Oregon State Archives

FORECLOSURE AVOIDANCE MEDIATION PROGRAM

Purpose, Application, Definitions and Structure

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

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

137-110-0010

Definitions

As used in these division 110 rules, unless a specific rule provides otherwise for purposes of that rule:

(1) “Date of mediation” means the date of the mediation session with the beneficiary or the beneficiary’s agent and a mediator and grantor present.

(2) “Foreclosure Avoidance Mediation Program” means the mediation program established under Oregon Laws 2012, chapter 112.

(3) “Foreclosure avoidance mediation roster” means the roster of qualified mediators maintained by the mediation service provider.

(4) “Housing counselor” means an individual or entity offering guidance on home buying, renting, reverse mortgages and default and foreclosure prevention.

(5) “Mediation” means a process undertaken under the Foreclosure Avoidance Mediation Program in which a mediator assists and facilitates the grantor and beneficiary in attempting to reach a mutually acceptable resolution of a controversy involving a residential trust deed loan and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties. Mediation begins with the first contact between a grantor or beneficiary and the mediation service provider and concludes when an agreement is reached between the grantor and the beneficiary or, in the event an agreement is not reached, with the issuance of a certificate of compliance by the mediation service provider or the closure of the case by the mediation service provider without the issuance of a certificate of compliance.

(6) “Mediation agreement” means an agreement arising out of a mediation, including any term or condition of the agreement.

(7) “Mediation communications” means:

(a) All communications that are made in the course of or in connection with a mediation, to a mediator, a mediation program or a party to, or any other person present at, the mediation proceedings; and

(b) All memoranda, work products, documents and other materials, including any draft mediation agreement, that are prepared for or submitted in the course of or in connection with a mediation or submitted by a mediator, the mediation service provider or a party to, or any other person present at, a mediation session.

(8) “Mediation program” means a community dispute resolution program, mediator organization or the mediation service provider through which mediation is made available under the Foreclosure Avoidance Mediation Program and includes the director, agents and employees of the Foreclosure Avoidance Mediation Program.

(9) “Mediation service provider” means the entity appointed by the Attorney General pursuant to Oregon Laws 2012, chapter 112, section 2.

(10) “Mediation session” means a meeting involving the mediator, the grantor and the beneficiary or its representatives.

(11) “Mediator” means a third party who performs mediation within the Foreclosure Avoidance Mediation Program.

(12) “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 mediation.

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

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

Mediator Qualifications, Training and Experience

137-110-0110

Mediator Qualifications, Training and Experience

(1) For purposes of this rule only:

(a) “Mediation” means a process in which a mediator assists and facilitates two or more parties to any controversy in attempting to reach a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated; and

(b) “Mediator” means a third party who performs mediation.

(2) A mediator conducting a mediation under the Foreclosure Avoidance Mediation Program shall:

(a) Have conducted at least 20 mediations of any type or subject matter as a mediator. Work performed as an assistant or apprentice mediator under the supervision of a lead mediator may also be counted toward the 20-mediation requirement;

(b) Provide evidence of at least 100 hours of mediation experience as a mediator or as an assistant or apprentice mediator. Work that a mediator performs to prepare for and schedule the mediation or to prepare the parties for a mediation session, may be counted towards this 100-hour requirement;

(c) Disclose to the mediation service provider the professional standards to which the mediator 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) Demonstrate that the mediator is familiar with ORS 36.110 to 36.238;

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

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

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

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

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

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

(c) Is assigned to a mediation.

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

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(B)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(B)
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

Fee Schedule

137-110-0200

Fees Paid by the Grantor, Fee Waiver

(1) In mediations initiated in connection with a notice of default, the grantor shall pay a fee of $200 to the mediation service provider at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, section 2(3)(c). If there are joint or multiple grantors, only one grantor must pay this fee.

(2) In mediations initiated at the request of an at-risk grantor, the grantor shall pay a fee of $200 to the mediation service provider at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, section 2(3)(c). If there are joint or multiple grantors, only one grantor must pay this fee.

(3) The grantor may apply for a waiver of $150 of the fees described in sections (1) and (2) of this rule at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, section 2(3)(c). The grantor shall pay a $50 fee at the time of requesting a fee waiver.

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

(a) $22,340 for a household of one;

(b) $30,260 for a household of two;

(c) $38,180 for a household of three;

(d) $46,100 for a household of four;

(e) $54,020 for a household of five;

(f) $61,940 for a household of six;

(g) $69,860 for a household of seven;

(h) $77,780 for a household of eight;

(i) $85,700 for a household of nine; or

(j) $93,620 for a household of ten or more.

(5) If the mediation service provider denies a grantor’s application for a fee waiver made under section (3) of this rule, the grantor shall pay the remaining $150 within 15 days of receiving the mediation service provider’s determination not to grant a fee waiver but never later than the date of the scheduled mediation session.

