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 1613
House Bill 2305
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Department of Justice)
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.
Establishes procedure for purchaser or redeemer to take
possession of property after foreclosure sale or decree of strict
foreclosure.
A BILL FOR AN ACT
Relating to property; creating new provisions; and amending ORS
21.375, 21.410, 23.164 and 23.445.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + For the purposes of sections 1 to 6 of this
Act:
(1) 'Foreclosure action' means an action for any of the
following:
(a) Foreclosure of a mortgage or trust deed.
(b) Foreclosure, strict foreclosure or specific performance of
a land sale contract.
(c) Foreclosure of a security interest in a mobile home.
(2) 'Foreclosure decree' means a judgment or decree entered in
a foreclosure action.
(3) 'Foreclosure purchaser' means any person who has a right to
possession of property because:
(a) The person purchases property at a foreclosure sale;
(b) The person redeems property sold at a foreclosure sale; or
(c) The person is entitled to possession of property under the
terms of a decree of strict foreclosure of a land sale contract.
(4) 'Foreclosure sale' means a sale held pursuant to a
foreclosure decree.
(5) 'Occupant' means any party to a foreclosure action who does
not have a right to possession of the property and who is
occupying the foreclosed property after a foreclosure sale or
entry of a decree of strict foreclosure and any other person
occupying the foreclosed property under the authority of that
party. + }
SECTION 2. { + (1) A foreclosure purchaser may request that
the clerk of the court in which the foreclosure decree is entered
issue a notice to vacate to the occupant of the foreclosed
property. Upon receipt of the request, the clerk shall issue the
notice to vacate. The notice shall inform the occupant that the
occupant must move out of the property and remove all of the
occupant's personal property within three days after service of
the notice. The notice shall be in the form provided in section 3
of this Act.
(2) A foreclosure purchaser must present to the clerk of the
court an affidavit that includes the following statements and
information at the time the foreclosure purchaser requests
issuance of a notice to vacate under this section:
(a) A statement that the foreclosure purchaser is entitled to
possession of the property.
(b) An address or other description of the property that is
adequate to allow enforcement of a writ of execution under
section 4 of this Act.
(c) Unless the property was strictly foreclosed, a copy of the
sheriff's certificate of sale, or a copy of the certificate of
redemption.
(3) A notice to vacate under this section may be served by any
person described in ORCP 7 E. Notwithstanding ORS 21.410 (2), the
person serving the notice may not charge more than the fee
established by ORS 21.410 (1)(b) for service of the notice. By
the end of the next judicial day following the payment of fees:
(a) The server shall mail a copy of the notice to vacate by
first class mail to the occupant at the address of the foreclosed
property; and
(b) The server shall serve the notice to vacate at the property
by personal delivery to the occupant or, if the occupant is not
available for service, by posting the notice in a secure manner
at the main entrance of the property.
(4) If service of the notice to vacate is made by a person
other than a sheriff, by the end of the next judicial day
following service the server must file with the clerk an
affidavit indicating the manner in which service was accomplished
and the date and time of service.
(5) The three-day period for vacating the foreclosed property
commences at midnight of the day that the notice to vacate is
personally served or posted in the manner provided by subsection
(3)(b) of this section, and ends on the third calendar day
following personal service or posting unless the third day is a
Saturday, Sunday or legal holiday, in which case the period ends
on the next judicial day.
(6) Issuance of a notice to vacate and writ of execution under
sections 1 to 6 of this Act is in addition to any other right or
remedy that may be available to a foreclosure purchaser with
respect to an occupant of foreclosed property. + }
SECTION 3. { + A notice to vacate under section 2 of this Act
must be in substantially the following form: + }
_________________________________________________________________
{ +
NOTICE TO VACATE + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
TO: __________
(Occupant) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + Case Number __________
In the case of __________ vs. __________, the Circuit Court for
__________ County ordered the sale or strict foreclosure of the
property located at: + }
{ +
__________________ + }
{ +
__________________ + }
{ +
__________________ + }
{ + The foreclosure purchaser is now entitled to possession of
this property.
