Eviction in Oregon in the Age of COVID-19 – Frequently Asked Questions

Eviction

On June 30, 2020, Governor Kate Brown signed HB 4213 into law, replacing Executive Order 20-13 as Oregon’s eviction moratorium. Among other things, HB 4213 restricts and prohibits certain landlord actions during the COVID-19 emergency period – defined as April 1, 2020 to September 30, 2020 – as they relate to residential and commercial tenants. Landlords and tenants should be aware of the changes made by HB 4213. We here at SYK have compiled a list of Frequently Asked Questions to clear the air on some of the changes this new law makes.

May I deliver a notice of termination to my tenant’s based on their failure to pay rent?

A qualified no. HB 4213 defines as the “emergency period – April 1 to September 30 – and prohibits evictions during that time. If your tenants fall behind on their rent or other charges between those dates, HB 4213 prohibits your ability to evict them based on that nonpayment balance.

However, if your tenant has a nonpayment balance that accrued prior to April 1, 2020, you may be able to proceed with an eviction on a termination of tenancy that was issued prior to April 1, 2020. Please note, it is important to point out that every county is in a different reopening phase. Some courts may not be willing to enforce eviction notices whether or not HB 4213 applies to your tenant. And some counties may have rules and orders related to evictions that are more stringent than the statewide law.

May I charge my tenants a late fee for failing to pay rent?

During the emergency period, a landlord may not assess a late fee. Additionally, a landlord may not report a tenant’s nonpayment as delinquent to any consumer credit agency.

If my tenant falls behind, but begins to pay again, may I apply that rent to their past due rent?

No; HB 4213 creates a new order for applying payments received from tenants. If you receive payments from your tenant, it must be applied first to rent for the current period, then to utility charges, then late rent payment charges, and finally to fees or charges owed for damage claims against the tenant.

What if I want to sell my rental property to someone who wants to make it their home?

HB 4213 allows for the sale of the property and termination of the tenancy in this circumstance. You are still able to sell your rental property, as long as a landlord provides at least 90 days’ written notice to a tenant not more than 120 days after accepting an offer to purchase, and the property is to be used as the buyer’s primary residence.

If your buyer, on the other hand, is going to use the rental property as a rental, then no notice to the tenant is required, and the tenancy continues.

Once the emergency period ends on September 30, 2020, may I begin the process of evicting my tenant for not paying rent during the months of April 2020 through September 2020?

No; HB 4213 also creates a six-month grace period that begins on October 1, 2020, and ends on March 31, 2021. This grace period is designed to give tenants time to pay their outstanding balance of rent. During that time, a landlord cannot evict a tenant based on a failure to rent during the emergency period. However, if a tenant fails to pay October 2020, rent – the first month outside of the emergency period – that failure can result in a properly issued eviction notice.

How will I know my tenant is going to use the rental period to pay their nonpayment balance? Does the tenant have an obligation to give notice?

Tenants are only required to give their landlords notice of their intention to use the grace period if the landlord sends them a written notice that states when the emergency period ended and that rent is still due. If a tenant fails to do so, a landlord can recover half of one month’s rent in damages once the grace period ends. A tenant’s notice must be actual notice under ORS 90.150 or ORS 91.110 or by electronic means delivered to the landlord. A landlord is not required to give their tenants notice of the grace period, although landlords have the option to do so if they choose. If a landlord does not give their tenant notice of the grace period, tenants do not have to give their landlords notice of their intention to use the grace period.

My tenant is receiving publicly funded rental assistance. Am I entitled to those funds as their landlord?

No; HB 4213 specifically states that a tenant is not required to pay all their publicly funded rent assistance to a landlord as payment for rent.

What if I want to evict my tenant for reasons other than nonpayment of rent? Am I allowed to do so?

Under HB 4213, a residential landlord, in most situations, cannot terminate a tenancy without cause during the emergency period. However, a residential landlord may terminate a tenancy without cause during the grace period. Though most no cause/landlord qualifying reasons for eviction are not available during the emergency period, a residential landlord should consult an attorney about their particular situation. HB 4213 does not prohibit commercial landlords from terminating for no cause. HB 4213 also does not prohibit landlords for terminating for cause. Please note that courts in counties that are in Phase 1 of reopening may not be hearing eviction proceedings yet, pursuant to the Chief Justice’s Orders issued in May. Check with your county’s court clerk to determine whether eviction proceedings have resumed in your county.

