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Oregon Bulletin

September 1, 2013

Department of Justice, Chapter 137

Rule Caption: Amends Rules Required by 2013 Legislation to Implement Foreclosure Avoidance Mediation Program

Adm. Order No.: DOJ 6-2013(Temp)

Filed with Sec. of State: 7-22-2013

Certified to be Effective: 8-4-13 thru 1-31-14

Notice Publication Date:

Rules Adopted: 137-110-0300, 137-110-0605

Rules Amended: 137-110-0010, 137-110-0110, 137-110-0200, 137-110-0210, 137-110-0410, 137-110-0420, 137-110-0600, 137-110-0610, 137-110-0620, 137-110-0630, 137-110-0640, 137-110-0650, 137-110-0670

Rules Suspended: 137-110-0001, 137-110-0005, 137-110-0020, 137-110-0430, 137-110-0500, 137-110-0510, 137-110-0520, 137-110-0660

Subject: These rules implement the Foreclosure Avoidance Mediation Program established by Oregon Laws 2013, chapter 304. These rules provide:

   - The minimum training, qualifications and experience required of program mediators;

   - The fees that must be paid by the parties, the time of fee payments, and the requirements for obtaining a waiver by low- income grantors;

   - The contents of the notices that will be issued by the service provider;

   - The form for, and contents of, an affidavit exempting a beneficiary from the requirement to enter into a facilitation conference with a grantor

   - The guidelines that provide for the role of program facilitators; the contents of the notices that will be issued by the service provider; documents required of both parties; procedures for rescheduling mediation sessions; role of interpreters; means of executing agreements; The form for, and contents of the certificate of compliance or notice that no certificate of compliance will be issued to a beneficiary.

Rules Coordinator: Carol Riches—(503) 947-4700

137-110-0001

Purpose

These division 110 rules govern the foreclosure avoidance mediation program created by Oregon Laws 2012, chapter 112.

Stat. Auth.: OL 2012 Ch. 112, Sec. 2(2), 2(5), 2(7), 2a(3), 3 & 4a(4)

Stats. Implemented: OL 2012 Ch. 112

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0005

Application

These division 110 rules apply to any mediation resulting from the issuance of a notice of mediation by a beneficiary seeking to foreclose a residential trust deed pursuant to ORS 86.735 and to an at-risk grantor’s request to enter into foreclosure avoidance mediation with respect to a residential trust deed.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5) & 2(7)

Stats. Implemented: 2012 OL Ch. 112

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0010

Definitions

As used in these division 110 rules:

(1) “Foreclosure avoidance facilitator roster” means the roster of qualified facilitators maintained by the service provider.

(2) “Oregon Foreclosure Avoidance Program” means the resolution conference program established under Oregon Laws 2013, chapter 304.

(3) “Party” means the grantor, the beneficiary and the beneficiary’s agent if the beneficiary authorizes the agent to appear on the beneficiary’s behalf at resolution conference.

(4) “Service provider website” means an internet-based system maintained by the service provider at http://www.foreclosuremediationor.org and designed to facilitate the exchange of necessary program-related documents and other information.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)

Stats. Implemented: 2013 OL Ch. 304, Sec. 1-8

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0020

Notice to Attorney General

For the purposes of these division 110 rules and the Foreclosure Avoidance Mediation Program, any requirement or option to mail a copy of a notice to or otherwise notify the Attorney General may be met through either one of the following means:

(1) By U.S. mail addressed to Attorney General of Oregon, Foreclosure Avoidance Mediation Program,1162 Court St. NE, Salem, OR 97301-4096; or

(2) By electronic mail addressed to DOJ@foreclosuremediationOR.org. Electronic mail notifications may be accomplished using the web-based computer program provided by the mediation service provider to the extent that such functionality is available for a particular notice or form.

