STATE OF OREGON

Is a license required? The State of Oregon does not require license to perform loan modifications, however it does require a license for anyone who brokers a mortgage.
State specific loan modification law? Yes. House Bill 3630(Attached as Schedule A). The bill was recently passed. Section 1 of the bill states that it applies to foreclosure consultants and defines them as a person who makes a solicitation to help a homeowner(a)stop a foreclosure, (b)obtain a forbearance, (c)assist in exercising a right of redemption or (d)help the homeowner get an extension.

Section 4 states that the act does not apply to individuals licensed to practice law in Oregon, if performing services within an attorney-client relationship, nor does the act apply to mortgage brokers licensed in the state if they are acting within the scope of the license.

Advantages of becoming a licensed Mortgage Broker? None.

A mortgage broker is subject to Oregon law. Oregon Statutes, Chapter 59, section 59.845(Attached as Schedule B) requires that all mortgage brokers in the state be licensed.

59.980.7 lists activities which fall under mortgage brokering and in subsection C includes anyone who “For compensation, or in the expectation of compensation, either directly or indirectly, makes, negotiates or offers to make or negotiate a mortgage loan.”

Penalties for operating in the state without a license: 59.991 provides for criminal penalties.

59.995 provides for civil penalties, up to $20,000 per violation.

Is an advanced fee permitted? Yes. There are currently no prohibiting charging advance fees.
Is a written agreement required? No written agreement is required for a mortgage broker, however section 4 of House Bill 3630 requires a written agreement for foreclosure consultants.
Other noteworthy information? None.
Oregon Statutes

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House Bill 3630:

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Chapter 59, mortgage brokers:

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Licensing requirements:

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SCHEDULE A

     74th OREGON LEGISLATIVE ASSEMBLY--2008 Special 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 43
                         House Bill 3630

Sponsored by COMMITTEE ON ELECTIONS, ETHICS AND RULES (at the
  request of House Interim Committee on Consumer Protection)

                             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.

  Imposes duties and restrictions on foreclosure consultants.
Requires that provision of foreclosure consulting services to
homeowners be pursuant to written contract. Makes violation of
foreclosure consulting laws unfair trade practice. Makes
violation of foreclosure consulting laws criminal offense with
maximum penalty of one year's imprisonment, $10,000 fine, or
both. Creates private cause of action for damages arising from
violation of foreclosure consulting laws. Applies to agreements
for foreclosure services homeowner enters into 90 or more days
after effective date of Act.
  Imposes duties and restrictions on equity purchasers.  Requires
that conveyance of homeowner equity in residence in foreclosure
be pursuant to written contract. Makes violation of equity
conveyance laws unlawful practice. Makes violation of equity
conveyance laws criminal offense with maximum penalty of one
year's imprisonment, $10,000 fine, or both. Applies to equity
conveyance agreements equity seller enters into seven or more
days after effective date of Act.
  Requires trustee to provide grantor of residential trust deed
with toll-free telephone access to certain loan information and
consultant services. Makes violation subject to civil penalty,
not to exceed $500. Applies to trust deeds created on or after
effective date of Act.
  Requires trustee to send grantor of residential trust deed
notice of pending foreclosure and possible ways to avoid
foreclosure at or before time trustee sends grantor notice of
sale. Makes violation subject to civil penalty, not to exceed
$500. Applies to residential trust deed properties for which
trustee sends notice of sale 90 or more days after effective date
of Act.
  Requires Department of Consumer and Business Services to adopt
rules specifying statewide telephone contact number and website
address where grantors of residential trust deeds facing
foreclosure may find possible sources of information and
assistance.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT


Relating to interests in residential real properties; creating
  new provisions; amending ORS 646.607 and 646.608; and declaring
  an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Sections 2 to 6 and 10 to 15 of this 2008 Act
may be cited as the Mortgage Rescue Fraud Protection Act. + }
  SECTION 2.  { + As used in sections 2 to 6 of this 2008 Act:
  (1) 'Default' means having one or more homeowner obligations in
arrears to an extent that a notice of default could properly be
recorded against the residence.
  (2) 'Family' means a spouse, domestic partner, parent,
stepparent, grandparent, child, stepchild, grandchild, sibling,
aunt, uncle, cousin or in-law.
  (3) 'Foreclosure consultant,' except as provided in section 3
of this 2008 Act, means a person that directly or through
association with another makes a solicitation, representation or
offer to a homeowner to perform, for compensation or with the
intent to be compensated, a service that the solicitation,
representation or offer indicates will accomplish one or more of
the following:
  (a) Prevent, postpone or stop a foreclosure sale.
  (b) Obtain a forbearance from a beneficiary or mortgagee.
  (c) Assist the homeowner in exercising a right of redemption.
  (d) Obtain an extension of the period within which the
homeowner may reinstate the homeowner's obligation.
  (e) Obtain the waiver of an acceleration clause that is:
  (A) Contained in a promissory note or contract; and
  (B) Secured by or contained in a deed of trust for, or mortgage
on, a residence in foreclosure or in default.
  (f) Assist the homeowner in obtaining a loan or advance of
funds.
  (g) Avoid or ameliorate an impairment of the homeowner's credit
resulting from a recorded notice of default or foreclosure.
  (4) 'Foreclosure consulting contract' mean an agreement between
a foreclosure consultant and a homeowner for the provision of
services by a foreclosure consultant in regard to a residence in
foreclosure or in default.
  (5) 'Homeowner' means the record owner of a residence.
  (6) 'Residence in foreclosure' means residential real property:
  (a) Consisting of one to four single-family dwelling units;
  (b) On which the owner occupies a dwelling unit; and
  (c) Against which a notice of default has been recorded. + }
  SECTION 3.  { + The following are not foreclosure consultants
for purposes of sections 2 to 6 of this 2008 Act:
  (1) An individual licensed to practice law in this state, if
performing services within an attorney-client relationship.
  (2) A person that holds or is owed an obligation that is
secured by a lien on a residence in foreclosure or default, if
performing services in connection with the obligation or lien.
  (3) A person doing business under authority of an Oregon or
federal law regulating banks, trust companies, savings and loan
associations, credit unions or insurance companies, or as a
licensee under ORS chapter 725, if performing business services
within the scope of that authority or license.
  (4) A subsidiary, affiliate or agent of a person described in
subsection (3) of this section, if performing business services
within the scope of the person's authority or license as the
person's subsidiary, affiliate or agent.
  (5) The judgment creditor of a homeowner, if the creditor's
claim accrued before the trustee sent the creditor a notice of
sale under ORS 86.740.
  (6) A title insurer authorized to conduct business in Oregon or
an insurance producer licensed to conduct business in Oregon, if
performing title insurance or settlement services within the
scope of that authority or license.

  (7) A mortgage broker or mortgage lender licensed under ORS
chapter 59 to conduct business in Oregon, if acting within the
scope of that license.
  (8) A real estate licensee under ORS 696.022 or an escrow agent
licensed under ORS 696.511, if acting within the scope of that
license and provided that any resulting transfer of interest by a
homeowner occurs after a settlement conference as defined in
section 10 of this 2008 Act.
  (9) A tax-exempt organization that offers counseling or advice
to homeowners in foreclosure if the organization:
  (a) Is not directly or indirectly related to for-profit lenders
or foreclosure purchasers;
  (b) Does not contract to provide services to or receive
services from for-profit lenders or foreclosure purchasers; and
  (c) Has provided counseling or advice to homeowners for five
years or more.
  (10) A creditors' committee, trustee or debtor in possession
participating in a proceeding under the jurisdiction of the
United States Bankruptcy Court.
  (11) A person that is a member of the homeowner's family or is
owned or controlled by a member of the homeowner's family. + }
  SECTION 4.  { + (1) A written foreclosure consulting contract
is required for any services that a foreclosure consultant
provides to a homeowner. A foreclosure consultant shall provide a
homeowner with a copy of the foreclosure consulting contract at
least 24 hours before the homeowner signs the contract. The
foreclosure consulting contract must:
  (a) Be written in a language that is spoken by the homeowner
and that was used in discussions between the homeowner and
foreclosure consultant to describe the foreclosure consultant's
services or to negotiate the contract and, except as provided in
paragraph (f) of this subsection, be printed in at least 12-point
type.
  (b) Fully disclose the nature and extent of the services the
foreclosure consultant is to provide.
  (c) Fully disclose the terms and total amount of any
compensation the foreclosure consultant or a person working in
association with the foreclosure consultant is to receive.
  (d) Be dated and personally signed by the homeowner and the
foreclosure consultant.
  (e) Contain on the first page the name of the foreclosure
consultant and an address to which a notice of cancellation may
be mailed.
  (f) Contain, in immediate proximity to the space reserved for
the homeowner's signature, a notice in substantially the
following form and printed in at least 14-point boldfaced
type: + }

________________________________________________________________

                               { +
NOTICE REQUIRED BY OREGON LAW + }

 { +  THIS IS AN IMPORTANT LEGAL CONTRACT AND COULD RESULT IN THE
LOSS OF YOUR HOME. YOU SHOULD CONTACT AN ATTORNEY OR OTHER
PROFESSIONAL ADVISOR BEFORE SIGNING. + }

 { +  YOU MAY CANCEL THIS CONTRACT AT ANY TIME. + }

 { +  If you cancel, you must repay any money spent on your
behalf under this contract. You have 60 days to repay the
money. You must also pay any interest allowed by this contract,
which may not exceed nine percent per year. + }

 { +  __________ (name of foreclosure consultant) or any person
working with __________ (name of foreclosure consultant) CANNOT
ask you to sign or have you sign any lien, mortgage or deed that
transfers an interest in your home or property to __________
(name of foreclosure consultant) or any person working with
__________ (name of foreclosure consultant). + }

 { +  __________ (name of foreclosure consultant) or any person
working with __________ (name of foreclosure consultant) CANNOT
guarantee you that they will be able to refinance your home or
arrange for you to keep your home. + }

 { +  The law requires that this contract contain the entire
agreement.  You should not rely on any other written or oral
agreement or promise. + }

________________________________________________________________

   { +  (2) A foreclosure consulting contract provision is void
if the provision provides for the homeowner to:
  (a) Waive any rights of the homeowner under sections 2 to 6 of
this 2008 Act;
  (b) Consent to jurisdiction for litigation in a state other
than Oregon;
  (c) Consent to a choice of laws provision that applies the laws
of a state other than Oregon;
  (d) Consent to venue in a county other than the county in which
the residence in foreclosure or default is located; or
  (e) Pay any costs or fees incurred by the foreclosure
consultant to enforce the contract, other than court costs and
filing fees incurred in a successful circuit court action. + }
  SECTION 5.  { + (1) In addition to any other cancellation or
rescission right, a homeowner may cancel a foreclosure consulting
contract as provided under this section at any time.
  (2) Cancellation under this section occurs when the homeowner
gives written notice of cancellation to the foreclosure
consultant:
  (a) At a physical address specified in the foreclosure
consulting contract; or
  (b) At a facsimile number or electronic mail address specified
in the foreclosure consulting contract.
  (3)(a) If the homeowner gives written notice of cancellation
under this section by mail, the notice is effective when
deposited in the United States mail with the proper address and
postage.
  (b) If the homeowner gives written notice of cancellation under
this section by facsimile number or electronic mail, the notice
is effective upon receipt. Proof of a transmission by the
homeowner to the facsimile number or electronic mail address
specified in the foreclosure consulting contract creates a
rebuttable presumption that the foreclosure consultant received
the notice at the time of the transmission.
  (4) A homeowner who cancels a foreclosure consulting contract
under this section shall, no later than 60 days after the
cancellation is effective, repay any moneys paid or advanced
under the contract by or on behalf of the foreclosure consultant.
The homeowner shall also pay any interest allowed by the
foreclosure consulting contract, not to exceed nine percent per
year.
  (5) Failure of the homeowner to repay moneys as provided in
subsection (4) of this section does not invalidate the
cancellation of the foreclosure consulting contract.
  (6) When both parties have signed the foreclosure consulting
contract, the foreclosure consultant shall immediately provide
the homeowner with a signed and dated copy of the contract and a
cancellation form. The cancellation form must:
  (a) Be in duplicate;
  (b) Be on a separate sheet of paper attached to the foreclosure
consulting contract;
  (c) Be easily detachable; and
  (d) Contain a statement in substantially the following form and
printed in at least 14-point boldfaced type: + }