Are there any penalties for trying to evict my tenant?

A landlord who violates HB 4213 may owe their tenant up to three months’ rent, actual damages, and attorney fees, if a tenant prevails in court. Additionally, the tenant may receive an injunction to recover their possession of the rental property.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

COVID-19 & Forbearance Agreements

With new times come new terms. Six months ago we had never heard of Coronavirus or social distancing.  Now, we hear those terms so often we look forward to the day we never hear them again. Another term we’re starting hear in the wake of the Coronavirus outbreak is forbearance. Prior to COVID-19, most of us probably didn’t know what forbearance meant. Unfortunately, the financial impact of COVID-19 will likely cause many businesses and individuals to seek forbearance agreements with their creditors.

Forbearance means the action of refraining from exercising a legal right, especially enforcing the payment of a debt. A forbearance agreement is an agreement between a lender and a borrower (or a creditor and a debtor) to temporarily suspend the payments owed by the borrower to the lender. Forbearance agreements are often entered into in lieu of the lender filing a lawsuit to foreclose a mortgage or trust deed.

Borrowers, or debtors, adversely affected by the Coronavirus outbreak may need to enter into forbearance agreements with their creditors if unable to make their payments when due. Pursuant to the CARES Act, persons who have a federally backed mortgage can seek forbearance of their mortgage payments for up to nearly a year (they can initially apply for 180 days and then seek a 180 day extension). Many mortgages are federally backed. Interested persons should contact their loan servicer to determine if their mortgage is federally backed.  Even if a mortgage isn’t federally backed, given the widespread financial impact of the outbreak, there is a fair chance the lender has some forbearance or other options available.

Technically, a forbearance agreement is not a loan modification. Forbearance generally means that the lender agrees to forebear from taking action to enforce the borrower’s failure to make a payment when due and triggering the default clause under the agreement for payment failure. Persons facing the inability to pay their debts as a result of the outbreak need to consider promptly seeking forbearance or a modification of the payment terms of the loan or debt. Whether the parties enter into a true forbearance agreement or a loan modification, there are a number of considerations and competing interests.

While it is incumbent on the debtor to seek forbearance or a loan modification if the outbreak is or will likely cause them to not be able to make payments when due, a forbearance agreement can actually benefit both parties. For the borrower, one of the primary benefits of a forbearance agreement is that it gives them some breathing room with regard to their cash flow, cash on hand and long term ability to pay their debts. A forbearance agreement gives the debtor some time to figure out their next steps.

From the debtor’s perspective, it is important to recognize that a forbearance agreement can actually also benefit the lender. While the lender would obviously prefer to receive payment in a timely manner, a forbearance agreement can add certainty to the lender and improve the likelihood and level of repayment of the debt.  It also allows the lender to avoid having to enforce the remedies under their contract, such as foreclosure. Enforcement of contract remedies can be expensive and time consuming. Furthermore, some remedies, such as evictions and foreclosures, have been prohibited by the government during the COVID-19 outbreak.

Some things to keep in mind with regard to forbearance agreements.

Forbearance Period: A forbearance agreement should include language with regard to how long the lender agrees to forebear the debt without taking action to enforce the terms of the agreement (e.g., accelerate the debt for failure to pay in a timely manner) and how much additional time, if any, the debtor might get to repay the debt. In most cases, the balance owed by the debtor continues to accrue interest while the debtor is not making payments pursuant to a forbearance agreement. The forbearance period may be for a specified time period or tied to the occurrence of a specified event (e.g., the governor of Oregon lifting the moratorium prohibiting on-premises consumption of food and drink and gatherings of more than 25 people).

Conditions: The lender will likely require the borrower (and, if applicable, personal guarantors) to meet specific conditions before the forbearance agreement becomes effective. Such conditions might include: providing financial statements; additional reporting requirements; an updated business plan; efforts to seek financial assistance or loans through available government and related programs; and the payment of a forbearance fee and the costs incurred by the lender while negotiating the forbearance agreement.