Stat. Auth.: 2012 OL Ch. 112, Sec. 4a(4)

Stats. Implemented: 2012 OL Ch. 112, Sec. 4a(2), (3) & (4)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0110

Mediator Qualifications, Training and Experience

(1) A facilitator conducting a resolution conference under the Oregon Foreclosure Avoidance Program shall:

(a) Have conducted at least 20 mediations or resolution conferences of any type or subject matter as a mediator or facilitator. Work performed as an assistant or apprentice under the supervision of a lead mediator or facilitator may also be counted toward the 20-resolution conference requirement. Observations of sessions may not count toward work performed as an assistant or apprentice;

(b) Provide evidence of at least 100 hours of mediation or resolution conference experience as a mediator or facilitator or as an assistant or apprentice mediator or facilitator. Work that a mediator or facilitator performs to prepare for and schedule the mediation or resolution conference or to prepare the parties for a mediation or resolution conference, may be counted towards this 100-hour requirement. Observations of sessions may not count toward the 100-hour requirement;

(c) Disclose to the service provider the professional standards to which the facilitator subscribes;

(d) Have successfully participated in at least 30 hours of training that is consistent with the curriculum found in section 3.2 of the Oregon Judicial Department Court Connected Mediator Qualification Rules effective August 1, 2005;

(e) Provide evidence of successful participation in at least 16 hours of training on foreclosure avoidance programs and the substantive law and legal processes regarding foreclosures in Oregon including ORS Chapter 86; and

(f) Provide evidence of successful participation in at least 8 hours of training on the procedures, practices and policies of the Oregon Foreclosure Avoidance Program. This training shall include some interactive instruction, such as role-playing.

(2) The service provider may grant a waiver from the training requirements in subsections 1(d) and (f) of this rule upon a showing by the facilitator of significant and related education or experience.

(3) The service provider shall decide whether or not an individual:

(a) Meets the minimum qualifications as a facilitator under these rules;

(b) Is included on the foreclosure avoidance resolution conference roster; or

(c) Is assigned to a resolution conference.

(4) An individual who meets the minimum qualifications as a facilitator under these rules or who is added to the foreclosure avoidance resolution conference roster may not represent that fact as license or certification of their competency for anything other than their role in the Oregon Foreclosure Avoidance Program.

Stat. Auth.: 2013 OL Ch. 304 Sec. 6(1)(e)

Stats. Implemented: 2013 OL Ch. 304 Sec. 6(1)(e)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0200

Fees Paid by the Grantor, Fee Waiver

(1) The grantor shall pay a fee of $175 to the service provider at the time required by Or Laws 2013, chapter 304, section 3(2)(a). If there are joint or multiple grantors, only one grantor must pay this fee.

(2) The grantor may apply for a waiver of $125 of the fee described in section (1) of this rule at the time the grantor is required by Or Laws 2013, chapter 304, section 3(2)(a) to pay the fee. The grantor shall pay $50 at the time of the fee waiver request.

(3) A grantor’s application for a fee waiver under section (2) of this rule shall be granted if the grantor is able to provide satisfactory evidence to the service provider that the grantor’s annual household income is less than:

(a) $ 22,980 for a household of one;

(b) $ 31,020 for a household of two;

(c) $ 39,060 for a household of three;

(d) $ 47,100 for a household of four;

(e) $ 55,140 for a household of five;

(f) $ 63,180 for a household of six;

(g) $ 71,220 for a household of seven;

(h) $ 79,260 for a household of eight;

(i) $ 87,300 for a household of nine; or

(j) $ 95,340 for a household of ten or more.

(4) The service provider shall decide whether to grant a grantor’s application for a fee waiver made under section (2) of this rule within 10 days of receiving the application.

(5) If the service provider denies a grantor’s application for a fee waiver made under section (2) of this rule, the grantor shall pay the remaining $125 within 15 days of receiving the service provider’s determination not to grant a fee waiver but never later than the date of the scheduled resolution conference.

(6) Failure by a grantor to timely pay fees will result in cancellation of the resolution conference.

Stat. Auth.: 2013 OL Ch. 304, Sec. 3(2)(a), 6(1)(d) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(2)(a) & 6(1)(d)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0210

Fees Paid by Beneficiary

(1) If a beneficiary requests a resolution conference, the beneficiary shall pay a $200 processing fee to the service provider at the time of making the request. The beneficiary shall pay an additional $325 to the service provider within 25 days after the service provider makes the grantor’s documents available to the beneficiary, as required by Or Laws 2013, chapter 304, section 3(4)(a).

(2) If a grantor requests a resolution conference, the beneficiary or the beneficiary’s agent shall pay a fee of $525 to the service provider within 25 days after the service provider makes the grantor’s documents available to the beneficiary, as required by Or Laws 2013, chapter 304, section 3(4)(a).