YOU ARE ORDERED TO VACATE THE PROPERTY NO LATER THAN __.M.,
_____, 19__. IF YOU DO NOT VACATE THE PROPERTY AND MOVE YOUR
PERSONAL PROPERTY BY THAT TIME, THE SHERIFF WILL PHYSICALLY
REMOVE YOU, AND YOUR PROPERTY LEFT ON THE PROPERTY WILL BE STORED
AS PROVIDED BY LAW. CONTACT THE FORECLOSURE PURCHASER FOR FURTHER
INFORMATION. + }
{ + Posted at __.M., _____, 19__. + }
{ + __________ + }
{ + Deputy Court Administrator + }
_________________________________________________________________
SECTION 4. { + (1) At any time after the expiration of the
three-day period provided in the notice to vacate, the
foreclosure purchaser may request that the clerk of the court in
which the foreclosure decree is entered issue a writ of execution
that directs the sheriff to enforce the foreclosure decree by
removing the occupant and the occupant's personal property and by
delivering possession of the property to the foreclosure
purchaser. Upon receipt of the request, the clerk shall issue the
writ of execution. The writ shall be in the form provided in
section 5 of this Act.
(2) Only a sheriff may serve and enforce a writ of execution
under this section. Upon the expiration of the three-day period
specified in section 2 of this Act and payment of the fee
specified by ORS 21.410 (1)(c), the sheriff shall immediately
serve and enforce the writ upon the occupant.
(3) At the time of serving the writ of execution provided for
in this section, the sheriff shall also serve an eviction
trespass notice on the occupant of the property. The eviction
trespass notice shall be in the form provided in section 6 of
this Act.
(4) The sheriff shall serve and enforce a writ of execution in
the following manner:
(a) The sheriff shall mail a copy of the writ and the eviction
trespass notice by first class mail to the occupant at the
address of the foreclosed property; and
(b) The sheriff shall serve the writ and the eviction trespass
notice at the property by personal delivery to the occupant or,
if the occupant is not available for service, by posting the writ
and notice in a secure manner at the main entrance of the
property. The sheriff shall at that time deliver possession of
the property to the foreclosure purchaser.
(5) At the request of the foreclosure purchaser, the sheriff
shall delay enforcement and service of the writ for up to but no
more than 30 days, after which the writ expires. + }
SECTION 5. { + The writ of execution provided for in section 4
of this Act must be in substantially the following form: + }
_________________________________________________________________
{ +
IN THE CIRCUIT COURT + }
{ +
OF THE STATE OF OREGON + }
{ +
FOR THE COUNTY OF + } _____
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
State of Oreg)n, WRIT OF
) ssEXECUTION OF
) FORECLOSURE DECREE
) CASE NO. + }
_____
{ +
County of ___
) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + To the Sheriff:
The following property has been sold pursuant to a foreclosure
decree or has been strictly foreclosed:
__________
__________ (city)
__________ (county)
The foreclosure purchaser is now entitled to possession of the
property.
In the name of the State of Oregon, you are ordered to enforce
and serve this writ on the defendant, in the manner provided in
section 4 of this Act, after the three-day period provided in the
notice to vacate.
If the occupant and the goods, motor vehicles and other
personal property belonging to the occupant are not removed by
the end of three days, and if the foreclosure purchaser has paid
all fees for enforcement of this execution, you shall immediately
make legal service of this writ and an eviction trespass notice
on the occupant and deliver possession of the property to the
foreclosure purchaser. You shall remove the occupant from the
property. You shall also remove the goods, motor vehicles and
other personal property belonging to the occupant to a safe place
for storage, levy on this property, pay all accruing costs, and
make due return of this writ.
DATED this __ day of _____, 19__. + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
__________________
Deputy Court Administrator
__________________
Foreclosure Purchaser
__________________
Address
__________________
City/State/Zip + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
SECTION 6. { + The eviction trespass notice provided for in
section 4 of this Act must be in substantially the following
form: + }
_________________________________________________________________
{ +
EVICTION TRESPASS NOTICE + }
{ + Occupants of the property located at: + }
{ + __________
__________ (city)
__________ (county) + }
{ + have no right to continued possession of the property.