Acknowledgments and Reaffirmations: The lender will likely require the borrower, in consideration of the forbearance, to make acknowledgements regarding the validity and amount of the underlying debt. The reaffirmations usually also include language that the lender is not waiving the right to exercise their remedies under the contract in the event of future defaults by the borrower. Guarantors are generally also required to re-affirm their guaranties.

COVID-19 has adversely impacted the ability of many persons to pay their debts when due. Adversely impacted debtors should promptly inform their lender if they are encountering financial difficulties. Creditors understand that the outbreak has had a huge financial impact on many businesses and individuals. It is generally in the interest of the creditor to work with their debtors. Negotiated solutions between the parties, memorialized by a forbearance agreement or loan modification, are usually better than engaging in litigation, particularly given the current prohibitions and the fact that the courts are not operating at full capacity and won’t be for some time.

If you need any assistance with regard to a forbearance agreement or modification of a loan, whether you are a creditor or a debtor, please reach out to our team. We’re here to help you during the Coronavirus pandemic.

Van M. White III has more than 20 years of experience as a lawyer in Oregon and Washington. Van has been a partner at Samuels Yoelin Kantor since 2001 and has served on the firm’s management committee since 2010.

COVID-19 Federal, State, and Local Prohibitions Against Non-Payment Evictions

Real Estate

“Landlords are temporarily prohibited from filing new eviction actions for nonpayment of rent as a result of COVID-19”

The ongoing COVID-19 pandemic has encouraged Oregon State Governor Kate Brown to issue a Stay at Home order effective statewide in an effort to curb the spread of the virus. As a result, many individuals are out of work, causing emotional stress and financial hardship.

Federal, state, and local governments have each taken action in an attempt to reduce financial stress on residential and commercial tenants.

Federal Response

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). In Section 4024, the CARES Act imposed immediate protections for some residential tenants. Specifically, the CARES Act placed a federal eviction moratorium for nonpayment of rent on covered properties. Landlords are temporarily prohibited from filing new eviction actions for nonpayment of rent as a result of COVID-19, as well as prohibited from charging late fees or other penalties for tenants’ nonpayment of rent. It is critical for landlord to review the definition of covered properties, and confer with a knowledgeable attorney is they are unsure whether they own a covered property.

The moratorium took effect immediately on March 27, 2020 and expires July 25, 2020. Landlords, that own covered properties, are prohibited from evicting residential tenants for nonpayment of rent during the entire course of the moratorium. After the moratorium expires, the landlord may take action against non-paying tenants, subject to a federally imposed 30-day notice to vacate. Please note that the CARES Act does not affect evictions unrelated to non-payment.

Oregon Response

On April 1, 2020, Governor Kate Brown issued Executive Order 20-13 (“EO 20-13”). EO 20-13 declared a moratorium on certain terminations of residential rental agreements and non-residential leases.

During this moratorium, any residential or non-residential tenant who is or will be unable to pay the full rent when due under their rental agreement or lease shall notify the landlord as soon as reasonably possible. Additionally, tenants shall make partial rent payments to the extent that they are financially able to do so.

With regard to non-residential tenants, the tenant must provide their landlord, within 30 calendar days of unpaid rent being due, with documentation or other evidence that nonpayment is caused by, in whole or in part, the COVID-19 pandemic. EO 20-13 does not require similar proof for residential tenants.

Consequently, the landlord may not, for reason of nonpayment of rent (which EO 20-13 defines to include evictions without cause), late charges, utility charges, or any other service charge or fee, terminate the tenant’s rental agreement or take any action, judicial or otherwise, relating to an eviction arising under ORS 105.105 through ORS 105.168. Prohibited actions include, without limitation, filing, serving, delivering or acting on any notice, order or writ of termination, or interfere with the tenant’s right to possession of the premises.

The moratorium does not relieve a tenant from paying rent, utility charges, or any other service charges or fees. The moratorium does, however, relieve a tenant from paying for late charges or other penalties arising from nonpayment.