(3) A junior lienholder that participates in a resolution conference is not required to pay a fee under this rule.

(4) A beneficiary that is otherwise exempt from the requirement to participate in a resolution conference with a grantor pursuant to Or Laws 2013, chapter 304, section 2(1)(b) may participate in a resolution conference by paying $325 and by following the resolution conference guidelines set forth in OAR 137-110-0600 to 137-110-0670.

(5) The service provider and beneficiary may enter into an agreement allowing the fees described in sections (1)–(4) of this rule to be paid in regular lump sums.

Stat. Auth.: 2013 OL Ch. 304, Sec. 2(2), 3(4)(a), 6(1)(d) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 2(2), 3(4)(a) & 6(1)(d)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0300

Beneficiary Exemptions

Beneficiaries claiming an exemption from the requirement to participate in a resolution conference with a grantor under Or Laws 2013, chapter 304, section 2(1)(b), shall submit an affidavit that substantially complies with the model form provided in Appendix A to these division 110 rules and available as “Form 300” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.. The affidavit may be submitted to the Attorney General either:

(1) By U.S. mail addressed to Attorney General of Oregon, Foreclosure Avoidance Mediation Program,1162 Court St. NE, Salem, OR 97301-4096; or

(2) By electronic mail addressed to DOJ@foreclosuremediationOR.org.

Stat. Auth.: 2013 OL Ch. 304, Sec. 2(1)(b) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 2(1)(b)

Hist.: DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0410

Beneficiary Request for Resolution Conference

(1) A beneficiary may request a resolution conference under Or Laws 2013, chapter 304, section 2(2), by submitting the request, applicable fees, and required information to the service provider using the service provider website or by facsimile or mail. The beneficiary’s request under this rule must identify the residential trust deed that the beneficiary intends to foreclose and list the name, title, address, telephone number and other available contact information for:

(a) The beneficiary;

(b) Any agent of the beneficiary that will attend the resolution conference;

(c) Any person other than a person identified in paragraph (a) or (b) of Or Laws 2013, chapter 304, section 2(2), that will receive, on the beneficiary’s behalf, notices or other communications related to the resolution conference; and

(d) The grantor.

(2) If the information provided in section (1) of this rule changes prior to the resolution conference, the beneficiary shall update that information with the service provider.

Stat. Auth.: 2013 OL Ch. 304, Sec. 2(2), 6(1)(f) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 2(2) & 6(1)(f)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0420

Grantor Request for Resolution Conference

(1) A grantor may request a resolution conference either:

(a) Through a housing counselor who may request a resolution conference on behalf of the grantor by using the service provider website to certify that the grantor is more than 30 days in default on the obligation that the residential trust deed secures or, if the grantor is not in default, that the grantor has a financial hardship that the housing counselor believes may qualify the grantor for a foreclosure avoidance measure.

(b) By submitting a request to the service provider electronically via email or the service provider website, by facsimile, or by mail. The request shall include a certification by a housing counselor that the grantor is more than 30 days in default on the obligation that the residential trust deed secures or, if the grantor is not in default, that the grantor has a financial hardship that the housing counselor believes may qualify the grantor for a foreclosure avoidance measure.

Stat. Auth.: 2013 OL Ch. 304, Sec. 2(3), 3(2), 3(3) & 6(1)(g)

Stats. Implemented: 2013 304, Sec. 2(3), 3(2) & 3(3)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0430

Grantor Requirements

If the grantor wishes to participate in mediation, the following requirements apply:

(1) On or before the date specified by the mediation service provider in its mediation scheduling notice, the grantor shall confirm with the mediation service provider that the grantor wishes to enter into mediation.

(2) The grantor shall consult with housing counseling with a United States Department of Housing and Urban Development-approved housing counselor prior to the mediation session.

(3) The requirement in section (2) of this rule does not apply if the grantor notifies the mediation service provider that the grantor has been unable to obtain an appointment to consult with a qualified housing counselor within 30 days after receiving the notice of mediation and executes an affidavit including:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property; and

(d) A statement that the grantor of the named property has been unable to obtain an appointment to consult with a qualified housing counselor within 30 days after receiving the notice of mediation.