________________________________________________________________

                               { +
HOW TO CANCEL + }

 { +  _____ (Date of Contract) + }

 { +  YOU MAY CANCEL THIS CONTRACT WITHOUT PENALTY AT ANY
TIME. + }

 { +  To cancel the contract, mail or deliver a signed and dated
copy of this Notice of Cancellation, or write something saying
you want to cancel, and send it to __________ (name of
foreclosure consultant) at __________ (address of foreclosure
consultant). You can cancel by fax or e-mail. Send any
cancellation by fax to __________ or any cancellation by e-mail
to __________. + }

 { +  If you cancel, you must repay any money spent on your
behalf under this contract. You have 60 days to repay the money.
Your repayment must include any interest allowed under the
contract, which may not exceed nine percent per year. + }

                               { +
NOTICE OF CANCELLATION + }

 { +  TO: __________ (name of foreclosure consultant) + }

 { +  __________ (address, fax or e-mail of foreclosure
consultant) + }

 { +  I cancel this contract. + }

 { +  Date: _____ + }

 { +  Your (homeowner's) signature: __________ + }

________________________________________________________________

   { +  (7) A written notice of cancellation under this section
is sufficient, however expressed, if the notice indicates the
intent of the homeowner to cancel the foreclosure consulting
contract.  The contract may not require the homeowner to use the
notice of cancellation form set forth in subsection (6) of this
section. + }
  SECTION 6.  { + A foreclosure consultant may not:
  (1) Claim, demand, charge, collect or receive any compensation
from a homeowner unless the foreclosure consultant has fully
performed each service the foreclosure consultant contracted to
perform for the homeowner.
  (2) Claim, demand, charge, collect or receive interest or other
compensation that exceeds nine percent per year on any loan by
the foreclosure consultant to the homeowner or on any moneys paid
or advanced to the homeowner under the foreclosure consulting
contract.
  (3) Take a wage assignment, lien on real or personal property
or other security for the payment of compensation.
  (4) Receive consideration from a third party in connection with
services provided by a foreclosure consultant to a homeowner,
unless the consideration is first fully disclosed in writing to
the homeowner.
  (5) Acquire an interest in a residence in foreclosure or
default transferred by a homeowner with whom the foreclosure
consultant has contracted, whether directly, indirectly or
through a subsidiary, affiliate or related entity in which the
foreclosure consultant or a member of the foreclosure
consultant's family is a primary member, shareholder or owner.
  (6) Acquire an interest in a residence in foreclosure or
default from a third party for facilitating or arranging for
entry into an equity conveyance as defined in section 10 of this
2008 Act by a homeowner with whom the foreclosure consultant has
contracted, whether directly, indirectly or through a subsidiary,
affiliate or related entity in which the foreclosure consultant
or a member of the foreclosure consultant's family is a primary
member, shareholder or owner.
  (7) Take a power of attorney from a homeowner except for the
purpose of obtaining or inspecting documents.
  (8) Induce or attempt to induce any homeowner to enter into a
foreclosure consulting contract that does not comply in all
respects with sections 2 to 6 of this 2008 Act. + }
  SECTION 7.  { + (1) As used in this section, 'homeowner' has
the meaning given that term in section 2 of this 2008 Act.
  (2) In addition to any action by the Attorney General under ORS
646.608 or other cause of action, a homeowner may bring an action
for damages incurred by the homeowner resulting from a violation
of sections 2 to 6 of this 2008 Act.
  (3) If a court finds that a defendant in an action under this
section committed a violation of sections 2 to 6 of this 2008 Act
knowingly, in addition to any award of damages for other
violations of sections 2 to 6 of this 2008 Act, the court shall
award the homeowner treble the amount of the actual damages
sustained by the homeowner as a result of the knowing violation.
  (4) The court may award a homeowner prevailing in an action
under this section reasonable attorney fees, costs and expenses.
If a court finds that a homeowner brought an action under this
section in bad faith or solely for purposes of harassment, the
court may award a prevailing defendant reasonable attorney fees.
  (5) An action under this section must be commenced within six
years. + }
  SECTION 8. ORS 646.608, as operative until July 1, 2008, is
amended to read:
  646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
  (a) Passes off real estate, goods or services as those of
another.
  (b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
  (c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
  (d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
  (e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
  (f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
  (g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
  (h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
  (i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
  (j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
  (k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
  (L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
  (m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
  (n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
  (o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
  (p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
  (q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
  (r) Organizes or induces or attempts to induce membership in a
pyramid club.
  (s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
  (t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
  (u) Engages in any other unfair or deceptive conduct in trade
or commerce.
  (v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
  (w) Manufactures mercury fever thermometers.
  (x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
  (A) Prescribed by a person licensed under ORS chapter 677; and
  (B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
  (y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
  (z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
  (aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
  (bb) Violates ORS 646A.070 (1).
  (cc) Violates any requirement of ORS 646A.030 to 646A.040.
  (dd) Violates the provisions of ORS 128.801 to 128.898.
  (ee) Violates ORS 646.883 or 646.885.
  (ff) Violates any provision of ORS 646A.020.
  (gg) Violates ORS 646.569.
  (hh) Violates the provisions of ORS 646A.142.
  (ii) Violates ORS 646A.360.
  (jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
  (kk) Violates ORS 646.563.
  (LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
  (mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
  (nn) Violates ORS 646A.210 or 646A.214.
  (oo) Violates any provision of ORS 646A.124 to 646A.134.
  (pp) Violates ORS 646A.254.
  (qq) Violates ORS 646A.095.
  (rr) Violates ORS 822.046.
  (ss) Violates ORS 128.001.
  (tt) Violates ORS 646.649 (2) to (4).
  (uu) Violates ORS 646A.090 (2) to (4).
  (vv) Violates ORS 87.686.
  (ww) Violates ORS 646.651.
  (xx) Violates ORS 646A.362.
  (yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
  (zz) Violates ORS 180.440 (1).
  (aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
  (bbb) Violates ORS 87.007 (2) or (3).
  (ccc) Violates ORS 92.405 (1), (2) or (3).
  (ddd) Engages in an unlawful practice under ORS 646.648.
  (eee) Violates ORS 646A.365.
  (fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
  (ggg) Sells a gift card in violation of ORS 646A.276.
  (hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
   { +  (iii) Violates a provision of sections 2 to 6 of this
2008 Act. + }
  (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
  (3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
  (4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
  (5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
  SECTION 9. ORS 646.608 is amended to read:
  646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
  (a) Passes off real estate, goods or services as those of
another.
  (b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
  (c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
  (d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
  (e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
  (f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
  (g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
  (h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
  (i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
  (j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
  (k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
  (L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
  (m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
  (n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
  (o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
  (p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
  (q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
  (r) Organizes or induces or attempts to induce membership in a
pyramid club.
  (s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
  (t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
  (u) Engages in any other unfair or deceptive conduct in trade
or commerce.

  (v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
  (w) Manufactures mercury fever thermometers.
  (x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
  (A) Prescribed by a person licensed under ORS chapter 677; and
  (B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
  (y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
  (z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
  (aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
  (bb) Violates ORS 646A.070 (1).
  (cc) Violates any requirement of ORS 646A.030 to 646A.040.
  (dd) Violates the provisions of ORS 128.801 to 128.898.
  (ee) Violates ORS 646.883 or 646.885.
  (ff) Violates any provision of ORS 646A.020.
  (gg) Violates ORS 646.569.
  (hh) Violates the provisions of ORS 646A.142.
  (ii) Violates ORS 646A.360.
  (jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
  (kk) Violates ORS 646.563.
  (LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
  (mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
  (nn) Violates ORS 646A.210 or 646A.214.
  (oo) Violates any provision of ORS 646A.124 to 646A.134.
  (pp) Violates ORS 646A.254.
  (qq) Violates ORS 646A.095.
  (rr) Violates ORS 822.046.
  (ss) Violates ORS 128.001.
  (tt) Violates ORS 646.649 (2) to (4).
  (uu) Violates ORS 646A.090 (2) to (4).
  (vv) Violates ORS 87.686.
  (ww) Violates ORS 646.651.
  (xx) Violates ORS 646A.362.
  (yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
  (zz) Violates ORS 180.440 (1).
  (aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
  (bbb) Violates ORS 87.007 (2) or (3).
  (ccc) Violates ORS 92.405 (1), (2) or (3).
  (ddd) Engages in an unlawful practice under ORS 646.648.
  (eee) Violates ORS 646A.365.
  (fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
  (ggg) Sells a gift card in violation of ORS 646A.276.
  (hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
  (iii) Violates ORS 646A.430 to 646A.450.
   { +  (jjj) Violates a provision of sections 2 to 6 of this
2008 Act. + }
  (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
  (3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
  (4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
  (5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
  SECTION 10.  { + As used in sections 10 to 15 of this 2008 Act:
  (1) 'Bona fide purchaser' means a person that purchases a
residential real property from an equity purchaser:
  (a) For valuable consideration;
  (b) In good faith;
  (c) Without knowledge of any continuing right to, or equity in,
the property by the equity seller; and
  (d) Without knowledge of any violation of sections 10 to 15 of
this 2008 Act by the equity purchaser regarding the property.
  (2) 'Business day' does not mean a Saturday or a legal holiday
described in ORS 187.010 or 187.020.
  (3) 'Equity conveyance' means a transaction that involves:
  (a) The transfer of an interest in a residence in foreclosure
by an equity seller to an equity purchaser, or to another person
acting in association with the equity purchaser, that allows the
equity purchaser or other person to obtain legal or equitable
title to all or part of the residential real property; and
  (b) A subsequent conveyance, or agreement for a subsequent
conveyance, of an interest in the residential real property from
the equity purchaser or other person to the equity seller to
allow the equity seller to possess the property during, or after
termination of, the foreclosure process.
  (4) 'Equity conveyance contract' means a written contract
between an equity seller and an equity purchaser that contains an
agreement for an equity conveyance.
  (5) 'Equity purchaser,' except as provided in section 11 of
this 2008 Act, means a person that enters into an equity
conveyance that transfers to the person, or to another acting in
association with the person, an interest in residential real
property sufficient to allow obtaining legal or equitable title
to all or part of the property.
  (6) 'Equity seller' means a natural person who is the record
owner of a residence in foreclosure at the time an interest in
the residence is transferred under an equity conveyance to an
equity purchaser or to a person acting in association with an
equity purchaser.
  (7) 'Primary housing expenses' means the total amount required
to pay regular principal, interest, rent, utilities, hazard
insurance, real estate taxes and association dues on a
residential real property.
  (8) 'Resale' means a sale by an equity purchaser to a bona fide
purchaser of residential real property that is the subject of an
equity conveyance contract.
  (9) 'Resale price' means the gross sale price of a residential
real property upon resale.
  (10) 'Residence in foreclosure' means residential real
property:
  (a) Consisting of one to four single-family dwelling units;
  (b) On which the owner occupies a dwelling unit; and
  (c) Against which a notice of default has been recorded.