(6) A grantor who fails to timely pay fees will be considered to have declined mediation. Failure by a grantor to timely pay fees will result in cancellation of the mediation session.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(C) & 2(2)(c)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(C) & 2(2)(c)
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

137-110-0210

Fees Paid by Beneficiary

(1) In mediations initiated in connection with a notice of default, the beneficiary or the beneficiary’s agent shall pay a total mediation fee of $425 to the mediation service provider. The beneficiary shall pay $200 of that fee at the time of serving or mailing the notice of mediation. The beneficiary shall pay the remaining $225 prior to the scheduled mediation session.

(2) In mediations initiated at the request of an at-risk grantor, the beneficiary or the beneficiary’s agent shall pay a total mediation fee of $500 to the mediation service provider. The beneficiary shall pay $200 of that fee at the time the beneficiary notifies the mediation service provider of the grantor’s request for mediation pursuant to Oregon Laws 2012, chapter 112, section 2(7). The beneficiary shall pay the remaining $300 prior to the scheduled mediation session.

(3) A junior lienholder that participates in a mediation shall pay the fee stated in section (1) of this rule.

(4) A beneficiary that is otherwise exempt from mediation pursuant to Oregon Laws 2012, chapter 112, section 2(2)(d) may participate in mediation by paying the fees described in section (1) of this rule and by following the mediation guidelines set forth in OAR 137-110-0600 to 137-110-0670.

(5) Failure by a beneficiary to timely pay fees will result in cancellation of the mediation session.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(C)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(C)
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

Mediation Initiated in Connection with a Notice of Default

137-110-0410

Beneficiary Requirements

(1) Unless exempt under Oregon Laws 2012, chapter 112, section (2)(2)(d), a beneficiary filing a notice of default pursuant to ORS 86.735 on a residential trust deed shall:

(a) Provide a notice of mediation to the grantor and the mediation service provider at least 60 days before serving or mailing the notice of sale described in ORS 86.740(1)(a);

(b) Include the following contents in the notice of mediation:

(A) List the last known name, address, telephone number and other contact information for the grantor or other person named in the residential trust deed;

(B) Specify the account number or other means by which the beneficiary or trustee or an agent of the beneficiary or trustee identifies the obligation that is secured by the residential trust deed;

(C) Provide the address, telephone number and other contact information for:

(i) The beneficiary or an agent of the beneficiary that the beneficiary authorizes to negotiate on the beneficiary’s behalf;

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

(iii) Service agencies or other providers that offer free or low-cost legal services from a list of agencies or providers that the Attorney General adopts by rule; and

(iv) A list of not-for-profit housing counselors approved by the United States Department of Housing and Urban Development or an agency of this state compiled by the Oregon Housing and Community Services agency;

(D) State that the grantor must consult with a housing counselor approved by the United States Department of Housing and Urban Development. State that the grantor may choose to have an attorney or United States Department of Housing and Urban Development-approved housing counselor represent the grantor at the mediation;

(E) State that the beneficiary is required to enter into mediation with the grantor for the purpose of negotiating a foreclosure avoidance measure;

(F) Contain a brief, plain language description of the foreclosure avoidance measures offered by the beneficiary or the beneficiary’s agent or a description of the foreclosure avoidance measures described in section 2(1) of Oregon Laws 2012, chapter 112;

(G) List the documents the grantor is required to provide pursuant to OAR 137-110-0610;

(H) State the fees associated with mediation and specify the maximum cost for which the grantor will be responsible;

(I) State that the mediation and mediation communications, as defined in ORS 36.110, are confidential in accordance with and to the extent provided in ORS 36.220 to 36.238;

(J) State that within 30 days after the date of the notice a mediation service provider will send another notice to the grantor with a date, time and location for the mediation and other requirements of Oregon law.

(2) The notice required by section (1) of this rule:

(a) Shall be served on the mediation service provider in the manner prescribed by ORS 86.740. However, the mediation service provider shall accept service if the notice is submitted using a web-based computer program provided by the mediation service provider and the provider acknowledges its actual receipt of the notice by electronic mail or confirmation generated within the provider’s web-based computer program.

(b) Shall substantially comply with the model form provided in Appendix A to these division 110 rules and available as “Form 410” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(3) When mailed or served on a person other than the grantor, the notice required by subsection (1) of this rule may be redacted to remove personal information, such as the grantor’s telephone number or account number.