(4) The affidavit described in section (3) shall substantially comply with the model form provided in Appendix C to these division 110 rules and available as “Form 430” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(5) The grantor shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(3) & 2a(3)

Stats. Implemented: 2012 OL Ch. 112, Sec. 2(3) & 2a

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0500

Grantor Requirements

(1) A grantor who is at risk of default may request mediation with their beneficiary. The grantor may use a paper or web-based computer form available for this purpose from the mediation service provider. The grantor must deliver this request to the beneficiary or trustee or the beneficiary’s agent or trustee’s agent.

(2) A grantor that requests mediation may notify the mediation service provider and the Attorney General of the request. A request for mediation made using the web-based computer form available from the mediation service provider shall be sufficient notice to the mediation service provider and the Attorney General.

(3) A grantor shall consult with housing counseling with a United States Department of Housing and Urban Development-approved housing counselor prior to the mediation session.

(4) The grantor shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)

Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 2(7)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0510

Beneficiary or Trustee Requirements

(1) Within 15 days of receiving a request for mediation from an at-risk grantor, the beneficiary or trustee or the beneficiary’s or trustee’s agent shall respond to the grantor’s request, and this response shall include contact information for the Attorney General and the mediation service provider.

(2) Within 15 days of receiving a request for mediation from an at-risk grantor, the beneficiary or trustee or the beneficiary’s or trustee’s agent shall notify the Attorney General and the mediation service provider of the grantor’s request and the beneficiary’s response by:

(a) Mailing notice to the mediation service provider; or

(b) By electronic means using the web-based computer program provided by the mediation service provider.

(3) At the time of providing the notice required by section (2) of this rule, the beneficiary shall pay the fee required by OAR 137-110-0210(2).

(4) The beneficiary shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)

Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 2(7)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0520

Mediation Service Provider Requirements

Within 10 days after receiving a beneficiary’s notification of a request for mediation by an at-risk grantor, the mediation service provider shall send a mediation scheduling notice to the grantor and the beneficiary that, with the exception of the deadline by which such notice must be sent out, complies with the requirements of OAR 137-110-420.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(3) & 2(7)

Stats. Implemented: 2012 OL Ch. 112, Sec. 2(3) & 2(2)(7)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0600

Facilitator Authority and Role

(1) The facilitator has no authority to impose a settlement on the grantor or the beneficiary or to render any decisions on any substantive issue or make any legal determinations.

(2) The facilitator may rely on assertions made in the documents provided by the parties and need not make an independent inquiry.

(3) The facilitator shall:

(a) Act as an impartial intermediary and not as an advocate for the beneficiary or the grantor;

(b) Make appropriate disclosures to the parties about the facilitator’s skills and the specific resolution conference approaches the facilitator uses;

(c) Support the ability of the parties to make informed decisions regarding the resolution conference process and outcomes by ensuring that parties are provided with information regarding the resolution conference process and that relevant documents are available to the parties;

(d) Conduct resolution conferences fairly, diligently, even-handedly, and with no personal stake in the outcome;

(e) Avoid actual, potential, or perceived conflicts of interest that can arise from a facilitator’s relationships or experiences that reasonably raise a question about the facilitator’s impartiality;

(f) Affirmatively disclose to the service provider and the parties any actual, potential or perceived conflicts of interest that could raise a question about the facilitator’s impartiality;

(g) Where a party, the facilitator or the service provider questions the facilitator’s ability to act impartially, and the issue cannot be resolved to the satisfaction of the questioner, the facilitator shall decline to serve or withdraw if already serving as the facilitator in a particular resolution conference. Having questioned a facilitator’s impartiality, and that facilitator having declined to serve, the ability of a party to exclude any subsequent facilitator shall be at the discretion of the service provider;

(h) Not engage in any other services, other than the resolution conference, for any of the parties involving the same or significantly related issues, unless the parties agree in writing; and

(i) Preserve the grantor’s and the beneficiary’s desired levels of confidentiality.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(e) & 6(1)(f)

Stats. Implemented: 2013 OL Ch. 304, Sec. 6(1)(e) & 6(1)(f)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0605