  (11) 'Settlement agent' means a provider of settlement services
who:
  (a) Is a licensed escrow agent, title insurance agent or
attorney; and
  (b) Is not the equity purchaser or an employee or associate of
the equity purchaser.
  (12) 'Settlement conference' means an in-person meeting between
an equity seller and a settlement agent:
  (a) For the purpose of completing documents incident to the
transfer of an interest as part of an equity conveyance; and
  (b) During which the settlement agent provides the equity
seller with the HUD-1 settlement statement used by the United
States Department of Housing and Urban Development. + }
  SECTION 11.  { + The following are not equity purchasers for
purposes of sections 10 to 15 of this 2008 Act:
  (1) A party to a deed in lieu of foreclosure.
  (2) A creditors' committee, trustee or debtor in possession
participating in a proceeding under the jurisdiction of the
United States Bankruptcy Court.
  (3) A family or living trust in which the equity seller is the
beneficiary or a member of the beneficiary. + }
  SECTION 12.  { + (1) A written contract is required for every
equity conveyance. An equity purchaser shall provide an equity
seller with a copy of the equity conveyance contract at least 24
hours before the equity seller signs the contract. The equity
conveyance contract must:
  (a) Be written in a language that is spoken by the equity
seller and that was used in discussions between the equity seller
and equity purchaser to describe the equity purchaser's services
or to negotiate the terms of the contract and, except as provided
in paragraph (f) of this subsection, be printed in at least
12-point type;
  (b) Contain the entire agreement of the parties;
  (c) Be dated and personally signed by the equity seller and the
equity purchaser and witnessed by a notary public;
  (d) Contain on the first page the name and address, facsimile
number and electronic mail address of the settlement agent to
which a notice of cancellation may be delivered;
  (e) Describe in detail the terms of the equity conveyance
including:
  (A) The name and business address, and any telephone number,
facsimile number and electronic mail address, of the person to
whom the equity seller will transfer an interest in the residence
in foreclosure;
  (B) The address of the residence in foreclosure;
  (C) The total consideration the equity purchaser and any other
party are to give as a result of the transfer of interest;
  (D) The time at which the interest is to be transferred to the
equity purchaser or other person and the terms of the transfer;
  (E) Any financial or legal obligations that the equity seller
may remain subject to, including a description of any mortgages,
liens or other obligations that will remain in place;
  (F) A description of any services the equity purchaser will
perform for the equity seller before or after the transfer of
interest;
  (G) A complete description:
  (i) Of the terms of any post-transfer conveyance or agreement
for a conveyance to the equity seller to allow the equity seller
to remain in the home, including but not limited to the terms of
any rental agreement, repurchase agreement, contract for deed,
land installment contract or option to buy; and
  (ii) Of any provisions for eviction or removal of the equity
seller in the case of late payment;
  (H) An explanation of how any repurchase price or fee
associated with any conveyance of title or deed back to the
equity seller will be calculated; and
  (I) An explanation of the percentage of any net proceeds the
equity seller is to receive if the equity seller does not
exercise a right to receive back a conveyance of title or deed;
and
  (f) Contain, in immediate proximity to the space reserved for
the equity seller's signature, a notice in substantially the
following form and printed in at least 14-point boldfaced
type: + }

________________________________________________________________

                               { +
NOTICE REQUIRED BY OREGON LAW + }

                               { +
THIS IS AN IMPORTANT LEGAL CONTRACT. + }
                               { +
YOU ARE TRANSFERRING YOUR DEED OR TITLE + }
                               { +
AND THIS COULD RESULT IN THE PERMANENT + }
                               { +
LOSS OF YOUR HOME. CONTACT AN ATTORNEY + }
                               { +
OR OTHER PROFESSIONAL ADVISOR BEFORE SIGNING. + }

 { +  YOU MAY CANCEL THIS CONTRACT WITHIN THREE (3) BUSINESS
DAYS. + }

 { +  If you cancel, you must repay money spent on your behalf
under this contract. You have 60 days to repay the money. You
must also pay any interest allowed by this contract, which may
not exceed nine percent per year. + }

 { +  The law requires that this contract contain the entire
agreement.  You should not rely on any other written or oral
agreement or promise. + }

________________________________________________________________

   { +  (2) An equity conveyance contract provision is void if
the provision provides for an equity seller to:
  (a) Waive any rights of the equity seller under sections 10 to
15 of this 2008 Act;
  (b) Consent to jurisdiction for litigation in a state other
than Oregon;
  (c) Consent to a choice of laws provision that applies the laws
of a state other than Oregon;
  (d) Consent to venue in a county other than the county in which
the residential real property is located; or
  (e) Pay any costs or fees that the equity purchaser or a person
acting in association with the equity purchaser incurred to
enforce the contract, other than court costs and filing fees
incurred in a successful circuit court action.
  (3) An equity conveyance may not be carried out using a power
of attorney from the equity seller. + }
  SECTION 13.  { + (1) In addition to any other cancellation or
rescission right, an equity seller may cancel an equity
conveyance contract as provided under this section before the
earlier of:
  (a) Midnight of the third business day after the equity seller
signs a document purporting to transfer an interest in the
residence in foreclosure; or
  (b) A foreclosure sale of the residence in foreclosure.
  (2) If the equity seller gives a written notice of cancellation
under this section by mail, the notice is effective upon the
earlier of:
  (a) Delivery to the physical address of the equity purchaser or
settlement agent; or
  (b) Actual receipt by the equity purchaser or settlement agent.
  (3) If the equity seller gives a written notice of cancellation
under this section by facsimile number or electronic mail, the
notice is effective upon the earlier of:
  (a) Delivery to the facsimile number or electronic mail address
of the equity purchaser or the settlement agent; or
  (b) Actual receipt by the equity purchaser or settlement agent.
  (4) Proof of a transmission by the equity seller to the
facsimile number or electronic mail address of the equity
purchaser or of the settlement agent creates a rebuttable
presumption that the notice of cancellation was delivered to the
facsimile number or electronic mail address of the equity
purchaser or settlement agent at the time of transmission.
  (5) An equity seller who cancels an equity conveyance contract
under this section shall, no later than 60 days after the
cancellation is effective, repay any moneys paid or advanced
under the contract by or on behalf of the equity purchaser. The
equity seller shall also pay any interest stated in the equity
conveyance contract, not to exceed nine percent per year.
  (6) Failure of the equity seller to repay moneys as provided in
subsection (5) of this section does not invalidate the
cancellation of the equity conveyance contract.
  (7) When both parties have signed the equity conveyance
contract, the equity purchaser shall immediately provide the
equity seller with a signed and dated copy of the contract and a
cancellation form. The cancellation form must:
  (a) Be in duplicate;
  (b) Be on a separate sheet of paper attached to the contract;
  (c) Be easily detachable; and
  (d) Contain a statement in substantially the following form and
be printed in at least 14-point boldfaced type: + }

________________________________________________________________

                               { +
 HOW TO CANCEL + }

 { +  IF YOU DECIDE NOT TO TRANSFER YOUR DEED OR TITLE, YOU MAY
CANCEL THIS CONTRACT. + }

 { +  YOU MUST DELIVER THE NOTICE OF CANCELLATION WITHIN THREE
(3) BUSINESS DAYS OF WHEN YOU SIGNED THE CONTRACT. + }

 { +  Date of Contract: _____ + }

 { +  To cancel, you must deliver a notice of cancellation before
midnight on: _____ (date). + }

 { +  To cancel the contract, mail or deliver a signed and dated
copy of this Notice of Cancellation, or write something saying
you want to cancel, and send it to __________ (name of settlement
agent) at __________ (address of settlement agent). You can
cancel by fax or e-mail. Send any cancellation by fax to
__________ or any cancellation by e-mail to __________. + }

 { +  If you cancel, you must repay any money spent on your
behalf under this contract. You have 60 days to repay the money.
Your repayment must include any interest allowed under the
contract, which may not exceed nine percent per year. + }

                               { +
NOTICE OF CANCELLATION + }

 { +  TO: _____ (name of settlement agent) + }

 { +  _____ (address, fax and e-mail of settlement agent) + }

 { +  I cancel the contract. Please return all signed documents
to me. + }

 { +  Date: _____ + }

 { +  Your (homeowner's) signature: __________ + }

________________________________________________________________

   { +  (8) The period during which the equity seller may cancel
the equity conveyance contract does not commence until the equity
purchaser has complied with subsection (7) of this section.
  (9) A notice of cancellation under this section is sufficient,
however expressed, if the notice indicates the intent of the
equity seller to cancel the equity conveyance contract. The
equity conveyance contract may not require the equity seller to
use the notice of cancellation form described in subsection (7)
of this section.
  (10) No later than 10 days after receipt of a notice of
cancellation given in accordance with this section, the equity
purchaser shall return, without condition, any original deed,
title and contract, and any other document of transfer signed by
the equity seller. + }
  SECTION 14.  { + (1) An equity purchaser shall:
  (a) Prior to providing a copy of the equity conveyance contract
to the equity seller under section 12 (1) of this 2008 Act:
  (A) Verify and be able to demonstrate that the equity seller
has or will have a reasonable ability to pay for the subsequent
reconveyance of the residential real property interest back to
the equity seller as provided under the equity conveyance
contract; or
  (B) If the equity conveyance contract provides for a lease with
an option to repurchase the residential real property, verify and
be able to demonstrate that the equity seller has or will have a
reasonable ability to make the lease payments and repurchase the
property within the term of the option to repurchase.
  (b) Arrange for the equity seller and the settlement agent to
complete a settlement conference before the equity seller
transfers any interest under the equity conveyance contract.
  (c) Comply with the requirements of the federal Home Ownership
and Equity Protection Act (15 U.S.C. 1639) and its implementing
regulations for any equity conveyance in which the equity seller
obtains a vendee interest in a contract for deed.
  (d) Ensure that title to, or other interest in, the residential
real property is timely reconveyed to the equity seller as
provided under the terms of the equity conveyance contract.
  (e) If a residential real property is resold within 24 months
after the equity seller enters into an equity conveyance
contract, pay the equity seller cash or consideration in an
amount equal to at least 82 percent of the net proceeds from the
resale no later than 15 days after the receipt of cash or
consideration from or on behalf of the purchasers of the
property.
  (f) Timely record the memorandum of agreement required by
section 15 of this 2008 Act.
  (2) An equity purchaser may not:
  (a) As part of an equity conveyance contract, enter into
repurchase or lease terms that are commercially unreasonable or
unfair to an equity seller, or engage in any other unfair
conduct.
  (b) Represent, directly or indirectly, that the equity
purchaser is acting as a financial advisor or foreclosure
consultant to the equity seller or otherwise is acting on behalf
of the equity seller.
  (c) Make a false representation regarding the equity
purchaser's possession of professional credentials that indicate
knowledge or expertise regarding real property transactions.
  (d) Represent, directly or indirectly, that the equity
purchaser is assisting the equity seller in preventing a
foreclosure, if the equity conveyance contract does not provide
for the equity seller to completely redeem the residential real
property and regain title.
  (e) Directly or by implication make a statement or engage in
conduct that is false, deceptive, misleading or likely to cause
confusion or misunderstanding regarding an equity conveyance,
including but not limited to a statement or conduct with regard
to:
  (A) The value of a residence in foreclosure;
  (B) The amount of proceeds the equity seller would receive
after a foreclosure sale;
  (C) An equity conveyance contract term; or
  (D) The equity seller's rights or obligations incident to or
arising out of the equity conveyance.
  (f) Before the equity seller's right to cancel an equity
conveyance contract has expired:
  (A) Record or cause to be recorded an instrument of conveyance
or other document the equity seller signed;
  (B) Transfer or purport to transfer any interest in the
residential real property to any third party; or
  (C) Encumber or purport to encumber any interest in the
residential real property with any third party. + }
  SECTION 15.  { + (1) For purposes of determining whether an
equity purchaser has violated section 14 (1)(a) of this 2008 Act,
there is a rebuttable presumption that:
  (a) An equity seller has or will have a reasonable ability to
pay for a subsequent reconveyance of a residential real property
if the equity seller's payments for primary housing expenses and
regular principal and interest payments on other personal debt,
on a monthly basis, do not exceed 60 percent of the equity
seller's monthly gross income.
  (b) The equity purchaser has failed to verify that the equity
seller has a reasonable ability to pay for a subsequent
reconveyance of a property if the equity purchaser has not
obtained supporting documents other than a statement by the
equity seller of assets, liabilities and income.
  (2) If a property is resold within 24 months after an equity
seller enters into an equity conveyance contract, at the time of
making payment to the equity seller under section 14 (1)(e) of
this 2008 Act, the equity purchaser shall provide the equity
seller with a detailed accounting of the basis for the payment
amount. The accounting shall include detailed documentation of
expenses and other consideration paid by the equity purchaser and
deducted from the resale price.
  (3) A bona fide purchaser that enters into a transaction with
an equity seller or equity purchaser receives good title to the
property, free and clear of:
  (a) The rights of the parties to an equity conveyance contract
or a memorandum of agreement; or
  (b) Any cancellation of the equity conveyance contract.
  (4) Sections 10 to 15 of this 2008 Act do not impose a duty on
a property purchaser, title insurer or title insurance producer
regarding the application of the proceeds of a resale of property
by an equity purchaser.
  (5) At the time of presenting an equity conveyance for
recording, the equity purchaser shall present a memorandum of
agreement for recording in the county where the residential real
property is located. The memorandum of agreement must be signed
by the equity purchaser and the equity seller, witnessed by a
notary and in substantially the following form: + }

