2007 Oregon Code - Chapter 59 :: Chapter 59 - Securities Regulation - Mortgage Bankers and Brokers
Chapter 59 Securities
Regulation; Mortgage Bankers and Brokers
2007 EDITION
SECURITIES; MORTGAGE BANKERS AND BROKERS
CORPORATIONS AND PARTNERSHIPS
(Generally)
59.005 Short
title
59.015 Definitions
for
59.025 Securities
exempt from registration
59.035 Transactions
exempt from registration
59.045 Authority
of director to deny, withdraw or condition exemptions
59.049 Federal
covered securities exempt from registration; notice filings; fees; rules
59.051 Statutory
references to federal law
(Registration of Securities)
59.055 Conditions
of offer and sale of securities
59.065 Registration
procedures; application; fees; rules
59.070 Amended
registration application; when required; fees
59.075 Registration
by director; expiration; renewal; fee; rules
59.085 Conditions
imposed on registration
59.095 Approval
of plan to issue securities in exchange for other securities, claims or
property
59.105 Denial,
suspension or revocation of registration
59.115 Liability
in connection with sale or successful solicitation of sale of securities;
recovery by purchaser; limitations on proceeding; attorney fees
59.125 Effect
of notice of offer to repay purchaser; exceptions; registration of transaction
59.127 Liability
in connection with purchase or successful solicitation of purchase of
securities; recovery by seller; limitations on proceeding; attorney fees
59.131 Effect
of notice of intent to return unlawfully purchased security; contents of
notice; registration of transaction
59.135 Fraud
and deceit with respect to securities or securities business
59.137 Liability
in connection with violation of ORS 59.135; damages; defense; attorney fees;
limitations on proceeding
59.145 Effect
of notice filing, registration or license
59.155 Director
is agent for service of process; manner of service; exceptions
(Licensing of Broker-Dealers, Investment Advisers
and Salespersons)
59.165 Licensing
of broker-dealers, investment advisers and salespersons required; rules
59.175 Procedures
for notice filing and licensing; rules; examination; bond, letter of credit or
other security; filing trade name or assumed business name; fees
59.185 Expiration
of license; rules for renewal; change in personnel
59.195 Licensees
to keep records; inspection; filing of financial reports
59.205 Grounds
for denying, suspending, revoking or imposing condition or restriction on
license
59.215 Action
against applicant or licensee for act or omission of associate; exceptions
59.225 Cancellation
of license or application; application for withdrawal; effect of suspension or
revocation
(Powers of Director)
59.235 General
supervision over persons dealing in securities
59.245 Investigations;
publicity with respect to violations; cease and desist order
59.255 Enjoining
violations; fine; appointment of receiver; attorney fees; damages to private
parties
59.265 Procedure
when assets or capital of broker-dealer or investment adviser found impaired;
involuntary liquidation
59.275 Burden
of proof
59.285 Rules;
financial statements
59.295 Notice
of orders; hearings on orders
59.305 Judicial
review of orders
59.315 Oaths
and subpoenas in proceedings before director
59.325 Certified
copies of documents; fee; effect of certification
(Enforcement by Attorney General)
59.331 Scope
of Attorney General powers; consent of director; powers of circuit court;
damages, restitution, disgorgement and other penalties
(Miscellaneous Provisions)
59.335 Application
of certain sections
59.345 When
offer to sell or buy is made in this state
59.350 Treatment
of certain transactions
59.355 Corporations
subject to other laws
59.365 Common-law
and statutory rights not limited
59.370 Limitation
on liability for good faith act or omission; reports regarding salespersons or
investment adviser representatives; limitation on liability related to reports;
rules
(Required Reports and Statements)
59.451 Prohibition
against filing false statement by person under investigation or examination
UNIFORM TOD SECURITY REGISTRATION ACT
59.535 Definitions
for ORS 59.535 to 59.585
59.540 Registration
in beneficiary form; sole or joint tenancy ownership
59.545 Registration
in beneficiary form; applicable law
59.550 Origination
of registration in beneficiary form
59.555 Form
of registration in beneficiary form
59.560 Effect
of registration in beneficiary form
59.565 Ownership
on death of owner
59.570 Protection
of registering entity
59.575 Nontestamentary
transfer on death
59.580 Terms,
conditions and forms for registration
59.585 Short
title; rules of construction
PROHIBITION OF CERTAIN SECURITY TRANSACTIONS
59.710 Definitions
for ORS 59.710 to 59.830
59.720 Application
of ORS 59.710 to 59.830 to real estate contracts and brokers
59.730 Making
contract involving securities without intending a bona fide sale or purchase
59.740 Conducting
bucket shop or repeatedly making forbidden contracts
59.750 Receipt
or communication of prices for purpose of forbidden contract
59.760 Reporting
false sale of securities with intent to deceive
59.770 Manipulating
market by pretended sales
59.780 Brokers
trading against customers order; violation of ORS 59.780 to 59.800 by member
of brokers firm
59.790 Insolvent
broker-dealer receiving securities from customer
59.800 Pledge
or sale by broker-dealer of customers securities
59.810 Delivery
to customer of true statement of purchase or sale made by broker
59.820 Actions
against corporation for second violation
59.830 Self-incrimination
by witness; immunity from prosecution
MORTGAGE BANKERS; MORTGAGE BROKERS; LOAN
ORIGINATORS
59.840 Definitions
for ORS 59.840 to 59.980
59.845 License
required to engage in residential mortgage transactions as mortgage banker or
mortgage broker
59.850 Procedures
for licensing; experience required; surety bond or letter of credit; fees;
rules
59.855 Expiration
of license; renewal; duration of renewed license; change in personnel; rules
59.860 Licensees
to keep records; inspection; filing of financial reports
59.865 Grounds
for denying, suspending, conditioning or revoking license
59.870 Action
against applicant or licensee for act or omission of associate; exception
59.875 Cancellation
of license or application; application for withdrawal
59.880 Supervisory
authority of director over mortgage bankers, mortgage brokers and loan
originators
59.885 Investigations;
publicity with respect to violations; cease and desist order
59.890 Enjoining
violations; fine; appointment of receiver; attorney fees; damages to private
parties
59.895 Procedures
where assets or capital of mortgage banker or broker found impaired;
involuntary liquidation
59.900 Rules;
financial statements
59.905 Notice
of orders; hearings on orders
59.910 Judicial
review of orders
59.915 Oaths
and subpoenas in proceedings before director
59.920 Copies
of documents; fees; effect of certification
59.925 Liability
of mortgage banker or mortgage broker; recovery of damages; limitations on
proceeding; action against bond or letter of credit; attorney fees
59.930 Fraud
and deceit with respect to mortgage banker or broker business
59.935 Clients
Trust Account; examination; deposit of funds; interest; rules
59.940 Notice
to bank regarding Clients Trust Account
59.945 Prohibited
advertisements
59.950 Designation
of principal place of business; other offices; change of personnel; registered
agent
59.955 Disclosure
required before closing mortgage loan or mortgage banking loan
59.960 Consultation
with licensees before rules adopted
59.962 Servicing
or collecting mortgage banking loan or mortgage loan by mortgage banker or
mortgage broker
59.967 Legislative
findings regarding loan originators; prohibited practice
59.969 List
of loan originators; qualifications; voluntary reporting; records; waiver;
rules
59.970 Qualifications
for insurance licensees acting as loan originators
59.971 Prohibited
conduct for loan originators; effect of criminal conviction; rules
59.972 Loan
originator criminal records checks; rules
59.973 Complaints
against loan originators; investigation; hearing; rules; action by director
59.975 Continuing
education requirements for loan originators; rules
59.977 Certification
of organizations to provide training for loan originators; rules
59.980 Short
title
PENALTIES
59.991 Criminal
penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions
59.992 Criminal
penalties for ORS 59.840 to 59.980
59.995 Civil
penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions
59.996 Civil
penalties for ORS 59.840 to 59.980
(Generally)
59.005
Short title. ORS 59.005 to
59.451, 59.991 and 59.995 may be cited as the Oregon Securities Law. [1967
c.537 §2]
59.010 [Repealed by 1967 c.537 §36]
59.015
Definitions for
(1) Broker-dealer means a person who
engages, all or part of the time, in effecting transactions in securities for
the account of others or for the persons own account. Broker-dealer does not
include:
(a) An issuer effecting sales in its own
securities;
(b) The following institutions:
(A) A financial institution or trust
company, as defined in ORS 706.008; or
(B) A financial holding company or a bank
holding company, as defined in ORS 706.008, holding an institution described in
subparagraph (A) of this paragraph; a savings and loan holding company as
defined in section 408 of the National Housing Act, 12 U.S.C. section 1730a,
holding an association described in subparagraph (A) of this paragraph; the
subsidiaries and affiliates of the financial holding company, bank holding
company or savings and loan holding company; or subsidiaries and affiliates of
institutions described in subparagraph (A) of this paragraph, if the
appropriate statutory regulatory authority is exercising control over, or is
regulating or supervising the person in the sale of securities in accord with
the purposes of the Oregon Securities Law;
(c) A person who has no place of business
in this state effecting transactions in this state exclusively with
broker-dealers;
(d) A person effecting sales exempted by
ORS 59.035;
(e) A salesperson;
(f) A person effecting sales of securities
owned by the person registered for sale pursuant to ORS 59.065;
(g) A person effecting sales of securities
exempted by ORS 59.025 (7);
(h) A person licensed as a mortgage banker
or a mortgage broker under ORS 59.840 to 59.980 when effecting sales of
securities involving real estate paper registered for sale pursuant to ORS
59.065; or
(i) A person designated by rule or order
by the director.
(2) Control means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
(3) Director means the Director of the
Department of Consumer and Business Services.
(4) Federal covered investment adviser
means a person who is registered as an investment adviser pursuant to section
203 of the Investment Advisers Act of 1940, as amended.
(5) Federal covered security means any
security that is a covered security under section 18 of the Securities Act of
1933, as amended, and for which such Act provides that the director may require
filing of a notice and payment of a fee.
(6) Fraud, deceit and defraud are
not limited to common-law deceit.
(7) Guaranteed means guaranteed as to
payment of principal, interest or dividends.
(8)(a) Investment adviser representative
means any partner, officer, director or person occupying a similar status or
performing a similar function, or other individual, except clerical or
ministerial personnel, who is employed by or associated with:
(A) A state investment adviser that is
licensed or required to be licensed in this state and who does any of the
following:
(i) Makes any recommendations or otherwise
renders advice regarding securities;
(ii) Manages accounts or portfolios of
clients;
(iii) Determines which recommendation or
advice regarding securities should be given;
(iv) Solicits, offers or negotiates for
the sale of or sells investment advisory services; or
(v) Supervises employees acting under this
subparagraph; or
(B) A federal covered investment adviser,
subject to the limitations of section 203A of the Investment Advisers Act of 1940,
as amended, as the director may designate by rule or order.
(b) Investment adviser representative
does not include a person designated by rule or order of the director.
(9) Issuer means a person who issues,
proposes to issue or has issued a security and includes an issuer to be formed.
With respect to certificates of deposit, voting-trust certificates or
collateral-trust certificates, or with respect to certificates of interest or
shares in an unincorporated investment trust not having a board of directors or
persons performing similar functions or of the fixed, restricted management or
unit type, the issuer is the person or persons performing the acts and
assuming the duties of depositor or manager pursuant to the provisions of the
trust or other instrument or agreement under which the security is issued.
(10) License means a license as provided
under the Oregon Securities Law.
(11) Mortgage banker means a mortgage
banker as defined in ORS 59.840.
(12) Mortgage broker means a mortgage broker
as defined in ORS 59.840.
(13) Offer or offer to sell includes
every attempt or offer to dispose of, or solicitation of an offer to buy, a
security or interest in a security for value. Every sale or offer of a warrant
or right to purchase or subscribe to another security of the same or another
issuer, as well as every sale or offer of a security which gives the holder a
present or future right or privilege to convert into another security of the
same or another issuer, is considered to include an offer of the other
security.
(14) Person includes an individual, a
joint venture, a partnership, a cooperative, a limited liability company, an
association, a joint stock company, a corporation, a trust, an unincorporated
organization or a government or political subdivision of a government.
(15) Real estate paper means any
obligation secured or purportedly secured by an interest in real property. Real
estate paper includes, but is not limited to, mortgage-backed securities,
collateralized mortgage obligations, and real estate mortgage investment
conduits.
(16) Registered means registered as
provided in the Oregon Securities Law.
(17)(a)
(b) For purposes of the authority of the
director under ORS 59.245 and 59.255, the terms sale and sell include the
terms offer and offer to sell.
(c)
(A) A bona fide pledge or loan of
securities;
(B) A bona fide security dividend, whether
the corporation distributing the dividend is the issuer of the security or not,
if nothing of value is given by the recipients for the dividend other than payments
in connection with the elimination of fractional shares; or
(C) An act incident to a judicially
approved reorganization in which a security is issued in exchange for one or
more outstanding securities, claims or property interests, or partly in such
exchange and partly for cash.
(18)(a) Salesperson means a person,
other than a broker-dealer, who represents or purports to represent a
broker-dealer, issuer or owner of securities in effecting or attempting to
effect in any manner transactions in securities.
(b) Salesperson does not include:
(A) A person who represents an issuer in
effecting sales in a security exempted by ORS 59.025;
(B) A person who represents an issuer in
effecting sales exempted by ORS 59.035;
(C) A person who represents an issuer in
effecting sales with existing partners or directors of the issuer, if no
commission or other remuneration is paid or given directly or indirectly for
soliciting any person in this state;
(D) An employee of an institution or
organization described in subsection (1)(b) of this section to the extent the
employee is not a dual employee of the institution and a broker-dealer;
(E) A person effecting transactions in
this state limited to those transactions described in section 15(h)(2) and (3)
of the Securities Exchange Act of 1934, as amended; or
(F) A person designated by rule or order
by the director.
(c) A person who is a partner, director or
officer of a broker-dealer, issuer or owner of securities, or a person who
occupies a similar status or performing similar functions, is a salesperson
only if the person otherwise comes within this definition.
(19)(a) Security means a note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in a pension plan or profit-sharing agreement,
collateral-trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate, variable
annuity, certificate of deposit for a security, certificate of interest or
participation in an oil, gas, or mining title or lease or in payments out of
production under such title or lease, real estate paper sold by a
broker-dealer, mortgage banker, mortgage broker or a person described in
subsection (1)(b) of this section to persons other than persons enumerated in
ORS 59.035 (4), or, in general, any interest or instrument commonly known as a security,
or any certificate of interest or participation in, temporary or interim
certificates for, receipt for, guarantee of, or warrant or right to subscribe
to or purchase any of the foregoing.
(b) Security does not include:
(A) An insurance or endowment policy or
annuity contract, other than a variable annuity contract, under which an
insurance company promises to pay a fixed or variable sum of money either in a
lump sum or periodically for life or some other specified period;
(B) A beneficial interest in a voluntary
inter vivos trust unless the trust is created solely for the purpose of voting
or is part of an attempt to evade the provisions of ORS 59.005 to 59.451; or
(C) A beneficial interest in a
testamentary trust.
(20)(a) State investment adviser means a
person who, for compensation:
(A) Engages all or part of the time of the
person, in this state, in the business of advising others, either directly or
by mail or through publication or writing, as to the value of securities or as
to the advisability of investing in, purchasing or selling securities;
(B) Engages all or part of the time of the
person, in this state, in the business of managing an investment or trading
account in securities for other persons; or
(C) Issues or promulgates, as part of a
regular business in this state, analyses or reports concerning securities.
(b) State investment adviser does not include:
(A) An investment adviser representative;
(B) An institution or organization
described in subsection (1)(b) of this section;
(C) A licensed broker-dealer whose
performance of investment advisory services is solely incidental to the conduct
of business as a broker-dealer and who receives no special compensation for
such services;
(D) A salesperson licensed to a
broker-dealer whose performance of investment advisory services is solely
incidental to that persons activities as a salesperson and who receives no
special compensation for such services;
(E) A publisher of or contributor to a
bona fide newspaper, newsmagazine, investment manual or service, or business or
financial publication of general, regular and paid circulation;
(F) A person whose only clients are
federal covered investment advisers, state investment advisers, broker-dealers,
mortgage bankers, mortgage brokers, banks, savings institutions or trust
companies, insurance companies, investment companies as defined in the
Investment Company Act of 1940, as amended, pension or profit-sharing trusts,
or other financial institutions or institutional buyers, whether acting for
themselves or as trustees;
(G) A duly licensed lawyer, engineer or
accountant whose performance of investment advisory services is solely
incidental to the practice of the profession;
(H) A person whose advice, analyses or
reports relate only to securities exempted by ORS 59.025 (1);
(I) A federal covered investment adviser
in compliance with ORS 59.165 (7);
(J) A person, advising others, that has no
place of business in this state and during the preceding 12-month period has
had fewer than six clients, other than those persons included in subparagraph
(F) of this paragraph, who are residents of this state; or
(K) Such other persons as the director may
by rule or order designate. [1967 c.537 §3; 1971 c.624 §1; 1971 c.641 §1; 1973
c.366 §1; 1975 c.491 §1; 1985 c.349 §1; 1987 c.414 §§69, 69a; 1987 c.603 §1;
1989 c.197 §1; 1991 c.5 §18; 1993 c.158 §1; 1993 c.508 §27; 1993 c.744 §13;
1995 c.93 §26; 1995 c.622 §11; 1997 c.631 §375; 1997 c.772 §1; 1999 c.53 §1;
1999 c.315 §1; 2001 c.104 §14; 2001 c.377 §39a; 2003 c.270 §1; 2007 c.393 §1]
59.020 [Repealed by 1967 c.537 §36]
59.025
Securities exempt from registration. The following securities are exempt from ORS 59.049 and 59.055:
(1)(a) A security issued or guaranteed by
the
(b) Any other security offered in
connection with or as part of the security set forth in paragraph (a) of this
subsection if the security cannot be severed and sold separately from the
security in paragraph (a) of this subsection.
(2) A security issued or guaranteed by a
foreign government with which the United States is at the time of the sale
maintaining diplomatic relations, or by a state, province or political
subdivision thereof having the power of taxation or assessment, if the security
is recognized as a valid obligation by such foreign government or state,
province or political subdivision thereof.
(3) A security that represents an interest
in or a direct obligation of or is guaranteed by a national bank, federal
savings and loan association, federal credit union or federal land bank or
joint stock land bank or national farm loan association.
(4) Any of the following securities:
(a) A security listed or approved for
listing upon notice of issuance on the New York Stock Exchange, the American
Stock Exchange, the Midwest Stock Exchange, the Pacific Stock Exchange or any
other exchange recognized by rule of the Director of the Department of Consumer
and Business Services;
(b) A security designated or approved for
designation upon notice of issuance under the National Association of
Securities Dealers Automated Quotation System, Inc. National Market System;
(c) Any other security of the issuer of a
security listed or designated under paragraph (a) or (b) of this subsection,
that is of senior or substantially equal rank to the listed or designated
security;
(d) A security issuable under rights or
warrants listed or approved under paragraph (a), (b) or (c) of this subsection;
or
(e) A warrant or right to purchase or
subscribe to any security referred to in paragraph (a), (b), (c) or (d) of this
subsection.
(5) A security maintaining a rating
approved by the director in a recognized securities manual.
(6) A security that represents an interest
in or a direct obligation of and that has been or is to be issued by a bank, trust
company, savings and loan association, or credit union, that is subject to the
examination, supervision and control of a regulatory agency of this state.
(7) Commercial paper issued, given or
acquired in a bona fide way in the ordinary course of legitimate business,
trade or commerce, when the commercial paper is not made the subject of a
public offering.
(8) A security, the issuance of which is
under supervision, regulation or control by the Public Utility Commission of
this state, if the Public Utility Commission is exercising control over, or is
regulating or supervising, the issuer thereof.
(9) Stock or membership certificates
issued by an agricultural cooperative corporation or irrigation association
when the stock is issued to evidence membership in the cooperative or
association or as a patronage dividend and certificates issued to members or
patrons by such a cooperative or association evidencing their respective
interests in reserves or as patronage dividends. This exemption shall not apply
to any cooperative or association that expects to engage in or is engaged in
the production, processing or marketing of forest products.
(10) Stock or membership certificates
issued by a fishing cooperative corporation, when the stock or certificates are
issued to members of the cooperative corporation either for the purpose of
showing membership in the cooperative corporation or for the purpose of showing
their respective interests in reserves or patronage dividends. For purposes of
this subsection, a fishing cooperative corporation is an association of persons
engaged commercially in harvesting, marketing or processing products of aquatic
life from fresh and salt water, that is formed or operated under ORS chapter 62
with the purpose of commercially harvesting, marketing or processing such
products or engaging in group bargaining with respect to the sale of such
products.
(11) Stock or membership certificates
issued by an association of consumers formed or operated under ORS chapter 62
with the purpose of providing groceries to its consumer members, when the stock
or certificates are issued to members either for the purpose of showing
membership in the association or for the purpose of showing their respective
interests in patronage dividends or reserves. For purposes of the exemption
under this subsection:
(a) The price of stock or a membership
certificate may not exceed $300.
(b) The benefits shall be limited to
discounts on purchases or patronage dividends, or any combination of such
discounts and dividends.
(c) The association may issue only one
stock or membership certificate to an individual.
(12) Any security issued in connection
with an employees stock purchase, savings, pension, profit sharing or similar
employees benefit plan, provided:
(a) That the plan meets the requirements
for qualification under section 401 of the Internal Revenue Code of 1986; and
(b) That the terms of the plan are fair,
just and equitable to employees under rules of the director.
(13) Any security issued by a person:
(a) Organized and operated exclusively for
religious, educational, benevolent, fraternal, charitable or reformatory
purpose and not for pecuniary profit, and no part of the net earnings of which
inures to the benefit of any person, private stockholder, or individual; and
(b) Designated by rule of the director.
