69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1177
House Bill 2253
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for the Consumer Law section of the Oregon State Bar)
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.
Increases amount of damages recoverable for violations of
unlawful trade practices and unlawful debt collection laws.
Extends statutes of limitations. Expands list of activities
prohibited as unlawful debt collection practices.
A BILL FOR AN ACT
Relating to consumer protection; creating new provisions; and
amending ORS 646.638, 646.639 and 646.641.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or
{ - $200 - } { + $1,000 + }, whichever is greater. The court
or the jury, as the case may be, may award punitive damages and
the court may provide such equitable relief as it deems necessary
or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
(3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
(5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
(6) Actions brought under this section shall be commenced
within { - one year - } { + two years + } from the discovery
of the unlawful method, act or practice. However, whenever any
complaint is filed by a prosecuting attorney to prevent, restrain
or punish violations of ORS 646.608, running of the statute of
limitations with respect to every private right of action under
this section and based in whole or in part on any matter
complained of in said proceeding shall be suspended during the
pendency thereof.
(7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 (1)(w). Actions for violation of laws
relating to odometers are provided under ORS 815.410 and 815.415.
SECTION 2. ORS 646.639 is amended to read:
646.639. (1) As used in subsection (2) of this section:
(a) 'Consumer' means a natural person who purchases or acquires
property, services or credit for personal, family or household
purposes.
(b) 'Consumer transaction' means a transaction between a
consumer and a person who sells, leases or provides property,
services or credit to consumers.
(c) 'Commercial creditor' means a person who in the ordinary
course of business engages in consumer transactions.
(d) 'Credit' means the right granted by a creditor to a
consumer to defer payment of a debt, to incur a debt and defer
its payment, or to purchase or acquire property or services and
defer payment therefor.
(e) 'Debt' means any obligation or alleged obligation arising
out of a consumer transaction.
(f) 'Debtor' means a consumer who owes or allegedly owes an
obligation arising out of a consumer transaction.
(g) 'Debt collector' means any person who by any direct or
indirect action, conduct or practice, enforces or attempts to
enforce an obligation that is owed or due to any commercial
creditor, or alleged to be owed or due to any commercial
creditor, by a consumer as a result of a consumer transaction.
(h) 'Person' means an individual, corporation, trust,
partnership, incorporated or unincorporated association or any
other legal entity.
(2) It shall be an unlawful collection practice for a debt
collector, while collecting or attempting to collect a debt to do
any of the following:
(a) Use or threaten the use of force or violence to cause
physical harm to a debtor or to the debtor's family or property.
(b) Threaten arrest or criminal prosecution.
(c) Threaten the seizure, attachment or sale of a debtor's
property when such action can only be taken pursuant to court
order without disclosing that prior court proceedings are
required.
(d) Use profane, obscene or abusive language in communicating
with a debtor or the debtor's family.
(e) Communicate with the debtor or any member of the debtor's
family repeatedly or continuously or at times known to be
inconvenient to that person with intent to harass or annoy the
debtor or any member of the debtor's family.
(f) Communicate or threaten to communicate with a debtor's
employer concerning the nature or existence of the debt.
(g) Communicate without the debtor's permission or threaten to
communicate with the debtor at the debtor's place of employment
if the place is other than the debtor's residence, except that
the debt collector may:
(A) Write to the debtor at the debtor's place of employment if
no home address is reasonably available and if the envelope does
not reveal that the communication is from a debt collector other
than a provider of the goods, services or credit from which the
debt arose.
(B) Telephone a debtor's place of employment without informing
any other person of the nature of the call or identifying the
caller as a debt collector but only if the debt collector in good
faith has made an unsuccessful attempt to telephone the debtor at
the debtor's residence during the day or during the evening
between the hours of 6 p.m. and 9 p.m. The debt collector may not
contact the debtor at the debtor's place of employment more
frequently than once each business week and may not telephone the
debtor at the debtor's place of employment if the debtor notifies
the debt collector not to telephone at the debtor's place of
employment or if the debt collector knows or has reason to know
that the debtor's employer prohibits the debtor from receiving
such communication. For the purposes of this subparagraph, any
language in any instrument creating the debt which purports to
authorize telephone calls at the debtor's place of employment
shall not be considered as giving permission to the debt
collector to call the debtor at the debtor's place of employment.