________________________________________________________________

                               { +
MEMORANDUM OF AGREEMENT + }
 { +  DATED: _____ + }

 { +  SELLER NAME (print): __________ + }

 { +  PURCHASER NAME (print): __________ + }

 { +  EXPIRATION DATE: _____, unless otherwise extended by
written agreement between the parties. + }

 { +  PROPERTY ADDRESS: (legal description) __________ + }

 { +  TERMS OF AGREEMENT: __________ + }

 { +  TRUE AND ACTUAL CONSIDERATION IS: _____ + }

 { +  SELLER SIGNATURE: __________ + }

 { +  PURCHASER SIGNATURE: __________ + }

________________________________________________________________

  SECTION 16.  { + Sections 10 to 15 of this 2008 Act do not
preclude an equity seller from:
  (1) Seeking to have a transfer of interest under an equity
conveyance declared to be an equitable mortgage; or
  (2) Asserting any claim against an equity purchaser for an
equitable mortgage. + }
  SECTION 17. ORS 646.607 is amended to read:
  646.607. A person engages in an unlawful practice when in the
course of the person's business, vocation or occupation the
person:
  (1) Employs any unconscionable tactic in connection with the
sale, rental or other disposition of real estate, goods or
services, or collection or enforcement of an obligation;
  (2) Fails to deliver all or any portion of real estate, goods
or services as promised, and upon request of the customer, fails
to refund any money that has been received from the customer that
was for the purchase of the undelivered real estate, goods or
services and that is not retained by the seller pursuant to any
right, claim or defense asserted in good faith. This subsection
does not create a warranty obligation and does not apply to a
dispute over the quality of real estate, goods or services
delivered to a customer;   { - or - }
  (3) Violates ORS 401.107 (1) to (4) { + ; or
  (4) Violates a provision of sections 10 to 15 of this 2008
Act + }.
  SECTION 18.  { + Violation of a provision of sections 2 to 6 or
10 to 15 of this 2008 Act is a misdemeanor punishable by not more
than one year's imprisonment, a fine of not more than $10,000, or
both. + }
  SECTION 19.  { + Sections 20 and 21 of this 2008 Act are added
to and made a part of ORS 86.705 to 86.795. + }
  SECTION 20.  { + The trustee of a residential trust deed shall
maintain a toll-free telephone number during regular business
hours that will provide the grantor of the trust deed with access
to:
  (1) Details regarding the grantor's loan delinquency and
repayment information; and
  (2) Person-to-person consultation regarding the grantor's
payment and loan term negotiation options. + }
  SECTION 21.  { + (1) If the trustee of a residential trust deed
records a notice of default for the residential real property, on
or before the date that the trustee serves or mails the notice of
sale required under ORS 86.740, the trustee shall give a notice
to the grantor of the residential trust deed by first class 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.' + }

 { +  In order to bring your mortgage loan current, the amount
you need to pay as of _____ (date) is $_____. + }

 { +  By law, your lender has to provide you with details about
the amount you owe, if you ask. If you want these details, you
can call your lender or the trustee toll-free at _____. 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 your loan servicer at _____ 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
statewide resource telephone contact numbers and website
addresses the trustee is to insert in completing the notice.
  (3) When filling blanks in the notice form set forth in
subsection (1) of this section, the trustee shall include, stated
in plain language:
  (a) The amount of payment that is needed to bring the mortgage
loan current as of the date the trustee mails the notice; and
  (b) A telephone number that is toll-free from the location of
the residential property that will provide the grantor with
information about the amount owed, including but not limited to
information of the type described in section 20 (1) of this 2008
Act.
  (4) If the notice required by subsection (1) of this section is
mailed in the same envelope as other materials, the trustee shall
place the notice required by subsection (1) of this section on
top of all other materials in the envelope.
  (5) If the trustee knows that the grantor is not the occupant
of the residential real property, in addition to sending the
notice required by subsection (1) of this section to the grantor,
the trustee shall send a copy of the notice to the occupant of
the property by first class mail with return receipt
requested. + }
  SECTION 22.  { + The Department of Consumer and Business
Services may assess a civil penalty, not to exceed $500, for a
violation of section 20 or 21 of this 2008 Act. + }
  SECTION 23.  { + (1) Sections 2 to 6 of this 2008 Act apply to
agreements for services by a foreclosure consultant entered into
by homeowners 90 or more days after the effective date of this
2008 Act.
  (2) Sections 10 to 15 of this 2008 Act apply to agreements for
equity conveyances entered into by equity sellers seven or more
days after the effective date of this 2008 Act.
  (3) Section 20 of this 2008 Act applies to residential trust
deeds created on or after the effective date of this 2008 Act.
  (4) Section 21 of this 2008 Act applies to residential trust
deed properties for which a notice of sale under ORS 86.740 is
sent by the trustee 90 or more days after the effective date of
this 2008 Act. + }
  SECTION 24.  { + This 2008 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2008 Act takes effect on
its passage. + }
                         ----------


SCHEDULE B

MORTGAGE BANKERS; MORTGAGE BROKERS; LOAN ORIGINATORS

 

59.840 Definitions for ORS 59.840 to 59.980

 

59.845 License required to engage in residential mortgage transactions as mortgage banker or mortgage broker

 

59.850 Procedures for licensing; experience required; surety bond or letter of credit; fees; rules

 

59.855 Expiration of license; renewal; duration of renewed license; change in personnel; rules

 

59.860 Licensees to keep records; inspection; filing of financial reports

 

59.865 Grounds for denying, suspending, conditioning or revoking license

 

59.870 Action against applicant or licensee for act or omission of associate; exception

 

59.875 Cancellation of license or application; application for withdrawal

 

59.880 Supervisory authority of director over mortgage bankers, mortgage brokers and loan originators

 

59.885 Investigations; publicity with respect to violations; cease and desist order

 

59.890 Enjoining violations; fine; appointment of receiver; attorney fees; damages to private parties

 

59.895 Procedures where assets or capital of mortgage banker or broker found impaired; involuntary liquidation

 

59.900 Rules; financial statements

 

59.905 Notice of orders; hearings on orders

 

59.910 Judicial review of orders

 

59.915 Oaths and subpoenas in proceedings before director

 

59.920 Copies of documents; fees; effect of certification

 

59.925 Liability of mortgage banker or mortgage broker; recovery of damages; limitations on proceeding; action against bond or letter of credit; attorney fees

 

59.930 Fraud and deceit with respect to mortgage banker or broker business

 

59.935 Clients’ Trust Account; examination; deposit of funds; interest; rules

 

59.940 Notice to bank regarding Clients’ Trust Account

 

59.945 Prohibited advertisements

 

59.950 Designation of principal place of business; other offices; change of personnel; registered agent

 

59.955 Disclosure required before closing mortgage loan or mortgage banking loan

 

59.960 Consultation with licensees before rules adopted

 

59.962 Servicing or collecting mortgage banking loan or mortgage loan by mortgage banker or mortgage broker

 

59.967 Legislative findings regarding loan originators; prohibited practice

 

59.969 List of loan originators; qualifications; voluntary reporting; records; waiver; rules

 

59.970 Qualifications for insurance licensees acting as loan originators

 

59.971 Prohibited conduct for loan originators; effect of criminal conviction; rules

 

59.972 Loan originator criminal records checks; rules

 

59.973 Complaints against loan originators; investigation; hearing; rules; action by director

 

59.975 Continuing education requirements for loan originators; rules

 

59.977 Certification of organizations to provide training for loan originators; rules

 

59.980 Short title

MORTGAGE BANKERS; MORTGAGE BROKERS; LOAN ORIGINATORS

 

59.840 Definitions for ORS 59.840 to 59.980. As used in ORS 59.840 to 59.980:

(1) “Director” means the Director of the Department of Consumer and Business Services.

(2) “Fraud,” “deceit” and “defraud” are not limited to common-law deceit.

(3) “License” means a license issued to a mortgage banker or mortgage broker under ORS 59.840 to 59.980.

(4)(a) “Loan originator” means an individual employed by or purporting to act as an agent or independent contractor for a mortgage banker or mortgage broker that is required to be licensed under ORS 59.840 to 59.980, with the expectation by the individual of compensation or gain that is determined by the amount borrowed or the terms and conditions agreed to by the mortgage loan borrower, and having primary job responsibilities that include negotiating with a borrower or potential borrower for the purpose of establishing the terms and conditions of a mortgage loan.

(b) “Loan originator” includes a person employed at a location outside this state whose primary job responsibilities include contacting or attempting to contact a borrower or potential borrower within this state through any medium or mode of communication for purposes of providing a mortgage loan within this state.

(c) “Loan originator” does not include an individual whose responsibilities are clerical or administrative functions, including but not limited to gathering information, requesting information, word processing, soliciting general interest in mortgage loans, sending correspondence and assembling files.

(d) “Loan originator” does not include an employee of a mortgage banker that is rated as good or better under the federal rating system in effect on May 1, 2001, for seller-servicers of Federal Housing Administration, Federal Home Loan Mortgage Corporation or Federal National Mortgage Association loans and that has an office within this state at which the mortgage banker maintains complete and current copies of all employment records and other records as required by the Director of the Department of Consumer and Business Services by order or rule, in a format acceptable to the director.

(e) “Loan originator” does not include an insurance producer licensed under ORS 744.052 to 744.089 or insurance consultant licensed under ORS 744.002.

(f) “Loan originator” does not include a person or group of persons exempted by rule or order of the director.

(5) “Mortgage banker”:

(a) Means any person who for compensation or in the expectation of compensation:

(A) Either directly or indirectly makes, negotiates or offers to make or negotiate a mortgage banking loan or a mortgage loan; and

(B) Services or sells a mortgage banking loan.

(b) Does not include:

(A) A financial institution, as defined in ORS 706.008.