(14) Any other security exempted by rule
of the director. [1967 c.537 §4; 1969 c.688 §1; 1973 c.428 §9; 1975 c.491 §2;
1985 c.193 §1; 1985 c.349 §2a; 1987 c.603 §1a; 1987 c.677 §9; 1989 c.171 §6; 1989
c.197 §2; 1991 c.67 §10; 1993 c.18 §14; 1997 c.772 §2]
59.030 [Repealed by 1967 c.537 §36]
59.035
Transactions exempt from registration. The following transactions are exempt from ORS 59.049 and 59.055 if
they are not part of an attempt to evade fraudulently any provision of the
Oregon Securities Law:
(1) Any transaction by a sheriff, marshal
or court appointed fiduciary.
(2) An isolated nonissuer transaction in
this state, whether effected through a broker-dealer or not.
(3) Any transaction by an issuer in its
securities pursuant to a pro rata offering to its existing security holders,
if:
(a) No commission or remuneration, other
than a standby fee, is paid or given directly or indirectly in connection with
the transaction; and
(b) The issuer has not had an effective
registration under the Oregon Securities Law nor has used this exemption within
one year prior to the date of the offering or sale.
(4) Any offer, sale, transfer or delivery
of securities to a bank, savings institution, trust company, insurance company,
investment company, pension or profit-sharing trust, or other financial
institution or institutional buyer (including but not limited to the Federal
National Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Federal Housing Administration, the United States Department of Veterans
Affairs and the Government National Mortgage Association), or to a
broker-dealer, mortgage broker or mortgage banker, whether the purchaser is
acting for itself or in a fiduciary capacity when the purchaser has
discretionary authority to make investment decisions.
(5) Any transaction by an offeror with an
accredited investor as defined in section 2 (15)(i) or (ii) of the Securities
Act of 1933, as amended, or rules of the Director of the Department of Consumer
and Business Services, but only if there is no public advertising or general
solicitation in connection with the transaction.
(6) The issue and delivery of any security
in exchange for any other security of the same issuer pursuant to a right of
conversion entitling the holder of the security surrendered in exchange to make
the conversion without the payment of additional consideration, if the security
surrendered was, when issued, convertible and registered or exempt from
registration.
(7) Any transaction in a vendors interest
in a land sale contract, or a bond or note secured by a mortgage or trust deed
upon real estate, so long as the entire vendors interest or mortgage or trust
deed, with all the bonds or notes secured thereby, are sold to a single
purchaser, in a single sale.
(8) Agency or principal sales by licensed
broker-dealers, executed upon customers orders on any exchange or on the
over-the-counter market, but not the solicitation of such orders, where there
is no intent to avoid the provisions of the Oregon Securities Law and a public
offering is not involved. Such broker-dealers shall keep and maintain, for two
years from the date of the order, a record of all the sales executed upon
customers orders, giving the name and address of each customer, the name and
identity of the security involved, the dates of the sales, the price paid or
received for the security, and the commission or other expenses charged to the
customer.
(9) The offer or sale by a licensed
broker-dealer of any security acquired in the ordinary and usual course of
business, when such security is a part of an issue which has been registered in
whole or in part, if the offer or sale is made in good faith and not directly
or indirectly for the benefit of the issuer or for the promotion of any scheme
or enterprise effecting a violation or an evasion of any provisions of the
Oregon Securities Law, unless:
(a) The registration has been revoked or
suspended; or
(b) The continued sale of the security has
been enjoined.
(10) The offer or sale by licensed
broker-dealer, acting either as principal or agent, of securities theretofore
sold and distributed to the public, if the sale meets the requirements of
paragraphs (a), (b) and (c) or (a), (b) and (d) of this subsection:
(a) Such securities are sold at prices
reasonably related to the current market price thereof at the time of sale,
and, if such licensed broker-dealer is acting as agent, the commission
collected by such licensed broker-dealer on account of the sale thereof is not
in excess of usual and customary commissions collected with respect to
securities and transactions having comparable characteristics;
(b) Such securities do not constitute an
unsold allotment to or subscription by such broker-dealer as a participant in
the distribution of such securities by the issuer or by or through an
underwriter;
(c) The issuer is listed in any recognized
securities manual approved by rule by the director, and the listing contains
the names of the issuers officers and directors, a balance sheet of the issuer
as of a date not more than 18 months prior to the date of such sale, and a
profit and loss statement for either the fiscal year preceding the date of the
balance sheet or the most recent year of operations; and
(d) The securities are authorized for
quotation on a nationwide automated quotations system approved by rule or order
of the director.
(11) An offer, but not the sale, of a
security meeting either of the following descriptions:
(a) A security for which registration
statements have been filed under both the Oregon Securities Law and the
Securities Act of 1933, as amended, if no stop or refusal order or order under
ORS 59.105 is in effect and no public proceeding or examination looking toward
such an order is pending. However, an offer for such a security may not be
accepted until the securities have been registered as provided in the Oregon
Securities Law.
(b) A security for which a registration
statement has been filed under the Oregon Securities Law and the offer is
allowed by the director. However, an offer for such a security may not be
accepted until the securities have been registered as provided in the Oregon
Securities Law.
(12)(a) Any transactions in securities by
an offeror within or without this state that meet all of the requirements of
subparagraph (A) or (B) of this paragraph and all of the requirements of
subparagraphs (C), (D) and (E) of this paragraph:
(A) When the offeror is an issuer, the
transactions result in not more than 10 purchasers within this state of
securities of the issuer during any 12 consecutive months.
(B) When the offeror is a nonissuer the
securities must have been bought and held for at least 12 consecutive months
and the transactions result in not more than 10 purchasers within this state of
securities from the nonissuer during any 12 consecutive months.
(C) No commission or other remuneration is
paid or given directly or indirectly in connection with the offer or sale of
the securities.
(D) No public advertising or general
solicitation is used in connection with any transaction under this exemption.
(E) At the time of any transaction under
this exemption the offeror does not have under the Oregon Securities Law an
application for registration or an effective registration of securities which
are part of the same offering.
(b) In connection with transactions under
paragraph (a) of this subsection:
(A) Purchasers of securities of the
offeror registered under ORS 59.065, exempt under ORS 59.025, exempt under any
other subsection of this section, or for which a notice has been filed under
ORS 59.049, are not counted as purchasers under this exemption.
(B) Repeat transactions with persons who
are counted as purchasers within
(C) No limitations are placed on the
number of transactions or purchasers without this state. No limitations are
placed on the number of offers under this exemption.
(13) A transaction with security holders,
pursuant to a statutory vote by such security holders on a merger,
consolidation, partial or complete liquidation, reclassification of securities,
plan of exchange or sale of assets, in consideration of the issuance of
securities of another issuer.
(14) Capital stock issued by a
professional corporation organized under ORS chapter 58.
(15) Any other transaction exempted by
rule of the director. [1967 c.537 §5; 1971 c.624 §2; 1973 c.823 §§91,156; 1985
c.349 §3; 1987 c.603 §2; 1989 c.197 §3; 1991 c.67 §11; 1997 c.772 §3; 2001 c.32
§1]
59.045
Authority of director to deny, withdraw or condition exemptions. (1) The Director of the Department of
Consumer and Business Services may by rule or order, as to any security or any
type of security transaction:
(a) Deny, withdraw or condition the
exemptions allowed by ORS 59.025 and 59.035 if, in the directors opinion, the
further sale of the security in this state would work a fraud or imposition
upon the purchaser.
(b) Waive the conditions of ORS 59.035
(3)(b) and (12)(a)(B).
(c) Provide which exemptions may or may
not be used in connection with other exemptions or provide procedures for
determining which offerings are or are not integrated with other offerings
within the same or other exemptions.
(2) The director may by order withdraw,
condition or deny the use of any exemption by a person if the director has
reason to believe that the person has engaged in or is about to engage in an
act or practice constituting a violation of the Oregon Securities Law or that
the use of any exemption by that person would work a fraud or imposition on
purchasers.
(3) No person shall be liable under the
Oregon Securities Law by reason of the withdrawal of an exemption under this
section if that person sustains the burden of proof that that person did not
know, and in the exercise of reasonable care could not have known of the
withdrawal. [1967 c.537 §6; 1973 c.366 §3; 1985 c.349 §4]
59.047 [1981 c.292 §2; 1985 c.349 §5; repealed by
1987 c.603 §30]
59.049
Federal covered securities exempt from registration; notice filings; fees;
rules. Federal covered
securities may be offered and sold in this state without registration, subject
to the following:
(1) Unless otherwise exempt from
registration under ORS 59.025 or 59.035, any federal covered security that is
subject to section 18(b)(2) of the Securities Act of 1933, as amended, may be
offered and sold only upon a filing of a notice with, and the payment of the
required fee to, the Director of the Department of Consumer and Business
Services. In lieu of the notice, an issuer may file a copy of its registration
statement as filed with the Securities and Exchange Commission together with
fees required under this subsection. The form of notice shall be prescribed by
the director. The director shall set the amount of the fee by rule. The fee is
not refundable. The effective date of the notice is the later of the date the
notice is received by the director or the date specified by the filer of the
notice.
(2) Unless otherwise exempt from
registration under ORS 59.025 or 59.035, any federal covered security that is
subject to section 18(b)(3) or (4), other than section 18(b)(4)(D), of the
Securities Act of 1933, as amended, may be offered and sold only upon a filing
of a notice with, and the payment of the required fee to, the director. The
form of notice shall be prescribed by the director. The director shall set the
fee by rule in an amount per $1,000 of the aggregate price of the securities
which are to be offered in this state. The fee is not refundable. The effective
date of the notice is the later of the date the notice is received by the
director or the date specified by the filer of the notice.
(3) Unless otherwise exempt from
registration under ORS 59.025 or 59.035, any federal covered security that is
subject to section 18(b)(4)(D) of the Securities Act of 1933, as amended, may
be offered and sold only upon a filing of a notice with, and the payment of the
required fee to, the director, not later than 15 days after the first sale of
such federal covered security in this state. The notice shall be filed on
Securities and Exchange Commission Form D or on a form of notice prescribed by
the director. The director shall set the fee by rule in an amount per $1,000 of
the aggregate price of the securities which are to be offered in this state.
The fee is not refundable. The effective date of the notice is the later of the
date the notice is received by the director or the date specified by the filer
of the notice.
(4)(a) The director shall set the fees
described in subsections (1) to (3) of this section in an amount that the
director determines is equal as nearly as possible to the national midpoint for
similar fees charged by all other state regulatory agencies within the
(b) The director may adjust the amount of
a fee described in subsections (1) to (3) of this section every two years to
reflect changes in the national midpoint for a similar fee.
(c) In determining the national midpoint
for similar fees under this section, the director may consider national
midpoints determined by the North American Securities Administrators Association,
the National Association of Securities Dealers or the United States Securities
and Exchange Commission.
(5) The director may issue an order
suspending the offer and sale of a federal covered security if the director
finds that there is a failure to comply with any requirement under this
section.
(6)(a) The filer of a notice under
subsections (1) to (3) of this section shall amend the notice when there is a
change in the name of the offering or, in the case of offerings for which
notice is filed pursuant to subsection (2) or (3) of this section, when there
is an increase in the aggregate price of the securities which are to be offered
in this state. There is no fee required for an amendment that does not increase
the aggregate offering amount. Notices amending the aggregate offering amount
shall include the fee calculated in accordance with subsection (2) or (3) of
this section, less amounts previously paid under the prior notice filing, but
the fee may not be less than $100. The fee is not refundable.
(b) If an issuer or person sells federal
covered securities in this state for a price in excess of the aggregate price
for which fees were initially paid under this section, the seller shall pay a
fee of three times the difference between the initial fee paid and the fee
required under this section for the federal covered securities sold in this
state. The additional fee may not be less than $100. The fee is not refundable.
(7) The director, by rule or otherwise,
may waive any or all of the provisions of this section. [1997 c.772 §6; 2001
c.104 §15; 2003 c.270 §2; 2003 c.785 §1]
59.050 [1981 c.292 §3; 1985 c.349 §6; repealed by
1987 c.603 §30]
59.051
Statutory references to federal law. References in ORS 59.005 to 59.451, 59.991 and 59.995 to federal
statutes or federal regulations shall be construed to refer to those statutes
or regulations as they are in effect on April 19, 1999. [1999 c.53 §8]
59.052 [1981 c.292 §4; 1985 c.349 §7; repealed by
1987 c.603 §30]
(Registration
of Securities)
59.055
Conditions of offer and sale of securities. It is unlawful for any person to offer or sell any security in this
state, unless:
(1) The security is registered and the
offer or sale is not in violation of any rule or order of the Director of the
Department of Consumer and Business Services or any condition, limitation or
restriction imposed by the director upon such registration;
(2) The security is exempt under ORS
59.025 or the sale is exempt under ORS 59.035; or
(3) The security is a federal covered security
for which a notice has been filed and fees have been paid under ORS 59.049. [1967
c.537 §7; 1997 c.772 §4]
59.065
Registration procedures; application; fees; rules. (1) The Director of the Department of
Consumer and Business Services by rule shall establish procedures for
registering securities. The director may coordinate registration in this state
with any federal securities Act or national registration system.
(2) Every registration application
submitted shall be accompanied by a fee. The director shall set the fee by rule
in an amount per $1,000 of the aggregate price of the securities that are to be
offered in this state. The fee is not refundable.
(3)(a) The director shall set the fee
described in subsection (2) of this section in an amount that the director
determines is equal as nearly as possible to the national midpoint for similar
fees charged by all other state regulatory agencies within the United States
responsible for regulating securities.
(b) The director may adjust the amount of the
fee described in subsection (2) of this section every two years to reflect
changes in the national midpoint for a similar fee.
(c) In determining the national midpoint
for similar fees under this section, the director may consider national
midpoints determined by the North American Securities Administrators
Association, the National Association of Securities Dealers or the United
States Securities and Exchange Commission.
(4) If a registrant sells securities in
Oregon in excess of the quantity registered or for a price in excess of the
aggregate price for which fees were initially paid, the registrant may obtain
registration of the excess securities by paying three times the difference
between the initial fee paid and the fee required under subsection (2) of this
section for the securities sold in Oregon. The additional fee may not be less
than $100. Registration of the excess securities shall be effective
retroactively to the date of sale. [1967 c.537 §8; 1973 c.366 §4; 1985 c.349 §8;
1987 c.603 §3; 1997 c.772 §7; 2003 c.270 §3; 2003 c.785 §2]
59.070
Amended registration application; when required; fees. (1) A registrant under ORS 59.065 shall
amend the registration application submitted under ORS 59.065 when there are
material changes in the terms and conditions of the original registration. Material
changes in the terms and conditions of the original registration includes an
increase in the aggregate amount of securities to be offered in
(2) Applications for an amendment to
increase the aggregate amount of securities to be offered in
(3) This section does not relieve a
registrant from the obligation to notify the director concerning material
changes in facts and circumstances concerning the offering. [1985 c.349 §10;
1987 c.603 §4; 2003 c.785 §3]
59.075
Registration by director; expiration; renewal; fee; rules. (1) The Director of the Department of
Consumer and Business Services shall register the securities unless the
director finds that registration should be denied on one or more of the grounds
specified in ORS 59.105. The securities may thereafter be sold in accordance
with the registration and any conditions, limitations or restrictions imposed
by the director.
(2) Every registration of securities and
every notice filed under ORS 59.049 shall expire one year after the date of the
registration or effective date of the notice. The director may establish a
different expiration date for purposes of coordination with any national
registration or notice filing system. When a registration or notice filing is
amended, the registration or notice filing expires one year after the date of
the initial registration or effective date of the notice filing unless the
amended registration or notice filing provides otherwise.
(3) The director by rule shall establish
procedures for renewing registrations of securities and notice filings.
(4) Every renewal application and every
renewal of a notice filing shall be accompanied by a fee computed in accordance
with ORS 59.049 or ORS 59.065 (2), as applicable. The fee is not refundable.
(5) If the director finds that no ground
for suspension or revocation of the registration exists under ORS 59.105, the
director shall renew the registration, subject to any conditions, limitations
and restrictions imposed by the director. The renewed registration or notice
filing shall expire one year after the date of expiration of the original
registration, or effective date of the notice filing or last renewal thereof.
The director may establish a different expiration date for purposes of
coordination with any national registration or notice filing system. [1967
c.537 §9; 1985 c.349 §12; 1987 c.603 §5; 1997 c.772 §8]
59.078 [1973 c.366 §8; repealed by 1987 c.603 §30]
59.085
Conditions imposed on registration. The Director of the Department of Consumer and Business Services may,
by rule or order, impose on a registration such conditions, limitations and
restrictions as the director deems appropriate to make the issue fair, just and
equitable, including the following:
(1) That a prospectus containing any
designated part of the information submitted in connection with registration be
sent or given to each person to whom a security is offered or sold.
(2) That the security be sold only on a
specified form of subscription or sale contract and that a signed or conformed
copy of each contract be filed with the director or preserved for a period up
to three years specified in the rule or order.
(3) That any of the following be deposited
in escrow on terms approved by the director:
(a) Any security issued or to be issued
for a consideration substantially different from the public offering price or
for a consideration other than cash.
(b) The proceeds from the sale of the
security until the issuer receives an amount specified by the director. [1967
c.537 §10]
59.095
Approval of plan to issue securities in exchange for other securities, claims
or property. (1) The
proponents of a plan pursuant to which a security is to be issued in exchange
for one or more bona fide outstanding securities, claims or property interests,
or partly in such exchange and partly for cash, except a security the issuance
of which is under supervision, regulation or control by the Public Utility
Commission of this state, may request approval of such plan by the Director of
the Department of Consumer and Business Services.
(2) The request for approval shall be made
by filing a registration statement, as provided in ORS 59.065, with a detailed
statement of the plan. The director shall set the plan down for hearing and
require the proponents of the plan to give notice of the hearing to all persons
to whom securities are to be issued in such exchange. All such persons shall
have the right to appear at the hearing.
(3) The director shall, after the hearing,
consider the fairness of the terms and conditions of the plan, and, if the
director finds that the plan is fair, just and equitable and free from fraud,
shall approve it, subject to such conditions, limitations and restrictions as
the director may impose. If the director finds that the plan is unfair, unjust
or inequitable or not free from fraud, the director shall deny the request, and
give notice of the denial, at the expense of the proponents, to all persons who
were entitled to receive or received notice of the hearing. [1967 c.537 §11]
59.105
Denial, suspension or revocation of registration. (1) Except as provided in subsection (2) of
this section, the Director of the Department of Consumer and Business Services
may by order deny, suspend or revoke any registration, if the director finds
that:
(a) The proposed plan of business of the
issuer, the characteristics and terms of sale of the securities to be sold, or
the proposed methods of sale and distribution are unfair, unjust or
inequitable;
(b) The issuer is insolvent or in unsound
financial condition;
(c) The applicant, registrant or issuer
has violated any of the provisions of the Oregon Securities Law, or any rule or
order of the director of which the applicant, registrant or issuer had notice;
(d) The applicant, registrant or issuer
has been or is engaged or is about to engage in dishonest or fraudulent conduct
with regard to securities;
(e) The applicant, registrant, or issuer
has been convicted of a misdemeanor, an essential element of which is fraud, or
of a felony;
(f) The applicant, registrant or issuer
has knowingly made or caused to be made to the director any false
representation of a material fact, or has suppressed or withheld from the
director any material information;
(g) The applicant, registrant or issuer
has refused to permit an examination to be made by the director, or has failed
to file any report, including any certified financial report, or furnish any
information required by the director in connection with the Oregon Securities
Law; or
(h) Unreasonable amounts or kinds of
commissions or other remunerations, promoters profits or participation or
unreasonable options have been or are to be given or allowed directly or
indirectly in connection with the sale or distribution of the securities.
(2) The director may enter an order
against the applicant, registrant or issuer under subsection (1) of this
section if any partner, officer or director of an applicant, registrant or
issuer, any person occupying a similar status or performing similar functions,
or any person directly or indirectly controlling the applicant, registrant or
issuer has been guilty of any act or omission which would be cause for denying,
suspending or revoking the registration of an individual applicant, registrant
or issuer, except:
(a) This subsection shall not apply to
subsection (1)(a) and (b) of this section.
(b) The director may not enter an order
suspending or revoking a registration under this subsection, pursuant to
subsection (1)(e) of this section, without 10 days prior written notice to the
registrant. [1967 c.537 §12; 1989 c.197 §4]
59.110 [Amended by 1953 c.690 §3; 1955 c.201 §1;
1957 c.47 §1; 1963 c.244 §1; 1965 c.241 §2; repealed by 1967 c.537 §36]
59.115
Liability in connection with sale or successful solicitation of sale of
securities; recovery by purchaser; limitations on proceeding; attorney fees. (1) A person is liable as provided in
subsection (2) of this section to a purchaser of a security if the person:
(a) Sells or successfully solicits the
sale of a security, other than a federal covered security, in violation of the
Oregon Securities Law or of any condition, limitation or restriction imposed
upon a registration or license under the Oregon Securities Law; or
(b) Sells or successfully solicits the
sale of a security in violation of ORS 59.135 (1) or (3) or by means of an
untrue statement of a material fact or an omission to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they are made, not misleading (the buyer not knowing of the untruth
or omission), and who does not sustain the burden of proof that the person did
not know, and in the exercise of reasonable care could not have known, of the
untruth or omission.
(2) The purchaser may recover:
(a) Upon tender of the security, the
consideration paid for the security, and interest from the date of payment
equal to the greater of the rate of interest specified in ORS 82.010 for
judgments for the payment of money or the rate provided in the security if the
security is an interest-bearing obligation, less any amount received on the
security; or
(b) If the purchaser no longer owns the
security, damages in the amount that would be recoverable upon a tender, less
the value of the security when the purchaser disposed of it and less interest
on such value at the rate of interest specified in ORS 82.010 for judgments for
the payment of money from the date of disposition.