The moratorium began April 1, 2020 and will continue in effect until June 30, 2020, unless terminated sooner by Governor Kate Brown. Any person found to be in violation of EO 20-13 is subject to criminal penalties.

Multnomah County Response

Prior to the announcement of EO 20-13, on March 11, 2020, the Multnomah County Chair signed Executive Order 388 (“EO 388”), declaring an emergency for Multnomah County and announcing a moratorium on residential evictions for nonpayment of rent and rent deferral  in Multnomah County. EO 388 was ratified by the Multnomah County Board of Commissioners on March 19, 2020, and the Multnomah Commissioners adopted Ordinance 1282 putting in effect the County wide eviction moratorium. On April 16, 2020, the Multnomah Commissioners passed Ordinance 1284 that suspended the enforcement of Ordinance 1282, in order to align the County with the Governor’s EO 20-13. Ordinance 1284 continues the six month grace period for residential tenants to repay their unpaid rent, but tenants no longer need to provide proof of the substantial loss of income to their landlords or notify their landlords on or before the day that the rent is due that they are unable to pay rent. The tenants instead need to notify their landlords as soon as reasonably possible that they are unable to pay rent.

Multnomah County Ordinance 1284 does not relieve a tenant of paying rent. The tenant must still pay the missed rent within 6 months after expiration of the emergency; however, no late fees will accrue.

Civil proceedings to enforce Ordinance 1284, may be instituted by Multnomah County or the tenant. A landlord that fails to comply with any of the requirements set forth in Ordinance 1284 shall be subject to appropriate injunctive relief, and for an amount up to 3 times the monthly rent, as well as actual damages, reasonable attorney fees, and costs.

Properties within Multnomah County are subject to both the statewide EO 20-13 moratorium and the Multnomah County Ordinance 1284.

For assistance in determining how your property may be affected by the CARES Act, EO 20-13, and Ordinance 1284, we encourage you to speak with a knowledgeable real estate attorney.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

Colleen Munoz

 

Colleen O. Muñoz is a law clerk at and certified law student at SYK who graduated with honors from Lewis & Clark Law School in January 2020. She published a law review article in March 2020 dissecting the categorical approach to contested deportation proceedings.

Portland “Relocation Assistance” Ordinance Requires Landlords Pay

Tenant Landlord

Portland City Council Passes Ordinance Requiring Landlords to Pay Tenant’s Moving Costs

On the evening of February 2, 2017, the Portland City Council passed an ordinance that will require landlords to pay for relocation assistance to their tenants. The ordinance will enable tenants to be paid for moving costs when their landlord has either raised the rent by 10% or more or has served a “no cause” termination notice on the tenant.

The Ordinance is in response to the housing state of emergency that was declared by the city in October of 2015 and is intended to assist renters during the continued housing crisis in Portland.

The relocation assistance ordinance is considered to be the strongest renter protection Portland has ever seen with costs to landlords ranging from $2,900 to $4,500, depending on the type of dwelling unit rented.

While tenant advocates claim that the Ordinance is a necessary step in protecting renters, landlord advocates claim the Ordinance may bankrupt landlords who already face property maintenance costs and increasing property taxes.

The new Ordinance amends the “Portland Renter Additional Protections” section of city ordinance 30.01.085, which lists a landlord’s obligation when terminating a tenancy or raising the rent. In addition to requiring a landlord to deliver a written notice of termination to the tenant not less than 90 days before the termination date, the new Ordinance states that a landlord must pay the mandated relocation assistance to the tenant not less than 75 days prior to the termination date.

If a landlord chooses to raise the rent by 10% or more, in addition to providing a 90 day notice prior to the increase taking effect, the landlord must now also be ready to pay the relocation fee. The new Ordinance provides that if within 14 days after receiving the written notice the tenant provides written notice of termination to the landlord, the landlord must then pay the tenant the relocation amount within 14 days.

A landlord’s failure to comply with any of the Ordinance’s requirements could result in liability to the tenant for three months rent, actual damages, the relocation assistance amount, reasonable attorney fees, and costs.