(B) A financial holding company or a bank holding company, as defined in ORS 706.008, holding an institution described in subparagraph (A) of this paragraph; a savings and loan holding company as defined in section 408 of the National Housing Act, 12 U.S.C. 1730a (1982), holding an association described in subparagraph (A) of this paragraph; the subsidiaries and affiliates of the financial holding company, bank holding company or savings and loan holding company; or subsidiaries and affiliates of institutions described in subparagraph (A) of this paragraph, provided that the appropriate statutory regulatory authority is exercising control over or is regulating or supervising the persons listed in this subparagraph in their mortgage banking activities in accordance with the purposes of ORS 59.840 to 59.980.

(C) A person who makes a loan secured by an interest in real estate with the person’s own moneys, for the person’s own investment and who is not engaged in the business of making loans secured by an interest in real estate.

(D) An attorney licensed in this state who negotiates mortgage banking loans or mortgage loans in the ordinary course of business, unless the business of negotiating mortgage banking loans or mortgage loans constitutes substantially all of the attorney’s professional activity.

(E) A person who, as seller of real property, receives one or more mortgages or deeds of trust as security for a separate money obligation.

(F) An agency of any state or of the United States.

(G) A person who receives a mortgage or deed of trust on real property as security for an obligation payable on an installment or deferred payment basis and arising out of materials furnished or services rendered in the improvement of that real property or any lien created without the consent of the owner of the real property.

(H) A person who funds a mortgage banking loan or mortgage loan which has been originated and processed by a licensee or by an exempt person and who does not maintain a place of business in this state in connection with funding mortgage banking loans or mortgage loans, does not directly or indirectly solicit borrowers in this state for the purpose of making mortgage banking loans or mortgage loans and does not participate in the negotiation of mortgage banking loans or mortgage loans. For the purpose of this subparagraph, “negotiation of mortgage banking loans or mortgage loans” does not include setting the terms under which a person may buy or fund a mortgage banking loan or a mortgage loan originated by a licensee or exempt person.

(I) A nonprofit federally tax exempt corporation certified by the United States Small Business Administration and organized to promote economic development within this state whose primary activity consists of providing financing for business expansion.

(J) A licensee licensed under ORS chapter 725 or a mortgage broker.

(K) A retirement or pension fund.

(L) An insurer as defined in ORS 731.106.

(M) A court appointed fiduciary.

(N) Any other person designated by rule or order of the director.

(6) “Mortgage banking loan” means a loan, extension of credit or a retail sales contract that is funded exclusively from the mortgage banker’s own resources, which is directly or indirectly secured by a mortgage or deed of trust or any lien interest on real estate and which is created with the consent of the owner of the real property. For purposes of this subsection, “own resources” means any of the following:

(a) Cash, corporate capital, warehouse credit lines at financial institutions defined in ORS 706.008 or other sources that are liability items of the mortgage banker’s financial statements for which its assets are pledged;

(b) Correspondent contracts between the mortgage banker and a bank, savings bank, trust company, savings and loan association, credit union, profit sharing or pension trust, a licensee under ORS chapter 725 or an insurance company; or

(c) The mortgage banker’s affiliates’ cash, corporate capital, warehouse credit lines at financial institutions defined in ORS 706.008 or other sources that are liability items on the affiliates’ financial statements for which the affiliates’ assets are pledged. As used in this paragraph, “affiliates” means entities that, directly or indirectly, through one or more intermediaries controls, are controlled by or are under common control with the entity specified.

(7) “Mortgage broker”:

(a) Means a person who:

(A) Engages all or part of the time, for the account of others or for the person’s own account, in the business of selling real estate paper whether as issuer, agent or principal to persons other than persons enumerated in ORS 59.035 (4);

(B) Engages all or part of the time, for the account of others or for the person’s own account, in the business of accepting funds from one or more persons other than persons enumerated in ORS 59.035 (4) for investment in real estate paper; or

(C) For compensation, or in the expectation of compensation, either directly or indirectly makes, negotiates or offers to make or negotiate a mortgage loan.

(b) Does not include:

(A) A financial institution, as defined in ORS 706.008.

(B) A financial holding company or a bank holding company, as defined in ORS 706.008, holding an institution described in subparagraph (A) of this paragraph; a savings and loan holding company as defined in section 408 of the National Housing Act, 12 U.S.C. 1730a (1982), holding an association described in subparagraph (A) of this paragraph; the subsidiaries and affiliates of the financial holding company, bank holding company or savings and loan holding company; or subsidiaries and affiliates of institutions described in subparagraph (A) of this paragraph, provided that the appropriate statutory regulatory authority is exercising control over or is regulating or supervising the persons listed in this subparagraph in their mortgage brokering activities in accordance with the purposes of ORS 59.840 to 59.980.

(C) A person who purchases real property and issues an obligation to finance the transaction to the seller incidentally to the sale.

(D) A real estate licensee as defined in ORS 696.010 who performs services solely incidental to the practice of professional real estate activity as defined in ORS 696.010, unless the real estate licensee performs the functions of a mortgage banker or a mortgage broker as defined in this section.

(E) A person licensed under the provisions of ORS chapter 725 or a mortgage banker.

(F) A person who makes a loan secured by an interest in real estate with the person’s own moneys, for the person’s own investment and who is not engaged in the business of making loans secured by an interest in real estate.

(G) An attorney licensed in this state who negotiates mortgage loans in the ordinary course of business, unless the business of negotiating mortgage loans constitutes substantially all of the attorney’s professional activity.

(H) A person who, as seller of real property, receives one or more mortgages or deeds of trust as security for a separate money obligation.

(I) An agency of any state or of the United States.

(J) A person who receives a mortgage or deed of trust on real property as security for an obligation payable on an installment or deferred payment basis and arising out of materials furnished or services rendered in the improvement of that real property or any lien created without the consent of the owner of the real property.

(K) A person who funds a mortgage loan which has been originated and processed by a licensee or by an exempt person and who does not maintain a place of business in this state in connection with funding mortgage loans, does not directly or indirectly solicit borrowers in this state for the purpose of making mortgage loans and does not participate in the negotiation of mortgage loans. For the purpose of this subparagraph, “negotiation of mortgage loans” does not include setting the terms under which a person may buy or fund a mortgage loan originated by a licensee or exempt person.

(L) A nonprofit federally tax exempt corporation certified by the United States Small Business Administration and organized to promote economic development within this state whose primary activity consists of providing financing for business expansion.

(M) A person licensed under ORS 446.691 or 446.696 or a temporary manufactured structure dealer licensee under ORS 446.701 who provides services customarily associated with the retail sales of manufactured dwellings, including communication of generally available information regarding mortgage loans, unless:

(i) The person receives from a purchaser a fee or commission as a mortgage broker or mortgage banker that is disclosed in the sales contract, purchase agreement or applicable federal documents;

(ii) For the benefit of a potential purchaser, the person completes a loan application form or other document that is part of a mortgage banking loan and completes a good faith estimate under the federal Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.);

(iii) The person solicits or receives credit information from a prospective purchaser for the purpose of making credit decisions; or

(iv) The person negotiates with a potential purchaser the terms of a mortgage loan including but not limited to points, interest rates, length of loan or other loan conditions.

(N) Any other person designated by rule or order of the director.

(8) “Mortgage loan” means a loan, extension of credit or retail sales contract, other than a mortgage banking loan, secured by a mortgage or deed of trust or any lien interest on real estate that is created with the consent of the owner of the real estate.

(9) “Residential mortgage transaction” means a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained in property upon which four or fewer residential dwelling units are planned or situated, including but not limited to individual units or condominiums and cooperatives. As used in this subsection, “residential dwelling unit” means an improvement designed for residential occupancy. [1993 c.508 §1; 1995 c.129 §1; 1995 c.622 §13; 1997 c.211 §1; 1997 c.631 §377; 1999 c.36 §1; 2001 c.377 §40; 2001 c.952 §1; 2003 c.364 §47; 2003 c.655 §48]

 

59.845 License required to engage in residential mortgage transactions as mortgage banker or mortgage broker. (1) It is unlawful for any person to engage in residential mortgage transactions in this state as a mortgage banker or mortgage broker unless the person is licensed under ORS 59.840 to 59.980. A person who is a mortgage banker or mortgage broker under ORS 59.840, but who does not engage in residential mortgage transactions in this state, is not required to obtain a license under ORS 59.840 to 59.980.

(2) For purposes of this section, a person “engages in residential mortgage transactions in this state” when any act constituting the business of a mortgage banker or mortgage broker and involving a residential mortgage transaction originates from this state or is directed to and received in this state or when the real estate that is the subject of the activities of the mortgage banker or mortgage broker is located in this state. [1993 c.508 §2; 1999 c.36 §2]

 

59.850 Procedures for licensing; experience required; surety bond or letter of credit; fees; rules. (1) The Director of the Department of Consumer and Business Services by rule shall establish procedures for licensing mortgage bankers or mortgage brokers. The director may coordinate licensing with any national registration or licensing system.

(2) An applicant for a license as a mortgage banker or mortgage broker, or a managing partner, director, executive officer or other individual occupying a similar position or performing similar functions for the applicant, shall have, during the five years immediately preceding the time of application, not less than three years’ experience in the mortgage business, three years’ experience negotiating loans in a related business satisfactory to the director or three years’ equivalent lending experience in a related business satisfactory to the director.

(3) If a license as a mortgage banker or mortgage broker is issued to a person other than an individual, at least one managing partner, director, executive officer or other individual occupying a similar position or performing similar functions for the person shall, at all times during the term of the license, satisfy the experience requirement described in subsection (2) of this section.

(4) Every applicant for a license as a mortgage banker or mortgage broker shall file with the director a corporate surety bond or irrevocable letter of credit issued by an insured institution as defined in ORS 706.008 as the director may approve by rule running to the State of Oregon in a sum to be determined by the director by rule.

(5) The total amount of the corporate surety bond or irrevocable letter of credit for a single applicant under subsection (4) of this section shall be not less than $25,000 but not more than $50,000, regardless of the number of offices of the applicant. If an applicant has more than one office in this state to engage in residential mortgage transactions as a mortgage banker or mortgage broker, the amount of the bond or letter of credit shall increase for each additional office in an amount determined by the director by rule. The amount of the increase in the bond or letter of credit for each additional office shall be not less than $5,000 but not more than $10,000. The director may adjust the minimum amount of the increase in the bond or letter of credit for additional offices as necessary to comply with the $50,000 limit.

(6) If the application, surety bond or irrevocable letter of credit and fees are in order and the director is satisfied that the application should not be denied upon one or more of the grounds specified in ORS 59.865, 59.870 or 59.875, the director shall license the mortgage banker or mortgage broker.

(7) A licensee shall amend the license application and, if necessary, increase the amount of the corporate surety bond or irrevocable letter of credit as described in subsection (5) of this section when there are material changes in the information contained in the original application.

(8) The director shall:

(a) Charge and collect fees for initial and renewal license applications;

(b) Set by rule all fees required under this section. Fees shall be set to reflect those amounts sufficient to meet the costs of administering ORS 59.840 to 59.980, including those amounts sufficient to establish and maintain a reasonable emergency fund; and

(c) Set by rule the amounts of corporate surety bonds and irrevocable letters of credit required under this section.

(9) The fees under this section are not refundable except for those fees that the director determines by rule may be refundable. [1993 c.508 §3; 1995 c.129 §2; 1997 c.631 §378; 1999 c.36 §3]

 

59.855 Expiration of license; renewal; duration of renewed license; change in personnel; rules. (1) The initial license of a mortgage banker or mortgage broker expires one year after the date of issuance unless the Director of the Department of Consumer and Business Services establishes a different expiration date for purposes of coordination with any national registration or licensing system.

(2) The director by rule shall establish procedures for renewing licenses of mortgage bankers and mortgage brokers. The rule shall specify the duration of renewed licenses.

