; 1985 c.817 §7; 1989 c.190 §6; 1997 c.786 §1; 2007 c.166 §16; 2009 c.883 §2]



86.775 Contents of trustee’s deed to purchaser.

The trustee’s deed to the purchaser at the trustee’s sale shall contain, in addition to a description of the property conveyed, a recital of the facts concerning the default, the notice given, the conduct of the sale and the receipt of the purchase money from the purchaser. [1959 c.625 §14]



86.780 Recitals in trustee’s deed and certain affidavits as prima facie or conclusive evidence.

When the trustee’s deed is recorded in the deed records of the county or counties where the property described in the deed is situated, the recitals contained in the deed and in the affidavits required under ORS 86.750 (3) shall be prima facie evidence in any court of the truth of the matters set forth therein, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them. [1959 c.625 §15; 1983 c.719 §12; 1985 c.565 §8]



86.785 Requests for copies of notice of default or notice of sale.

At any time subsequent to the recordation of a trust deed and prior to a recording of notice of default under the deed, any person desiring a copy of any notice of default or any notice of sale under a trust deed as provided in ORS 86.740 (1) may cause to be filed for record in the county clerk’s office of the county or counties in which any part or parcel of the real property is situated, a duly acknowledged request for a copy of any notice of sale or default where service is made upon the trustee. The request shall contain the name and address of the person requesting copies of the notice or notices and shall identify the trust deed by stating the names of the parties to the deed, the date of recordation of the deed and the book and page where the deed is recorded. The county clerk shall immediately make a cross-reference of the request to the trust deed, either on the margin of the page where the trust deed is recorded or in some other suitable place. No request, statement or notation placed on the record pursuant to this section shall affect title to the property or be deemed notice to any person that any person so recording the request has any right, title, interest in, lien or charge upon the property referred to in the trust deed. [1959 c.625 §16]

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