(3) Every person who directly or
indirectly controls a seller liable under subsection (1) of this section, every
partner, limited liability company manager, including a member who is a
manager, officer or director of such seller, every person occupying a similar
status or performing similar functions, and every person who participates or
materially aids in the sale is also liable jointly and severally with and to
the same extent as the seller, unless the nonseller sustains the burden of
proof that the nonseller did not know, and, in the exercise of reasonable care,
could not have known, of the existence of facts on which the liability is
based. Any person held liable under this section shall be entitled to
contribution from those jointly and severally liable with that person.
(4) Notwithstanding the provisions of
subsection (3) of this section, a person whose sole function in connection with
the sale of a security is to provide ministerial functions of escrow, custody
or deposit services in accordance with applicable law is liable only if the
person participates or materially aids in the sale and the purchaser sustains
the burden of proof that the person knew of the existence of facts on which
liability is based or that the persons failure to know of the existence of
such facts was the result of the persons recklessness or gross negligence.
(5) Any tender specified in this section
may be made at any time before entry of judgment.
(6) Except as otherwise provided in this
subsection, no action or suit may be commenced under this section more than
three years after the sale. An action under this section for a violation of
subsection (1)(b) of this section or ORS 59.135 may be commenced within three
years after the sale or two years after the person bringing the action
discovered or should have discovered the facts on which the action is based,
whichever is later. Failure to commence an action on a timely basis is an
affirmative defense.
(7) An action may not be commenced under
this section solely because an offer was made prior to registration of the
securities.
(8) Any person having a right of action
against a broker-dealer, state investment adviser or against a salesperson or
investment adviser representative acting within the course and scope or
apparent course and scope of authority of the salesperson or investment adviser
representative, under this section shall have a right of action under the bond
or irrevocable letter of credit provided in ORS 59.175.
(9) Subsection (4) of this section shall
not limit the liability of any person:
(a) For conduct other than in the circumstances
described in subsection (4) of this section; or
(b) Under any other law, including any
other provisions of the Oregon Securities Law.
(10) Except as provided in subsection (11)
of this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(11) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (10) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32. [1967 c.537 §13(1), (2), (3), (4), (5), (7); 1985 c.349 §13;
1987 c.158 §10; 1987 c.603 §6; 1989 c.197 §5; 1991 c.331 §15; 1991 c.762 §1;
1993 c.508 §28; 1995 c.93 §27; 1995 c.696 §9; 1997 c.772 §9; 2003 c.576 §318;
2003 c.631 §1; 2003 c.786 §1]
59.120 [Amended by 1955 c.196 §1; 1957 c.116 §1;
1963 c.244 §2; repealed by 1967 c.537 §36]
59.125
Effect of notice of offer to repay purchaser; exceptions; registration of
transaction. (1) Except as
provided in subsection (3) of this section, no action or suit may be commenced
under ORS 59.115 if the purchaser has received before suit a written notice as
outlined in subsection (2) of this section.
(2) The notice shall contain:
(a) An offer to pay the amount specified
in ORS 59.115 (2)(a) upon tender of the security; and
(b) A statement of the effect on the
purchasers rights of failure to respond as required in subsection (3) of this
section.
(3) An action or suit under this section
may be commenced after receipt of a notice as outlined in subsection (2) of
this section:
(a) If the purchaser owned the security
when the notice was received, accepted the payment offer within 30 days after
its receipt, and has not been paid the full amount offered; or
(b) If the purchaser did not own the
security when the notice was received and, within 30 days after receipt, gave
written notice of inability to tender back the security.
(4) An offer to repay the purchaser
pursuant to this section involves the offer or sale of a security. The
transaction must be registered under ORS 59.055 unless there is an exemption
from the registration requirement or a notice is filed under ORS 59.049. [1967
c.537 §13(6); 1985 c.349 §14; 1997 c.772 §10]
59.127
Liability in connection with purchase or successful solicitation of purchase of
securities; recovery by seller; limitations on proceeding; attorney fees. (1) A person is liable as provided in
subsection (2) of this section to the person selling the security, if the
person:
(a) Purchases or successfully solicits the
purchase of a security, other than a federal covered security, in violation of
any condition, limitation or restriction imposed upon a registration under the
Oregon Securities Law; or
(b) Purchases or successfully solicits the
purchase of a security in violation of ORS 59.135 (1) or (3) or by means of an
untrue statement of a material fact or an omission to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading (the seller not knowing of the
untruth or omission), and if the person does not sustain the burden of proof
that the person did not know, and in the exercise of reasonable care could not
have known, of the untruth or omission.
(2) The seller may recover:
(a) Upon a tender of the consideration
paid for the security, the security plus interest from the date of purchase
equal to the greater of the rate of interest specified in ORS 82.010 for
judgments for the payment of money, or the rate provided in the security if the
security is an interest-bearing obligation;
(b) Damages in the amount that would be
recoverable upon a tender, plus any amount received on the security, less the
consideration paid for the security; or
(c) If the purchaser no longer owns the
security, damages equal to the value of the security when the purchaser
disposed of it plus interest on such value at the rate of interest specified in
ORS 82.010 for judgments for the payment of money from the date of disposition,
less the consideration paid for the security.
(3) Every person who directly or
indirectly controls a purchaser liable under subsection (1) of this section,
every partner, limited liability company manager, including a member who is a
manager, officer or director of such purchaser, every person occupying a
similar status or performing similar functions, and every person who
participates or materially aids in the purchase is also liable jointly and
severally with and to the same extent as the purchaser, unless the nonpurchaser
sustains the burden of proof that the nonpurchaser did not know, and, in the
exercise of reasonable care, could not have known, of the existence of facts on
which the liability is based. Any person held liable under this section shall
be entitled to contribution from those jointly and severally liable with the
person.
(4) Notwithstanding the provisions of
subsection (3) of this section, a person whose sole function in connection with
the purchase of a security is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is liable only if
the person participates or materially aids in the purchase and the seller
sustains the burden of proof that the person knew of the existence of facts on
which liability is based or that the persons failure to know of the existence
of such facts was the result of the persons recklessness or gross negligence.
(5) Any tender specified in this section
may be made at any time before entry of judgment.
(6) Except as otherwise provided in this
subsection, no action or suit may be commenced under this section more than
three years after the purchase. An action under this section for a violation of
subsection (1)(b) of this section or ORS 59.135 may be commenced within three
years after the purchase or two years after the person bringing the action
discovered or should have discovered the facts on which the action is based,
whichever is later. Failure to commence an action on a timely basis is an
affirmative defense.
(7) Any person having a right of action
against a broker-dealer, state investment adviser or against a salesperson or
investment adviser representative acting within the course and scope or
apparent course and scope of the authority of the salesperson or investment
adviser representative, under this section shall have a right of action under
the bond or irrevocable letter of credit provided in ORS 59.175.
(8) Subsection (4) of this section shall
not limit the liability of any persons:
(a) For conduct other than in the
circumstances described in subsection (4) of this section; or
(b) Under any other law, including any
other provisions of the Oregon Securities Law.
(9) Except as provided in subsection (10)
of this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(10) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (9) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32. [1975 c.300 §2; 1985 c.349 §14a; 1987 c.158 §11; 1987
c.603 §7; 1991 c.762 §2; 1993 c.508 §29; 1995 c.93 §28; 1995 c.696 §10; 1997
c.772 §11; 2003 c.576 §319; 2003 c.631 §2; 2003 c.786 §2]
59.130 [Amended by 1953 c.549 §138; repealed by
1967 c.537 §36]
59.131
Effect of notice of intent to return unlawfully purchased security; contents of
notice; registration of transaction. (1) Except as provided in subsection (3) of this section, no action or
suit may be commenced under ORS 59.127 if the seller has received before suit a
written notice of intent to return the security as outlined in subsection (2)
of this section.
(2) The notice shall contain:
(a) An offer to tender the security and
interest from the date of purchase, at a rate equal to the greater of the rate
of interest specified in ORS 82.010 for judgments for the payment of money or
the rate provided in the security if the security is an interest-bearing
obligation, less the consideration paid for the security; and
(b) A statement of the effect on the
sellers rights of failure to respond as required in subsection (3) of this
section.
(3) An action or suit under this section
may be commenced after receipt of a notice as outlined in subsection (2) of
this section:
(a) If the seller accepts the offer and
gives notice of acceptance within three days after receipt of the offer and
fails to receive the contents of such offer as specified in subsection (2)(a)
of this section within one day from the date the notice of acceptance was sent;
or
(b) If the seller elects to recover
damages as specified in subsection (2)(b) of this section and gives notice of
the election within 30 days after receipt of the offer.
(4) An offer to tender the security
pursuant to this section involves the offer for sale of a security. The transaction
must be registered under ORS 59.055 unless there is an exemption from the
registration requirement or a notice is filed under ORS 59.049. [1975 c.300 §3;
1985 c.349 §15; 1987 c.603 §8; 1997 c.772 §12; 2003 c.576 §320]
59.135
Fraud and deceit with respect to securities or securities business. It is unlawful for any person, directly or
indirectly, in connection with the purchase or sale of any security or the
conduct of a securities business or for any person who receives any
consideration from another person primarily for advising the other person as to
the value of securities or their purchase or sale, whether through the issuance
of analyses or reports or otherwise:
(1) To employ any device, scheme or
artifice to defraud;
(2) To make any untrue statement of a
material fact or to omit to state a material fact necessary in order to make
the statements made, in the light of the circumstances under which they are
made, not misleading;
(3) To engage in any act, practice or
course of business which operates or would operate as a fraud or deceit upon
any person; or
(4) To make or file, or cause to be made
or filed, to or with the Director of the Department of Consumer and Business
Services any statement, report or document which is known to be false in any
material respect or matter. [1967 c.537 §14]
59.137
Liability in connection with violation of ORS 59.135; damages; defense;
attorney fees; limitations on proceeding. (1) Any person who violates or materially aids in a violation of ORS
59.135 (1), (2) or (3) is liable to any purchaser or seller of the security for
the actual damages caused by the violation, including the amount of any
commission, fee or other remuneration paid, together with interest at the rate
specified in ORS 82.010 for judgments for the payment of money, unless the
person who materially aids in the violation sustains the burden of proof that
the person did not know and, in the exercise of reasonable care, could not have
known of the existence of the facts on which the liability is based.
(2) Any person who directly or indirectly
controls a person liable under subsection (1) of this section and every
partner, limited liability company manager, including a member who is a
manager, officer or director or a person occupying a status or performing
functions of a person liable under subsection (1) of this section, is jointly
and severally liable to the same extent as a person liable under subsection (1)
of this section, unless the person who may be liable under this subsection
sustains the burden of proof that the person did not know and, in the exercise
of reasonable care, could not have known of the existence of the facts on which
the liability is based.
(3) Any person held liable under this
section is entitled to contribution from those persons jointly and severally
liable with that person.
(4) Except as provided in subsection (5)
of this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(5) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (4) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32.
(6) An action or suit may be commenced
under this section within the later of:
(a) Three years after the date of the
purchase or sale of a security to which the action or suit relates; or
(b) Two years after the person bringing
the action or suit discovered or should have discovered the facts on which the
action or suit is based.
(7) Failure to commence an action or suit
under this section on a timely basis is an affirmative defense. [2003 c.631 §4;
2003 c.786 §3]
59.140 [Repealed by 1967 c.537 §36]
59.145
Effect of notice filing, registration or license. (1) Neither the fact that a notice filing or
an application for registration or a license under the Oregon Securities Law
has been filed nor the fact that a person is effectively licensed or a security
is effectively registered constitutes a finding by the Director of the Department
of Consumer and Business Services that any document filed under the Oregon
Securities Law is true, complete and not misleading. Neither such fact nor the
fact that an exemption or exception is available for a security or a
transaction means that the director has passed in any way upon the merits or
qualifications of, or recommended or given approval to, any person, security or
transaction.
(2) It is unlawful to make, or cause to be
made, to a prospective purchaser, customer or client a representation inconsistent
with subsection (1) of this section. [1967 c.537 §15; 1989 c.197 §6; 1997 c.772
§13]
59.150 [Amended by 1957 c.45 §1; repealed by 1967
c.537 §36]
59.155
Director is agent for service of process; manner of service; exceptions. (1) The Director of the Department of
Consumer and Business Services shall be an agent for the following persons upon
whom may be served at any time any process, notice or demand in a civil
proceeding under the Oregon Securities Law, including a proceeding brought by the
director:
(a) Every licensee or registrant or
applicant for a license or registration of a security, every person who files a
notice under ORS 59.049 or 59.175, and every person who offers or sells a
security in this state, directly or indirectly, unless the security or the sale
is exempt from ORS 59.055; and
(b) Every person, a resident or
nonresident of this state, who has engaged in conduct prohibited or made
actionable under the Oregon Securities Law.
(2) Service shall be made by:
(a) Serving the director or a clerk on
duty at the Department of Consumer and Business Services a copy of the process,
notice or demand, with any papers required by law to be delivered in connection
with the service, or by mailing to the department a copy of the process, notice
or demand by certified or registered mail, and a $2 fee for each party being
served;
(b) Transmittal by the person instituting
the proceeding of notice of the service on the director and one copy of the
process, notice or demand and accompanying papers to the person being served by
certified mail:
(A) At such persons address, if any, as
shown by the records of the director; and
(B) At such address the use of which the
person initiating the proceedings knows or on the basis of reasonable inquiry has
reason to believe is most likely to result in actual notice; and
(c) Filing with the appropriate court or
other body, as part of the return of service, of the return receipt of mailing
and an affidavit of the person initiating the proceedings that this section has
been complied with.
(3) The procedure permitted by this
section shall not be available when personal jurisdiction can otherwise be
obtained in this state.
(4) After completion of initial service
upon the director, no additional documents need be served upon the director to
maintain jurisdiction in the same proceeding or to give notice of any motion or
provisional process. [1967 c.537 §16; 1987 c.603 §9; 1989 c.197 §7; 1997 c.772 §14]
59.160 [Repealed by 1967 c.537 §36]
(Licensing of
Broker-Dealers, Investment Advisers and Salespersons)
59.165
Licensing of broker-dealers, investment advisers and salespersons required;
rules. (1) It is unlawful
for any person to transact business in this state as a broker-dealer or
salesperson unless the person is licensed under the Oregon Securities Law.
(2) A broker-dealer or state investment
adviser may not be licensed in this state unless the broker-dealer or state
investment adviser has at least one salesperson licensed in this state.
(3) It is unlawful for a broker-dealer or
issuer or owner of securities to employ a salesperson to act in this state
unless the salesperson is licensed under the Oregon Securities Law to the
broker-dealer or issuer or owner of securities. Only a natural person may be licensed
as a salesperson.
(4) It is unlawful for:
(a) A state investment adviser to employ
an investment adviser representative in this state unless the investment
adviser representative is licensed under the Oregon Securities Law to the state
investment adviser;
(b) A federal covered investment adviser
to employ an investment adviser representative who has a place of business in
this state to act in this state unless the investment adviser representative is
licensed under the Oregon Securities Law to the federal covered investment
adviser; or
(c) An individual, except as otherwise
provided in subsection (8) of this section, to transact business in this state
as an investment adviser representative unless the individual is licensed as an
investment adviser representative. Only a natural person may be licensed as an
investment adviser representative.
(5) A person may not be licensed as:
(a) A salesperson or investment adviser
representative for more than one broker-dealer, federal covered investment
adviser, state investment adviser or issuer or owner of securities at the same
time, except as may be allowed by rule or order of the Director of the
Department of Consumer and Business Services.
(b) A salesperson or investment adviser
representative unless the person is employed by a broker-dealer, federal
covered investment adviser, state investment adviser or issuer or owner of
securities.
(6) It is unlawful for any person to
transact business in this state as a state investment adviser unless the
person:
(a) Is licensed as such under the Oregon
Securities Law; or
(b) Is licensed as a broker-dealer without
the imposition of a condition under ORS 59.215 (4).
(7) Except for federal covered investment
advisers whose activities are described by ORS 59.015 (20)(b) and licensed
broker-dealers transacting business as federal covered investment advisers in
this state, it is unlawful for any federal covered investment adviser to
conduct an advisory business in this state unless such person makes notice
filings with the director of such documents filed with the Securities and
Exchange Commission as the director may by rule or otherwise require and pays
the fee, including the notice filing fee, described in ORS 59.175. The director
may issue an order suspending the conduct of an investment advisory business in
this state if the director finds that there is a failure to comply with any
requirement under this section.
(8) Notwithstanding any other provision of
this section, an individual performing the activities of an investment adviser
representative and who would otherwise be required to be licensed as an
investment adviser representative is not required to be separately licensed as
an investment adviser representative if:
(a) The individual is licensed to a
licensed broker-dealer, the broker-dealer is transacting business as a federal
covered investment adviser or a state investment adviser under the provisions
of subsection (6)(b) of this section and the person is performing investment
adviser activities on behalf of the broker-dealer; or
(b) The individual is licensed to a
licensed broker-dealer and the broker-dealer directly receives all compensation
otherwise earned by the person in connection with the investment advisory
activities being transacted in this state. The broker-dealer may or may not
further distribute any or all compensation received to the licensed
salesperson. [1967 c.537 §17; 1973 c.366 §5; 1985 c.349 §16; 1987 c.603 §10;
1989 c.197 §8; 1993 c.508 §30; 1995 c.622 §12; 1997 c.772 §15; 1999 c.53 §2; 2003
c.270 §4; 2003 c.785 §5]
59.170 [Amended by 1961 c.352 §1; repealed by 1967
c.537 §36]
59.175
Procedures for notice filing and licensing; rules; examination; bond, letter of
credit or other security; filing trade name or assumed business name; fees. (1) The Director of the Department of
Consumer and Business Services by rule shall establish procedures for notice
filings required of federal covered investment advisers as well as procedures
for licensing broker-dealers, state investment advisers, investment adviser
representatives and salespersons. The director may coordinate notice filings or
licensing with any national registration, licensing or notice filing system.
(2) The director may require an applicant
for a license as a broker-dealer or state investment adviser, including the
applicants partners, directors, officers or any person occupying a similar
status or performing similar functions, and any person directly or indirectly
controlling such applicant and a person for whom application for a license as a
salesperson or investment adviser representative is made, to pass an
examination on such persons knowledge and understanding of the Oregon
Securities Law and the securities business. The director may establish by rule
a fee for the examination.
(3) The director may make such further
examination of the applicant and the applicants affairs as the director deems
advisable and may require by rule or order that the applicant publish an
announcement of the application in such manner as the director may specify.
(4)(a) Except as otherwise provided in
paragraph (b) or (c) of this subsection, every applicant for a license as a
broker-dealer or state investment adviser shall file with the director a
corporate surety bond or irrevocable letter of credit issued by an insured
institution as defined in ORS 706.008 or such other security as the director
may approve by rule running to the State of Oregon in a sum to be established
by rule of the director, but in no event more than $100,000.
(b) Licensed broker-dealers subject to
section 15 of the Securities Exchange Act of 1934, as amended, are not required
to comply with paragraph (a) of this subsection, nor are such licensed
broker-dealers required to comply with any net capital requirements imposed by
the director by rule or otherwise.
(c) A licensed state investment adviser
who has its principal place of business in a state other than this state shall
be exempt from the requirements of paragraph (a) of this subsection and shall
be further exempt from any net capital requirements imposed by the director by
rule or otherwise, provided that any such licensed state investment adviser is
registered or licensed as a state investment adviser in the state where it
maintains its principal place of business and is in compliance with such states
bonding or net capital requirements.
(5)(a) Subject to paragraph (b) of this
subsection, if the application, surety bond, irrevocable letter of credit or
other security and fees are in order and the director is satisfied that the
application should not be denied upon one or more of the grounds specified in
ORS 59.205 to 59.225, the director shall license the broker-dealer, state
investment adviser, salesperson or investment adviser representative.
(b) If the director determines under ORS
59.205 or 59.215 that a condition or restriction should apply to the license,
the director, at the time the license is issued, shall specify in writing to
the licensee the condition or restriction applicable to the license.
(6) A licensee under ORS 59.165 shall
amend the license application when there are material changes in the
information contained in the original application.
(7) An applicant for or a person holding a
license issued under ORS 59.005 to 59.451 may file with the director a trade
name, as defined in ORS 647.005, or an assumed business name, as defined in ORS
648.005. The trade name or assumed business name shall be filed in a form and
manner established by rule by the director. If the application is complete and
the fee described in subsection (8) of this section is paid, the director shall
issue an order authorizing the licensee to operate under the trade name or
assumed business name. The order shall remain in effect until canceled,
suspended or revoked.
(8) The director shall charge and collect
fees for:
(a) An application for a license as a
broker-dealer or state investment adviser;
(b) An application to renew a license as a
broker-dealer or state investment adviser;
(c) An application for a license as a
salesperson;
(d) An application to renew a license as a
salesperson;
(e) An application for a license as an
investment adviser representative;
(f) An application to renew a license as
an investment adviser representative;
(g) A notice filing for a federal covered
investment adviser;
(h) A notice filing renewal for a federal
covered investment adviser; and
(i) A filing for use of a trade name or an
assumed business name.
(9)(a) The director shall set the fees
described in subsection (8) of this section in an amount that the director
determines is equal as nearly as possible to the national midpoint for similar
fees charged by all other state regulatory agencies within the United States
responsible for regulating securities.
(b) The director may adjust the amount of
a fee described in subsection (8) of this section every two years to reflect
changes in the national midpoint for a similar fee.