(3) If there is a change in the partners, directors, officers, persons occupying similar positions or performing similar functions, or persons directly or indirectly controlling a mortgage banker or mortgage broker, written notification of the change shall promptly be filed with the director. No fee shall be required for the notification. [1993 c.508 §4; 1995 c.129 §3]

 

59.860 Licensees to keep records; inspection; filing of financial reports. (1) Every mortgage banker and mortgage broker shall make and keep such accounts, correspondence, memoranda, papers, books and other records as the Director of the Department of Consumer and Business Services by rule or order prescribes. All such records shall be preserved for five years unless the director by rule prescribes otherwise. The director may examine all such records within or without this state at any reasonable time or times and may require without subpoena the production of such records at the office of the director as often as is reasonably necessary.

(2) Every mortgage banker and mortgage broker shall file financial reports or other information as the director by rule or order may require and shall promptly correct any document filed with the director that is or becomes incomplete or inaccurate in any material respect. [1993 c.508 §5]

 

59.865 Grounds for denying, suspending, conditioning or revoking license. Except as provided in ORS 59.870, the Director of the Department of Consumer and Business Services may by order deny, suspend, condition or revoke a license of a person as a mortgage banker or mortgage broker if the director finds that the applicant or licensee:

(1) Is insolvent, either in the sense that the liabilities of the applicant or licensee exceed the assets of the applicant or licensee or that the applicant or licensee cannot meet the obligations of the applicant or licensee as the obligations mature, or is in such financial condition that the applicant or licensee cannot continue in business with safety to the customers of the applicant or licensee.

(2) Has engaged in dishonest, fraudulent or illegal practices or conduct in any business or profession or unfair or unethical practices or conduct in connection with the mortgage business.

(3) Has willfully or repeatedly violated or failed to comply with any provision of ORS 59.840 to 59.980 or any rule or order of the director.

(4) Has been convicted of a misdemeanor, an essential element of which is fraud, or of a felony.

(5) Has filed an application for a license that, as of the date the license was issued, or as of the date of an order denying, suspending, conditioning or revoking a license, was incomplete in any material respect or contained any statement that was, in light of the circumstances under which it was made, false or misleading with respect to any material fact.

(6) Has failed to account to persons interested for all money or property received in connection with a mortgage loan.

(7) Is permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the mortgage business.

(8) Is the subject of an order of the director denying, suspending, conditioning or revoking a license as a mortgage banker or mortgage broker.

(9) Is the subject of a United States Postal Service fraud order that is currently effective and was issued within the last five years.

(10) Does not have the experience required by ORS 59.850 (2) or (3).

(11) Has failed to comply with the requirements of ORS 59.860 to make and keep records prescribed by rule or order of the director, to produce such records required by the director or to file any financial reports or other information the director by rule or order may require.

(12) Is the subject of an order of the director denying, suspending, conditioning or revoking a license under the provisions of any other law administered by the director.

(13) Is the subject of a cease and desist order entered after notice and opportunity for hearing and issued by the director within the last five years.

(14) Has demonstrated negligence or incompetence in performing any act for which the licensee is required to hold a license.

(15) Has failed to supervise diligently and control the mortgage-related activities of a loan originator employed by the licensee.

(16) Has knowingly misrepresented to the director the training of, examination of or continuing education time earned by a loan originator employed by the licensee.

(17) Has willfully or repeatedly employed persons as loan originators who do not meet the training, education or continuing education requirements for loan originators.

(18) Has failed to notify the director of the termination of a loan originator for failure to comply with state or federal laws, regulations or rules. [1993 c.508 §6; 2001 c.952 §10]

 

59.870 Action against applicant or licensee for act or omission of associate; exception. The Director of the Department of Consumer and Business Services may enter an order against the applicant or licensee under ORS 59.865 if any partner, officer or director of a mortgage banker or mortgage broker, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the mortgage banker or mortgage broker has been guilty of any act or omission which would be cause for denying, suspending or revoking the license of an individual mortgage banker or mortgage broker. This section shall not apply to ORS 59.865 (1). [1993 c.508 §7]

 

59.875 Cancellation of license or application; application for withdrawal. (1) If the Director of the Department of Consumer and Business Services finds that an applicant or licensee has ceased to do business as a mortgage banker or mortgage broker, or has failed to maintain a bond required by ORS 59.850 or is subject to an adjudication of mental incompetence or to the control of a committee, conservator or guardian, or cannot be located after reasonable search, the director may cancel the license or application.

(2) A mortgage banker or mortgage broker may withdraw a license by filing an application to withdraw. Unless the director determines that the license should be suspended or revoked, the director shall allow the withdrawal subject to any conditions, limitations and restrictions the director may impose. [1993 c.508 §8]

 

59.880 Supervisory authority of director over mortgage bankers, mortgage brokers and loan originators. The Director of the Department of Consumer and Business Services shall have general supervision and control over all loan originators, mortgage bankers and mortgage brokers residing or doing business in this state and engaged in any activity subject to the provisions of ORS 59.840 to 59.980. All such persons and their records and everything connected with their activities shall be subject to examination by the director at any time. The provisions of this section and of any other section of ORS 59.840 to 59.980 relating to examinations shall extend to any person who should have been reported as a loan originator under ORS 59.969 or licensed as a mortgage banker or mortgage broker, any person exempted by rule from those definitions or any person whose license has expired or has been withdrawn, canceled, suspended, conditioned or revoked. The director may collect from each such person the actual expenses incurred in that examination. [1993 c.508 §9; 2001 c.952 §11]

 

59.885 Investigations; publicity with respect to violations; cease and desist order. The Director of the Department of Consumer and Business Services:

(1) May make such public or private investigations within or outside this state as the director deems necessary to determine whether a person has violated any provision of ORS 59.840 to 59.980 or any rule or order of the director, or to aid in the enforcement of ORS 59.840 to 59.980 or in the formulation of rules and forms thereunder;

(2) May require or permit a person to file a statement in writing, under oath or otherwise as the director determines, as to all the facts and circumstances concerning the matter to be investigated;

(3) May publish information concerning any violation under this section or ORS 59.890, 59.992 or 59.996 or any rule or order of the director after an action taken under this section or ORS 59.890, 59.992 or 59.996; and

(4) If the director has reasonable cause to believe that any person has been engaged, is engaging or is about to engage in any violation of any provision of ORS 59.840 to 59.980, may issue an order, subject to ORS 59.905, directed to the person, and to any other person directly or indirectly controlling the person, to cease and desist from the violation or threatened violation. [1993 c.508 §10; 2007 c.71 §15]

 

59.890 Enjoining violations; fine; appointment of receiver; attorney fees; damages to private parties. (1) Whenever the Director of the Department of Consumer and Business Services has reasonable cause to believe that a person has been engaged or is engaging in any violation of any provision of ORS 59.840 to 59.980 or any rule or order of the director, the director may bring suit in the name and on behalf of the State of Oregon in the circuit court of any county of this state to enjoin the violation and to enforce compliance with any provision of ORS 59.840 to 59.980 or such rule or order. Upon a proper showing, a permanent or temporary injunction, restraining order or writ of mandamus shall be granted. The court may fine the person against whom the order is entered not more than $5,000 for each violation, which shall be entered as a judgment and paid to the General Fund of the State Treasury. Each violation is a separate offense. In the case of a continuing violation, each day’s continuance is a separate violation, but the maximum penalty for any continuing violation shall not exceed $20,000 for each offense. If the court finds that the defendant has violated any provision of ORS 59.840 to 59.980 or any such rule or order, the court may appoint a receiver, who may be the director, for the defendant or the defendant’s assets. The court may not require the director to post a bond. The court may award reasonable attorney fees to the director if the director prevails in an action under this section. The court may award reasonable attorney fees to a defendant who prevails in an action under this section if the court determines that the director had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court.

(2) The director may include in any action authorized by subsection (1) of this section:

(a) A claim for restitution or damages under ORS 59.925 on behalf of the persons injured by the act or practice constituting the subject matter of the action. The court shall have jurisdiction to award appropriate relief to such persons, if the court finds that enforcement of the rights of such persons by private civil action, whether by class action or otherwise, would be so burdensome or expensive as to be impractical; or

(b) A claim for disgorgement of illegal gains or profits derived. Any recovery under this paragraph shall be turned over to the General Fund of the State Treasury unless the court requires other disposition. [1993 c.508 §11; 1995 c.696 §12]

 

59.895 Procedures where assets or capital of mortgage banker or broker found impaired; involuntary liquidation. (1) When the Director of the Department of Consumer and Business Services ascertains that the assets or capital of any mortgage banker or mortgage broker is impaired, or that the mortgage banker’s or mortgage broker’s affairs are in an unsound condition, the director may take possession of all the property, business and assets of the mortgage banker or mortgage broker located in this state and retain possession of them pending the further proceedings specified in this section. The director shall inventory the assets and liabilities of the mortgage banker or mortgage broker. The director shall file one copy of the inventory in the office of the director and one copy in the office of the clerk of the circuit court of the county in which the principal place of business of the mortgage banker or mortgage broker is located, and shall mail one copy to each shareholder or partner of the mortgage banker or mortgage broker at the last-known address of the shareholder or partner. The clerk of the court shall file the inventory as a pending proceeding and give it a case number.

(2) If any mortgage banker or mortgage broker refuses to permit the director to take possession under this section, the director may apply to the circuit court of the county in which the principal place of business of the mortgage banker or mortgage broker is located for an order appointing a receiver, who may be the director, to take possession.

(3) If the deficiency in assets or capital has not been made good or the unsound condition remedied within 60 days from the date when the director or receiver took possession, the property, business and assets of the mortgage banker or mortgage broker located in this state shall be liquidated. If a receiver has not been appointed, the director shall apply for such appointment by the court in which the inventory was filed. The liquidation shall proceed as provided by law for liquidation of a private corporation in receivership.

(4) The expenses of the receiver and compensation of counsel, as well as all expenditures required in the liquidation proceedings, shall be fixed by the director, subject to the approval of the court, and, upon certification by the director, shall be paid out of the funds in the hands of the director as such receiver. [1993 c.508 §12; 2003 c.576 §187]

 

59.900 Rules; financial statements. (1) In accordance with this section and ORS chapter 183, the Director of the Department of Consumer and Business Services may from time to time make, amend and rescind such rules as are necessary to carry out the provisions of ORS 59.840 to 59.980, including but not limited to rules governing the activities of loan originators, mortgage bankers and mortgage brokers and rules governing the purchase or sale of mortgage banking loans, mortgage loans or real estate paper in coordination with applicable provisions of ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 and rules adopted thereunder.

(2) Any financial statement required under ORS 59.840 to 59.980 shall be prepared in accordance with generally accepted accounting principles. The director may by rule prescribe:

(a) The form and content of financial statements required under ORS 59.840 to 59.980;

(b) The circumstances under which consolidated financial statements shall be filed; and

(c) Whether any required financial statements shall be certified by independent or certified public accountants. [1993 c.508 §13; 2001 c.952 §12]

 

59.905 Notice of orders; hearings on orders. (1) Except as provided in ORS 183.745, upon the entry of an order under ORS 59.840 to 59.980, the Director of the Department of Consumer and Business Services shall promptly give appropriate notice of the order as provided in this subsection. The notice shall state that a hearing will be held on the order if a written demand for hearing is filed with the director within 20 days after the date of service of the order. The notice shall be given to:

(a) The applicant or licensee with respect to orders entered pursuant to ORS 59.865;

(b) The loan originator and the licensee employing the loan originator with respect to orders entered pursuant to ORS 59.973; or

(c) All interested persons with respect to orders entered pursuant to any other provision of ORS 59.840 to 59.980.

(2) If timely demand for a hearing is filed by a person entitled to notice of the order, the director shall hold a hearing on the order as provided by ORS chapter 183. In the absence of a timely demand for a hearing, a person is not entitled to judicial review of the order.