After hearing from dozens of mom and pop landlords, the Portland City Council included at least one late amendment which will exempt landlords only managing one rental unit. Other listed exemptions to the ordinance include: week-to-week tenancies, landlords who temporarily rent out their principal residence during an absence of less than 1 year, or to tenants that occupy the same dwelling unit as the landlord. The final version of the new Ordinance has not yet been released.

Prior to the Portland City Council’s decision, attorneys representing landlords in the Portland area said they would sue if the city passed the Ordinance. During the city council hearing landlords’ complained of not being consulted in the drafting of the Ordinance as well as issues involving the vagueness of the Ordinance.

One issue that may arise is with landlords who intended to only rent a property for a fixed term tenancy and expressed as much in the rental agreement. The new Ordinance means that a landlord will have to pay a relocation fee if they choose to not renew the tenant’s lease on substantially the same terms.

The Ordinance, which was immediately enacted, will remain valid potentially as long as the city’s housing emergency continues. Currently the emergency is scheduled to lapse in October, however in the past it has been extended.

The Oregon Residential Landlord Tenant Act (“ORLTA”) and the Portland City Code (“Code”) is highly technical and landlords are well advised to consult with a real estate attorney knowledgeable about ORLTA and the Code before issuing any termination or rent increase notices.

Read the Ordinance and other relevant documents on the city of Portland’s website.

Unwanted Occupants – a Trap for the Unsuspecting Fiduciary

Tenant Landlord

Dad Died & I Need To Evict or Eject His Adult Child

Personal Representatives, Trustees and Conservators hold positions of tremendous responsibility. Frequently these fiduciaries are faced with challenges caused or exacerbated by relatives, or even acquaintances, of the protected person, decedent, or primary beneficiary. One challenge that frequently arises is when the fiduciary needs to sell a primary residence to generate liquid funds for the Estate or Trust and a family member or acquaintance tenant or other occupant is residing in the residence. Some buyers are willing to purchase a home occupied by a tenant, but such willingness dissipates rapidly when the tenant or occupant is not paying rent.

Under the best circumstances, a month-to-month lease will be in place and the tenant will be paying rent on time. This is the traditional landlord-tenant relationship. In this situation, provided the fiduciary does not want to market the property with the tenant in residence, the fiduciary can issue a 30- or 60-day no-cause termination notice (different notice provisions apply in the city of Portland). If the tenant does not willingly move out prior to the expiration of the notice, it may be necessary for the fiduciary to file a Forcible Entry and Detainer lawsuit (otherwise known as an “FED” or “eviction” lawsuit). These residential evictions are fast-tracked by the court. In Multnomah County, the fiduciary’s first court day in an eviction trial is generally 8 days after the lawsuit is filed (as opposed to several months in a typical civil case). During this first court appearance, provided both the fiduciary and the tenant show up, the judge strongly encourages the parties to come to an agreement and avoid a trial. In this scenario, this may mean that the tenant gets an additional two weeks to move out. If no agreement is reached, then a trial is scheduled.

Under Oregon law, the trial is to take place no later than 15 days after the first court appearance. If the fiduciary prevails at trial, the tenant will need to move out within a few days, or the sheriff will forcibly remove the tenant. Tenant will also owe the Estate or Trust the fiduciary’s reasonable attorney’s fees. These fees can be surprisingly high. A relatively straightforward residential eviction lawsuit, through trial, can cost upwards of $5,000 – although I have personally had two particularly challenging evictions, once as the landlord’s attorney and once as the tenant’s attorney, where the prevailing party attorney fees and costs exceeded $30,000.

A word of caution, Oregon landlord-tenant law is very tenant friendly and highly technical. Many a wary landlord finds himself running afoul of the law. If the landlord has not dotted all his “i”s and crossed all his “t”s, he or she may find themselves as the losing party and owing thousands of dollars to the lawyer of the tenant they were trying to evict.

As daunting as the FED process above sounds, removing an occupant who never established a tenancy, may be even costlier and more time consuming. Numerous Oregon cases have found that family members were not tenants, due to the specific circumstances under which the family members came to live in the house. In some of these cases, it was necessary to file an ejectment lawsuit. Ejectment lawsuits are heard on the regular civil court docket. This means that it may be several months before the case goes to trial and likely tens of thousands of dollars will be spent in motion practice and preparing for trial.