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

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

Stat. Auth.: OL 2012 Ch. 112, Sec. 3 & 2(5)
Stats. Implemented: OL 2012 Ch. 112, Sec. 3 & 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

137-110-0420

Mediation Service Provider Requirements

(1) Within 30 days after the date on which the beneficiary caused a notice of mediation to be served or mailed as provided in ORS 86.740, the mediation service provider shall send a mediation scheduling notice to the grantor and beneficiary. The mediation scheduling notice must:

(a) State the date, time and location of the scheduled mediation session;

(b) Identify and provide contact information for the mediation services provider;

(c) Provide a date at least 30 days before the scheduled mediation by which the grantor shall contact the mediation service provider to confirm that the grantor will enter into mediation and pay fees. The notice shall conspicuously state that failure to confirm participation and pay applicable fees by the specified date will be deemed refusal to participate by the grantor;

(d) State the fees associated with mediation;

(e) Provide the address, telephone number and other contact information for a list of not-for-profit housing counselors approved by the United States Department of Housing and Urban Development and other housing counselors compiled by the Oregon Housing and Community Services Department;

(f) State that the grantor must consult with a housing counselor approved by the United States Department of Housing and Urban Development;

(g) List the documents each party shall provide for the mediation; and

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

(2) The notice required by section (1) of this rule shall substantially comply with the model form provided in Appendix B to these division 110 rules and available as “Form 420” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(3)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(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

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.

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

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

Mediation Initiated by a Grantor at Risk of Default

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

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

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

Mediation Guidelines

137-110-0600

Mediator Authority and Role

(1) The mediator 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 mediator may rely on assertions made in the documents provided by the parties and need not make an independent inquiry into the proper chain of title or any other matter.

(3) The mediator 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 mediator’s skills and the specific mediation approaches the mediator uses;

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

(d) Conduct mediations 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 mediator’s relationships or experiences that reasonably raise a question about the mediator’s impartiality;

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

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

(h) Not engage in any other services, other than mediation, 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 consistent with OAR 137-110-0640.

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

137-110-0610

Documents Required of the Grantor

(1) The grantor shall provide the following documents to the mediation service provider for provision to the beneficiary at least 15 days prior to the first scheduled mediation session:

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

(b) Pay stubs that confirm the grantor’s income for the two full months immediately preceding the month during which the grantor submits the pay stubs;

(c) A profit and loss statement, if available, if the grantor is self-employed;

(d) Bank statements for the two full months immediately preceding the month during which the grantor submits the bank statements;

(e) A benefits statement or letter from the benefit provider showing the amount, frequency and duration of the benefit, if relying on social security, disability, unemployment or other non-wage benefit income;

(f) A divorce decree or judgment or separation agreement, if the grantor is relying on child support, alimony or maintenance payments;

(g) The grantor’s most recent electric, heat, gas, or other utility bill;

(h) Most recent property tax statement or appraisal; and

(i) The grantor’s tax returns from the two most recent years.

(2) If a grantor 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 mediation session. A grantor who does not timely provide a document required by this rule is at increased risk of the mediation concluding without the beneficiary being able to agree to a foreclosure avoidance measure.

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5) & 3
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 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

137-110-0620

Documents Required of the Beneficiary

(1) The beneficiary shall provide the following documents to the mediation service provider for provision to the grantor at least 15 days prior to the first scheduled mediation session:

(a) The grantor’s complete payment history for the obligation that is secured by the residential trust deed that the beneficiary seeks to foreclose;

(b) Evidence that the beneficiary is the real party in interest with respect to the obligation, including:

(A) A true copy of the original debt instrument that is the basis for the right the beneficiary seeks to foreclose; and

(B) Documents showing chain of title for the property at issue, including recorded and unrecorded conveyances, endorsements and assignments of the trust deed, the note and the security instrument;

(c) A copy of the authorization from the beneficiary to the beneficiary’s agent, if the beneficiary’s agent appears at mediation;

(d) A copy of any of the following documents that apply to the note or obligation that is secured by the trust deed:

(A) A servicing agreement the beneficiary entered into with another person; or

(B) An agreement by means of which the beneficiary pledged as collateral for a security the beneficiary issued or sold all or a part of the ownership interest in the note or other obligation;

(2) To the extent that the grantor has timely provided their documents as required by OAR 137-110-0610, the beneficiary or the beneficiary’s agent shall provide the following documents to the mediation service provider or mediator for presentation to the grantor at or before the first scheduled mediation session:

(a) The beneficiary’s or the beneficiary’s agent’s most recent broker price opinion or appraisal;

(b) A document that identifies each net present value model used by the beneficiary or the beneficiary’s agent to assess the grantor for a foreclosure avoidance measure and the input values used by the beneficiary or the beneficiary’s agent, and the output values produced by the net present value model;

(c) A document that lists the total amount that a grantor must submit to the trustee to discontinue foreclosure proceedings, along with an itemized description of all costs and expenses incurred by the beneficiary or beneficiary’s agent in connection with the foreclosure, including trustee and attorney fees; and

(d) Any other document the beneficiary believes limits the scope of the agent’s authority to agree to a particular foreclosure avoidance measure.