Resolution Conference Scheduling

(1) Within 10 days after the date on which the beneficiary or grantor requested a resolution conference as provided in Or Laws 2013, chapter 304, section 2, the service provider shall send a Notice of Resolution Conference to the grantor and beneficiary. The notice must:

(a) Specify a range of dates within which and a location at which the resolution conference will occur;

(b) State that the beneficiary and the grantor each must pay the facilitator’s fees for the resolution conference;

(c) List and describe the documents that the beneficiary and grantor must submit to the service provider;

(d) State that the grantor must consult a housing counselor before attending the resolution conference unless the grantor notifies the service provider that the grantor could not obtain an appointment with a housing counselor before the date of the resolution conference;

(e) State that the grantor may have an attorney or housing counselor present to represent the grantor at the resolution conference, and that the grantor must attend the resolution conference in person unless there are compelling circumstances that prevent attendance in person;

(f) Provide contact information for:

(A) The Oregon State Bar’s Lawyer Referral Service;

(B) Service agencies or other providers that offer free or low-cost legal services; and

(C) A list of not-for-profit housing counselors approved by the Oregon Housing and Community Services Department.

(2) Within 5 days after receiving the grantor’s fee, the service provider shall send a written notice to the grantor and the beneficiary that specifies the date, time and location of the resolution conference.

Stat. Auth.: 2013 OL Ch. 304, Sec. 3(1), 3(2), 3(4) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(1), 3(2), 3(4) & 6(1)(g)

Hist.: DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0610

Documents Required of the Grantor

(1) The grantor shall provide the following documents to the service provider for provision to the beneficiary within 25 days after the date on which the service provider sends a Notice of Resolution Conference:

(a) A completed “Universal Intake Form” provided in Appendix B and available by selecting “Form 610” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml or a substantially similar form;

(b) Information about the grantor’s income, expenses, debts and other obligations;

(c) A description of the grantor’s financial hardship, if any;

(d) Documents that verify the grantor’s income.

(2) Within 5 days of receiving documents provided by the grantor, the service provider shall make those documents available to the beneficiary using the service provider website. The service provider shall provide the documents to the beneficiary in an alternative format upon request.

(3) If a grantor fails to timely provide documents as required by Or Laws 2013, chapter 304 and section (1) of this rule, the grantor and the beneficiary shall nevertheless appear at the first scheduled resolution conference. A grantor who does not timely provide a document required by this rule is at increased risk of the resolution conference concluding without the beneficiary being able to agree to a foreclosure avoidance measure.

Stat. Auth.: 2013 OL Ch. 304, Sec. 3(2)(c) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(2)(c) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0620

Documents Required of the Beneficiary

(1) Within 25 days after the service provider makes the information the grantor provided under Or Laws 2013, chapter 304 and OAR 137-110-0610 available to the beneficiary, the beneficiary shall provide the following documents to the service provider for provision to the grantor:

(a) Copies of:

(A) The residential trust deed; and

(B) The promissory note that is evidence of the obligation that the residential trust deed secures and that the beneficiary of beneficiary’s agent certifies is a true copy;

(b) The name and address of the person that owns the obligation that is secured by the residential trust deed;

(c) A record of the grantor’s payment history for the longer of the preceding 12 months or since the beneficiary last deemed the grantor current on the obligation;

(d) An itemized statement that shows:

(A) The amount the grantor owes on the obligation, itemized to reflect the principal, interest, fees, charges and any other amounts included within the obligation; and

(B) The amount the grantor must pay to cure the grantor’s default;

(e) A document that identifies:

(A) The input values for each net present value model that the beneficiary or the beneficiary’s agent uses in this transaction; and

(B) The output values that each net present value model produces;

(f) The appraisal or price opinion the beneficiary relied on most recently to determine the value of the property that is the subject of the residential trust deed;

(g) The portion of any pooling agreement, servicing agreement or other agreement that the beneficiary cites as a limitation or prohibition on modifying the terms of the obligation, together with a statement that describes the extent to which the beneficiary sought to have the limitation or prohibition waived;

(h) A description of any additional documents the beneficiary requires to evaluate the grantor’s eligibility for a foreclosure avoidance measure.

(2) Nothing in section (1)(e) of this rule requires a beneficiary or the beneficiary’s agent to disclose the algorithmic formula of the net present value model used by the beneficiary or the beneficiary’s agent.