If you find yourself as a fiduciary (or attorney for a fiduciary) needing to remove a family member or acquaintance from estate or trust property, please consult with me or another experienced landlord attorney before you take any action. Please also contact me if you find yourself in any other real estate disputes or are seeking counsel in advance to avoid finding yourself falling into a trap.

Denise represents clients on real estate disputes, business dissolutions, and trust contests. She also helps hospitality and wine industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations. Please contact Denise directly at denise.gorrell@samuelslaw.com.

So You Want to Sell Your Own Home

Real Estate

For Sale by Owner or FSBO are attractive in a seller’s market. Weekly solicitations from eager Buyers are common. Technology has put selling your home yourself a few clicks away. Websites like Zillow allow you to post a listing. Pinterest and Google can give you pointers on how to stage your home. A brochure may be easily made using a word processor (or get a technologically savvy friend to do it).

There are upsides to FSBO and downsides, just as there are upsides and downsides of using a real estate agent. When homeowners hire a real estate agent to sell their home, the buyer’s and seller’s agent make a combined commission that can run up to 5-6% of your home’s sales price. This entire commission is paid out of the sales proceeds. This means that if your home sells for $300,000, the commission will be upwards of $18,000. Not wanting to pay that commission is one of the primary reasons people choose to sell their homes themselves. FSBO homes can sell quicker than agent-assisted homes. On the other hand, FSBO often sell for lower prices than an agent-assisted sale. This is likely due to the real estate agent’s expertise and in-depth knowledge of the real estate market.

One of the most common concerns with FSBO, is the Seller is responsible for making all the required disclosures and negotiating the documents involved in closing the sale. It is easy to get lost trying to navigate it all and miss something. That mistake could be costly down the road, and may even result in litigation. Reducing the seller’s exposure is the bailiwick of the listing agent. An attorney is essential for those without an agent. An attorney will draft and review documents before the Seller signs them and will make sure the i’s are dotted and t’s are crossed. An attorney will typically charge hourly for his or her time, not as a percentage of the home’s sales price. Attorney fees will also be significantly less than the commission an agent will charge, as the number of hours to represent a seller in a home sale do not exponentially increase as the price of the house increases.

The decision to hire (or not hire) a real estate agent is personal, depending on your own comfort level, confidence in your abilities, and time you’re willing to commit. If you do choose to go the FSBO route, however, you are encouraged to confer with an experienced real estate attorney.

 

Portland Residential Landlords Beware – Notice Timelines Increased

Real Estate

Portland City Council has declared the city to be in a housing emergency. Rental rates have increased by 15% in 2015, and vacancy is hovering at about 3%.

The Council has announced measures to combat these issues. On October 14, 2015, the Council unanimously voted to pass an ordinance requiring residential landlords give 90 days’ notice for rent increases greater than 5% and for no-cause evictions. This is an increase from the 30 or 60 days’ notice that were previously required. If a residential landlords fails to give enough notice, he could owe the tenant “up to three months rent as well as actual damages, reasonable attorney fees and costs.” Some on the City Council, including Commissioners Dan Salzman and Nick Fish, wish they could do more to protect tenants, but state residential landlord-tenant laws prevent cities from enacting more stringent provisions, like rent control. Commissioner Salzman has promised to review and evaluate the policy in a year to see if it accomplished its goals.

The ordinance goes into effect next month. This may cause some residential landlords to rush to send out notices this month in advance of the ordinance’s effective date. The Oregon Residential Landlord Tenant Act (“ORLTA”) is highly technical and landlords are well advised to consult with a real estate attorney knowledgeable about ORLTA before issuing any termination or rent increase notices.

For more information, see the following Oregonian articles:

“Portland OKs 90-day notice for rent increases, no-cause evictions”

“Portland approves housing emergency plan, what comes next is unclear”

Greg Lutje’s Article “High Times or High Risk?” Featured on WFG News

“In November 1998, Oregon voters approved Ballot Measure 67, which allowed the medical use of marijuana within specified limits. The following year the Oregon Medical Marijuana Program was created to administer the registration program. As a result, there are currently approximately 230 medical marijuana dispensaries approved (by the Oregon Health Authority) for operation in Oregon.”