Trespassing or entering into or upon this property without
written consent of the foreclosure purchaser will result in
arrest and prosecution.
Any personal property present on this property at the time this
notice was served, __________ (date), is in the possession of the
sheriff. Contact the sheriff for further information. + }
{ + DATED __________ + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________________
{ +
Sheriff + }
__________________
{ +
Foreclosure Purchaser + }
__________________
{ +
Address + }
__________________
{ +
City/State/Zip + }
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 7. ORS 21.375 is amended to read:
21.375. In the county court there shall be charged and
collected in advance by the county clerk as clerk of the court,
for the benefit of the county, the following fees, and no more,
for the following purposes and services:
(1) Making transcription from judgment docket in the format
provided in ORCP 70 A, $4.
(2) Filing and docketing transcript of judgment in the format
provided in ORCP 70 A, $4.
(3) Filing and docketing copy of foreign judgment and affidavit
filed as provided in ORS 24.115 and 24.125, $25.
(4) Issuing writs of execution or writs of garnishment, $3 for
each writ.
(5) Preparing clerk's certificate of satisfaction of judgment,
$3.75.
(6) Issuing notices of restitution { - as provided in - }
{ + under + } ORS 105.154 { + or notices to vacate under
section 2 of this 1997 Act + }, $3 for each notice.
(7) For any service not enumerated in this section, the fees
provided or established under ORS 205.320.
SECTION 8. ORS 21.410 is amended to read:
21.410. (1) The sheriff of a county shall collect the following
fees in civil actions, suits and proceedings for each case
delivered to the office of the sheriff:
(a) For serving summons, subpoena, citation, order, notice or
similar documents, including small claims or writ of execution,
directed to not more than two different parties at the same
address, $20; otherwise $20 for each party for which service is
requested. The fee authorized by this paragraph shall not be
charged to the state in civil actions, suits and proceedings
where one party is an indigent person who has been appointed
counsel at state expense.
(b) For serving notice of seizure and sale of personal or real
property, notice of restitution, { + notice to vacate under
section 2 of this 1997 Act, + } or other seizure under writ of
attachment or execution, or other process or proceeding, $20.
(c) For seizure and sale of personal or real property,
enforcement of writ of execution of judgment of restitution, or
other enforcement or seizure under writ of attachment or
execution, or other process or proceeding, $47, and, in addition,
such sums as may be reasonable and necessary to secure each
keeper or custodian of property in custody, the expense of
inventory of property in custody and expense incurred in
newspaper advertising required by law in the execution of
process.
(d) For making a conveyance of real property sold on any
process, $15, to be paid by, or for, the grantee.
(e) For making a copy of any process, order, notice or other
instrument in writing, when necessary to complete the service
thereof, for each folio, $3; but no charge shall be made for copy
of complaint or other paper not actually made by the sheriff.
(f) For entering and processing distraint warrants for state
agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other
documents may charge any fee agreed to between the server and the
person requesting service. However, for the purposes of recovery
of costs and disbursements, the court may not award amounts in
excess of the amounts specified by subsection (1) of this section
for the service of a process or other documents.
(3) Fees collected for service by the sheriff shall be retained
for the benefit of the county where the party to be served cannot
be found.
(4) No mileage or commission shall be collected by a sheriff
for service of any document or process but in any service
involving travel in excess of 75 miles round trip an additional
fee not to exceed $25 may be billed and collected by a sheriff.
Mileage shall be measured from the location at which the service
is made to the circuit court in that county.
SECTION 9. ORS 23.164 is amended to read:
23.164. (1) A mobile home, and the property upon which the
mobile home is situated, that is the actual abode of and occupied
by the owner, or the owner's spouse, parent or child, when that
mobile home is occupied as a sole residence and no other
homestead exemption exists, shall be exempt from execution and
from liability in any form for the debts of the owner to the
value of $23,000, except as otherwise provided by law. When two
or more members of a household are debtors whose interests in the
homestead are subject to sale on execution, the lien of a
judgment or liability in any form, their combined exemptions
under this section shall not exceed $30,000. The exemption shall
be effective without the necessity of a claim thereof by the
judgment debtor.
