Title 205 · ORS Chapter 205

and 205.455.

Citation: ORS 205.450

Section: 205.450

205.450 and 205.455.

�� No order from a court of competent jurisdiction authorizing the filing of such encumbrance accompanied the filing and, pursuant to ORS 205.455, the encumbrance has no legal effect and is invalid.

�� A copy of this Notice of Invalid Encumbrance has been mailed this day by depositing a true copy of the notice in the United States mail, addressed to _________ (name and address of encumbrance claimant), the last-known address of _________ (insert name of encumbrance claimant).

�� DATED this ___ day of ______, ___.

______________________

Attorney for _________

SUBSCRIBED AND SWORN to before me this ___ day of _________, ___.

______________________

NOTARY PUBLIC FOR OREGON

My commission expires: ______

______________________________________________________________________________

�� (6) A copy of the notice of invalid encumbrance filed under this section shall be posted at the county courthouse and mailed by the attorney to the encumbrance claimant at the encumbrance claimant�s last-known address, if available.

�� (7) No person or county shall be liable under this section for accepting for filing an invalid claim of encumbrance or for accepting for filing a notice of invalid encumbrance.

�� (8) Filing a notice of invalid encumbrance under this section shall clear title to all property that is affected by the claim of encumbrance that is the subject of the notice of invalid encumbrance from all claims, liens, charges or liabilities attached to the property under the claim of encumbrance. [1997 c.290 �2; 2011 c.637 �71]

�� 205.460 Order to show cause why invalid claim of encumbrance should not be stricken; petition; hearing; release of invalid claim; procedure unavailable against certain persons. (1) A person whose property is subject to an invalid claim of encumbrance may petition the circuit court of the county in which the person resides or in which the property is located for an order, which may be granted ex parte, directing the encumbrance claimant to appear at a hearing before the court and show cause why the claim of encumbrance should not be stricken and other relief provided by this section should not be granted. The court shall schedule the hearing no earlier than seven days after the date of the order. The scheduled date of the hearing shall allow adequate time for notice of the hearing under subsection (4) of this section.

�� (2) A petition under this section shall state the grounds upon which relief is requested, and shall be supported by the affidavit of the petitioner or the petitioner�s attorney setting forth a concise statement of the facts upon which the motion is based.

�� (3) The petition and affidavit described in subsection (2) of this section shall be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________,�� )

Petitioner,�� )�� Case No. _____

�� )

�� )�� PETITION FOR AN

�� )�� ORDER STRIKING

v.�� )�� AND RELEASING

�� )�� ENCUMBRANCES,

�� )�� AWARDING COSTS

�� )�� AND ATTORNEY FEES

_________,�� )�� AND ORDER TO

Respondent.�� ) SHOW CAUSE

�� Petitioner, _________ (insert name), by and through _________ (insert name and title of attorney for petitioner, if applicable), petitions this court, pursuant to ORS 205.460, for an order striking and releasing purported encumbrances, filed or recorded against Petitioner by Respondent, _________ (insert name or names) filed or recorded in book/reel/volume No. _____ on page _____ or document/fee/file/instrument/microfilm No. _____ in the _________ (insert name of office where document was filed or recorded), and for an order, pursuant to ORS 205.460, for costs and attorney fees required to bring this action, on the grounds that the purported encumbrances have no basis in law or fact. Petitioner further requests that this court enter an order requiring Respondent to appear before this court and to show cause why the above order should not be entered. Finally, Petitioner requests an order from the court requiring Respondent to pay penalties and damages as provided in ORS 205.470.

�� DATED this ___ day of ______, ___.

______________________

Petitioner or Petitioner�s Attorney

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________,�� )

Petitioner,�� )�� Case No. _____

�� )

�� )�� AFFIDAVIT OF

v.�� )�� ____________

�� )

_________,�� )

Respondent.�� )

____________�� )

STATE OF OREGON�� )

�� ) ss.

County of _________ )

�� I, _________ (insert name of affiant), after being duly sworn, depose and say:

�� 1. I am the above-entitled petitioner (or the attorney for the petitioner) in this matter.

�� 2. The information contained in this affidavit is of my own personal knowledge.

�� 3. Attached as numbered exhibits are true and correct copies of the following documents that were filed or recorded in the _________ (insert name of office where documents were filed or recorded) on _________ (insert date):

�� (List and attach document(s))

�� 4. For any purported encumbrances identified above the following is true. The encumbrance is not authorized by statute, was not entered into consensually, and is not an equitable, constructive or other encumbrance imposed by a court of competent jurisdiction.