(c) In determining the national midpoint
for similar fees under this section, the director may consider national
midpoints determined by the North American Securities Administrators
Association, the National Association of Securities Dealers or the United
States Securities and Exchange Commission.
(10) Except as provided in this
subsection, the fees under this section are not refundable. The director may
provide for a method of equitably adjusting the payment of fees for
broker-dealers, federal covered investment advisers, state investment advisers,
salespersons and investment adviser representatives when the director determines
that the changes in filing periods and expiration dates under ORS 59.185 are
not equitable for the person making the payment. [1967 c.537 §18; 1969 c.137 §4;
1971 c.624 §3; 1985 c.349 §17; 1987 c.603 §11; 1989 c.197 §9; 1991 c.331 §16;
1993 c.508 §31; 1997 c.631 §376; 1997 c.772 §16; 1999 c.53 §3; 2001 c.32 §2;
2003 c.270 §5; 2003 c.785 §4]
59.180 [Amended by 1957 c.48 §1; repealed by 1967
c.537 §36]
59.185
Expiration of license; rules for renewal; change in personnel. (1) Every license of a broker-dealer or
state investment adviser expires one year after the date of issuance unless the
Director of the Department of Consumer and Business Services establishes a
different expiration date for purposes of coordination with any national
registration or licensing system.
(2)(a) Every license of an issuers or
owners salesperson expires when the securities are no longer authorized for
sale or one year after the date of issuance, whichever is sooner.
(b) Unless the director establishes a
different expiration date for the purposes of coordination with any national
registration or licensing system, every license of a salesperson licensed to a
broker-dealer and every license of an investment adviser representative
licensed to a state investment adviser expires on the same date that the
license of the broker-dealer or state investment adviser expires.
(c) Unless the director establishes a
different expiration date for the purposes of coordination with any national
registration or licensing system, every license of an investment adviser
representative licensed on behalf of a federal covered investment adviser
expires the earlier of one year after the date of issuance or the date the
notice of the federal covered investment adviser expires.
(3) The director by rule shall establish
procedures for renewing licenses of broker-dealers, state investment advisers,
investment adviser representatives and salespersons, and for the annual renewal
of notice filings made on behalf of federal covered investment advisers.
(4) If there is a change in the partners,
directors, officers, persons occupying similar positions or performing similar
functions, or persons directly or indirectly controlling a broker-dealer or
state investment adviser, written notification of such change shall promptly be
filed with the director. No fee shall be required for such notification. An
examination may be required of any such individual who is newly connected with
or interested in the licensee. [1967 c.537 §19 (1), (2), (3); 1969 c.137 §5;
1985 c.349 §18; 1987 c.603 §12; 1989 c.197 §10; 1993 c.508 §32; 1997 c.772 §17;
1999 c.59 §14; 2003 c.270 §6]
59.190 [Repealed by 1967 c.537 §36]
59.193 [1973 c.366 §9; 1975 c.491 §3; 1985 c.349 §19;
repealed by 1987 c.603 §30]
59.195
Licensees to keep records; inspection; filing of financial reports. (1) Subject to the provisions of section 15
of the Securities Exchange Act of 1934, as amended, and section 222 of the
Investment Advisers Act of 1940, as amended, every broker-dealer, state
investment adviser, investment adviser representative and salesperson shall
make and keep such accounts, correspondence, memoranda, papers, books and other
records as the Director of the Department of Consumer and Business Services by
rule or order prescribes. All such records of state investment advisers or
investment adviser representatives maintained in this state shall be preserved
for three years unless the director by rule prescribes otherwise. The director
may examine all such records within or without this state at any reasonable
time or times and may, without subpoena require the production of such records
at the office of the director as often as is reasonably necessary and, in any
event, during consideration of any application for licensing or during any
proceeding under ORS 59.205 to 59.225.
(2) Subject to the provisions of section
15 of the Securities Exchange Act of 1934, as amended, and section 222 of the
Investment Advisers Act of 1940, as amended, every broker-dealer, state
investment adviser, investment adviser representative and salesperson shall
file with the director such financial reports or other information as the
director by rule or order may require. Licensed broker-dealers, state
investment advisers, investment adviser representatives and salespersons shall
promptly amend any document filed with the director which is or becomes
incomplete or inaccurate in any material respect. Federal covered investment
advisers shall promptly amend any document otherwise required to be filed with
the director when the federal covered investment adviser is required to file an
amendment with the United States Securities and Exchange Commission.
(3) A state investment adviser that has
its principal place of business in a state other than this state, and the
investment adviser representatives of such a state investment adviser, shall be
exempt from the requirements of subsection (1) of this section provided that
the state investment adviser is registered as a state investment adviser in the
state where it has its principal place of business and is in compliance with
all such states requirements relating to accounts and records.
(4)(a) Every broker-dealer and salesperson
of such broker-dealer shall file with the director only such financial reports
or other information as is otherwise required to be filed with the United
States Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended.
(b) Every state investment adviser that
has its principal place of business in a state other than this state, and the
investment adviser representatives of the state investment adviser, shall file
with the director only the financial reports or other information that is
required by the state in which the state investment adviser maintains its
principal place of business, provided the state investment adviser is licensed
in such state and is in compliance with all of such states reporting
requirements. [1967 c.537 §19(4), (5); 1985 c.349 §20; 1987 c.603 §13; 1989
c.197 §11; 1993 c.508 §33; 1997 c.772 §18]
59.200 [Amended by 1955 c.198 §1; 1957 c.58 §1;
1959 c.280 §1; repealed by 1967 c.537 §36]
59.205
Grounds for denying, suspending, revoking or imposing condition or restriction
on license. Except as
provided in ORS 59.215, the Director of the Department of Consumer and Business
Services may by order deny, suspend or revoke, or impose conditions or
restrictions on, a license of a person as a broker-dealer, state investment
adviser, investment adviser representative or salesperson if the director finds
that the applicant or licensee:
(1) Is insolvent, either in the sense that
the liabilities of the applicant or licensee exceed the assets of the applicant
or licensee or that the applicant or licensee cannot meet the obligations of
the applicant or licensee as they mature, or is in such financial condition
that the applicant or licensee cannot continue in business with safety to the
customers of the applicant or licensee.
(2) Has engaged in dishonest, fraudulent
or illegal practices or conduct in any business or profession or unfair or
unethical practices or conduct in connection with the purchase or sale of any
security.
(3) Has willfully or repeatedly violated
or failed to comply with any provision of the Oregon Securities Law, any
condition or restriction imposed on a license or any rule or order of the
director.
(4) Has been convicted of a misdemeanor an
essential element of which is fraud or of a felony.
(5) Is not qualified to conduct a
securities business on the basis of such factors as training, experience and
knowledge of the securities business.
(6) Has filed an application for a license
which as of the date the license was issued, or as of the date of an order
conditioning, restricting, denying, suspending or revoking a license, was
incomplete in any material respect or contained any statement which was, in
light of the circumstances under which it was made, false or misleading with
respect to any material fact.
(7) Has failed to account to persons
interested for all money or property received.
(8) Has not delivered after a reasonable
time, to persons entitled thereto, securities held or to be delivered.
(9) Is permanently or temporarily enjoined
by a court of competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the securities business.
(10) Is the subject of an order of the
director conditioning, restricting, denying, suspending or revoking a license
as a broker-dealer, state investment adviser, investment adviser representative
or salesperson.
(11) Is the subject of an order of the
director under:
(a) ORS chapter 645 involving a violation
of any provision of the Oregon Commodity Code or any rule or order of the
director adopted or entered under ORS chapter 645; or
(b) ORS 59.840 to 59.980 involving a
violation of any provision of ORS 59.840 to 59.980 or any rule or order of the
director adopted or entered under ORS 59.840 to 59.980.
(12) Is the subject of any of the
following orders that are currently effective and were issued within the last
five years:
(a) An order by the securities agency or
administrator of another state or Canadian province or territory, or by the
Securities and Exchange Commission, entered after notice and opportunity for
hearing, denying, suspending or revoking the persons registration or license
as a broker-dealer, federal covered investment adviser, state investment
adviser, investment adviser representative or salesperson, or the substantial
equivalent of those terms as defined in the Oregon Securities Law;
(b) A suspension or expulsion from
membership in or association with a member of a self-regulatory organization
registered under the Securities Exchange Act of 1934, as amended, the Commodity
Exchange Act or the Investment Advisers Act of 1940, as amended;
(c) A United States Postal Service fraud
order;
(d) A cease and desist order entered after
notice and opportunity for hearing by the director, the securities agency or
administrator of another state or a Canadian province or territory, the
Securities and Exchange Commission or the Commodity Futures Trading Commission;
or
(e) An order by the Commodity Futures
Trading Commission denying, suspending or revoking registration under the
Commodity Exchange Act.
(13) Has failed, reasonably to supervise
the salespersons or investment adviser representatives of the applicant or
licensee.
(14) Has failed to comply with the
requirements of ORS 59.195 to make and keep records prescribed by rule or order
of the director, to produce such records required by the director or to file
any financial reports or other information the director by rule or order may
require. [1967 c.537 §20(1); 1969 c.137 §6; 1985 c.349 §21; 1987 c.603 §14;
1989 c.197 §12; 1993 c.508 §34; 1997 c.772 §19; 2001 c.32 §3; 2003 c.270 §7]
59.210 [Amended by 1955 c.179 §1; repealed by 1963
c.244 §3 (59.211 enacted in lieu of 59.210)]
59.211 [1963 c.244 §4 (enacted in lieu of 59.210);
repealed by 1967 c.537 §36]
59.215
Action against applicant or licensee for act or omission of associate;
exceptions. The Director of
the Department of Consumer and Business Services may enter an order against the
applicant or licensee under ORS 59.205 if any partner, officer or director of a
broker-dealer or state investment adviser, any person occupying a similar
status or performing similar functions, or any person directly or indirectly
controlling the broker-dealer or state investment adviser has been guilty of
any act or omission which would be cause for conditioning, restricting,
denying, suspending or revoking the license of an individual broker-dealer,
state investment adviser or salesperson, except as follows:
(1) This section shall not apply to any
issuer of a federal covered security, a federal covered investment adviser or
to ORS 59.205 (1).
(2) The director may not enter an order
against a broker-dealer or state investment adviser on the basis of the lack of
qualification under ORS 59.205 (5) of any person other than:
(a) The broker-dealer or state investment
adviser if the broker-dealer or state investment adviser is an individual; or
(b) A salesperson of the broker-dealer or
investment adviser representative of the state investment adviser.
(3) The director may not enter an order
solely on the basis of lack of experience if the applicant or licensee is
qualified by training or knowledge or both.
(4) If the director finds that an
applicant for an initial license or a license renewal as a broker-dealer is not
qualified as a state investment adviser, the director may condition the
applicants license as a broker-dealer upon its not transacting business in
this state as a state investment adviser. [1967 c.537 §20(2); 1985 c.349 §22;
1987 c.603 §15; 1989 c.197 §13; 1993 c.508 §35; 1997 c.772 §20; 2001 c.32 §4]
59.220 [Repealed by 1967 c.537 §36]
59.225
Cancellation of license or application; application for withdrawal; effect of
suspension or revocation.
(1) If the Director of the Department of Consumer and Business Services finds
that an applicant or licensee has ceased to do business as a broker-dealer,
state investment adviser, investment adviser representative or salesperson, or
has failed to maintain a bond or other security required by ORS 59.175 (4) or
is subject to an adjudication of mental incompetence or to the control of a
committee, conservator or guardian, or cannot be located after reasonable
search, the director may cancel the license or application.
(2)(a) A broker-dealer, state investment
adviser, investment adviser representative or salesperson may withdraw a
license by filing an application to withdraw. Unless the director determines
that the license should be suspended or revoked, the director shall allow the
withdrawal subject to any conditions, limitations and restrictions the director
may impose.
(b) A federal covered investment adviser
may terminate a notice filing pursuant to ORS 59.165 (7) by providing the
director with written notice of such termination in accordance with the
procedures established by the director.
(3) When an investment adviser
representative of a federal covered investment adviser begins or terminates an
association with such federal covered investment adviser, the federal covered
investment adviser or investment adviser representative shall promptly notify
the director in writing in accordance with the procedures established by the
director.
(4) The suspension of a license of a
broker-dealer or state investment adviser shall suspend the license of any
salesperson of the broker-dealer or the license of any investment adviser
representative of the state investment adviser. The revocation, cancellation,
withdrawal or expiration of a license of a broker-dealer or state investment
adviser shall cancel the license of any salesperson of the broker-dealer or the
license of any investment adviser representative of the state investment
adviser.
(5) The suspension of a registration of
securities suspends the license of any salesperson licensed to the issuer or
owner of the securities. The revocation, cancellation, withdrawal or expiration
of the registration of securities cancels the license of any salesperson
licensed to the issuer or owner of the securities. [1967 c.537 §20(3), (4),
(5); 1985 c.349 §23; 1987 c.603 §16; 1989 c.197 §14; 1993 c.508 §36; 1997 c.772
§21]
59.230 [Repealed by 1967 c.537 §36]
(Powers of
Director)
59.235
General supervision over persons dealing in securities. Subject to section 18 of the Securities Act
of 1933, as amended, section 15 of the Securities Exchange Act of 1934, as
amended, and sections 203A and 222 of the Investment Advisers Act of 1940, as amended,
the Director of the Department of Consumer and Business Services shall have
general supervision and control over all issuers, registrants of securities,
broker-dealers, federal covered investment advisers, state investment advisers,
investment adviser representatives and salespersons residing or doing business
in this state and engaged in any activity with respect to securities or any
aspect of the securities business. All such persons and their records and
everything connected with their activities shall be subject to examination by
the director at any time. The provisions of this section and of any section of
the Oregon Securities Law relating to examinations shall extend to any person
who should have been licensed as a broker-dealer, state investment adviser,
investment adviser representative or salesperson, any person exempted by rule
from those definitions or any person whose license has expired or has been
withdrawn, canceled, suspended or revoked. The director may collect from each
such person the actual expenses incurred in that examination. [1967 c.537 §21;
1985 c.349 §24; 1987 c.603 §17; 1989 c.197 §15; 1993 c.508 §37; 1997 c.772 §22]
59.240 [Repealed by 1955 c.198 §2]
59.245
Investigations; publicity with respect to violations; cease and desist order. The Director of the Department of Consumer
and Business Services:
(1) May make such public or private
investigations within or outside this state as the director deems necessary to
determine whether a person has violated or is about to violate any provision of
the Oregon Securities Law or any rule or order of the director, or to aid in
the enforcement of the Oregon Securities Law or in the formulation of rules and
forms thereunder;
(2) May require or permit a person to file
a statement in writing, under oath or otherwise as the director determines, as
to all the facts and circumstances concerning the matter to be investigated;
(3) May publish information concerning any
violation of the Oregon Securities Law or any rule or order of the director;
and
(4) If the director has reason to believe
that any person has engaged, is engaging or is about to engage in any violation
of the Oregon Securities Law, may issue an order, subject to ORS 59.295,
directed to the person to cease and desist from the violation or threatened
violation. [1967 c.537 §22; 1973 c.366 §6; 1999 c.315 §2; 2007 c.71 §14]
59.250 [Amended by 1963 c.244 §5; repealed by 1967
c.537 §36]
59.255
Enjoining violations; fine; appointment of receiver; attorney fees; damages to
private parties. (1)
Whenever it appears to the Director of the Department of Consumer and Business
Services that a person has engaged, is engaging or is about to engage in an act
or practice constituting a violation of any provision of the Oregon Securities
Law or any rule or order of the director, the director may bring suit in the
name and on behalf of the State of Oregon in the circuit court of any county of
this state to enjoin the acts or practices and to enforce compliance with the
Oregon Securities Law or such rule or order. Upon a proper showing, a permanent
or temporary injunction, restraining order or writ of mandamus shall be
granted.
(2) The court may fine the person against
whom the order is entered not more than $20,000 for each violation, which shall
be entered as a judgment and paid to the General Fund of the State Treasury.
Each violation is a separate offense. In the case of a continuing violation,
each days continuance is a separate violation, but the maximum penalty for any
continuing violation shall not exceed $100,000. If the court finds that the
defendant has violated any provision of the Oregon Securities Law or any such
rule or order, the court may appoint a receiver, who may be the director, for
the defendant or the defendants assets. The court may not require the director
to post a bond.
(3) The court may award reasonable
attorney fees to the director if the director prevails in an action under this
section. The court may award reasonable attorney fees to a defendant who
prevails in an action under this section if the court determines that the
director had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial court.
(4) The director may include in any action
authorized by this section:
(a) A claim for restitution or damages
under ORS 59.115, 59.127 or 59.137, on behalf of the persons injured by the act
or practice constituting the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the court finds
that enforcement of the rights of such persons by private civil action, whether
by class action or otherwise, would be so burdensome or expensive as to be
impractical; or
(b) A claim for disgorgement of illegal gains
or profits derived. Any recovery under this paragraph shall be turned over to
the General Fund of the State Treasury unless the court requires other
disposition.
(5) The provisions of this section do not
apply to:
(a) A failure to file a notice and pay a
fee pursuant to ORS 59.049 (1), (2) or (3);
(b) A failure to file a notice and pay a
fee pursuant to ORS 59.165 (7);
(c) A failure to pay a fee pursuant to ORS
59.175 (8); or
(d) A violation of any rule adopted by the
director pursuant to ORS 59.049 (1), (2) or (3), 59.165 (7) or 59.175 (8). [1967
c.537 §23; 1971 c.394 §1; 1975 c.300 §4; 1981 c.897 §10; 1985 c.349 §26; 1995
c.696 §11; 1997 c.772 §23; 1999 c.53 §4; 1999 c.315 §3; 2003 c.631 §5]
59.260 [Repealed by 1967 c.537 §36]
59.265
Procedure when assets or capital of broker-dealer or investment adviser found
impaired; involuntary liquidation. (1) When the Director of the Department of Consumer and Business
Services ascertains that the assets or capital of any broker-dealer not
otherwise registered under section 15 of the Securities Exchange Act of 1934,
as amended, or state investment adviser that has its principal place of
business in this state are impaired, or that such persons affairs are in an
unsound condition, the director may take possession of all the property,
business and assets of such person located in this state and retain possession
of them pending the further proceedings specified in this section. The director
shall inventory the assets and liabilities of such person. The director shall
file one copy of the inventory in the office of the director and one copy in
the office of the clerk of the circuit court of the county in which the
principal place of business of such person is located, and shall mail one copy
to each shareholder or partner of such person at the last-known address of the
shareholder or partner. The clerk of the court shall file the inventory as a
pending proceeding and give it a case number.
(2) If any person refuses to permit the
director to take such possession, the director may apply to the circuit court
of the county in which the principal place of business of such person is
located for an order appointing a receiver, who may be the director, to take
such possession.
(3) If the deficiency in assets or capital
has not been made good or the unsound condition remedied within 60 days from
the date when the director or receiver took possession, the property, business
and assets of such person located in this state shall be liquidated. If a
receiver has not been appointed, the director shall apply for such appointment
by the court in which the inventory was filed. The liquidation shall proceed as
provided by law for liquidation of a private corporation in receivership.
(4) The expenses of the receiver and
compensation of counsel, as well as all expenditures required in the
liquidation proceedings, shall be fixed by the director, subject to the
approval of the court, and, upon certification by the director, shall be paid
out of the funds in the hands of the director as such receiver. [1967 c.537 §24;
1987 c.603 §18; 1993 c.508 §38; 1997 c.772 §24; 2003 c.576 §186]
59.275
Burden of proof. It is not
necessary to negative any of the exemptions or classifications provided in the
Oregon Securities Law in a complaint, action, information, indictment or other
writ or proceeding laid or brought under the Oregon Securities Law; and the
burden of proof of an exemption or classification shall be upon the party
claiming the benefit of such exemption or classification. [1967 c.537 §25]
59.285
Rules; financial statements.
(1) In accordance with this section and ORS chapter 183 the Director of the
Department of Consumer and Business Services may from time to time make, amend
and rescind such rules as are necessary to carry out the provisions of the
Oregon Securities Law. The director may classify securities, persons and
matters within the jurisdiction of the director, and prescribe different
requirements for different classes.
(2) No rule may be made, amended or
rescinded unless the director finds that the action is necessary or appropriate
in the public interest or for the protection of investors and consistent with
the purposes fairly intended by the provisions of the Oregon Securities Law.
(3) Except as provided in subsection (4)
of this section, all financial statements required by the Oregon Securities Law
shall be prepared in accordance with generally accepted accounting principles.
The director may by rule prescribe:
(a) The form and content of financial
statements required under the Oregon Securities Law;
(b) The circumstances under which
consolidated financial statements shall be filed; and
(c) Whether any required financial
statements shall be certified by independent or certified public accountants.
(4) Subsection (3) of this section does
not apply to any broker-dealer that is subject to the financial reporting
requirements of the Securities Exchange Act of 1934, as amended, to any federal
covered investment adviser or to any state investment adviser that has its principal
place of business outside this state and is registered with the state in which
the state investment advisers principal place of business is located. [1967
c.537 §28; 1987 c.603 §19; 1997 c.772 §25]
59.295
Notice of orders; hearings on orders. (1) Except as provided in ORS 183.745, upon the entry of an order
under the Oregon Securities Law, the Director of the Department of Consumer and
Business Services shall promptly give appropriate notice of the order as
provided in this subsection. The notice shall state that a hearing will be held
on the order if a written demand for hearing is filed with the director within
20 days after the date of service of the order. The notice shall be given to:
(a) The issuer and applicant or registrant
affected thereby with respect to orders entered pursuant to ORS 59.085 and
59.105;
(b) The applicant or licensee and any
investment adviser representative or salesperson affected thereby with respect
to orders entered pursuant to ORS 59.205; or
(c) All interested persons with respect to
orders entered pursuant to any other provision of the Oregon Securities Law,
except ORS 59.095.