(2) The exemption provided for in subsection (1) of this
section shall not be impaired by temporary removal or absence
with the intention to reoccupy the mobile property as a home, nor
by the sale thereof, but shall extend to the proceeds derived
from such sale up to $23,000 or $30,000, whichever amount is
applicable under subsection (1) of this section, while the
proceeds are held for a period not exceeding one year and with
the intention to procure another mobile or other homestead
therewith.
(3) Upon the issuance of an order authorizing sale as provided
in ORS 23.445, the levying officer may proceed to advertise and
sell the premises and, if the homestead exemption applies, out of
the proceeds pay the mobile home owner the sum of $23,000 or
$30,000, whichever amount is applicable under subsection (1) of
this section, and apply the balance of the proceeds on the
execution. However, no sale shall be made where the homestead
exemption applies unless the sum bid for the property is in
excess of the sum of the costs of sale and $23,000 or $30,000,
whichever amount is applicable. If no such bid is received, the
expense of the advertising and preparation for sale shall be
borne by the petitioner.
(4)(a) The provisions of subsections (1), (2), (3) and (7) of
this section do not apply to construction liens for work, labor
or material done or furnished exclusively for the improvement of
the mobile home, or to purchase money liens and to mortgages
lawfully executed, or to executions issued on a judgment
recovered for the purchase price.
{ - (b) The provisions of subsections (3) and (7) of this
section do not apply to the sale on execution of a judgment of
restitution under ORS 105.154 of a mobile home removed from
premises by the levying officer pursuant to the execution. - }
{ + (b) The provisions of subsections (3) and (7) of this
section do not apply to:
(A) The sale of a mobile home removed from premises by the
sheriff pursuant to a writ of execution issued under ORS 105.154.
(B) The sale of a mobile home removed from property by the
sheriff pursuant to a writ of execution issued under sections 1
to 6 of this 1997 Act. + }
(5) If a debtor owns a mobile home but not the property upon
which the mobile home is situated, subsections (1), (2), (3) and
(4) of this section shall apply, but the value of the debtor's
interest exempt from execution and liability shall not exceed
$20,000 for an individual debtor, or $27,000 when two or more
members of a household are debtors whose interests in the
homestead are subject to execution or liability in any form.
(6) When the owner of a homestead under this section has been
granted a discharge in bankruptcy or has conveyed the property,
the value thereof, for the purpose of determining a leviable
interest in excess of the homestead exemption, shall be the value
on the date of the petition in bankruptcy, whether the value is
determined in the bankruptcy proceedings or not, or on the date
the conveyance becomes effective, whichever shall first occur.
(7) No mobile home, or property upon which the mobile home is
situated, that is the actual abode of and occupied by the owner,
or the owner's spouse, dependent parent or dependent child, shall
be sold on execution to satisfy a judgment that at the time of
entry does not exceed $3,000. However, such judgment shall remain
a lien upon the real property owned by the judgment debtor and
upon which the mobile home is situated. The limitation provided
by this subsection shall not be impaired by temporary removal or
absence with the intention to reoccupy the mobile home and
property as a home.
(8) As used in this section, unless the context requires
otherwise, 'mobile home' includes, but is not limited to, a
houseboat.
SECTION 10. ORS 23.445 is amended to read:
23.445. (1) As used in this section and ORS 23.450 and 23.515:
(a) 'Mobile home' does not include a mobile home that is held
as inventory for sale or lease in the ordinary course of
business.
(b) 'Residential real property' means a single family dwelling
or condominium unit.
(2) The sheriff shall not sell the residential real property or
the mobile home of a natural person on execution without an order
of the court authorizing the sale.
(3) The holder of a judgment desiring to have the residential
real property or the mobile home of a natural person sold on
execution may petition the court for an order authorizing the
sheriff to sell. The petition must:
(a) Identify the judgment under which the property is to be
sold and the amount due thereon;
(b) Indicate if the judgment arises out of an order or decree
for child support as described in ORS 23.242;
(c) Identify the residential real property or mobile home to be
sold;
(d) Allege whether the property is a homestead or not; and
(e) If the property is a homestead, allege facts showing that
it may nevertheless be sold on execution.