(3) After the hearing, the director shall enter a final order vacating, modifying or affirming the order.

(4) The director may enter a final order revoking a license notwithstanding the fact that the license has expired, if the initial order of revocation was issued prior to expiration of the license or registration. [1993 c.508 §14; 2001 c.952 §13]

 

59.910 Judicial review of orders. (1) A person aggrieved by an order of the Director of the Department of Consumer and Business Services which has been the subject of a timely application for hearing before the director shall be entitled to judicial review of the order under ORS chapter 183.

(2) A judgment of a reviewing court under ORS chapter 183 may not bar the director from thereafter vacating or modifying an order involved in the proceeding for review, or entering any new order, for a proper cause that was not decided by the reviewing court. [1993 c.508 §15; 2003 c.576 §322]

 

59.915 Oaths and subpoenas in proceedings before director. (1) For the purpose of an investigation or proceeding under ORS 59.840 to 59.980, the Director of the Department of Consumer and Business Services may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director deems relevant or material to the inquiry. Each witness who appears before the director under a subpoena shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).

(2) If a person fails to comply with a subpoena so issued or a party or witness refuses to testify on any matters, the judge of the circuit court or of any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein. [1993 c.508 §16]

 

59.920 Copies of documents; fees; effect of certification. (1) The Director of the Department of Consumer and Business Services shall furnish to any person, upon payment of a fee established by rule, copies of any document which is a matter of public record. Certified copies shall be furnished upon request. In a proceeding or prosecution under ORS 59.840 to 59.980, a copy so certified shall be prima facie evidence of the contents of the entry or document certified.

(2) A certificate of the director as to compliance or noncompliance with licensing provisions of ORS 59.840 to 59.980 shall be taken and received in a civil or criminal proceeding in this state as prima facie evidence of the facts stated in the certificate. [1993 c.508 §17]

 

59.925 Liability of mortgage banker or mortgage broker; recovery of damages; limitations on proceeding; action against bond or letter of credit; attorney fees. (1) As used in this section, “mortgage banker transaction” and “mortgage broker transaction” mean a transaction in which a person, in order to engage in the transaction, is required to be licensed as a mortgage banker or a mortgage broker under ORS 59.840 to 59.980.

(2) A mortgage banker or mortgage broker is liable as provided in subsection (3) of this section to any person who suffers any ascertainable loss of money or property, real or personal, in a mortgage banker transaction or a mortgage broker transaction if the mortgage banker or mortgage broker:

(a) Transacts business as a mortgage banker or mortgage broker in violation of any provision of ORS 59.840 to 59.980; or

(b) Transacts business as a mortgage banker or mortgage broker by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, and who does not sustain the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.

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

(4) A person whose sole function in connection with a 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 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 such facts was the result of the person’s recklessness or gross negligence.

(5) Except as otherwise provided in this subsection, an action or suit may not be commenced under this section more than three years after the transaction. An action under this section for a violation under subsection (2)(b) of this section or ORS 59.930 may be commenced within three years after the 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 in no event more than five years after the date of the transaction. Failure to commence an action on a timely basis is an affirmative defense.

(6) A person has a right of action under the bond or irrevocable letter of credit provided in ORS 59.850 if the person:

(a) Signs a mortgage banking loan or mortgage loan application; and

(b) Has a right of action against a mortgage banker or mortgage broker under this section.

(7) Subsection (4) of this section does not limit the liability of any person:

(a) For conduct other than in the circumstances described in subsection (4) of this section; or

(b) Under any other law.

(8) Except as provided in subsection (9) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

(9) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (8) of this section if the action under this section is maintained as a class action pursuant to ORCP 32. [1993 c.508 §18; 1995 c.696 §13; 1999 c.1001 §1; 2005 c.97 §1]

 

59.930 Fraud and deceit with respect to mortgage banker or broker business. It is unlawful for any person, directly or indirectly, in connection with the conduct of a mortgage banker or mortgage broker business:

(1) To employ any device, scheme or artifice to defraud;

(2) Knowingly to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;

(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; or

(4) To make or file, or cause to be made or filed, to or with the Director of the Department of Consumer and Business Services any statement, report or document which is known to be false in any material respect or matter. [1993 c.508 §19]

 

59.935 Clients’ Trust Account; examination; deposit of funds; interest; rules. (1) Each mortgage banker or mortgage broker shall maintain in this state one or more separate bank accounts that shall be designated a Clients’ Trust Account in which all trust funds received or handled by the mortgage banker or mortgage broker shall be deposited unless, pursuant to written agreement of all parties having an interest in the trust funds, the trust funds are immediately placed in a neutral escrow depository in this state.

(2) Each mortgage banker or mortgage broker shall file with the Director of the Department of Consumer and Business Services, on forms approved by the director, a statement identifying the name of the bank or banks, account number or account numbers, and name of account or accounts for each Clients’ Trust Account maintained.

(3) Each mortgage banker or mortgage broker shall authorize the director or an authorized representative of the director, on a form approved by the director, to examine any Clients’ Trust Account, by a duly authorized representative of the director. The examination shall be made at such times as the director may direct.

(4) If a branch office maintains a separate Clients’ Trust Account, a separate bookkeeping system shall be maintained in the branch office, provided a copy of all documents evidencing payments into and from the Clients’ Trust Account is maintained in the main office of the mortgage banker or mortgage broker.

(5) Trust funds received by a mortgage banker or mortgage broker may be placed by the mortgage banker or mortgage broker in a federally insured interest-bearing bank account, designated a Clients’ Trust Account, but only with the prior written approval of all parties having an interest in the trust funds. The earnings of such interest-bearing account shall not inure to the benefit of the mortgage banker or mortgage broker unless expressly approved in writing before deposit of the trust funds by all parties having an interest in the trust funds.

(6) A mortgage banker or mortgage broker is not entitled to any part of any interest earnings on trust funds deposited under subsection (5) of this section or to any part of the earnest money or other money paid to the mortgage banker or mortgage broker in connection with any real estate transaction as part or all of the mortgage banker’s or mortgage broker’s commission or fee until the transaction has been completed or terminated. The question of the disposition of forfeited earnest money shall be negotiated between a mortgage banker or mortgage broker and a client at the time of executing any earnest money agreement. The result of such negotiation shall be filled in on the agreement form at the time of signing by the client and either separately initialed by the client or placed immediately above the signature of the client.

(7) Clients’ Trust Account funds are not subject to execution or attachment on any claim against the mortgage banker or mortgage broker.

(8) No person shall knowingly keep or cause to be kept any funds or money in any bank under the heading of Clients’ Trust Account or any other name designating such funds or money as belonging to the clients of any mortgage banker or mortgage broker, except actual trust funds deposited with the banker or broker.

(9) The director may provide by rule for other records to be maintained and for the manner in which trust funds are deposited, held and disbursed. [1993 c.508 §20; 1995 c.191 §1]

 

59.940 Notice to bank regarding Clients’ Trust Account. (1) Each mortgage banker or mortgage broker, at the time a Clients’ Trust Account is opened under ORS 59.935, shall provide the bank in which the account is opened with a notice in substantially the following form:

______________________________________________________________________________

 

NOTICE OF CLIENTS’ TRUST ACCOUNT

To: (name of bank) ________

I, ____________, am the (owner, president, managing general partner or other position description) ____________ of (name of mortgage banker or mortgage broker) ____________ and am authorized to act on behalf of (name of mortgage banker or mortgage broker) ____________.

Under the provisions of ORS 59.935, I am required to maintain in Oregon a Clients’ Trust Account for the purpose of holding funds belonging to others.

With regard to the account(s) numbered _________ which is/are designated as a Clients’ Trust Account, the account(s) is/are maintained with you as a depository for money belonging to persons other than myself and in my fiduciary capacity as a mortgage banker or mortgage broker established by client agreements in separate documents.

 

Dated: (insert date)

__________________

(signature of person authorized to act

on behalf of mortgage banker

or mortgage broker)

ACKNOWLEDGMENT OF RECEIPT

I, _______________, a duly authorized representative of (bank) ______, do hereby acknowledge receipt of the above NOTICE OF CLIENTS’ TRUST ACCOUNT on (date) ______.

__________________

(signature)

__________________

(title)

______________________________________________________________________________

 

(2) The acknowledged copy of the notice described in subsection (1) of this section shall be retained by the mortgage banker or mortgage broker as provided in ORS 59.935 for the retention of trust account records, subject to inspection by the Director of the Department of Consumer and Business Services or the director’s authorized representative. [1993 c.508 §20a; 1995 c.191 §2]

 

59.945 Prohibited advertisements. A mortgage banker or mortgage broker shall not use or cause to be published any advertisement that:

(1) Contains any false, misleading or deceptive statement or representation; or

(2) Identifies the mortgage banker or mortgage broker by any name other than the name listed on the license issued by the Director of the Department of Consumer and Business Services or an assumed business name registered under ORS chapter 648. [1993 c.508 §21]

 

59.950 Designation of principal place of business; other offices; change of personnel; registered agent. (1) Every licensed mortgage banker and mortgage broker shall designate and maintain a principal place of business for the transaction of business.

(2) If a licensed mortgage banker or mortgage broker intends to transact business at any place other than the principal place of business, the licensee shall notify the Director of the Department of Consumer and Business Services, in writing, not later than 30 days prior to opening another office. The notice shall contain the address of any other office. A copy of the license issued to the mortgage banker or mortgage broker shall be displayed in each place of business of the licensee.

(3) If there is any change among the members, officers, partners or directors of any licensee, the licensee shall notify the director within 30 days of the name, address and occupation of each new member, officer, partner or director and provide any other information the director may require.

(4) A mortgage banker or mortgage broker whose principal place of business is not in this state shall continuously maintain a registered agent in this state. The name and address of the agent shall be included in the application for a license. A mortgage banker or mortgage broker shall notify the director immediately of any change in the name or address of the registered agent.

(5) The registered agent of a mortgage banker or mortgage broker shall be an agent upon whom any process, notice or demand required or permitted by law to be served upon the mortgage banker or mortgage broker may be served. The director shall be an agent of a mortgage banker or mortgage broker if the mortgage banker or mortgage broker fails to appoint or maintain a registered agent in this state or the registered agent cannot with reasonable diligence be found. [1993 c.508 §22]

 

59.955 Disclosure required before closing mortgage loan or mortgage banking loan. Prior to the closing of any mortgage loan or any mortgage banking loan, the mortgage banker or mortgage broker shall supply the borrower with a disclosure as required by the real estate lending provisions of 15 U.S.C. 1601 et seq. and Regulation Z, 12 C.F.R. Part 226. [1993 c.508 §23]

 

59.960 Consultation with licensees before rules adopted. Before adopting any rules under ORS 59.840 to 59.980, the Director of the Department of Consumer and Business Services shall consult with an equal number of persons required to be licensed as mortgage bankers or mortgage brokers. The director shall consider the suggestions of those persons in adopting rules under ORS 59.840 to 59.980. [1993 c.508 §24]

 

59.962 Servicing or collecting mortgage banking loan or mortgage loan by mortgage banker or mortgage broker. (1) With the permission of the lender, note owner, note holder or other holder of an interest in a note, a mortgage banker or mortgage broker may service or collect any mortgage banking loan or mortgage loan in its own name or the name of the lender, note owner, note holder or other holder of an interest in the note.

(2) Except as provided in ORS 59.840 to 59.980, nothing in subsection (1) of this section is intended to grant the Director of the Department of Consumer and Business Services the authority to regulate the servicing or collection of any mortgage banking loan or mortgage loan by a mortgage banker or mortgage broker.

(3) As used in this section:

(a) “Mortgage banker” has the meaning given that term in ORS 59.840 (5)(a) but also includes those persons exempted from the definition of mortgage banker in ORS 59.840 (5)(b).