(2) If timely demand for a hearing is
filed by a person entitled to notice of the order, the director shall hold a
hearing on the order as provided by ORS chapter 183. In the absence of a timely
demand for a hearing, no person shall be entitled to judicial review of the
order.
(3) After the hearing, the director shall
enter a final order vacating, modifying or affirming the order.
(4) The director may enter a final order
revoking a license or registration notwithstanding the fact that the license or
registration has expired, if the initial order of revocation was issued prior
to expiration of the license or registration. [1967 c.537 §26; 1985 c.349 §27;
1987 c.603 §22; 1989 c.197 §16; 1991 c.734 §2d; 1997 c.772 §26]
59.305
Judicial review of orders.
(1) A person aggrieved by an order of the Director of the Department of
Consumer and Business Services which has been the subject of a timely application
for hearing before the director shall be entitled to judicial review of the
order under ORS chapter 183.
(2) A judgment of a reviewing court under
ORS chapter 183 may not bar the director from thereafter vacating or modifying
an order involved in the proceeding for review, or entering any new order, for
a proper cause which was not decided by the reviewing court. [1967 c.537 §27;
2003 c.576 §321]
59.310 [Amended by 1957 c.46 §1; 1961 c.352 §2;
1963 c.244 §6; repealed by 1967 c.537 §36]
59.315
Oaths and subpoenas in proceedings before director. (1) For the purpose of an investigation or
proceeding under the Oregon Securities Law, the Director of the Department of
Consumer and Business Services may administer oaths and affirmations, subpoena
witnesses, compel their attendance, take evidence and require the production of
books, papers, correspondence, memoranda, agreements or other documents or
records which the director deems relevant or material to the inquiry. Each
witness who appears before the director under a subpoena shall receive the fees
and mileage provided for witnesses in ORS 44.415 (2).
(2) If a person fails to comply with a
subpoena so issued or a party or witness refuses to testify on any matters, the
judge of the circuit court or of any county, on the application of the
director, shall compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such court or a
refusal to testify therein. [1967 c.537 §29; 1989 c.980 §5a]
59.320 [Amended by 1961 c.352 §3; repealed by 1967
c.537 §36]
59.325
Certified copies of documents; fee; effect of certification. (1) The Director of the Department of
Consumer and Business Services shall furnish to any person, upon payment of a
fee established by rule, copies (certified if requested) of any document which
is a matter of public record. In a proceeding or prosecution under the Oregon
Securities Law, a copy so certified shall be prima facie evidence of the
contents of the entry or document certified.
(2) A certificate of the director as to
compliance or noncompliance with licensing or registration provisions of the
Oregon Securities Law shall be taken and received in a civil or criminal
proceeding in this state as prima facie evidence of the facts stated in the
certificate. [1967 c.537 §30; 1987 c.603 §23; 1989 c.197 §17]
59.330 [Amended by 1961 c.280 §6; repealed by 1967
c.537 §36]
(Enforcement
by Attorney General)
59.331
Scope of Attorney General powers; consent of director; powers of circuit court;
damages, restitution, disgorgement and other penalties. (1) Subject to subsection (2) of this
section and after providing notice and an opportunity to participate to the
Director of the Department of Consumer and Business Services, the Attorney
General may:
(a) Make public or private investigations
within or outside this state as the Attorney General considers necessary to:
(A) Determine whether a person has
violated or is about to violate any provision of the
(B) Aid in the enforcement of the Oregon
Securities Law or any rule or order of the director adopted or issued under the
Oregon Securities Law.
(b) Require or permit a person to file a
statement in writing, under oath or otherwise as the Attorney General
determines, as to all the facts and circumstances concerning a matter to be
investigated.
(c) Administer oaths and affirmations,
subpoena witnesses, compel the attendance of witnesses, take evidence and
require the production of books, papers, correspondence, memoranda, agreements
or other documents or records that the Attorney General considers relevant or
material to an investigation.
(d) Bring suit in the name and on behalf
of the State of
(A) Enjoin any acts or practices the
Attorney General has reason to believe that a person has engaged, is engaging
or is about to engage in that constitute a violation of any provision of the
Oregon Securities Law or any rule or order of the director adopted or issued
under the Oregon Securities Law; or
(B) Enforce compliance with the Oregon
Securities Law or any rule or order of the director adopted or issued under the
Oregon Securities Law.
(2) The Attorney General may take action
under subsection (1) of this section only in connection with any of the
following alleged violations or cases:
(a) Alleged violations involving companies
whose securities are listed on the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers Automated Quotation
System, Inc. National Market System;
(b) Cases in which the Attorney General is
pursuing or intends to pursue an investigation or litigation under ORS 166.715
to 166.735;
(c) Cases in which the Attorney General is
pursuing or intends to pursue an investigation or litigation under ORS 646.605
to 646.652; or
(d) Cases in which the Attorney General is
pursuing or intends to pursue an investigation or litigation under ORS 646.705
to 646.805.
(3) The Attorney General may take action
under subsection (1) of this section with respect to cases described in
subsection (2)(b), (c) or (d) of this section only after receiving the directors
consent. The director may elect to be a named party in any action the Attorney
General takes.
(4) Each witness who appears before the
Attorney General under a subpoena issued under this section shall receive the
fees and mileage provided for witnesses in ORS 44.415 (2). If a person fails to
comply with a subpoena issued under this section or if a party or witness
refuses to testify on any matters, the judge of the circuit court of any
county, on the application of the Attorney General, shall compel obedience by
proceedings for contempt as in the case of disobedience of the requirements of
a subpoena issued from the court or a refusal to testify in the court.
(5) In an action brought under this
section, a court:
(a) Shall grant a permanent or temporary
injunction, restraining order or writ of mandamus upon a proper showing by the
Attorney General under subsection (1)(d) of this section.
(b) May award reasonable attorney fees to:
(A) The Attorney General if the Attorney
General prevails in an action under this section.
(B) A defendant if the defendant prevails
in an action under this section and the court determines that the Attorney
General had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial court.
(6) The Attorney General may include any
of the following in an action authorized by this section:
(a) A claim for restitution or damages
under ORS 59.115, 59.127 or 59.137, on behalf of the persons injured by the act
or practice constituting the subject matter of the action. If the court finds
that enforcement of the rights of the injured persons by private civil action,
whether by class action or otherwise, would be so burdensome or expensive as to
be impractical, the court has jurisdiction to award appropriate relief to the
injured persons.
(b) A claim for disgorgement of illegal
gains or profits derived. The Attorney General shall deposit any moneys
recovered under this paragraph in the General Fund of the State Treasury unless
the court requires other disposition.
(c) A claim for the appointment of a
receiver of any property derived by means of any act or practice that
constitutes a violation of any provision of the Oregon Securities Law or any
rule or order of the director adopted or issued under the Oregon Securities Law
and of any books of account and papers relating to the property. Property for
which a receiver may be appointed includes other property with which the
property derived by means of a violation has been commingled if the property
cannot be identified in kind because of the commingling. The receiver shall
take possession of the property, books and papers and shall liquidate the
property for the benefit of all persons who intervene in the action and
establish an interest in the property. Subject to the approval of the court,
the expenses and attorney fees of the receiver and any expenditures required in
the liquidation proceeding shall be paid out of the funds of the receivership.
The receiver may be the Attorney General. The court may not require the
Attorney General to post a bond.
(d) A claim for a fine of not more than
$20,000 for each violation. The fine shall be entered as a judgment and paid to
the General Fund of the State Treasury. Each violation is a separate offense.
In the case of a continuing violation, each days continuance is a separate
violation, but the maximum penalty for any continuing violation may not exceed
$100,000.
(7) This section does not apply to:
(a) A failure to file a notice and pay a
fee under ORS 59.049 (1), (2) or (3);
(b) A failure to file a notice and pay a
fee under ORS 59.165 (7);
(c) A failure to pay a fee under ORS
59.175 (8);
(d) A violation of any rule adopted by the
director under ORS 59.165 (7); or
(e) A company that the director has
licensed under ORS 59.165. [2007 c.481 §2]
(Miscellaneous
Provisions)
59.335
Application of certain sections. (1) ORS 59.055, 59.115, 59.125, 59.145 and 59.165 (1) apply to persons
who sell or offer to sell when:
(a) An offer to sell is made in this
state; or
(b) An offer to buy is made and accepted
in this state.
(2) ORS 59.145 and 59.165 (1) apply to
persons who buy or offer to buy when:
(a) An offer to buy is made in this state;
or
(b) An offer to sell is made and accepted
in this state.
(3) ORS 59.135, 59.145 and 59.165, insofar
as federal covered investment advisers or state investment advisers are
concerned, apply when an act instrumental in effecting prohibited conduct is
done in this state, whether or not either party is then present in this state. [1967
c.537 §31(1), (2), (6); 1987 c.603 §29; 1997 c.772 §27; 2003 c.631 §6; 2005
c.22 §39]
59.340 [Amended by 1963 c.244 §7; repealed by 1967
c.537 §36]
59.345
When offer to sell or buy is made in this state. (1) For the purpose of ORS 59.335, an offer
to sell or to buy is made in this state, whether or not either party is then
present in this state, when the offer:
(a) Originates from this state; or
(b) Is directed by the offeror to this
state and received at the place to which it is directed (or at any post office
in this state in the case of a mailed offer).
(2)(a) For the purpose of ORS 59.335, an
offer to buy or to sell is accepted in this state when acceptance:
(A) Is communicated to the offeror in this
state; and
(B) Has not previously been communicated
to the offeror, orally or in writing, outside this state.
(b) Acceptance is communicated to the
offeror in this state, whether or not either party is then present in this
state, when the offeree directs it to the offeror in this state reasonably
believing the offeror to be in this state and it is received at the place to
which it is directed (or at any post office in this state in the case of a
mailed acceptance).
(3) An offer to sell or to buy is not made
in this state solely because:
(a) A publisher circulates or there is
circulated on behalf of the publisher in this state any bona fide newspaper or
other publication of general, regular, and paid circulation that is not
published in this state, or that is published in this state but has had more
than two-thirds of its circulation outside this state during the past 12
months; or
(b) A radio or television program
originating outside this state is received in this state. [1967 c.537 §31(3),
(4), (5)]
59.350
Treatment of certain transactions. For purposes of ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and
59.995:
(1) A transaction with a husband and wife
is treated as a transaction with one person. The securities may be held jointly
or individually.
(2) A transaction with an entity is treated
as a transaction with one person. However, if an entity is formed substantially
for the purpose of acquiring the securities that are offered, each security
holder shall be counted as a separate person. [1985 c.349 §11]
59.355
Corporations subject to other laws. Nothing in the Oregon Securities Law relieves a corporation from
making reports required by law to be made to the Director of the Department of
Consumer and Business Services or to any other state officer, or from paying
the fees to be paid by corporations. The
(1) Does not repeal any law regulating the
organization of corporations in this state or the admission of any foreign
corporation.
(2) Is additional to any provisions
regulating the organization of a corporation under the laws of this state or
the admission of a foreign corporation to do business in this state. [1967
c.537 §32]
59.365
Common-law and statutory rights not limited. Nothing in the Oregon Securities Law limits any statutory or
common-law right of a person to bring an action in any court for an act
involved in the sale of securities, or the right of the state to punish a
person for a violation of any law. [1967 c.537 §33]
59.370
Limitation on liability for good faith act or omission; reports regarding
salespersons or investment adviser representatives; limitation on liability related
to reports; rules. (1)
Provisions of the Oregon Securities Law imposing civil or criminal liability do
not apply to an act done or omitted in good faith in conformity with a rule or
order of the Director of the Department of Consumer and Business Services,
notwithstanding that the rule or order may later be amended or rescinded or be
determined by judicial or other authority to be invalid for any reason.
(2) A broker-dealer, federal covered
investment adviser or state investment adviser shall report information to the
director regarding salespersons or investment adviser representatives licensed
to the broker-dealer, federal covered investment adviser or state investment adviser.
The director, by rule, shall establish the reporting requirements under this
subsection. In adopting rules under this subsection, the director shall
consider and to the greatest extent practicable adopt the applicable public
reporting requirements of the National Association of Securities Dealers, Inc.,
and the federal Securities and Exchange Commission.
(3) A broker-dealer, federal covered
investment adviser or state investment adviser is not liable in any civil
action by or on behalf of a salesperson or an investment adviser
representative, including counterclaims, third-party claims or cross-claims,
that is related to an alleged untrue statement made in connection with a report
made under subsection (2) of this section, unless the salesperson or investment
adviser representative shows by clear and convincing evidence that:
(a) The broker-dealer, federal covered
investment adviser or state investment adviser knew at the time the report was
made that the report contained a statement regarding the salesperson or
investment adviser representative that was false in any material respect; or
(b) The broker-dealer, federal covered
investment adviser or state investment adviser acted in reckless disregard as
to the statements truth or falsity. [1987 c.603 §21; 2001 c.434 §1]
59.375 [1967 c.537 §34; repealed by 1987 c.603 §30]
59.405 [1971 c.641 §3; 1975 c.491 §4; repealed by
1987 c.603 §30]
59.410 [Repealed by 1967 c.537 §36]
59.415 [1971 c.641 §4; 1981 c.897 §11; repealed by
1987 c.603 §30]
59.420 [Repealed by 1967 c.537 §36]
59.425 [1971 c.641 §5; repealed by 1987 c.603 §30]
59.430 [Repealed by 1967 c.537 §36]
59.435 [1971 c.641 §6; 1981 c.897 §12; repealed by
1987 c.603 §30]
59.440 [Repealed by 1967 c.537 §36]
59.445 [1971 c.641 §7; repealed by 1987 c.603 §30]
59.450 [Repealed by 1967 c.537 §36]
(Required
Reports and Statements)
59.451
Prohibition against filing false statement by person under investigation or
examination. It is unlawful
for any person who is the subject of an investigation under ORS 59.245 or
examination under ORS 59.235, directly or indirectly, to make or file or cause
to be made or filed with the Director of the Department of Consumer and
Business Services any statement, report or document which is false in any
material respect or manner. [1985 c.349 §25]
59.510 [Repealed by 1967 c.537 §36]
59.520 [Repealed by 1967 c.537 §36]
59.530 [Repealed by 1967 c.537 §36]
UNIFORM TOD
SECURITY REGISTRATION ACT
59.535
Definitions for ORS 59.535 to 59.585. For the purposes of ORS 59.535 to 59.585, unless the context otherwise
requires:
(1) Beneficiary form means a
registration of a security which indicates the present owner of the security
and the intention of the owner regarding the person who will become the owner
of the security upon the death of the owner.
(2) Devisee means any person designated
in a will to receive a disposition of real or personal property.
(3) Heirs means those persons, including
the surviving spouse, who are entitled under the statutes of intestate
succession to the property of a decedent.
(4) Person means an individual, a
corporation, an organization or other legal entity.
(5) Personal representative includes
executor, administrator, successor personal representative, special administrator
and persons who perform substantially the same function under the law governing
their status.
(6) Property includes both real and
personal property or any interest therein and means anything that may be the
subject of ownership.
(7) Register, including its derivatives,
means to issue a certificate showing the ownership of a certificated security
or, in the case of an uncertificated security, to initiate or transfer an
account showing ownership of securities.
(8) Registering entity means a person
who originates or transfers a security title by registration, and includes a
broker maintaining security accounts for customers and a transfer agent or
other person acting for or as an issuer of securities.
(9) Security means a share, participation
or other interest in property, in a business, or in an obligation of an
enterprise or other issuer, and includes a certificated security, an
uncertificated security and a security account.
(10) Security account means:
(a) A reinvestment account associated with
a security, a securities account with a broker, cash, cash equivalents,
interest, earnings or dividends earned or declared on a security in an account,
a reinvestment account or a brokerage account, whether or not credited to the
account before the owners death;
(b) A cash balance or other property held
for or due to the owner of a security as a replacement for or product of an
account security, whether or not credited to the account before the owners
death; or
(c) An investment management account, a
safekeeping account or a custody account with a financial institution or trust
company, as those terms are defined in ORS 706.008, including the securities in
the account and cash, cash equivalents, interest, earnings or dividends earned
or declared on a security in the account, whether or not credited to the
account before the owners death.
(11) State includes any state of the
59.540
Registration in beneficiary form; sole or joint tenancy ownership. Only individuals whose registration of a
security shows sole ownership by one individual or multiple ownership by two or
more with right of survivorship, rather than as tenants in common, may obtain
registration in beneficiary form. Multiple owners of a security registered in
beneficiary form hold as joint tenants with right of survivorship, as tenants by
the entireties, or as owners of community property held in survivorship form,
and not as tenants in common. [1991 c.306 §2]
59.545
Registration in beneficiary form; applicable law. A security may be registered in beneficiary
form if the form is authorized by this or a similar statute of the state of
organization of the issuer or registering entity, the location of the
registering entitys principal office, the office of its transfer agent or its
office making the registration, or by this or a similar statute of the law of
the state listed as the owners address at the time of registration. A
registration governed by the law of a jurisdiction in which this or similar
legislation is not in force or was not in force when a registration in
beneficiary form was made is nevertheless presumed to be valid and authorized
as a matter of contract law. [1991 c.306 §3]
59.550
Origination of registration in beneficiary form. A security, whether evidenced by certificate
or account, is registered in beneficiary form when the registration includes a
designation of a beneficiary to take the ownership at the death of the owner or
the deaths of all multiple owners. [1991 c.306 §4]
59.555
Form of registration in beneficiary form. Registration in beneficiary form may be shown by the words transfer
on death or the abbreviation TOD, or by the words pay on death or the
abbreviation POD, after the name of the registered owner and before the name
of a beneficiary. [1991 c.306 §5]
59.560
Effect of registration in beneficiary form. The designation of a TOD beneficiary on a registration in beneficiary
form has no effect on ownership until the owners death. A registration of a
security in beneficiary form may be canceled or changed at any time by the sole
owner or all then surviving owners without the consent of the beneficiary. [1991
c.306 §6]
59.565
Ownership on death of owner.
On death of a sole owner or the last to die of all multiple owners, ownership
of securities registered in beneficiary form passes to the beneficiary or
beneficiaries who survive all owners. On proof of death of all owners and
compliance with any applicable requirements of the registering entity, a
security registered in beneficiary form may be reregistered in the name of the
beneficiary or beneficiaries who survived the death of all owners. Until
division of the security after the death of all owners, multiple beneficiaries
surviving the death of all owners hold their interests as tenants in common. If
no beneficiary survives the death of all owners, the security belongs to the
estate of the deceased sole owner or the estate of the last to die of all
multiple owners. [1991 c.306 §7]
59.570
Protection of registering entity. (1) A registering entity is not required to offer or to accept a
request for security registration in beneficiary form. If a registration in
beneficiary form is offered by a registering entity, the owner requesting
registration in beneficiary form assents to the protections given to the
registering entity by ORS 59.535 to 59.585.
(2) By accepting a request for
registration of a security in beneficiary form, the registering entity agrees
that the registration will be implemented on death of the deceased owner as
provided in ORS 59.535 to 59.585.
(3) A registering entity is discharged
from all claims to a security by the estate, creditors, heirs or devisees of a
deceased owner if it registers a transfer of the security in accordance with
ORS 59.565 and does so in good faith reliance on the registration, on ORS
59.535 to 59.585 and on information provided to it by affidavit of the personal
representative of the deceased owner, or by the surviving beneficiary or by the
surviving beneficiarys representatives, or other information available to the
registering entity. The protections of ORS 59.535 to 59.585 do not extend to a
reregistration or payment made after a registering entity has received written
notice from any claimant to any interest in the security objecting to
implementation of a registration in beneficiary form. No other notice or other
information available to the registering entity affects its right to protection
under ORS 59.535 to 59.585.
(4) The protection provided by ORS 59.535
to 59.585 to the registering entity of a security does not affect the rights of
beneficiaries in disputes between themselves and other claimants to ownership
of the security transferred or its value or proceeds. [1991 c.306 §8]
59.575
Nontestamentary transfer on death. (1) A transfer on death resulting from a registration in beneficiary
form is effective by reason of the contract regarding the registration between
the owner and the registering entity and ORS 59.535 to 59.585, and is not
testamentary.
(2) ORS 59.535 to 59.585 do not limit the
rights of creditors of security owners against beneficiaries and other
transferees under other laws of this state. [1991 c.306 §9]
59.580
Terms, conditions and forms for registration. (1) A registering entity offering to accept registrations in
beneficiary form may establish the terms and conditions under which it will
receive requests for registrations in beneficiary form and for implementation
of registrations in beneficiary form, including requests for cancellation of
previously registered TOD beneficiary designations and requests for
reregistration to effect a change of beneficiary. The terms and conditions so
established may provide for proving death, avoiding or resolving any problems
concerning fractional shares, designating primary and contingent beneficiaries
and substituting a named beneficiarys descendants to take in the place of the
named beneficiary in the event of the beneficiarys death. Substitution may be
indicated by appending to the name of the primary beneficiary the letters LDPS,
standing for lineal descendants per stirpes. This designation substitutes a
deceased beneficiarys descendants who survive the owner for a beneficiary who
fails to so survive, the descendants to be identified and to share in
accordance with the law of the beneficiarys domicile at the owners death
governing inheritance by descendants of an intestate. Other forms of
identifying beneficiaries who are to take on one or more contingencies, and
rules for providing proofs and assurances needed to satisfy reasonable concerns
by registering entities regarding conditions and identities relevant to
accurate implementation of registrations in beneficiary form, may be contained
in a registering entitys terms and conditions.
(2) The following are illustrations of
registrations in beneficiary form which a registering entity may authorize:
(a) Sole owner-sole beneficiary: John S.
Brown TOD (or POD) John S. Brown Jr.