(3) Nothing in section (2) 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.

(4) 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 mediation session. A beneficiary who fails to provide a document required by this rule is at risk of the mediation concluding without the beneficiary receiving a certificate of compliance.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(4)(a)(A) & 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(4)(a)(A) & 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

137-110-0630

Rescheduling or Adjourning the Mediation Session

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

(2) Within 10 days of the mediation scheduling notice, either party may request that the mediation service provider reschedule the date for the mediation session to a date or location that is more convenient. The rescheduled mediation session must be no earlier than 45 days and not later than 90 days after the date on which the notice of mediation was served or mailed as provided in ORS 86.740.

(3) Except as provided in section (2) of this rule, no request from a party for rescheduling of the mediation session may be granted except upon a showing of good cause or upon a written agreement of the parties. Notice of such written agreement shall be provided by facsimile, electronic mail, regular mail or by use of a web-based computer program provided by the mediation service provider.

(4) A request to reschedule the mediation session for good cause shall be in writing and delivered to the mediation service provider and the other party. The request shall set forth the circumstances demonstrating good cause with particularity.

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

(6) With the consent of the parties, a mediation session may be adjourned and an additional mediation session scheduled.

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

137-110-0640

Confidentiality

(1) Except as otherwise provided in this rule or by the terms of any agreement to mediate executed by the parties prior to a mediation session, the foreclosure avoidance mediation process is confidential and mediation communications are inadmissible as provided in ORS 36.110 to ORS 36.238.

(2) The mediation service provider is a mediation program for the purposes of ORS 36.100 to 36.238.

(3) No videotaping, transcription or other recording of mediation sessions is permitted except by written agreement of the parties and the mediator.

(4) Before participating in a mediation session, the grantor and beneficiary may execute an “agreement to mediate” specifying the confidentiality provisions of the mediation, consistent with these rules and ORS 36.110 to 36.238.

(5) Mediations in which a state agency is a party are subject to ORS 36.224.

(6) An agreement to mediate executed by the parties prior to mediation is not confidential.

(7) Nothing in this rule prevents a mediator from disclosing the outcome of the mediation to the mediation service provider or from completing a report of the mediation outcomes on forms approved by the Attorney General. Such disclosures and reports are not confidential and may be disclosed or admitted as evidence in a subsequent proceeding.

(8) Nothing in this rule limits the ability of the mediation service provider or the Attorney General to compile and disclose general statistical information concerning matters that have gone to mediation if the information does not identify specific cases.

(9) Nothing in this rule limits the ability of the mediation service provider or the Attorney General to disclose confidential mediation communications, the disposition of matters referred for mediation and the terms of mediation agreements to another person for use in research, training or educational purposes, subject to the following:

(a) A mediator or mediation program may only use or disclose confidential mediation communications if the communications are used or disclosed in a manner that does not identify individual mediations or parties.

(b) A mediator or mediation program may use or disclose confidential mediation communications that identify individual mediations or parties only if and to the extent allowed by a written agreement with, or written waiver of confidentiality by, the parties.

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

137-110-0650

Participation in the Mediation Session

(1) Any party wishing to participate in mediation, 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 mediation session, the mediation may nevertheless occur with the consent of the beneficiary.

(3) The mediation service provider may assist the parties in obtaining an interpreter. However, if the mediation 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 mediation session will be determined by the mediator.

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

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

137-110-0670

Certificate of Compliance

(1) The mediation service provider shall issue a certificate of compliance if, after consulting with the mediatior, the mediation service provider determines that the mediation has concluded and the beneficiary has complied with the requirements of these rules. The certificate of compliance that has been signed and notarized by the mediation service provider shall be issued to the beneficiary or the beneficiary’s agent no later than five days following the conclusion of the mediation.

(2) The mediation service provider shall issue a certificate of compliance if a grantor fails to confirm by the date provided by Oregon Laws 2012, chapter 112, section 2(3)(c) that the grantor intends to enter into mediation.

(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 mediation and complied with the requirements of Oregon Laws 2012, chapter 112, sections 4 and 5;

(B) The grantor elected to enter into mediation but failed to appear at the time and place scheduled for mediation; or

(C) The grantor declined to enter into mediation with the beneficiary, or did not confirm intent to participate by the required date.

(4) The certificate of compliance described in this rule shall substantially comply with the model form provided in Appendix E 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 grantor(s) and beneficiary(ies) by facsimile machine, by U.S. mail, or in person. In addition, the mediation service provider may make the certificate of compliance available to the grantor and the beneficiary via a web-based computer program.

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(6)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(6)
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