(4) The petition shall be accompanied by an affidavit
disclosing the basis of the allegations contained in the
petition. If the sheriff is to serve the papers under subsection
(6) of this section, the petition and affidavit shall be
accompanied by a deposit sufficient to pay the fees of the
sheriff for that service.
(5) Promptly upon the filing of a petition and affidavit as
provided in subsections (3) and (4) of this section, the court
shall schedule a hearing on the petition, allowing adequate time
for notice to the judgment debtor at least 10 days prior to the
hearing.
(6) At least 10 days prior to the hearing on the petition, the
petitioner shall cause to be served upon the judgment debtor, in
the manner provided by ORCP 7 for service of summons, a true copy
of the petition and affidavit and of a notice of the time and
place of the hearing in substantially the following form:
_________________________________________________________________
NOTICE OF HEARING ON SHERIFF'S
SALE OF YOUR PROPERTY
This is to notify you that ___ has asked the court to order the
sheriff to sell your property located at __ to satisfy a court
judgment against ___.
Before deciding whether to order the sale, the court will hold
a hearing on ___, 19_, at ____ a.m./p.m., in Room ___, ____.
The law provides that your property is your homestead if you,
or your spouse, dependent parent or dependent child, actually
live in it as your home. If you are temporarily absent from the
property but intend to move back in, it is still your homestead.
The law provides that if the property is your homestead, then
$___ of its value ($___ for a mobile home if you do not own the
property it is on) may not be taken to satisfy a judgment against
you. In addition, a homestead may not be sold to satisfy a
judgment for $3,000 or less.
The law provides that your property may be sold despite the
fact that it is your homestead and all of its value taken to
satisfy a judgment against you if the judgment is for child
support.
IF YOU WISH TO PROTECT THIS PROPERTY FROM A SHERIFF'S SALE, YOU
SHOULD COME TO THE COURT HEARING.
IF YOU HAVE ANY QUESTIONS, YOU SHOULD SEE A LAWYER AT ONCE.
If you do not own this property, please give this notice and
the papers served with it to the owner.
_________________________________________________________________
(7) Whether the judgment debtor appears at the hearing on the
petition or not, the court shall try the issues without formal
pleadings and shall inquire as to the facts alleged in the
petition. The judgment creditor shall have the burden of proof on
all issues.
(8) The court shall not authorize the sheriff to sell the
property if the court finds:
(a) That the property is the homestead of the judgment debtor;
(b) That the judgment is subject to the homestead exemption;
and
(c) That the amount of the judgment was $3,000 or less at the
time of entry of the judgment.
(9) If the court authorizes the sheriff to sell the property,
the order of the court shall state whether the homestead
exemption applies to the property, and if so, the amount of the
exemption.
(10) This section does not apply to a writ of execution to
enforce a judgment that directs the sale of the particular
property or to a writ of execution to enforce a judgment arising
out of the foreclosure of:
(a) A construction lien for work, labor or material done or
furnished exclusively for the improvement of the property;
(b) A lawfully executed purchase money lien; or
(c) A lawfully executed mortgage or trust deed.
{ - (11) This section does not apply to the sale on execution
of a judgment of restitution under ORS 105.154 of a mobile home
removed from premises by the sheriff pursuant to the
execution. - }
{ + (11) This section does not apply to:
(a) The sale of a mobile home removed from premises by the
sheriff pursuant to a writ of execution issued under ORS 105.154.
(b) The sale of a mobile home removed from property by the
sheriff pursuant to a writ of execution issued under sections 1
to 6 of this 1997 Act. + }
(12) If the petitioner prevails at the hearing, the court shall
award the petitioner the costs of service of the papers under
subsection (6) of this section.
SECTION 11. { + Sections 1 to 6 of this Act apply only to
foreclosure decrees, as defined in section 1 of this Act, that
are entered on or after the effective date of this Act. + }
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