(b) Multiple owners-sole beneficiary: John
S. Brown Mary B. Brown JT TEN TOD John S. Brown Jr.
(c) Multiple owners-primary and secondary
(substituted) beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S.
Brown Jr. SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN
TOD John S. Brown Jr. LDPS. [1991 c.306 §10]
59.585
Short title; rules of construction. (1) ORS 59.535 to 59.585 shall be known as and may be cited as the
Uniform TOD Security Registration Act.
(2) ORS 59.535 to 59.585 shall be
liberally construed and applied to promote its underlying purposes and policy
and to make uniform the laws with respect to the subject of ORS 59.535 to 59.585
among states enacting it.
(3) Unless displaced by the particular
provisions of ORS 59.535 to 59.585, the principles of law and equity supplement
its provisions. [1991 c.306 §11]
59.610 [Repealed by 1967 c.537 §36]
59.620 [Repealed by 1967 c.537 §36]
59.660 [Repealed by 2007 c.661 §28]
59.670 [Amended by 1981 c.897 §13; 1995 c.618 §35;
repealed by 2007 c.661 §28]
59.680 [Amended by 1971 c.200 §5; 1973 c.794 §14;
repealed by 2007 c.661 §28]
59.690 [Repealed by 2007 c.661 §28]
59.700 [Repealed by 2007 c.661 §28]
PROHIBITION
OF CERTAIN SECURITY TRANSACTIONS
59.710
Definitions for ORS 59.710 to 59.830. As used in ORS 59.710 to 59.830, unless the context indicates
otherwise:
(1) Security, securities or securities
or commodities, mean and include all evidences of debt or property and options
for their purchase, shares in any corporation or association, bonds, coupons,
scrip, rights, choses in action, and other evidences of debt or property, and
options for their purchase, or anything movable that is bought and sold.
(2) Broker means and includes every
person who in this state engages, either for all or part of the persons time,
in the business of selling any securities or commodities, or purchasing, or
otherwise acquiring securities or commodities from another for the purpose of
reselling them or offering them for sale to the public; or in the business of
offering, buying or selling, or otherwise dealing or trading in securities or
commodities, as agent or principal, for commission or at a profit; and every
person who deals in futures or differences in market quotations of prices or
values of any securities or commodities, or accepts margins on purchases or
sales, or pretended purchases or sales of securities or commodities.
(3) Bucket shop means any building, or
any room, apartment, booth, office or store therein, or any other place where
any contract prohibited by ORS 59.710 to 59.830 is made or offered to be made
more than once and in the course of continuing or repeated transactions.
(4) Bonds includes the bonds or other
evidences of debt of a corporation, company or association.
59.720
Application of ORS 59.710 to 59.830 to real estate contracts and brokers. The provisions of ORS 59.710 to 59.830 shall
not apply to any contract, agreement, sale, purchase, lease, conveyance or
mortgage pertaining to real estate situated in this state, nor to the business
of real estate brokers or principal real estate brokers, as defined in ORS
696.010, in so far as such business pertains to real estate located in this
state. [Amended by 2001 c.300 §53]
59.730
Making contract involving securities without intending a bona fide sale or
purchase. No person, whether
acting in the persons own right, or as the officer, agent, servant,
correspondent or representative of another, shall, as broker make or offer to
make, assist in making or offering to make, perform or take part in any
contract respecting the purchase or sale, either upon credit or margin, of any
securities or commodities more than once, and in course of continuing or
repeated transactions:
(1) Intending that the contract shall be
terminated, closed or settled according to, or upon the basis of the public
market quotations of or prices made on any board of trade or exchange or market
which deals in such commodities or securities, and without intending a bona
fide purchase or sale of the same; or
(2) Intending that the contract shall be
deemed terminated, closed and settled when the market quotations or prices
mentioned in subsection (1) of this section for the securities or commodities
named in the contract reach a certain figure, without intending a bona fide
purchase or sale of the same; or
(3) Not intending the actual bona fide
receipt or delivery of such securities or commodities, but intending a
settlement of the contract based upon the difference in the public market
quotations or prices, mentioned in subsection (1) of this section, at which the
securities or commodities are, or are asserted to be, bought or sold. The
prosecution, conviction and punishment of a corporation for violation of this
section shall not be deemed to be a prosecution, conviction or punishment of
any of its officers, directors or stockholders.
59.740
Conducting bucket shop or repeatedly making forbidden contracts. No person shall as owner, keeper, proprietor
or person in charge of, or as officer, director, stockholder, agent, servant,
correspondent or representative of any person, keep, conduct or operate any
bucket shop, or knowingly permit or induce any person, whether acting in the
persons own right or as officer, agent, servant, correspondent or
representative of another, to make, offer to make therein, or assist in making
or in offering to make therein, any of the contract specified in ORS 59.730,
more than once and in the course of continuing or repeated transactions.
59.750
Receipt or communication of prices for purpose of forbidden contract. No person shall receive, communicate,
exhibit or display in any manner any statement of quotations or prices of
securities or commodities with an intent to make or offer to make, or to assist
in making, or offering to make any contract prohibited by ORS 59.720 to 59.810.
59.760
Reporting false sale of securities with intent to deceive. No person shall, with intent to deceive,
report or publish, or cause to be reported or published as a purchase or sale
of stocks or bonds, any transaction whereby no actual change of ownership or
interest is effected.
59.770
Manipulating market by pretended sales. No person shall inflate, depress or cause fluctuations in, or attempt
to inflate, depress or cause fluctuations in, or combine or conspire with any
other person to inflate, depress or cause fluctuations in, the market prices of
stocks or bonds, or of an issue or any part of an issue of such stocks or
bonds, by means of pretended purchases and sales, or by any other fictitious
transactions or devices, for or on account of any person, whereby either in
whole or in part a simultaneous change of ownership of or interest in such
stocks or bonds or of such issue or part of an issue thereof, is not effected.
A pretended purchase or sale of any stocks or bonds whereby, in whole or in
part, no simultaneous change of ownership or interest therein is effected, is
prima facie evidence of the violation of this section by the person taking part
in the pretended purchase or sale.
59.780
Brokers trading against customers order; violation of ORS 59.780 to 59.800 by
member of brokers firm. (1)
No broker, employed by a customer to buy and carry upon margin stocks or bonds,
while acting as broker for the customer in respect to such stocks or bonds,
shall sell for the brokers own account the same kind or issue of stocks or
bonds, with intent to trade against the customers order.
(2) No broker, employed by a customer to
sell stocks or bonds, while acting as broker for the customer in respect to the
sale of such stocks or bonds, shall purchase for the brokers own account the
same kind or issue of stocks or bonds, with intent to trade against the
customers order.
(3) Every member of a firm of brokers who
either does, or consents or assents to the doing of, any act prohibited by this
section, ORS 59.790 or 59.800 is guilty of violating the section prohibiting
the act.
59.790
Insolvent broker-dealer receiving securities from customer. No broker-dealer engaged in the business of
purchasing and selling stocks or bonds as a broker-dealer, knowing that the
broker-dealer is insolvent, shall accept or receive from a customer ignorant of
the insolvency, money, stocks or bonds belonging to the customer, except in
liquidation or as security for an existing indebtedness, and thereby cause the
customer to lose in whole or in part such money, stocks or bonds. A
broker-dealer shall be deemed insolvent within the meaning of this section
whenever the aggregate of the property of the broker-dealer is not, at a fair
valuation, sufficient in amount to pay the debts of the broker-dealer. [Amended
by 1987 c.158 §12]
59.800
Pledge or sale by broker-dealer of customers securities. No broker-dealer engaged in the business of
purchasing and selling stocks or bonds as a broker-dealer shall:
(1) While having in the possession of the
broker-dealer, for safekeeping or otherwise, stocks or bonds belonging to a
customer, without having any lien thereon or any special property therein,
pledge or dispose thereof without the customers consent; or
(2) While having in the possession of the
broker-dealer stocks or bonds belonging to a customer on which the
broker-dealer has a lien for indebtedness due to the broker-dealer by the
customer, pledge the same for more than the amount due to the broker-dealer
thereon, or otherwise dispose thereof for the broker-dealers own benefit, with
or without the customers consent, and without having in possession of the
broker-dealer or subject to control of the broker-dealer, stocks or bonds of
the kind and amount to which the customer is then entitled, for delivery to the
customer upon demand of the customer therefor and tender of the amount due
thereon, and thereby cause the customer to lose, in whole or in part, such
stocks or bonds, or the value thereof; or
(3) Fail, on demand, to deliver to any
customer, stocks or bonds owned by the customer, and in the possession of such
broker-dealer, upon payment or tender of the amount the same was pledged to
secure. [Amended by 1987 c.158 §13]
59.810
Delivery to customer of true statement of purchase or sale made by broker. No person engaged in the business of
purchasing or selling stocks or bonds as a broker shall refuse to deliver to
each customer on whose behalf a purchase or sale of such securities is made by
the person, within five days after written demand therefor made within six
months following the purchase or sale, a statement or memorandum of the
purchase or sale which is true in all material respects and which contains a
description of the securities purchased or sold, the name of the person from
whom the securities were purchased or to whom they were sold, and the day and
hours between which the transaction took place.
59.820
Actions against corporation for second violation. (1) If a domestic corporation is convicted
of a second offense under ORS 59.730 to 59.810, the circuit court has
jurisdiction over an action by the Attorney General, in the name of the people,
to dissolve the corporation.
(2) If a foreign corporation is convicted
of a second offense under ORS 59.730 to 59.810, the circuit court has
jurisdiction in an action brought as provided in subsection (1) of this section
to restrain the corporation from doing business in this state.
59.830
Self-incrimination by witness; immunity from prosecution. No person shall be excused from attending
and testifying, or producing any book, paper or other document before any court
or magistrate, upon any trial, investigation or proceeding initiated by the
district attorney, grand jury or court for a violation of any of the provisions
of ORS 59.730 to 59.810, upon the ground that the testimony or evidence,
documentary or otherwise, required of the person may tend to convict the person
of a crime or subject the person to a penalty or forfeiture. However, no person
shall be prosecuted or subjected to any penalty or forfeiture for or on account
of any transaction, matter or thing concerning which the person may so testify
or produce evidence, documentary or otherwise, and no testimony so given or
produced shall be received against the person in any criminal action, suit or
proceeding, investigation, inquisition or inquiry.
MORTGAGE
BANKERS; MORTGAGE BROKERS; LOAN ORIGINATORS
59.840
Definitions for ORS 59.840 to 59.980. As used in ORS 59.840 to 59.980:
(1) Director means the Director of the
Department of Consumer and Business Services.
(2) Fraud, deceit and defraud are
not limited to common-law deceit.
(3) License means a license issued to a
mortgage banker or mortgage broker under ORS 59.840 to 59.980.
(4)(a) Loan originator means an
individual employed by or purporting to act as an agent or independent
contractor for a mortgage banker or mortgage broker that is required to be
licensed under ORS 59.840 to 59.980, with the expectation by the individual of
compensation or gain that is determined by the amount borrowed or the terms and
conditions agreed to by the mortgage loan borrower, and having primary job
responsibilities that include negotiating with a borrower or potential borrower
for the purpose of establishing the terms and conditions of a mortgage loan.
(b) Loan originator includes a person
employed at a location outside this state whose primary job responsibilities
include contacting or attempting to contact a borrower or potential borrower
within this state through any medium or mode of communication for purposes of
providing a mortgage loan within this state.
(c) Loan originator does not include an
individual whose responsibilities are clerical or administrative functions,
including but not limited to gathering information, requesting information,
word processing, soliciting general interest in mortgage loans, sending
correspondence and assembling files.
(d) Loan originator does not include an
employee of a mortgage banker that is rated as good or better under the federal
rating system in effect on May 1, 2001, for seller-servicers of Federal Housing
Administration, Federal Home Loan Mortgage Corporation or Federal National
Mortgage Association loans and that has an office within this state at which
the mortgage banker maintains complete and current copies of all employment
records and other records as required by the Director of the Department of
Consumer and Business Services by order or rule, in a format acceptable to the
director.
(e) Loan originator does not include an
insurance producer licensed under ORS 744.052 to 744.089 or insurance
consultant licensed under ORS 744.002.
(f) Loan originator does not include a
person or group of persons exempted by rule or order of the director.
(5) Mortgage banker:
(a) Means any person who for compensation
or in the expectation of compensation:
(A) Either directly or indirectly makes,
negotiates or offers to make or negotiate a mortgage banking loan or a mortgage
loan; and
(B) Services or sells a mortgage banking
loan.
(b) Does not include:
(A) A financial institution, as defined in
ORS 706.008.
(B) A financial holding company or a bank
holding company, as defined in ORS 706.008, holding an institution described in
subparagraph (A) of this paragraph; a savings and loan holding company as
defined in section 408 of the National Housing Act, 12 U.S.C. 1730a (1982),
holding an association described in subparagraph (A) of this paragraph; the
subsidiaries and affiliates of the financial holding company, bank holding
company or savings and loan holding company; or subsidiaries and affiliates of
institutions described in subparagraph (A) of this paragraph, provided that the
appropriate statutory regulatory authority is exercising control over or is
regulating or supervising the persons listed in this subparagraph in their
mortgage banking activities in accordance with the purposes of ORS 59.840 to
59.980.
(C) A person who makes a loan secured by
an interest in real estate with the persons own moneys, for the persons own
investment and who is not engaged in the business of making loans secured by an
interest in real estate.
(D) An attorney licensed in this state who
negotiates mortgage banking loans or mortgage loans in the ordinary course of
business, unless the business of negotiating mortgage banking loans or mortgage
loans constitutes substantially all of the attorneys professional activity.
(E) A person who, as seller of real
property, receives one or more mortgages or deeds of trust as security for a
separate money obligation.
(F) An agency of any state or of the
(G) A person who receives a mortgage or
deed of trust on real property as security for an obligation payable on an
installment or deferred payment basis and arising out of materials furnished or
services rendered in the improvement of that real property or any lien created
without the consent of the owner of the real property.
(H) A person who funds a mortgage banking
loan or mortgage loan which has been originated and processed by a licensee or
by an exempt person and who does not maintain a place of business in this state
in connection with funding mortgage banking loans or mortgage loans, does not
directly or indirectly solicit borrowers in this state for the purpose of
making mortgage banking loans or mortgage loans and does not participate in the
negotiation of mortgage banking loans or mortgage loans. For the purpose of
this subparagraph, negotiation of mortgage banking loans or mortgage loans
does not include setting the terms under which a person may buy or fund a
mortgage banking loan or a mortgage loan originated by a licensee or exempt
person.
(I) A nonprofit federally tax exempt
corporation certified by the United States Small Business Administration and
organized to promote economic development within this state whose primary
activity consists of providing financing for business expansion.
(J) A licensee licensed under ORS chapter
725 or a mortgage broker.
(K) A retirement or pension fund.
(L) An insurer as defined in ORS 731.106.
(M) A court appointed fiduciary.
(N) Any other person designated by rule or
order of the director.
(6) Mortgage banking loan means a loan,
extension of credit or a retail sales contract that is funded exclusively from
the mortgage bankers own resources, which is directly or indirectly secured by
a mortgage or deed of trust or any lien interest on real estate and which is
created with the consent of the owner of the real property. For purposes of
this subsection, own resources means any of the following:
(a) Cash, corporate capital, warehouse
credit lines at financial institutions defined in ORS 706.008 or other sources
that are liability items of the mortgage bankers financial statements for
which its assets are pledged;
(b) Correspondent contracts between the
mortgage banker and a bank, savings bank, trust company, savings and loan
association, credit union, profit sharing or pension trust, a licensee under
ORS chapter 725 or an insurance company; or
(c) The mortgage bankers affiliates
cash, corporate capital, warehouse credit lines at financial institutions
defined in ORS 706.008 or other sources that are liability items on the
affiliates financial statements for which the affiliates assets are pledged.
As used in this paragraph, affiliates means entities that, directly or
indirectly, through one or more intermediaries controls, are controlled by or
are under common control with the entity specified.
(7) Mortgage broker:
(a) Means a person who:
(A) Engages all or part of the time, for
the account of others or for the persons own account, in the business of
selling real estate paper whether as issuer, agent or principal to persons
other than persons enumerated in ORS 59.035 (4);
(B) Engages all or part of the time, for
the account of others or for the persons own account, in the business of
accepting funds from one or more persons other than persons enumerated in ORS
59.035 (4) for investment in real estate paper; or
(C) For compensation, or in the
expectation of compensation, either directly or indirectly makes, negotiates or
offers to make or negotiate a mortgage loan.
(b) Does not include:
(A) A financial institution, as defined in
ORS 706.008.
(B) A financial holding company or a bank
holding company, as defined in ORS 706.008, holding an institution described in
subparagraph (A) of this paragraph; a savings and loan holding company as
defined in section 408 of the National Housing Act, 12 U.S.C. 1730a (1982),
holding an association described in subparagraph (A) of this paragraph; the
subsidiaries and affiliates of the financial holding company, bank holding
company or savings and loan holding company; or subsidiaries and affiliates of
institutions described in subparagraph (A) of this paragraph, provided that the
appropriate statutory regulatory authority is exercising control over or is
regulating or supervising the persons listed in this subparagraph in their
mortgage brokering activities in accordance with the purposes of ORS 59.840 to
59.980.
(C) A person who purchases real property
and issues an obligation to finance the transaction to the seller incidentally
to the sale.
(D) A real estate licensee as defined in
ORS 696.010 who performs services solely incidental to the practice of
professional real estate activity as defined in ORS 696.010, unless the real
estate licensee performs the functions of a mortgage banker or a mortgage
broker as defined in this section.
(E) A person licensed under the provisions
of ORS chapter 725 or a mortgage banker.
(F) A person who makes a loan secured by
an interest in real estate with the persons own moneys, for the persons own
investment and who is not engaged in the business of making loans secured by an
interest in real estate.
(G) An attorney licensed in this state who
negotiates mortgage loans in the ordinary course of business, unless the
business of negotiating mortgage loans constitutes substantially all of the
attorneys professional activity.
(H) A person who, as seller of real
property, receives one or more mortgages or deeds of trust as security for a
separate money obligation.
(I) An agency of any state or of the
(J) A person who receives a mortgage or
deed of trust on real property as security for an obligation payable on an
installment or deferred payment basis and arising out of materials furnished or
services rendered in the improvement of that real property or any lien created
without the consent of the owner of the real property.
(K) A person who funds a mortgage loan
which has been originated and processed by a licensee or by an exempt person
and who does not maintain a place of business in this state in connection with
funding mortgage loans, does not directly or indirectly solicit borrowers in
this state for the purpose of making mortgage loans and does not participate in
the negotiation of mortgage loans. For the purpose of this subparagraph, negotiation
of mortgage loans does not include setting the terms under which a person may
buy or fund a mortgage loan originated by a licensee or exempt person.
(L) A nonprofit federally tax exempt
corporation certified by the United States Small Business Administration and
organized to promote economic development within this state whose primary
activity consists of providing financing for business expansion.
(M) A person licensed under ORS 446.691 or
446.696 or a temporary manufactured structure dealer licensee under ORS 446.701
who provides services customarily associated with the retail sales of
manufactured dwellings, including communication of generally available
information regarding mortgage loans, unless:
(i) The person receives from a purchaser a
fee or commission as a mortgage broker or mortgage banker that is disclosed in
the sales contract, purchase agreement or applicable federal documents;
(ii) For the benefit of a potential
purchaser, the person completes a loan application form or other document that
is part of a mortgage banking loan and completes a good faith estimate under
the federal Real Estate Settlement Procedures Act (12 U.S.C. 2601 et
seq.);
(iii) The person solicits or receives
credit information from a prospective purchaser for the purpose of making
credit decisions; or
(iv) The person negotiates with a
potential purchaser the terms of a mortgage loan including but not limited to
points, interest rates, length of loan or other loan conditions.
(N) Any other person designated by rule or
order of the director.
(8) Mortgage loan means a loan,
extension of credit or retail sales contract, other than a mortgage banking
loan, secured by a mortgage or deed of trust or any lien interest on real
estate that is created with the consent of the owner of the real estate.
(9) Residential mortgage transaction
means a transaction in which a mortgage, deed of trust, purchase money security
interest arising under an installment sales contract, or equivalent consensual
security interest is created or retained in property upon which four or fewer
residential dwelling units are planned or situated, including but not limited
to individual units or condominiums and cooperatives. As used in this
subsection, residential dwelling unit means an improvement designed for
residential occupancy. [1993 c.508 §1; 1995 c.129 §1; 1995 c.622 §13; 1997
c.211 §1; 1997 c.631 §377; 1999 c.36 §1; 2001 c.377 §40; 2001 c.952 §1; 2003
c.364 §47; 2003 c.655 §48]
59.845
License required to engage in residential mortgage transactions as mortgage banker
or mortgage broker. (1) It
is unlawful for any person to engage in residential mortgage transactions in
this state as a mortgage banker or mortgage broker unless the person is
licensed under ORS 59.840 to 59.980. A person who is a mortgage banker or
mortgage broker under ORS 59.840, but who does not engage in residential
mortgage transactions in this state, is not required to obtain a license under
ORS 59.840 to 59.980.
(2) For purposes of this section, a person
engages in residential mortgage transactions in this state when any act
constituting the business of a mortgage banker or mortgage broker and involving
a residential mortgage transaction originates from this state or is directed to
and received in this state or when the real estate that is the subject of the
activities of the mortgage banker or mortgage broker is located in this state. [1993
c.508 §2; 1999 c.36 §2]
59.850
Procedures for licensing; experience required; surety bond or letter of credit;
fees; rules. (1) The
Director of the Department of Consumer and Business Services by rule shall
establish procedures for licensing mortgage bankers or mortgage brokers. The
director may coordinate licensing with any national registration or licensing
system.