SYK attorney Greg Lutje’s article “Leasing to Marijuana Growers/Distributors: High Times or High Risk?” was featured on WFG National Title Insurance Company’s site.  He expands upon insurance, mortgage and financial risks, as well as suggested lease provisions. Also, he informs readers that “Oregon lawyers are now allowed, under Oregon’s recently-revised Rules of Professional Conduct, to counsel and assist clients regarding Oregon’s marijuana-related laws and are required to advise clients of applicable federal laws,” while encouraging current and prospective landlords to seek legal counsel to help evaluate risk and determine appropriate lease provisions regarding marijuana business.  The full article can be found on their website.

 

Elder Financial Abuse and Escrow Agents – Proposed Oregon House Bill 2780 (HB 2780)

Real Estate

Oregon’s recent House Bill 2780, sponsored by Rep. Julie Parrish of West Linn, seeks to diminish the potential for elder financial abuse by brokers with modifications to real estate regulations that govern property sales for older Americans.

At first glance it might seem like the bill complicates sales for homeowners ages 65 and older, but the extra check serves to protect older sellers from unknowingly vending their property for less than its value.

House Bill 2780 simply adds a ‘pause button’ to any transaction with both of the following conditions:

• A seller ages 65 or older
• A sale price more than 20{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} below the property’s appraised or assessed value

As heinous as it might seem, older property owners are victimized by greedy brokers across the nation. People 65 and older are sometimes targeted because it is more likely that they have reduced cognitive functioning, marked by trouble remembering, difficulty learning new things, concentrating, and making decision that affect their everyday life. The Center for Disease Control reports that the number of Americans ages 65 years and older who suffer from cognitive impairment may surpass 13.2 million by the year 2050. Dishonest financial advisers know these statistics just as well as the healthcare professionals.

Read more about how Salem is working to help seniors with House Bill 2780 on OregonLive.

Investor Defender attorneys at Samuels Yoelin Kantor have focused on protecting investors from financial fraud and abuse for more than 32 years. Securities attorney Darlene Pasieczny states, “ We have experience with unscrupulous brokers convincing owners to sell their homes or to take second mortgages in order to purchase risky financial products for the benefit of the commissioned broker.” If you or a loved one has reason to be concerned with a sale or transfer of funds to purchase alternative or illiquid securities, or swing of more than 10{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of reported portfolio value in any account statement, please contact us to understand your potential options for recovery.

Breaking Foreclosure News

Oregon Supreme Court Paves Way for MERS to Foreclose Nonjudicially

The Oregon Supreme Court, in 2 cases (Brandrup v Recontrust, 353 Or___, and Niday v GMAC Mortgage, LLC, 353 Or ___[June 6, 2013]) has ruled that MERS (Mortgage Electronic Registration Systems) is not a Beneficiary of Trust Deeds and therefore cannot, in its own name, foreclose trust deeds by advertisement and Sale. However, the Court has also created a pathway for MERS to proceed with foreclosures by advertisement and sale in the future.

The Court ruled that assignments of the beneficial interest in the trust deed do not have to be recorded, to foreclose by advertisement and sale, if the assignment is by assignment of the Promissory Note that is secured by the trust deed. In addition, though MERS cannot act as a nominee for the lender once the lender has assigned the Note, it may have authority to act for the Lender and its successors, depending on the authority given to MERS in the first instance. Thus, if the documents between MERS, the lender and the lender’s successors give MERS the authority to act as the agent for the lender and its successors, even if that is not recorded in the real estate records, then MERS may proceed to foreclose by advertisement and sale. Depending on the nature of the documentation on the lender’s side of its relationship with MERS, MERS may be able to go back and proceed with foreclosure by advertisement and sale in the many cases which have been in a holding pattern since the Court of Appeals rulings in the cited cases. If the language is not adequate to provide the needed authority to act as an agent, it should be a relatively easy fix for MERS to create an appropriate authorization.