(3) If a beneficiary fails to timely provide documents as required by section (1) of this rule, the grantor and the beneficiary shall nevertheless appear at the first scheduled resolution conference. A beneficiary who fails to provide a document required by this rule is at risk of the resolution conference concluding without the beneficiary receiving a certificate of compliance.

Stat. Auth.: 2013 OL Ch. 304, Sec. 3(4)(b) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(4)(b) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0630

Rescheduling the Resolution conference

(1) All parties shall attend the scheduled resolution conference unless the resolution conference is rescheduled in accordance with the provisions of this rule.

(2) The resolution conference may be rescheduled upon written notice that the beneficiary and grantor have agreed to a new date not more than 30 days after the original date scheduled for the resolution conference. Notice of such agreement shall be provided by facsimile, electronic mail, regular mail or by use of a web-based computer program provided by the service provider.

(3) A request to reschedule the resolution conference for good cause shall be in writing and delivered to the service provider and the other party. The request shall set forth the circumstances demonstrating good cause with particularity. If the request is granted, the new date may not be more than 30 days after the original date scheduled for the resolution conference.

(4) If the service provider grants rescheduling, the service provider shall issue a notice that provides the new date, time, and location of resolution conference within 10 days of the request for rescheduling.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(f) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(5), 6(1)(f) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0640

Confidentiality

No videotaping, transcription or other recording of resolution conferences is permitted except by written agreement of the parties and the facilitator.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(f) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 3(5), 6(1)(f) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0650

Participation in the Resolution Conference

(1) Any party wishing to participate in a resolution conference, including otherwise-exempt beneficiaries or junior lienholders, shall do so in accordance with all other provisions of OAR 137-110-0001 to 137-110-0670.

(2) If a trust deed includes joint or multiple grantors, and fewer than all grantors confirm participation in the resolution conference, the resolution conference may nevertheless occur with the consent of the beneficiary.

(3) The grantor, or any individual that a court appoints to act on the grantor’s behalf, must attend the resolution conference in person unless there are compelling circumstances that prevent attendance in person.

(4) The service provider may assist the parties in obtaining an interpreter. However, if the service provider is unable to provide an interpreter, the party needing an interpreter is responsible for securing and paying for the interpreter. The manner of participation of a language interpreter during a resolution conference will be determined by the facilitator.

(5) Any mediator or facilitator wishing to observe a resolution conference for training purposes may only do so with the consent of all participants.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(f) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 6(1)(f) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0660

Agreements

(1) In the event the foreclosure issues are resolved before the scheduled mediation session, the parties shall advise the mediation service provider of their settlement using paper or web-based forms provided by the mediation service provider.

(2) Any agreement reached as a result of mediation shall be reduced to writing.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)

Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; Suspended by DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

137-110-0670

Certificate of Compliance

(1) The service provider shall issue a certificate of compliance if:

(a) The grantor fails to timely pay the fee required by Or Laws 2013, chapter 304, section 3(2)(a) and OAR 137-110-200; or

(b) The service provider receives a report from the facilitator that states the resolution conference has concluded and the service provider’s records demonstrate that the beneficiary has:

(A) Submitted the materials required under section 3(4) of Oregon Laws 2013, chapter 304, to the service provider;

(B) Appeared in person at, or sent an agent to, the resolution conference with complete authority to negotiate on the beneficiary’s behalf and commit the beneficiary to a foreclosure avoidance measure, or if the beneficiary or agent did not have complete authority, required the participation by remote communication of a person with complete authority to negotiate on the beneficiary’s behalf and commit the beneficiary to a foreclosure avoidance measure; and

(C) Signed a document that sets forth the terms of any foreclosure avoidance measure to which the beneficiary and the grantor agreed.

(D) Complied with sections 2, 3, and 4 of Oregon Laws 2013, chapter 304.

(2) The certificate of compliance that has been signed and notarized by the service provider shall be issued to the beneficiary or the beneficiary’s agent no later than five days following:

(a) The due date by which the grantor was required to pay applicable fees if the certificate is issued pursuant to section (1)(a) of this rule.

(b) The conclusion of the resolution conference if the certificate is issued pursuant to section (1)(b) of this rule.