(2) An applicant for a license as a
mortgage banker or mortgage broker, or a managing partner, director, executive
officer or other individual occupying a similar position or performing similar
functions for the applicant, shall have, during the five years immediately
preceding the time of application, not less than three years experience in the
mortgage business, three years experience negotiating loans in a related
business satisfactory to the director or three years equivalent lending
experience in a related business satisfactory to the director.
(3) If a license as a mortgage banker or
mortgage broker is issued to a person other than an individual, at least one
managing partner, director, executive officer or other individual occupying a
similar position or performing similar functions for the person shall, at all
times during the term of the license, satisfy the experience requirement
described in subsection (2) of this section.
(4) Every applicant for a license as a
mortgage banker or mortgage broker shall file with the director a corporate
surety bond or irrevocable letter of credit issued by an insured institution as
defined in ORS 706.008 as the director may approve by rule running to the State
of Oregon in a sum to be determined by the director by rule.
(5) The total amount of the corporate
surety bond or irrevocable letter of credit for a single applicant under
subsection (4) of this section shall be not less than $25,000 but not more than
$50,000, regardless of the number of offices of the applicant. If an applicant
has more than one office in this state to engage in residential mortgage
transactions as a mortgage banker or mortgage broker, the amount of the bond or
letter of credit shall increase for each additional office in an amount
determined by the director by rule. The amount of the increase in the bond or
letter of credit for each additional office shall be not less than $5,000 but
not more than $10,000. The director may adjust the minimum amount of the
increase in the bond or letter of credit for additional offices as necessary to
comply with the $50,000 limit.
(6) If the application, surety bond or
irrevocable letter of credit and fees are in order and the director is
satisfied that the application should not be denied upon one or more of the
grounds specified in ORS 59.865, 59.870 or 59.875, the director shall license
the mortgage banker or mortgage broker.
(7) A licensee shall amend the license
application and, if necessary, increase the amount of the corporate surety bond
or irrevocable letter of credit as described in subsection (5) of this section
when there are material changes in the information contained in the original
application.
(8) The director shall:
(a) Charge and collect fees for initial
and renewal license applications;
(b) Set by rule all fees required under
this section. Fees shall be set to reflect those amounts sufficient to meet the
costs of administering ORS 59.840 to 59.980, including those amounts sufficient
to establish and maintain a reasonable emergency fund; and
(c) Set by rule the amounts of corporate
surety bonds and irrevocable letters of credit required under this section.
(9) The fees under this section are not
refundable except for those fees that the director determines by rule may be
refundable. [1993 c.508 §3; 1995 c.129 §2; 1997 c.631 §378; 1999 c.36 §3]
59.855
Expiration of license; renewal; duration of renewed license; change in
personnel; rules. (1) The
initial license of a mortgage banker or mortgage broker expires one year after
the date of issuance unless the Director of the Department of Consumer and
Business Services establishes a different expiration date for purposes of
coordination with any national registration or licensing system.
(2) The director by rule shall establish
procedures for renewing licenses of mortgage bankers and mortgage brokers. The
rule shall specify the duration of renewed licenses.
(3) If there is a change in the partners,
directors, officers, persons occupying similar positions or performing similar
functions, or persons directly or indirectly controlling a mortgage banker or
mortgage broker, written notification of the change shall promptly be filed
with the director. No fee shall be required for the notification. [1993 c.508 §4;
1995 c.129 §3]
59.860
Licensees to keep records; inspection; filing of financial reports. (1) Every mortgage banker and mortgage
broker shall make and keep such accounts, correspondence, memoranda, papers,
books and other records as the Director of the Department of Consumer and
Business Services by rule or order prescribes. All such records shall be
preserved for five years unless the director by rule prescribes otherwise. The
director may examine all such records within or without this state at any
reasonable time or times and may require without subpoena the production of
such records at the office of the director as often as is reasonably necessary.
(2) Every mortgage banker and mortgage
broker shall file financial reports or other information as the director by
rule or order may require and shall promptly correct any document filed with
the director that is or becomes incomplete or inaccurate in any material
respect. [1993 c.508 §5]
59.865
Grounds for denying, suspending, conditioning or revoking license. Except as provided in ORS 59.870, the
Director of the Department of Consumer and Business Services may by order deny,
suspend, condition or revoke a license of a person as a mortgage banker or
mortgage broker if the director finds that the applicant or licensee:
(1) Is insolvent, either in the sense that
the liabilities of the applicant or licensee exceed the assets of the applicant
or licensee or that the applicant or licensee cannot meet the obligations of
the applicant or licensee as the obligations mature, or is in such financial condition
that the applicant or licensee cannot continue in business with safety to the
customers of the applicant or licensee.
(2) Has engaged in dishonest, fraudulent
or illegal practices or conduct in any business or profession or unfair or
unethical practices or conduct in connection with the mortgage business.
(3) Has willfully or repeatedly violated
or failed to comply with any provision of ORS 59.840 to 59.980 or any rule or
order of the director.
(4) Has been convicted of a misdemeanor,
an essential element of which is fraud, or of a felony.
(5) Has filed an application for a license
that, as of the date the license was issued, or as of the date of an order
denying, suspending, conditioning or revoking a license, was incomplete in any
material respect or contained any statement that was, in light of the
circumstances under which it was made, false or misleading with respect to any
material fact.
(6) Has failed to account to persons
interested for all money or property received in connection with a mortgage
loan.
(7) Is permanently or temporarily enjoined
by a court of competent jurisdiction from engaging in or continuing any conduct
or practice involving any aspect of the mortgage business.
(8) Is the subject of an order of the
director denying, suspending, conditioning or revoking a license as a mortgage
banker or mortgage broker.
(9) Is the subject of a United States
Postal Service fraud order that is currently effective and was issued within
the last five years.
(10) Does not have the experience required
by ORS 59.850 (2) or (3).
(11) Has failed to comply with the
requirements of ORS 59.860 to make and keep records prescribed by rule or order
of the director, to produce such records required by the director or to file
any financial reports or other information the director by rule or order may
require.
(12) Is the subject of an order of the
director denying, suspending, conditioning or revoking a license under the
provisions of any other law administered by the director.
(13) Is the subject of a cease and desist
order entered after notice and opportunity for hearing and issued by the
director within the last five years.
(14) Has demonstrated negligence or
incompetence in performing any act for which the licensee is required to hold a
license.
(15) Has failed to supervise diligently
and control the mortgage-related activities of a loan originator employed by
the licensee.
(16) Has knowingly misrepresented to the
director the training of, examination of or continuing education time earned by
a loan originator employed by the licensee.
(17) Has willfully or repeatedly employed
persons as loan originators who do not meet the training, education or
continuing education requirements for loan originators.
(18) Has failed to notify the director of
the termination of a loan originator for failure to comply with state or
federal laws, regulations or rules. [1993 c.508 §6; 2001 c.952 §10]
59.870
Action against applicant or licensee for act or omission of associate;
exception. The Director of
the Department of Consumer and Business Services may enter an order against the
applicant or licensee under ORS 59.865 if any partner, officer or director of a
mortgage banker or mortgage broker, any person occupying a similar status or
performing similar functions, or any person directly or indirectly controlling
the mortgage banker or mortgage broker has been guilty of any act or omission
which would be cause for denying, suspending or revoking the license of an
individual mortgage banker or mortgage broker. This section shall not apply to
ORS 59.865 (1). [1993 c.508 §7]
59.875
Cancellation of license or application; application for withdrawal. (1) If the Director of the Department of
Consumer and Business Services finds that an applicant or licensee has ceased
to do business as a mortgage banker or mortgage broker, or has failed to
maintain a bond required by ORS 59.850 or is subject to an adjudication of
mental incompetence or to the control of a committee, conservator or guardian,
or cannot be located after reasonable search, the director may cancel the
license or application.
(2) A mortgage banker or mortgage broker
may withdraw a license by filing an application to withdraw. Unless the
director determines that the license should be suspended or revoked, the
director shall allow the withdrawal subject to any conditions, limitations and
restrictions the director may impose. [1993 c.508 §8]
59.880
Supervisory authority of director over mortgage bankers, mortgage brokers and
loan originators. The
Director of the Department of Consumer and Business Services shall have general
supervision and control over all loan originators, mortgage bankers and
mortgage brokers residing or doing business in this state and engaged in any
activity subject to the provisions of ORS 59.840 to 59.980. All such persons
and their records and everything connected with their activities shall be
subject to examination by the director at any time. The provisions of this
section and of any other section of ORS 59.840 to 59.980 relating to examinations
shall extend to any person who should have been reported as a loan originator
under ORS 59.969 or licensed as a mortgage banker or mortgage broker, any
person exempted by rule from those definitions or any person whose license has
expired or has been withdrawn, canceled, suspended, conditioned or revoked. The
director may collect from each such person the actual expenses incurred in that
examination. [1993 c.508 §9; 2001 c.952 §11]
59.885
Investigations; publicity with respect to violations; cease and desist order. The Director of the Department of Consumer
and Business Services:
(1) May make such public or private
investigations within or outside this state as the director deems necessary to
determine whether a person has violated any provision of ORS 59.840 to 59.980
or any rule or order of the director, or to aid in the enforcement of ORS
59.840 to 59.980 or in the formulation of rules and forms thereunder;
(2) May require or permit a person to file
a statement in writing, under oath or otherwise as the director determines, as
to all the facts and circumstances concerning the matter to be investigated;
(3) May publish information concerning any
violation under this section or ORS 59.890, 59.992 or 59.996 or any rule or
order of the director after an action taken under this section or ORS 59.890,
59.992 or 59.996; and
(4) If the director has reasonable cause
to believe that any person has been engaged, is engaging or is about to engage
in any violation of any provision of ORS 59.840 to 59.980, may issue an order,
subject to ORS 59.905, directed to the person, and to any other person directly
or indirectly controlling the person, to cease and desist from the violation or
threatened violation. [1993 c.508 §10; 2007 c.71 §15]
59.890
Enjoining violations; fine; appointment of receiver; attorney fees; damages to
private parties. (1)
Whenever the Director of the Department of Consumer and Business Services has
reasonable cause to believe that a person has been engaged or is engaging in
any violation of any provision of ORS 59.840 to 59.980 or any rule or order of
the director, the director may bring suit in the name and on behalf of the
State of Oregon in the circuit court of any county of this state to enjoin the
violation and to enforce compliance with any provision of ORS 59.840 to 59.980
or such rule or order. Upon a proper showing, a permanent or temporary
injunction, restraining order or writ of mandamus shall be granted. The court
may fine the person against whom the order is entered not more than $5,000 for
each violation, which shall be entered as a judgment and paid to the General
Fund of the State Treasury. Each violation is a separate offense. In the case
of a continuing violation, each days continuance is a separate violation, but
the maximum penalty for any continuing violation shall not exceed $20,000 for
each offense. If the court finds that the defendant has violated any provision
of ORS 59.840 to 59.980 or any such rule or order, the court may appoint a
receiver, who may be the director, for the defendant or the defendants assets.
The court may not require the director to post a bond. The court may award
reasonable attorney fees to the director if the director prevails in an action
under this section. The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court determines that the
director had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial court.
(2) The director may include in any action
authorized by subsection (1) of this section:
(a) A claim for restitution or damages
under ORS 59.925 on behalf of the persons injured by the act or practice
constituting the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the court finds
that enforcement of the rights of such persons by private civil action, whether
by class action or otherwise, would be so burdensome or expensive as to be
impractical; or
(b) A claim for disgorgement of illegal
gains or profits derived. Any recovery under this paragraph shall be turned
over to the General Fund of the State Treasury unless the court requires other
disposition. [1993 c.508 §11; 1995 c.696 §12]
59.895
Procedures where assets or capital of mortgage banker or broker found impaired;
involuntary liquidation. (1)
When the Director of the Department of Consumer and Business Services
ascertains that the assets or capital of any mortgage banker or mortgage broker
is impaired, or that the mortgage bankers or mortgage brokers affairs are in
an unsound condition, the director may take possession of all the property,
business and assets of the mortgage banker or mortgage broker located in this
state and retain possession of them pending the further proceedings specified
in this section. The director shall inventory the assets and liabilities of the
mortgage banker or mortgage broker. The director shall file one copy of the
inventory in the office of the director and one copy in the office of the clerk
of the circuit court of the county in which the principal place of business of
the mortgage banker or mortgage broker is located, and shall mail one copy to
each shareholder or partner of the mortgage banker or mortgage broker at the
last-known address of the shareholder or partner. The clerk of the court shall
file the inventory as a pending proceeding and give it a case number.
(2) If any mortgage banker or mortgage
broker refuses to permit the director to take possession under this section,
the director may apply to the circuit court of the county in which the
principal place of business of the mortgage banker or mortgage broker is
located for an order appointing a receiver, who may be the director, to take
possession.
(3) If the deficiency in assets or capital
has not been made good or the unsound condition remedied within 60 days from
the date when the director or receiver took possession, the property, business
and assets of the mortgage banker or mortgage broker located in this state
shall be liquidated. If a receiver has not been appointed, the director shall
apply for such appointment by the court in which the inventory was filed. The
liquidation shall proceed as provided by law for liquidation of a private corporation
in receivership.
(4) The expenses of the receiver and
compensation of counsel, as well as all expenditures required in the
liquidation proceedings, shall be fixed by the director, subject to the
approval of the court, and, upon certification by the director, shall be paid
out of the funds in the hands of the director as such receiver. [1993 c.508 §12;
2003 c.576 §187]
59.900
Rules; financial statements.
(1) In accordance with this section and ORS chapter 183, the Director of the
Department of Consumer and Business Services may from time to time make, amend
and rescind such rules as are necessary to carry out the provisions of ORS
59.840 to 59.980, including but not limited to rules governing the activities
of loan originators, mortgage bankers and mortgage brokers and rules governing
the purchase or sale of mortgage banking loans, mortgage loans or real estate
paper in coordination with applicable provisions of ORS 59.005 to 59.451,
59.710 to 59.830, 59.991 and 59.995 and rules adopted thereunder.
(2) Any financial statement required under
ORS 59.840 to 59.980 shall be prepared in accordance with generally accepted
accounting principles. The director may by rule prescribe:
(a) The form and content of financial
statements required under ORS 59.840 to 59.980;
(b) The circumstances under which
consolidated financial statements shall be filed; and
(c) Whether any required financial
statements shall be certified by independent or certified public accountants. [1993
c.508 §13; 2001 c.952 §12]
59.905
Notice of orders; hearings on orders. (1) Except as provided in ORS 183.745, upon the entry of an order
under ORS 59.840 to 59.980, the Director of the Department of Consumer and
Business Services shall promptly give appropriate notice of the order as provided
in this subsection. The notice shall state that a hearing will be held on the
order if a written demand for hearing is filed with the director within 20 days
after the date of service of the order. The notice shall be given to:
(a) The applicant or licensee with respect
to orders entered pursuant to ORS 59.865;
(b) The loan originator and the licensee
employing the loan originator with respect to orders entered pursuant to ORS
59.973; or
(c) All interested persons with respect to
orders entered pursuant to any other provision of ORS 59.840 to 59.980.
(2) If timely demand for a hearing is
filed by a person entitled to notice of the order, the director shall hold a
hearing on the order as provided by ORS chapter 183. In the absence of a timely
demand for a hearing, a person is not entitled to judicial review of the order.
(3) After the hearing, the director shall
enter a final order vacating, modifying or affirming the order.
(4) The director may enter a final order
revoking a license notwithstanding the fact that the license has expired, if
the initial order of revocation was issued prior to expiration of the license
or registration. [1993 c.508 §14; 2001 c.952 §13]
59.910
Judicial review of orders.
(1) A person aggrieved by an order of the Director of the Department of
Consumer and Business Services which has been the subject of a timely
application for hearing before the director shall be entitled to judicial
review of the order under ORS chapter 183.
(2) A judgment of a reviewing court under
ORS chapter 183 may not bar the director from thereafter vacating or modifying
an order involved in the proceeding for review, or entering any new order, for
a proper cause that was not decided by the reviewing court. [1993 c.508 §15;
2003 c.576 §322]
59.915
Oaths and subpoenas in proceedings before director. (1) For the purpose of an investigation or
proceeding under ORS 59.840 to 59.980, the Director of the Department of
Consumer and Business Services may administer oaths and affirmations, subpoena
witnesses, compel their attendance, take evidence and require the production of
books, papers, correspondence, memoranda, agreements or other documents or
records that the director deems relevant or material to the inquiry. Each
witness who appears before the director under a subpoena shall receive the fees
and mileage provided for witnesses in ORS 44.415 (2).
(2) If a person fails to comply with a
subpoena so issued or a party or witness refuses to testify on any matters, the
judge of the circuit court or of any county, on the application of the
director, shall compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such court or a
refusal to testify therein. [1993 c.508 §16]
59.920
Copies of documents; fees; effect of certification. (1) The Director of the Department of
Consumer and Business Services shall furnish to any person, upon payment of a
fee established by rule, copies of any document which is a matter of public
record. Certified copies shall be furnished upon request. In a proceeding or
prosecution under ORS 59.840 to 59.980, a copy so certified shall be prima
facie evidence of the contents of the entry or document certified.
(2) A certificate of the director as to
compliance or noncompliance with licensing provisions of ORS 59.840 to 59.980
shall be taken and received in a civil or criminal proceeding in this state as
prima facie evidence of the facts stated in the certificate. [1993 c.508 §17]
59.925
Liability of mortgage banker or mortgage broker; recovery of damages;
limitations on proceeding; action against bond or letter of credit; attorney
fees. (1) As used in this
section, mortgage banker transaction and mortgage broker transaction mean a
transaction in which a person, in order to engage in the transaction, is
required to be licensed as a mortgage banker or a mortgage broker under ORS
59.840 to 59.980.
(2) A mortgage banker or mortgage broker
is liable as provided in subsection (3) of this section to any person who
suffers any ascertainable loss of money or property, real or personal, in a
mortgage banker transaction or a mortgage broker transaction if the mortgage
banker or mortgage broker:
(a) Transacts business as a mortgage
banker or mortgage broker in violation of any provision of ORS 59.840 to
59.980; or
(b) Transacts business as a mortgage
banker or mortgage broker by means of an untrue statement of a material fact or
an omission to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they are made, not misleading,
and who does not sustain the burden of proof that the person did not know, and
in the exercise of reasonable care could not have known, of the untruth or
omission.
(3) The person suffering ascertainable
loss may recover damages in an amount equal to the ascertainable loss.
(4) A person whose sole function in
connection with a transaction is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is liable only if
the person participates or materially aids in the transaction and the plaintiff
sustains the burden of proof that the person knew of the existence of the facts
on which liability is based or that the persons failure to know of the
existence of such facts was the result of the persons recklessness or gross
negligence.
(5) Except as otherwise provided in this
subsection, an action or suit may not be commenced under this section more than
three years after the transaction. An action under this section for a violation
under subsection (2)(b) of this section or ORS 59.930 may be commenced within
three years after the transaction or two years after the person bringing the
action discovered or should have discovered the facts on which the action is
based, whichever is later, but in no event more than five years after the date
of the transaction. Failure to commence an action on a timely basis is an
affirmative defense.
(6) A person has a right of action under
the bond or irrevocable letter of credit provided in ORS 59.850 if the person:
(a) Signs a mortgage banking loan or
mortgage loan application; and
(b) Has a right of action against a
mortgage banker or mortgage broker under this section.
(7) Subsection (4) of this section does
not limit the liability of any person:
(a) For conduct other than in the
circumstances described in subsection (4) of this section; or
(b) Under any other law.
(8) Except as provided in subsection (9)
of this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(9) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (8) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32. [1993 c.508 §18; 1995 c.696 §13; 1999 c.1001 §1; 2005 c.97
§1]
59.930
Fraud and deceit with respect to mortgage banker or broker business. It is unlawful for any person, directly or
indirectly, in connection with the conduct of a mortgage banker or mortgage
broker business:
(1) To employ any device, scheme or
artifice to defraud;
(2) Knowingly to make any untrue statement
of a material fact or to omit to state a material fact necessary in order to
make the statements made, in the light of the circumstances under which they
are made, not misleading;
(3) To engage in any act, practice or
course of business which operates or would operate as a fraud or deceit upon
any person; or
(4) To make or file, or cause to be made
or filed, to or with the Director of the Department of Consumer and Business
Services any statement, report or document which is known to be false in any
material respect or matter. [1993 c.508 §19]
59.935
Clients Trust Account; examination; deposit of funds; interest; rules. (1) Each mortgage banker or mortgage broker
shall maintain in this state one or more separate bank accounts that shall be
designated a Clients Trust Account in which all trust funds received or
handled by the mortgage banker or mortgage broker shall be deposited unless,
pursuant to written agreement of all parties having an interest in the trust
funds, the trust funds are immediately placed in a neutral escrow depository in
this state.
(2) Each mortgage banker or mortgage
broker shall file with the Director of the Department of Consumer and Business
Services, on forms approved by the director, a statement identifying the name
of the bank or banks, account number or account numbers, and name of account or
accounts for each Clients Trust Account maintained.
(3) Each mortgage banker or mortgage
broker shall authorize the director or an authorized representative of the
director, on a form approved by the director, to examine any Clients Trust
Account, by a duly authorized representative of the director. The examination
shall be made at such times as the director may direct.
(4) If a branch office maintains a
separate Clients Trust Account, a separate bookkeeping system shall be
maintained in the branch office, provided a copy of all documents evidencing
payments into and from the Clients Trust Account is maintained in the main
office of the mortgage banker or mortgage broker.
(5) Trust funds received by a mortgage
banker or mortgage broker may be placed by the mortgage banker or mortgage
broker in a federally insured interest-bearing bank account, designated a
Clients Trust Account, but only with the prior written approval of all parties
having an interest in the trust funds. The earnings of such interest-bearing
account shall not inure to the benefit of the mortgage banker or mortgage
broker unless expressly approved in writing before deposit of the trust funds
by all parties having an interest in the trust funds.
