Bill Text: OR SB368 | 2013 | Regular Session | Introduced

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Bill Title: Relating to requirements to record assignments of beneficial interests in real property; declaring an emergency.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB368 Detail]

Download: Oregon-2013-SB368-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 937

                         Senate Bill 368

Sponsored by Senator BATES (Presession filed.)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Requires trustee, mortgagee or agent of trustee or mortgagee to
record all assignments of beneficial interest in real property
that is secured, in whole or in part, by trust deed or mortgage.
Specifies certain requirements for recordation.
  Provides that trustee's or mortgagee's ability to foreclose on
trust deed or mortgage is contingent on proper recordation of
assignments of beneficial interest.
  Provides that requirement to record assignment becomes
operative 91 days after effective date of Act and is retroactive
to January 1, 2007.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to requirements to record assignments of beneficial
  interests in real property; creating new provisions; amending
  ORS 86.735; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2013 Act is added to and made
a part of ORS 93.600 to 93.800. + }
  SECTION 2.  { + (1) As used in this section:
  (a) 'Beneficial interest' means any right or entitlement to
receive income, profit, a payment, a distribution or any other
monetary benefit under the terms of a note or other instrument
that is evidence of an obligation for which a trust deed or
mortgage is security.
  (b) 'Residential trust deed' means a trust deed on property
upon which are situated four or fewer residential units, one of
which the grantor of the trust deed, the grantor's spouse or the
grantor's minor or dependent child occupies as a principal
residence.
  (2) The trustee named in a residential trust deed, the
mortgagee named in a mortgage instrument or an authorized agent
of the trustee or mortgagee shall record, in accordance with
subsections (3) and (4) of this section, every assignment of any
beneficial interest in real property that is secured, in whole or
in part, by a residential trust deed or a mortgage, if the
mortgagor uses the real property as the mortgagor's primary
residence.
  (3) The trustee or mortgagee, or the authorized agent of the
trustee or mortgagee, shall record each assignment of a
beneficial interest in accordance with the provisions set forth
in ORS 93.804 for recording an instrument that conveys an
interest in real property.
  (4) The trustee or mortgagee, or the authorized agent of the
trustee or mortgagee, shall record each assignment of a
beneficial interest in the mortgage records of the county or
counties within which the real property is situated. + }
  SECTION 3.  { + Section 4 of this 2013 Act is added to and made
a part of ORS chapter 88. + }
  SECTION 4.  { + An action to foreclose a mortgage given to
secure real property that the mortgagor uses as the mortgagor's
primary residence may not be brought unless the mortgagee or
other person that seeks to foreclose the mortgage, or the
mortgagee's or person's agent, has complied with the requirements
of section 2 of this 2013 Act. + }
  SECTION 5. ORS 86.735, as amended by section 6, chapter 112,
Oregon Laws 2012, is amended to read:
  86.735. A trustee may foreclose a trust deed by advertisement
and sale in the manner provided in ORS 86.740 to 86.755 { +
only + } 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; - }  { +
The following documents are recorded in the mortgage records of
the county or counties in which the property described in the
deed is situated:
  (a) The trust deed;
  (b) Any assignments that a trustee or beneficiary makes of the
trust deed and any beneficial interest, as defined in section 2
of this 2013 Act, in any note secured by the trust deed, all of
which must be recorded in accordance with section 2 of this 2013
Act; and
  (c) Any appointment of a successor trustee; + }
  (2) There is a default by the grantor or other person that owes
an obligation, the performance of which is secured by the trust
deed, or by the grantor's or other person's successors in
interest with respect to a provision in the deed that authorizes
sale in the event of default of the provision;
  (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 the trust property, 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;
  (4) The beneficiary or the beneficiary's agent has filed for
recording in the official records of the county or counties in
which the property that is subject to the residential trust deed
is located the certificate of compliance the beneficiary received
under section 2, chapter 112, Oregon Laws 2012, if the
beneficiary must enter into mediation with the grantor under
section 2 (2)(a), chapter 112, Oregon Laws 2012;
  (5)(a) The beneficiary or the beneficiary's agent has complied
with the provisions of section 4a, chapter 112, Oregon Laws 2012;
and
  (b) The grantor is not in compliance with the terms of a
foreclosure avoidance measure upon which the beneficiary and the
grantor have agreed; and
  (6) An action has not been commenced to recover the debt or any
part of the debt then remaining secured by the trust deed, or, if
an action has been commenced, 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 commenced 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
may not be appointed with respect to a single-family residence
that the grantor, the grantor's spouse or the grantor's minor or
dependent child occupies as a principal residence.
  (b) An action may be commenced to foreclose, judicially or
nonjudicially, the same trust deed as to any other property
covered by the trust deed, or any other trust deeds, mortgages,
security agreements or other consensual or nonconsensual security
interests or liens that secure repayment of the debt.
  SECTION 6.  { + Sections 2 and 4 of this 2013 Act and the
amendments to ORS 86.735 by section 5 of this 2013 Act apply to
all assignments of a beneficial interest in real property that
occurred on or after January 1, 2007, to the extent that the
assignments are subject to section 2 of this 2013 Act. + }
  SECTION 7.  { + Sections 2 and 4 of this 2013 Act and the
amendments to ORS 86.735 by section 5 of this 2013 Act become
operative 91 days after the effective date of this 2013 Act. + }
  SECTION 8.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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