(h) Communicate with the debtor in writing without clearly
identifying the name of the debt collector, the name of the
person, if any, for whom the debt collector is attempting to
collect the debt and the debt collector's business address, on
all initial communications. In subsequent communications
involving multiple accounts, the debt collector may eliminate the
name of the person, if any, for whom the debt collector is
attempting to collect the debt, and the term 'various' may be
substituted in its place.
(i) Communicate with the debtor orally without disclosing to
the debtor within 30 seconds the name of the individual making
the contact and the true purpose thereof.
(j) Cause any expense to the debtor in the form of long
distance telephone calls, telegram fees or other charges incurred
by a medium of communication, by concealing the true purpose of
the debt collector's communication.
(k) Attempt to or threaten to enforce a right or remedy with
knowledge or reason to know that the right or remedy does not
exist, { + institute litigation with knowledge or reason to know
that the debt does not exist or that the person named in the
litigation does not owe the debt, + } or threaten to take any
action which the debt collector in the regular course of business
does not take.
(L) Use any form of communication which simulates legal or
judicial process or which gives the appearance of being
authorized, issued or approved by a governmental agency,
governmental official or an attorney at law when it is not in
fact so approved or authorized.
(m) Represent that an existing debt may be increased by the
addition of attorney fees, investigation fees or any other fees
or charges when such fees or charges may not legally be added to
the existing debt.
(n) Collect or attempt to collect any interest or any other
charges or fees in excess of the actual debt unless they are
expressly authorized by the agreement creating the debt or
expressly allowed by law.
(o) Threaten to assign or sell the debtor's account with an
attending misrepresentation or implication that the debtor would
lose any defense to the debt or would be subjected to harsh,
vindictive or abusive collection tactics.
{ + (p) Communicate with the debtor once the debt collector
receives affirmative confirmation from the attorney for the
debtor that the attorney represents the debtor in regard to a
debt, unless the attorney fails to respond within a reasonable
period of time to a communication from the debt collector.
(q) Communicate with the debtor once the debtor notifies the
debt collector in writing that the debtor refuses to pay the debt
or that the debtor wishes the debt collector to cease further
communications with the debtor. The debt collector may contact
the debtor once to advise the debtor that the debt collector's
further efforts are being terminated or to notify the debtor that
the debt collector intends to invoke a specified remedy. For the
purposes of this paragraph, the term 'debtor' includes the
debtor's spouse, parent, if the debtor is a minor, guardian,
executor or administrator.
(r) Engage in any false, deceptive or misleading practice in
collecting or attempting to collect a debt. + }
(3) It shall be an unlawful collection practice for a debt
collector, by use of any direct or indirect action, conduct or
practice, to enforce or attempt to enforce an obligation made
void and unenforceable by the provisions of ORS 759.720 (3) to
(5).
SECTION 3. ORS 646.641 is amended to read:
646.641. (1) Any person injured as a result of willful use or
employment by another person of an unlawful collection practice
may bring an action in an appropriate court to enjoin the
practice or to recover actual damages or { - $200 - } { +
$1,000 + }, whichever is greater. The court or the jury may award
punitive damages, and the court may provide such equitable relief
as it deems necessary or proper.
(2) In any action brought by a person under this section, the
court may award reasonable attorney fees to the prevailing party.
(3) Actions brought under this section shall be commenced
within { - one year - } { + two years + } from the date of
the injury.
SECTION 4. { + (1) The amendments to ORS 646.638 (1) by
section 1 of this Act and the amendments to ORS 646.641 (1) by
section 3 of this Act apply only to actions filed on or after the
effective date of this Act. Actions filed before the effective
date of this Act and still pending on the effective date of this
Act are governed by ORS 646.638 (1995 Edition) and 646.641 (1995
Edition).
(2) The amendments to ORS 646.638 (6) by section 1 of this Act
apply only to unlawful methods, acts or practices discovered on
or after the effective date of this Act. Unlawful methods, acts
or practices discovered before the effective date of this Act are
governed by ORS 646.638 (1995 Edition). The amendments to ORS
646.641 (3) by section 3 of this Act apply only to injuries
occurring on or after the effective date of this Act. Injuries
occurring before the effective date of this Act are governed by
ORS 646.641 (1995 Edition).
(3) The amendments to ORS 646.639 by section 2 of this Act
apply only to activities occurring on or after the effective date
of this Act. Activities occurring before the effective date of
this Act are governed by ORS 646.639 (1995 Edition). + }
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