(6) A mortgage banker or mortgage broker
is not entitled to any part of any interest earnings on trust funds deposited
under subsection (5) of this section or to any part of the earnest money or
other money paid to the mortgage banker or mortgage broker in connection with
any real estate transaction as part or all of the mortgage bankers or mortgage
brokers commission or fee until the transaction has been completed or
terminated. The question of the disposition of forfeited earnest money shall be
negotiated between a mortgage banker or mortgage broker and a client at the
time of executing any earnest money agreement. The result of such negotiation
shall be filled in on the agreement form at the time of signing by the client
and either separately initialed by the client or placed immediately above the
signature of the client.
(7) Clients Trust Account funds are not
subject to execution or attachment on any claim against the mortgage banker or
mortgage broker.
(8) No person shall knowingly keep or
cause to be kept any funds or money in any bank under the heading of Clients
Trust Account or any other name designating such funds or money as belonging to
the clients of any mortgage banker or mortgage broker, except actual trust
funds deposited with the banker or broker.
(9) The director may provide by rule for
other records to be maintained and for the manner in which trust funds are
deposited, held and disbursed. [1993 c.508 §20; 1995 c.191 §1]
59.940
Notice to bank regarding Clients Trust Account. (1) Each mortgage banker or mortgage broker,
at the time a Clients Trust Account is opened under ORS 59.935, shall provide
the bank in which the account is opened with a notice in substantially the
following form:
______________________________________________________________________________
NOTICE OF CLIENTS TRUST ACCOUNT
To: (name of
bank) ________
I, ____________, am the (owner, president,
managing general partner or other position description) ____________ of (name
of mortgage banker or mortgage broker) ____________ and am authorized to act on
behalf of (name of mortgage banker or mortgage broker) ____________.
Under the provisions of ORS 59.935, I am
required to maintain in
With regard to the account(s) numbered _________
which is/are designated as a Clients Trust Account, the account(s) is/are
maintained with you as a depository for money belonging to persons other than
myself and in my fiduciary capacity as a mortgage banker or mortgage broker
established by client agreements in separate documents.
Dated: (insert
date)
__________________
(signature of person authorized to act
on behalf of mortgage banker
or mortgage broker)
ACKNOWLEDGMENT OF RECEIPT
I, _______________,
a duly authorized representative of (bank) ______, do hereby acknowledge
receipt of the above NOTICE OF CLIENTS TRUST ACCOUNT on (date) ______.
__________________
(signature)
__________________
(title)
______________________________________________________________________________
(2) The acknowledged copy of the notice
described in subsection (1) of this section shall be retained by the mortgage
banker or mortgage broker as provided in ORS 59.935 for the retention of trust
account records, subject to inspection by the Director of the Department of
Consumer and Business Services or the directors authorized representative. [1993
c.508 §20a; 1995 c.191 §2]
59.945
Prohibited advertisements. A
mortgage banker or mortgage broker shall not use or cause to be published any
advertisement that:
(1) Contains any false, misleading or
deceptive statement or representation; or
(2) Identifies the mortgage banker or
mortgage broker by any name other than the name listed on the license issued by
the Director of the Department of Consumer and Business Services or an assumed
business name registered under ORS chapter 648. [1993 c.508 §21]
59.950
Designation of principal place of business; other offices; change of personnel;
registered agent. (1) Every
licensed mortgage banker and mortgage broker shall designate and maintain a
principal place of business for the transaction of business.
(2) If a licensed mortgage banker or
mortgage broker intends to transact business at any place other than the
principal place of business, the licensee shall notify the Director of the
Department of Consumer and Business Services, in writing, not later than 30
days prior to opening another office. The notice shall contain the address of
any other office. A copy of the license issued to the mortgage banker or
mortgage broker shall be displayed in each place of business of the licensee.
(3) If there is any change among the
members, officers, partners or directors of any licensee, the licensee shall
notify the director within 30 days of the name, address and occupation of each
new member, officer, partner or director and provide any other information the
director may require.
(4) A mortgage banker or mortgage broker
whose principal place of business is not in this state shall continuously
maintain a registered agent in this state. The name and address of the agent
shall be included in the application for a license. A mortgage banker or
mortgage broker shall notify the director immediately of any change in the name
or address of the registered agent.
(5) The registered agent of a mortgage
banker or mortgage broker shall be an agent upon whom any process, notice or
demand required or permitted by law to be served upon the mortgage banker or
mortgage broker may be served. The director shall be an agent of a mortgage
banker or mortgage broker if the mortgage banker or mortgage broker fails to
appoint or maintain a registered agent in this state or the registered agent
cannot with reasonable diligence be found. [1993 c.508 §22]
59.955
Disclosure required before closing mortgage loan or mortgage banking loan. Prior to the closing of any mortgage loan or
any mortgage banking loan, the mortgage banker or mortgage broker shall supply
the borrower with a disclosure as required by the real estate lending
provisions of 15 U.S.C. 1601 et seq. and Regulation Z, 12 C.F.R. Part 226. [1993
c.508 §23]
59.960
Consultation with licensees before rules adopted. Before adopting any rules under ORS 59.840
to 59.980, the Director of the Department of Consumer and Business Services
shall consult with an equal number of persons required to be licensed as mortgage
bankers or mortgage brokers. The director shall consider the suggestions of
those persons in adopting rules under ORS 59.840 to 59.980. [1993 c.508 §24]
59.962
Servicing or collecting mortgage banking loan or mortgage loan by mortgage banker
or mortgage broker. (1) With
the permission of the lender, note owner, note holder or other holder of an
interest in a note, a mortgage banker or mortgage broker may service or collect
any mortgage banking loan or mortgage loan in its own name or the name of the lender,
note owner, note holder or other holder of an interest in the note.
(2) Except as provided in ORS 59.840 to
59.980, nothing in subsection (1) of this section is intended to grant the
Director of the Department of Consumer and Business Services the authority to
regulate the servicing or collection of any mortgage banking loan or mortgage
loan by a mortgage banker or mortgage broker.
(3) As used in this section:
(a) Mortgage banker has the meaning
given that term in ORS 59.840 (5)(a) but also includes those persons exempted
from the definition of mortgage banker in ORS 59.840 (5)(b).
(b) Mortgage banking loan has the
meaning given that term in ORS 59.840.
(c) Mortgage broker has the meaning
given that term in ORS 59.840.
(d) Mortgage loan has the meaning given
that term in ORS 59.840.
(e) Service or collect any mortgage
banking loan or mortgage loan includes but is not limited to:
(A) Holding documents or written
instruments and receiving and disbursing payments according to the instructions
of the parties to the documents or written instruments;
(B) Collecting or remitting, or having the
right or obligation to collect or remit, for any lender, note owner, note
holder or other holder of an interest in a note or for a mortgage bankers or
mortgage brokers own account, payments, interest, principal and trust items,
including but not limited to hazard insurance and taxes, on a mortgage banking
loan or mortgage loan in accordance with the terms of the loan, and includes
loan payment follow-up, delinquency loan follow-up, loan analysis and any
notifications to the borrower that are necessary to enable the borrower to keep
the loan current and in good standing; and
(C) Bringing and maintaining any suit or
action to collect any amounts owed on a mortgage banking loan or mortgage loan,
including but not limited to the exercise of any contractual, statutory or
common law remedies such as injunction, specific performance, judicial or
nonjudicial foreclosure or receivership. [1999 c.36 §4; 2001 c.952 §14]
Note: 59.962 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 59 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
59.965 [1995 c.129 §5; renumbered 59.980 in 2001]
59.967
Legislative findings regarding loan originators; prohibited practice. (1) The Legislative Assembly finds and
declares that:
(a) The public interest is served by
identifying a loan originator with a specific mortgage banker or mortgage
broker; and
(b) The public must be protected from the
conflicts of interest created when a loan originator is employed by more than
one mortgage lender.
(2) A loan originator may not originate
loans for more than one mortgage banker, mortgage broker or other mortgage
lender or independent mortgage agency at the same time. [2001 c.952 §3]
59.969
List of loan originators; qualifications; voluntary reporting; records; waiver;
rules. (1) A mortgage banker
or mortgage broker must provide to the Director of the Department of Consumer
and Business Services, and keep current, a list of loan originators employed by
the banker or broker. The banker or broker shall notify the director within 30
days of the employment or termination of employment of a loan originator.
(2) An applicant for issuance of a
mortgage banker or mortgage broker license under ORS 59.850 shall include with
the application evidence acceptable to the director that each individual the
applicant has hired or intends to hire as a loan originator has:
(a)(A) Successfully completed an
entry-level training course approved or provided by an organization certified
by the director as described in ORS 59.977; and
(B) Passed an examination, approved or
provided by an organization described in ORS 59.977, on laws and rules relating
to mortgage lending in this state; or
(b) If the individual has been employed as
a loan originator for two or more years in this state, completed continuing
education as required by the director pursuant to ORS 59.975.
(3) A mortgage banker or mortgage broker
that applies for renewal of a license pursuant to ORS 59.855 shall include with
the application evidence acceptable to the director that each individual
employed by the banker or broker as a loan originator has:
(a)(A) Successfully completed an
entry-level training course approved or provided by an organization certified
by the director as described in ORS 59.977; and
(B) Passed an examination, approved or
provided by an organization described in ORS 59.977, on laws and rules relating
to mortgage lending in this state; or
(b) If the individual has been employed as
a loan originator for two or more years in this state, completed continuing
education as required by the director pursuant to ORS 59.975.
(4) An applicant for issuance of a
mortgage banker or mortgage broker license under ORS 59.850 shall include with
the application evidence acceptable to the director that each individual the
applicant has hired or intends to hire who is an insurance producer or
insurance consultant licensed under ORS 744.002 and who is a full-time loan
originator as defined in ORS 59.970 has:
(a)(A) Successfully completed an
entry-level training course approved or provided by an organization certified
by the director as described in ORS 59.977; and
(B) Passed an examination, approved or
provided by an organization described in ORS 59.977, on laws and rules relating
to mortgage lending in this state; or
(b) If the individual has been employed as
a full-time loan originator for two or more years in this state, completed
continuing education as required by the director pursuant to ORS 59.975.
(5) A mortgage banker or mortgage broker
that applies for renewal of a license pursuant to ORS 59.855 shall include with
the application evidence acceptable to the director that each individual
employed by the mortgage banker or mortgage broker as a loan originator who is
an insurance producer or insurance consultant licensed under ORS 744.002 and
who is a full-time loan originator as defined in ORS 59.970 has:
(a)(A) Successfully completed an
entry-level training course approved or provided by an organization certified
by the director as described in ORS 59.977; and
(B) Passed an examination, approved or
provided by an organization described in ORS 59.977, on laws and rules relating
to mortgage lending in this state; or
(b) If the individual has been employed as
a full-time loan originator for two or more years in this state, completed
continuing education as required by the director pursuant to ORS 59.975.
(6) An applicant under subsection (2),
(3), (4) or (5) of this section shall, at the time of application, certify that
the applicant has conducted criminal records checks required under ORS 59.970
and 59.972 and:
(a) Certify that, to the best of the
applicants belief, no individual the applicant employs or intends to employ as
a loan originator has engaged in conduct that would constitute a violation of
ORS 59.967 (2) or 59.971; or
(b) Note any exceptions to the
certification made in paragraph (a) of this subsection. An applicant is not
subject to an action at law for making a notation under this paragraph in good
faith.
(7) Except as provided in subsections (4)
and (5) of this section, a mortgage banker or mortgage broker may voluntarily
report to the director regarding employees who would qualify as loan
originators if not exempted under ORS 59.840 (4). Voluntary reporting by a
banker or broker under this subsection does not make the reported employees
subject to training, examination or continuing education requirements or other
laws governing loan originators.
(8) The director shall keep records that
include notifications filed under subsection (1) of this section and exceptions
to certifications under subsection (6) of this section. The director shall
retain the records for a period of not less than three years. The director
shall keep for 10 years a record of any complaint against a loan originator
that has been determined to be justified pursuant to ORS 59.973.
(9) Notwithstanding subsections (1) to (5)
of this section and ORS 59.865 (17), 59.970, 59.971 (1)(d) and 59.975, the
director, by rule, may waive any training, examination or continuing education
requirement for a loan originator for a period not to exceed six months after
the individual begins or resumes employment as a loan originator. [2001 c.952 §4;
2003 c.526 §4; 2005 c.22 §40]
59.970
Qualifications for insurance licensees acting as loan originators. (1) As used in this section, loan
originator means an individual who:
(a) Is an insurance producer or insurance
consultant licensed under ORS 744.002;
(b) Has not transacted insurance as
defined in ORS 731.146 for a period of 60 consecutive days; and
(c) Would qualify as a full-time loan
originator if not exempted under ORS 59.840 (4).
(2) An individual who is an insurance
producer or insurance consultant licensed under ORS 744.002 and who is employed
full-time as a loan originator shall:
(a) Complete an entry-level training
course approved or provided by an organization certified as described in ORS
59.977;
(b) Pass an examination, approved or
provided by an organization described in ORS 59.977, on laws and rules relating
to mortgage lending in this state;
(c) If the individual has been employed as
a loan originator for two or more years in this state, complete the continuing
education requirements under ORS 59.975; and
(d) Undergo a criminal records check as
required in ORS 59.972. [2003 c.526 §2; 2005 c.22 §41]
Note: Section 7, chapter 526, Oregon Laws 2003,
provides:
Sec.
7. (1) The training and
examination requirements described in ORS 59.969 and 59.970 do not apply to an
individual who, on January 1, 2004:
(a) Is an insurance producer or insurance
consultant licensed under ORS 744.002;
(b) Would qualify as a loan originator if
not exempted under ORS 59.840 (4); and
(c) Has worked full-time performing the
functions of a loan originator since January 1, 2002.
(2) The continuing education requirements
described in ORS 59.969 and 59.970 apply to an individual who is an insurance
producer or insurance consultant licensed under ORS 744.002 and who is a loan
originator as defined in ORS 59.970. The two-year period allowed for the
individual to complete the continuing education requirements begins on the filing
date of the first application under ORS 59.969 that lists the individual. [2003
c.526 §7; 2005 c.22 §42]
59.971
Prohibited conduct for loan originators; effect of criminal conviction; rules. (1) A person employed by a mortgage banker
or mortgage broker as a loan originator may not:
(a) Engage in dishonest, fraudulent or
illegal practices or conduct in any business or profession or engage in unfair
or unethical practices or conduct in connection with the mortgage business.
(b) Willfully or repeatedly violate or
fail to comply with a provision of ORS 59.840 to 59.980 or a rule or order of
the Director of the Department of Consumer and Business Services.
(c) Fail to account to persons interested
for all money or property received in connection with a mortgage loan.
(d) Fail to meet the training, education
or continuing education requirements for loan originators.
(2) A person may not be employed by a
mortgage banker or mortgage broker as a loan originator as defined in ORS
59.840 or 59.970 if the person has been convicted of any crime or category of
crime specified by the director by rule. [2001 c.952 §6; 2003 c.526 §6]
59.972
Loan originator criminal records checks; rules. (1) A mortgage banker or mortgage broker
shall conduct a criminal records check of each individual who the mortgage
banker or mortgage broker employs or intends to employ as a loan originator.
(2) A mortgage banker or mortgage broker
shall report to the Director of the Department of Consumer and Business
Services the results of each criminal records check conducted under subsection
(1) of this section.
(3) The director shall adopt rules:
(a) Necessary for the implementation and
administration of criminal records checks required under this section and ORS
59.970; and
(b) Specifying categories of criminal
convictions that will prevent a person from acting as a loan originator under
ORS 59.971. [2003 c.526 §3]
59.973
Complaints against loan originators; investigation; hearing; rules; action by
director. (1) If the
Director of the Department of Consumer and Business Services receives a
complaint against a loan originator for a violation of ORS 59.967 (2) or
59.971, the director may notify the loan originator and the mortgage banker or
mortgage broker employing the loan originator.
(2) The director may investigate a
complaint against a loan originator. Upon the conclusion of the investigation,
the director shall promptly notify the loan originator and the mortgage banker
or mortgage broker employing the loan originator of the directors proposed
determination regarding the complaint.
(3) Any hearing on a complaint must be
conducted as provided by rules of the director and pursuant to ORS chapter 183.
(4) If the director determines, after
opportunity for hearing, that a complaint is justified, the director shall note
the complaint in the records kept pursuant to ORS 59.969 (8). For a violation
of ORS 59.967 (2) or 59.971, the director may impose requirements for
supervision and remedial education of the loan originator, assess civil penalties
against the loan originator as provided in ORS 59.996 or refer the matter for
criminal prosecution pursuant to ORS 59.992. [2001 c.952 §7; 2003 c.526 §5]
59.975
Continuing education requirements for loan originators; rules. The Director of the Department of Consumer
and Business Services shall, by rule, establish continuing education
requirements for persons employed by mortgage bankers or mortgage brokers as
loan originators. The requirements established by the director may not be less
than 10 hours every two years and not more than 20 hours every two years. The
continuing education must be obtained through continuing education programs
approved or provided by an organization whose continuing education curriculum
and testing is certified by the director as described in ORS 59.977. [2001
c.952 §8]
59.977
Certification of organizations to provide training for loan originators; rules. (1) The Director of the Department of
Consumer and Business Services may certify an organization as qualified to approve
or provide entry-level training or continuing education curricula and testing
for loan originators. The director, by rule, shall establish criteria for
certifying an organization under this subsection.
(2) An organization certified by the
director to approve or provide loan originator examinations must be experienced
in professional test administration.
(3) All loan originator examinations shall
be conducted at a secure location to protect the integrity of the testing
process.
(4) The director, by rule, may provide for
the acceptance or conditional acceptance of continuing education hours
completed pursuant to the laws of another state that the director determines
provide protection to the public that exceeds or is substantially similar to
the protection provided by ORS 59.840 to 59.980. [2001 c.952 §9; 2005 c.97 §3]
59.980
Short title. ORS 59.840 to
59.980 may be cited as the Oregon Mortgage Lender Law. [Formerly 59.965]
PENALTIES
59.990 [Amended by 1955 c.180 §1; repealed by 1967
c.537 §36]
59.991
Criminal penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions. (1) Except as provided in subsection (3) of
this section, violation of any provision of ORS 59.005 to 59.451, 59.710 to
59.830, 59.991 and 59.995 or any rule adopted by the Director of the Department
of Consumer and Business Services under ORS 59.005 to 59.451, 59.710 to 59.830,
59.991 and 59.995, except ORS 59.315 (2) or 59.810, is a Class B felony.
(2) Violation of ORS 59.315 (2) or 59.810
is a Class A misdemeanor.
(3) This section does not apply to a
failure to file a notice and pay a fee under ORS 59.049 (1), (2) or (3), nor to
a failure to file a notice and pay a fee pursuant to ORS 59.165 (7), nor to a
failure to pay a fee pursuant to ORS 59.175 (8), nor to a violation of any rule
adopted by the director under ORS 59.049 (1), (2) or (3), 59.165 (7) or 59.175
(8). [1967 c.537 §35; 1981 c.292 §5; 1987 c.603 §24; 1997 c.772 §28; 1999 c.53 §5]
59.992
Criminal penalties for ORS 59.840 to 59.980. (1) Violation of any provision of ORS 59.840 to 59.980 or any rule
adopted by the Director of the Department of Consumer and Business Services
under ORS 59.840 to 59.980, except ORS 59.915 (2) and 59.975, is a Class C
felony.
(2) Violation of ORS 59.915 (2) is a Class
A misdemeanor. [1993 c.508 §25; 1995 c.622 §14; 2005 c.97 §2]
59.995
Civil penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions. (1) In addition to all other penalties and
enforcement provisions provided by law, any person who violates or who procures,
aids or abets in the violation of ORS 59.005 to 59.451, 59.710 to 59.830,
59.991 and 59.995 or any rule or order of the Director of the Department of
Consumer and Business Services shall be subject to a penalty of not more than
$20,000 for every violation, which shall be paid to the General Fund of the
State Treasury.
(2) Every violation is a separate offense
and, in the case of a continuing violation, each days continuance is a
separate violation, but the maximum penalty for any continuing violation shall
not exceed $100,000.
(3) Civil penalties under this section
shall be imposed as provided in ORS 183.745.
(4) This section does not apply to a
failure to file a notice and pay a fee pursuant to ORS 59.049 (1), (2) or (3),
nor to a failure to file a notice and pay a fee pursuant to ORS 59.165 (7), nor
to a failure to pay a fee pursuant to ORS 59.175 (8), nor to a violation of any
rule adopted by the director under ORS 59.049 (1), (2) or (3), 59.165 (7) or
59.175 (8). [1973 c.366 §10; 1975 c.491 §5; 1983 c.696 §7; 1985 c.349 §28; 1989
c.197 §18; 1991 c.734 §3; 1997 c.772 §29; 1999 c.53 §6; 1999 c.315 §4]
59.996
Civil penalties for ORS 59.840 to 59.980. (1) In addition to all other penalties and enforcement provisions
provided by law, any person who violates or who procures, aids or abets in the
violation of any provision of ORS 59.840 to 59.980 or any rule or order of the
Director of the Department of Consumer and Business Services shall be subject
to a penalty of not more than $5,000 for every violation, which shall be paid
to the General Fund of the State Treasury.
(2) Every violation is a separate offense
and, in the case of a continuing violation, each days continuance is a
separate violation, but the maximum penalty for any continuing violation shall
not exceed $20,000 for each offense.
(3) Civil penalties under this section
shall be imposed as provided in ORS 183.745. [1993 c.508 §26]
_______________
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