(3) The certificate of compliance shall include:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property at issue;

(d) Reference to the recording information of the trust deed at issue;

(e) A certification that either:

(A) The beneficiary or its agent appeared at resolution conference and complied with the requirements of Or Laws 2013, chapter 304, section 5(1)(a); or

(B) The grantor failed timely pay the fee required by Or Laws 2013, chapter 304, section 3(2)(a) and OAR 137-110-200.

(4) The certificate of compliance described in this rule shall substantially comply with the model form provided in Appendix C to these division 110 rules and available as “Form 670” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(5) The certificate of compliance described in this rule shall be submitted via hard copy to the beneficiary(ies) by U.S. mail, or in person. A copy of the certificate shall be submitted to grantor(s) by facsimile machine, by U.S. mail, or in person. In addition, the service provider may make the certificate of compliance available to the grantor and the beneficiary via the service provider website.

(6) If a beneficiary failed to meet a requirement to which the beneficiary was subject under section 2, 3 or 4 of Or Laws 2013, chapter 304, the service provider shall issue a a notice explaining why the service provider will not issue a certificate of compliance. This notice shall substantially comply with the model form provided in Appendix D to these division 110 rules and available as “Form 670a” http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml. The notice described in this rule shall be submitted via hard copy to the beneficiary(ies) by U.S. mail, or in person. A copy of the certificate shall be submitted to grantor(s) by facsimile machine, by U.S. mail, or in person. In addition, the service provider may make the notice available to the grantor and the beneficiary via the service provider website.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(f) & 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 5, 6(1)(f) & 6(1)(g)

Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 2-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 6-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14


Rule Caption: Amends Rules to Implement 2013 Legislation Regarding Foreclosure Avoidance Measure Notices

Adm. Order No.: DOJ 7-2013(Temp)

Filed with Sec. of State: 7-22-2013

Certified to be Effective: 8-4-13 thru 1-31-14

Notice Publication Date:

Rules Amended: 137-120-0020

Rules Suspended: 137-120-0010

Subject: These amended rules implement the foreclosure avoidance measure notice provisions of Or Laws 2013, chapter 304. They specify the form and content of the notice issued by a beneficiary when the beneficiary determines that a grantor is not eligible for any foreclosure avoidance measure or that the grantor has not complied with the terms of a foreclosure avoidance measure to which the grantor has agreed. They also provide the address to which a copy of the notice must be sent to the Attorney General.

Rules Coordinator: Carol Riches—(503) 947-4700

137-120-0020

Determination of Grantor Ineligibility for or Noncompliance With Foreclosure Avoidance Measure

(1) If a beneficiary determines that a grantor is not eligible for any foreclosure avoidance measure or that the grantor has not complied with the terms of a foreclosure avoidance measure to which the grantor has agreed, the beneficiary or the beneficiary’s agent shall mail a written notice to the grantor within 10 days of making that determination that includes:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property at issue;

(d) A statement that the beneficiary has either:

(A) Determined that the grantor is not eligible for a foreclosure avoidance measure, stating each foreclosure avoidance measure considered. The basis for the beneficiary’s determination must be described with specificity in plain language; or

(B) Determined that the grantor is not in compliance with the terms of an agreement for forbearance, a temporary or permanent loan modification, a short sale, a deed-in-lieu of foreclosure, or another foreclosure avoidance measure. The basis for the beneficiary’s determination must be described with specificity in plain language;

(e) The date specified for the property’s trustee sale if a trustee’s sale is pending; and

(f) Provide contact information for low-cost legal service providers and the Oregon State Bar.

(2) The notice described in section (1) of this rule shall substantially comply with the model form provided in the Appendix to these division 120 rules and available as “Form 20” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(3) A copy of the notice described in section (1) of this rule shall be submitted to the Attorney General of Oregon at 1162 Court St. NE, Salem OR, 97301 or foreclosureavoidance@doj.state.or.us.

Stat. Auth.: 2013 OL Ch. 304, Sec. 6(1)(g)

Stats. Implemented: 2013 OL Ch. 304, Sec. 9

Hist.: DOJ 11-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13; DOJ 1-2013, f. 1-3-13, cert. ef. 1-7-13; DOJ 7-2013(Temp), f. 7-22-13, cert. ef. 8-4-13 thru 1-31-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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