�� DATED this ___ day of ______, ___.

______________________

(Petitioner or Petitioner�s Attorney)

SUBSCRIBED AND SWORN to before me this ___ day of _________, ___.:LEND

______________________

NOTARY PUBLIC FOR OREGON

My commission expires: ______

______________________________________________________________________________

�� (4) A copy of the petition and the order directing the encumbrance claimant to appear under this section shall be served upon the encumbrance claimant:

�� (a) By service in the manner provided for personal service of summons under ORCP 7; or

�� (b) By mailing a true copy of the petition, affidavit and order to the encumbrance claimant at the encumbrance claimant�s last-known address, both by first class mail and by certified or registered mail, return receipt requested. A notice mailed under this paragraph is effective on the date that the notice is deposited with the United States Postal Service, properly addressed and postage prepaid.

�� (5) The order to show cause shall be in substantially the following form and shall clearly state that if the encumbrance claimant fails to appear at the time and place noted, the claim of encumbrance shall be stricken and released and that the encumbrance claimant shall be ordered to pay the costs and reasonable attorney fees incurred by the petitioner at trial and on appeal:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________,�� )

Petitioner,�� )�� Case No. _____

�� )

�� )�� ORDER TO

v.�� )�� SHOW CAUSE

�� )

_________,�� )

Respondent.�� )

�� THIS MATTER came before the court on _________ (insert date) on Petitioner�s Petition for an Order Striking and Releasing Encumbrances, Awarding Costs and Attorney Fees and Order to Show Cause. The court, having considered the petition, the Affidavit of _________ (insert name) and the attached exhibits, and it appearing to the court that there are sufficient grounds to issue an order to show cause,

�� IT IS HEREBY ORDERED that the Respondent, _________ (insert name), appear before this court on _________ (insert date), at ______ (insert time), to show cause why the petition should not be granted in its entirety.

IMPORTANT NOTICE:

�� IF YOU FAIL TO APPEAR AT THE ABOVE TIME AND PLACE, THE COURT MAY ENTER AN ORDER STRIKING AND RELEASING YOUR ENCUMBRANCE CLAIMS FILED AGAINST PETITIONER AND YOU MAY BE ORDERED TO PAY COSTS AND REASONABLE ATTORNEY FEES INCURRED BY THE PETITIONER.

�� DATED this ___ day of ______, ___.

______________________

Circuit Court Judge

______________________________________________________________________________

�� (6) If the court determines that the claim of encumbrance is invalid, the court shall issue an order striking and releasing the claim of encumbrance and may award costs and reasonable attorney fees at trial and on appeal to the petitioner to be paid by the encumbrance claimant. If the court determines that the claim of encumbrance is valid, the court shall issue an order so stating and may award costs and reasonable attorney fees at trial and on appeal to the encumbrance claimant to be paid by the petitioner.

�� (7) The procedure set forth in this section is not available against a person lawfully conducting business as:

�� (a) An institution, a national bank, an out-of-state bank or an extranational institution, as those terms are defined in ORS 706.008, a savings bank, a federal savings bank or a subsidiary of an entity described in this paragraph;

�� (b) A financial holding company, a bank holding company, a savings and loan holding company or a subsidiary of a financial holding company, a bank holding company or a savings and loan holding company;

�� (c) A credit union, as defined in ORS 723.006, or a federal credit union;

�� (d) A consumer finance company subject to the provisions of ORS chapter 725;

�� (e) A mortgage banker or a mortgage broker, as those terms are defined in ORS 86A.100, a mortgage servicing company or any other mortgage company; or

�� (f) An insurer as defined in ORS 731.106.

�� (8) The procedure set forth in this section is not available against:

�� (a) An officer, agency, department or instrumentality of the federal government;

�� (b) An officer, agency, department or instrumentality of this state; or

�� (c) An officer, agency, department or instrumentality of a political subdivision or public corporation in this state. [1997 c.290 �3; 1999 c.59 �57; 2001 c.377 �42; 2009 c.541 �9; 2015 c.244 �89a]

�� 205.465 Claim of encumbrance against certain property invalid without judicial order. A claim of encumbrance against the property of a federal official or employee or against the property of a state or local official or employee based on the performance or nonperformance of official duties of the official, employee or agent shall be invalid unless an order from a court of competent jurisdiction authorizing the filing of the encumbrance is filed with the encumbrance. [1997 c.290 �4]