(b) “Mortgage banking loan” has the meaning given that term in ORS 59.840.

(c) “Mortgage broker” has the meaning given that term in ORS 59.840.

(d) “Mortgage loan” has the meaning given that term in ORS 59.840.

(e) “Service or collect any mortgage banking loan or mortgage loan” includes but is not limited to:

(A) Holding documents or written instruments and receiving and disbursing payments according to the instructions of the parties to the documents or written instruments;

(B) Collecting or remitting, or having the right or obligation to collect or remit, for any lender, note owner, note holder or other holder of an interest in a note or for a mortgage banker’s or mortgage broker’s own account, payments, interest, principal and trust items, including but not limited to hazard insurance and taxes, on a mortgage banking loan or mortgage loan in accordance with the terms of the loan, and includes loan payment follow-up, delinquency loan follow-up, loan analysis and any notifications to the borrower that are necessary to enable the borrower to keep the loan current and in good standing; and

(C) Bringing and maintaining any suit or action to collect any amounts owed on a mortgage banking loan or mortgage loan, including but not limited to the exercise of any contractual, statutory or common law remedies such as injunction, specific performance, judicial or nonjudicial foreclosure or receivership. [1999 c.36 §4; 2001 c.952 §14]

 

Note: 59.962 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 59 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

59.965 [1995 c.129 §5; renumbered 59.980 in 2001]

 

59.967 Legislative findings regarding loan originators; prohibited practice. (1) The Legislative Assembly finds and declares that:

(a) The public interest is served by identifying a loan originator with a specific mortgage banker or mortgage broker; and

(b) The public must be protected from the conflicts of interest created when a loan originator is employed by more than one mortgage lender.

(2) A loan originator may not originate loans for more than one mortgage banker, mortgage broker or other mortgage lender or independent mortgage agency at the same time. [2001 c.952 §3]

 

59.969 List of loan originators; qualifications; voluntary reporting; records; waiver; rules. (1) A mortgage banker or mortgage broker must provide to the Director of the Department of Consumer and Business Services, and keep current, a list of loan originators employed by the banker or broker. The banker or broker shall notify the director within 30 days of the employment or termination of employment of a loan originator.

(2) An applicant for issuance of a mortgage banker or mortgage broker license under ORS 59.850 shall include with the application evidence acceptable to the director that each individual the applicant has hired or intends to hire as a loan originator has:

(a)(A) Successfully completed an entry-level training course approved or provided by an organization certified by the director as described in ORS 59.977; and

(B) Passed an examination, approved or provided by an organization described in ORS 59.977, on laws and rules relating to mortgage lending in this state; or

(b) If the individual has been employed as a loan originator for two or more years in this state, completed continuing education as required by the director pursuant to ORS 59.975.

(3) A mortgage banker or mortgage broker that applies for renewal of a license pursuant to ORS 59.855 shall include with the application evidence acceptable to the director that each individual employed by the banker or broker as a loan originator has:

(a)(A) Successfully completed an entry-level training course approved or provided by an organization certified by the director as described in ORS 59.977; and

(B) Passed an examination, approved or provided by an organization described in ORS 59.977, on laws and rules relating to mortgage lending in this state; or

(b) If the individual has been employed as a loan originator for two or more years in this state, completed continuing education as required by the director pursuant to ORS 59.975.

(4) An applicant for issuance of a mortgage banker or mortgage broker license under ORS 59.850 shall include with the application evidence acceptable to the director that each individual the applicant has hired or intends to hire who is an insurance producer or insurance consultant licensed under ORS 744.002 and who is a full-time loan originator as defined in ORS 59.970 has:

(a)(A) Successfully completed an entry-level training course approved or provided by an organization certified by the director as described in ORS 59.977; and

(B) Passed an examination, approved or provided by an organization described in ORS 59.977, on laws and rules relating to mortgage lending in this state; or

(b) If the individual has been employed as a full-time loan originator for two or more years in this state, completed continuing education as required by the director pursuant to ORS 59.975.

(5) A mortgage banker or mortgage broker that applies for renewal of a license pursuant to ORS 59.855 shall include with the application evidence acceptable to the director that each individual employed by the mortgage banker or mortgage broker as a loan originator who is an insurance producer or insurance consultant licensed under ORS 744.002 and who is a full-time loan originator as defined in ORS 59.970 has:

(a)(A) Successfully completed an entry-level training course approved or provided by an organization certified by the director as described in ORS 59.977; and

(B) Passed an examination, approved or provided by an organization described in ORS 59.977, on laws and rules relating to mortgage lending in this state; or

(b) If the individual has been employed as a full-time loan originator for two or more years in this state, completed continuing education as required by the director pursuant to ORS 59.975.

(6) An applicant under subsection (2), (3), (4) or (5) of this section shall, at the time of application, certify that the applicant has conducted criminal records checks required under ORS 59.970 and 59.972 and:

(a) Certify that, to the best of the applicant’s belief, no individual the applicant employs or intends to employ as a loan originator has engaged in conduct that would constitute a violation of ORS 59.967 (2) or 59.971; or

(b) Note any exceptions to the certification made in paragraph (a) of this subsection. An applicant is not subject to an action at law for making a notation under this paragraph in good faith.

(7) Except as provided in subsections (4) and (5) of this section, a mortgage banker or mortgage broker may voluntarily report to the director regarding employees who would qualify as loan originators if not exempted under ORS 59.840 (4). Voluntary reporting by a banker or broker under this subsection does not make the reported employees subject to training, examination or continuing education requirements or other laws governing loan originators.

(8) The director shall keep records that include notifications filed under subsection (1) of this section and exceptions to certifications under subsection (6) of this section. The director shall retain the records for a period of not less than three years. The director shall keep for 10 years a record of any complaint against a loan originator that has been determined to be justified pursuant to ORS 59.973.

(9) Notwithstanding subsections (1) to (5) of this section and ORS 59.865 (17), 59.970, 59.971 (1)(d) and 59.975, the director, by rule, may waive any training, examination or continuing education requirement for a loan originator for a period not to exceed six months after the individual begins or resumes employment as a loan originator. [2001 c.952 §4; 2003 c.526 §4; 2005 c.22 §40]

 

59.970 Qualifications for insurance licensees acting as loan originators. (1) As used in this section, “loan originator” means an individual who:

(a) Is an insurance producer or insurance consultant licensed under ORS 744.002;

(b) Has not transacted insurance as defined in ORS 731.146 for a period of 60 consecutive days; and

(c) Would qualify as a full-time loan originator if not exempted under ORS 59.840 (4).

(2) An individual who is an insurance producer or insurance consultant licensed under ORS 744.002 and who is employed full-time as a loan originator shall:

(a) Complete an entry-level training course approved or provided by an organization certified as described in ORS 59.977;

(b) Pass an examination, approved or provided by an organization described in ORS 59.977, on laws and rules relating to mortgage lending in this state;

(c) If the individual has been employed as a loan originator for two or more years in this state, complete the continuing education requirements under ORS 59.975; and

(d) Undergo a criminal records check as required in ORS 59.972. [2003 c.526 §2; 2005 c.22 §41]

 

Note: Section 7, chapter 526, Oregon Laws 2003, provides:

Sec. 7. (1) The training and examination requirements described in ORS 59.969 and 59.970 do not apply to an individual who, on January 1, 2004:

(a) Is an insurance producer or insurance consultant licensed under ORS 744.002;

(b) Would qualify as a loan originator if not exempted under ORS 59.840 (4); and

(c) Has worked full-time performing the functions of a loan originator since January 1, 2002.

(2) The continuing education requirements described in ORS 59.969 and 59.970 apply to an individual who is an insurance producer or insurance consultant licensed under ORS 744.002 and who is a loan originator as defined in ORS 59.970. The two-year period allowed for the individual to complete the continuing education requirements begins on the filing date of the first application under ORS 59.969 that lists the individual. [2003 c.526 §7; 2005 c.22 §42]

 

59.971 Prohibited conduct for loan originators; effect of criminal conviction; rules. (1) A person employed by a mortgage banker or mortgage broker as a loan originator may not:

(a) Engage in dishonest, fraudulent or illegal practices or conduct in any business or profession or engage in unfair or unethical practices or conduct in connection with the mortgage business.

(b) Willfully or repeatedly violate or fail to comply with a provision of ORS 59.840 to 59.980 or a rule or order of the Director of the Department of Consumer and Business Services.

(c) Fail to account to persons interested for all money or property received in connection with a mortgage loan.

(d) Fail to meet the training, education or continuing education requirements for loan originators.

(2) A person may not be employed by a mortgage banker or mortgage broker as a loan originator as defined in ORS 59.840 or 59.970 if the person has been convicted of any crime or category of crime specified by the director by rule. [2001 c.952 §6; 2003 c.526 §6]

 

59.972 Loan originator criminal records checks; rules. (1) A mortgage banker or mortgage broker shall conduct a criminal records check of each individual who the mortgage banker or mortgage broker employs or intends to employ as a loan originator.

(2) A mortgage banker or mortgage broker shall report to the Director of the Department of Consumer and Business Services the results of each criminal records check conducted under subsection (1) of this section.

(3) The director shall adopt rules:

(a) Necessary for the implementation and administration of criminal records checks required under this section and ORS 59.970; and

(b) Specifying categories of criminal convictions that will prevent a person from acting as a loan originator under ORS 59.971. [2003 c.526 §3]

 

59.973 Complaints against loan originators; investigation; hearing; rules; action by director. (1) If the Director of the Department of Consumer and Business Services receives a complaint against a loan originator for a violation of ORS 59.967 (2) or 59.971, the director may notify the loan originator and the mortgage banker or mortgage broker employing the loan originator.

(2) The director may investigate a complaint against a loan originator. Upon the conclusion of the investigation, the director shall promptly notify the loan originator and the mortgage banker or mortgage broker employing the loan originator of the director’s proposed determination regarding the complaint.

(3) Any hearing on a complaint must be conducted as provided by rules of the director and pursuant to ORS chapter 183.

(4) If the director determines, after opportunity for hearing, that a complaint is justified, the director shall note the complaint in the records kept pursuant to ORS 59.969 (8). For a violation of ORS 59.967 (2) or 59.971, the director may impose requirements for supervision and remedial education of the loan originator, assess civil penalties against the loan originator as provided in ORS 59.996 or refer the matter for criminal prosecution pursuant to ORS 59.992. [2001 c.952 §7; 2003 c.526 §5]

 

59.975 Continuing education requirements for loan originators; rules. The Director of the Department of Consumer and Business Services shall, by rule, establish continuing education requirements for persons employed by mortgage bankers or mortgage brokers as loan originators. The requirements established by the director may not be less than 10 hours every two years and not more than 20 hours every two years. The continuing education must be obtained through continuing education programs approved or provided by an organization whose continuing education curriculum and testing is certified by the director as described in ORS 59.977. [2001 c.952 §8]

 

59.977 Certification of organizations to provide training for loan originators; rules. (1) The Director of the Department of Consumer and Business Services may certify an organization as qualified to approve or provide entry-level training or continuing education curricula and testing for loan originators. The director, by rule, shall establish criteria for certifying an organization under this subsection.

(2) An organization certified by the director to approve or provide loan originator examinations must be experienced in professional test administration.

(3) All loan originator examinations shall be conducted at a secure location to protect the integrity of the testing process.

(4) The director, by rule, may provide for the acceptance or conditional acceptance of continuing education hours completed pursuant to the laws of another state that the director determines provide protection to the public that exceeds or is substantially similar to the protection provided by ORS 59.840 to 59.980. [2001 c.952 §9; 2005 c.97 §3]

 

59.980 Short title. ORS 59.840 to 59.980 may be cited as the “Oregon Mortgage Lender Law.” [Formerly 59.965]

 


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