�� 205.470 Liability for filing invalid claim of encumbrance. Any person who knowingly files, or directs another to file, an invalid claim of encumbrance shall be liable to the owner of the property bound by the claim of encumbrance for a sum of not less than $5,000 or for actual damages caused by the filing of the claim of encumbrance, whichever is greater, together with costs and reasonable attorney fees at trial and on appeal. Any grantee or other person purportedly benefited by an invalid encumbrance that is filed who willfully refuses to release the invalid encumbrance upon request of the owner of the property affected shall be liable to the owner for the damages and costs and reasonable attorney fees at trial and on appeal provided in this section. [1997 c.290 �5]

MISCELLANEOUS PROVISIONS

�� 205.510 County clerk not to act or have partner acting as attorney. (1) No county clerk shall during the term of office of that clerk institute or assist in instituting any suit, action or probate proceeding in any court of which the clerk is an officer, act as an attorney or counselor with or without hire in any such suit, action or proceeding, or have a partner who shall act as an attorney in any of such proceedings.

�� (2) The county clerk of Multnomah County and the deputies of the clerk are prohibited from practicing or having a partner practicing as an attorney-at-law, while in office.

�� 205.515 Orders or warrants issued by state agency or officer; docketing; transfer to County Clerk Lien Record. (1) If an order or warrant issued by a state agency or officer was docketed in the judgment docket of the circuit court of any county before October 3, 1989, notice of satisfaction or release of the lien of an order or warrant so docketed shall be docketed in the same judgment docket in which the order or warrant was docketed.

�� (2) If an order or warrant issued by a state agency or officer was docketed in the judgment docket of a circuit court of any county before October 3, 1989, the officer or agency may cause such an order or warrant to be transferred to and recorded in the County Clerk Lien Record of the same county in which the order or warrant was originally docketed as provided in subsection (3) of this section. An order or warrant so transferred shall continue the lien created by the original docketing of the order or warrant.

�� (3) Upon request, the clerk of a circuit court shall supply to an officer or agency a certified copy of any order or warrant docketed in the judgment docket of a circuit court before October 3, 1989. That certified copy may then be recorded in the County Clerk Lien Record of the county where the circuit court is located in the same manner and with the same effect provided for the recording of original orders and warrants. Upon recording of the order or warrant, the agency or officer shall as soon as possible thereafter cause to be returned to the clerk of the circuit court that prepared the certified copy, the original of that certified copy reflecting the recording of the copy in the County Clerk Lien Record and the date of the recording. The clerk shall then cause to be entered in the register a notation reflecting the recording of the order or warrant in the County Clerk Lien Record and the date of the recording.

�� (4) Nothing in this section shall be construed to affect the status of liens created by, or require the transfer from, any judgment docket to any County Clerk Lien Record of any order or warrant docketed in a judgment docket before October 3, 1989. [1989 c.706 �5; 2003 c.576 �196]

�� 205.520 [Repealed by 1981 c.48 �8]

�� 205.525 Interest on penalties imposed by orders; satisfaction of orders or warrants issued by state agency or officer; recording release of lien in County Clerk Lien Record. (1) Interest on a penalty imposed by an order shall run from the date of issuance of a final order at the rate provided for interest on judgments provided for in ORS 82.010 unless the penalty is paid within the time allowed by law.

�� (2) An order or warrant may be satisfied by payment of the amount due under the order or warrant, any penalties or interest accruing in connection with the order or warrant under law, and all costs incurred by the agency in connection with recording, indexing or service of the order or warrant and the satisfaction thereof. When an order or warrant has been fully satisfied it shall be the responsibility of the agency or officer that issued the order or warrant to record a full satisfaction in each county in which the order or warrant was recorded.

�� (3) The lien of an order or warrant may be released only by the officer or agency that issued the order or warrant. A release of the lien may be recorded in the County Clerk Lien Record in which the order or warrant was recorded. If the officer or agency records a release, the cost of recording or indexing the release may be recovered in advance from the person seeking the release. [1989 c.706 �4; 2005 c.22 �157]

�� 205.530 [Repealed by 1981 c.48 �8]

PENALTIES

�� 205.990 Penalties. Any officer who violates ORS 205.510 (1) shall be deemed guilty of official misconduct and punished therefor as provided by ORS 162.415. [Amended by 1959 c.552 �15; 1971 c.743 �346]

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