By Hope Del Carlo

Oregon’s Homeownership Stabilization Initiative (“OHSI”) has rolled out three new programs designed to help financially-strapped Oregonians keep their homes.  OHSI is a program of Oregon Department of Housing and Community Services, and is funded by the Hardest Hit Funds administered by the U.S. Treasury Department.

Together the three new benefits are known as the Loan Preservation Program. They consist of:

1. Preservation Benefit: payment assistance to borrowers who can afford to pay their mortgages after a financial hardship. Through this program, OHSI provides five-year, forgivable loans of up to $40,000 to reinstate delinquent first-lien mortgages. OHSI makes the payments directly to loan servicers.
2. Property Tax Benefit: assists homeowners who own their homes outright (without a mortgage) and can pay their taxes going forward, but are delinquent on taxes due to a hardship. The program can provide a maximum benefit up to $40,000, paid to the county to bring taxes current.
3. Reverse Mortgage Benefit: available to homeowners who are in default on a reverse mortgage due to unpaid property charges (such as taxes, insurance and homeowner’s association fees) that were advanced by their lender. The benefit can provide up to $40,000, paid directly to the reverse mortgage servicer, to cure such delinquencies.

For each of these programs, the funds provided are in the form of a five-year, forgivable loan secured by the home.

Slots become available for these programs on a rolling basis; borrowers seeking to apply should visit OHSI’s website for more information, including referrals to housing counseling agencies for assistance in accessing the programs.  OHSI’s website is found at http://www.oregonhomeownerhelp.org.

By Kelly Harpster

A new Court of Appeals decision clarifies what most lawyers already suspected and the Legislature already confirmed by amendment—that Oregon law does not require courts to include a money award in a judicial foreclosure judgment when the foreclosing party does not seek a money award.

In Bayview Loan Servicing, LLC v. Reed, 282 Or App 525 (2016), the Court of Appeals held that ORS 88.010 (2013) did not require a court to enter a personal money judgment against the debtor if the foreclosing plaintiff does not seek a money judgment. Prior to the foreclosure action, the debtor received a bankruptcy discharge of his personal liability for a defaulted mortgage. When Bayview later commenced a judicial foreclosure, Reed moved for summary judgment, arguing that entry of a money judgment against him was required by ORS 88.010(1) and that entering the money judgment would violate the federal discharge injunction. The trial court agreed, entered a limited judgment dismissing Reed from the case, and awarded Reed his attorney fees. Bayview appealed.

The trial court was not the first to interpret the statute to require a personal money judgment. A few years ago, during the peak of the foreclosure crisis, judges in several Oregon counties decided that in rem foreclosure actions were prohibited by ORS 88.010. The relevant part of the statute provided:

Except as provided in ORS 88.103, in addition to judgment of                                 foreclosure and sale, if the lien debtor or another person, as                                 principal or otherwise, has given a promissory note or other                                 personal obligation for payment of the debt, the court also shall                         enter judgment for the amount of the debt against the lien                             debtor or other person.

Courts understood the word “shall” to mandate personal money awards regardless of the relief actually sought by the foreclosing plaintiff. The new interpretation created an acute problem if the debtor received a bankruptcy discharge prior to the foreclosure. Although bankruptcy law does not prohibit creditors from foreclosing a security interest post-discharge, bankruptcy law does prohibit creditors from obtaining a personal money judgment against the debtor. If every foreclosure judgment had to contain a money award against the debtor, including a debtor who received a bankruptcy discharge, then creditors could not judicially foreclose in Oregon without violating federal law.

The interpretation created problems in other cases, too. For example, some homeowners deed property to the lender in lieu of foreclosure. Many deeds-in-lieu permit the lender to foreclose if necessary to secure clear title but prohibit the lender from seeking a personal money judgment against the homeowner. The new interpretation of ORS 88.010 meant that a lender would have to breach its contractual promise to foreclose judicially.

As the interpretation spread slowly across the state, both debtor and creditor attorneys called for a statutory fix. The Oregon State Bar’s Debtor-Creditor section worked with the Consumer Law section to craft an amendment to clarify the intent of ORS 88.010. The Legislature passed the amendment in 2015, making clear that a court need not enter a personal money judgment against the debtor when other law prohibits it or the plaintiff does not seek a money judgment.

Because the amendment did not take effect until one month after entry of the limited judgment in Bayview, neither party argued that the amended statute controlled. Therefore, the court reviewed the history and context of ORS 88.010, concluding that statute, even prior to the amendment, did not require a court to enter a personal money judgment if the foreclosing plaintiff did not seek one. The Court of Appeals therefore reversed and remanded to the trial court for further proceedings.

The full opinion is available here.

Interested in exciting new pro bono projects?  Consider these from Legal Aid Services of Oregon:

Legal Aid Services of Oregon
Portland Regional Office
Pro Bono Projects:

Bankruptcy Clinic.  The Oregon State Bar Debtor-Creditor Section and LASO sponsor this project. The project consists of two components, a bankruptcy class and a legal clinic during which volunteer attorneys each meet with two clients for 30-minute appointments.  Anyone may attend the 45-minute class, which is taught by a member of the bankruptcy bar or bench.  Volunteer attorneys meet with clients, help them assess whether bankruptcy is appropriate, and if so, provide ongoing representation.  The monthly clinic is held from 6:15-9:00 p.m. and alternates between sites in Beaverton, east Portland and downtown Portland.  12-15 attorneys, one mentor and one speaker are typically scheduled for each clinic.

The Bankruptcy Clinic classes are held once a month on Wednesday evening from 6:15 to 7:15 p.m. at one of the three locations listed below. Scheduled attorney appointment follow the class. No childcare is available.

Downtown Portland location
First United Methodist Church
1838 SW Jefferson St., Collins Hall
Portland, OR 97201

East Portland location
Hollywood Senior Center
1820 NE 40th
Portland, OR 97212

Beaverton location
City Hall Building
12725 SW Millikan Way
3rd floor training room
Beaverton, OR 97005

2017 Clinic Schedule:

Date                          Location

January 18              Downtown Portland

February 22            East Portland

March 15                 Beaverton

April  19                   Downtown Portland

May 17                     East Portland

June 21                    Beaverton

July  19                     Downtown Portland

August                      No Clinic

September 20        Beaverton

October  18            Downtown Portland

November  15       East Portland

December                No Clinic

 

Senior Law Project.  The Senior Law Project consists of 25 monthly legal clinics held at nine senior center locations in Multnomah County.  Volunteer lawyers meet with clients who are 60 or over (or who are married to someone 60 or over).  The lawyers provide 30-minute consultations, on any civil legal issues, for up to six clients per clinic.  All clients 60 or over are eligible for a free 30-minute consultation, regardless of their income.  SLP volunteers provide continuing pro bono services for only those clients who meet LASO’s financial eligibility requirements.  LASO coordinates a monthly Elder Law Discussion Group to provide information and support.

YWCA/ East County
600 NE 8th St, Room 100
Gresham, OR  97030
(503) 721.6771
2nd & 4th Fridays 1 – 4 pm

 

Neighborhood House (Downtown)

1032 SW Main St.
Portland, OR 97205
(503) 295-0044
2nd & 4th Thursdays 1 – 4 pm

Friendly House

2617 NW Savier St.
Portland, OR  97209
(503) 224-2640
1st & 3rd Thursdays 9 am – noon

 Hollywood Senior Center

1820 NE 40th
Portland, OR  97212
(503) 288-8303
Fridays 9 am – noon

 

IRCO

740 SE 106th
Portland, OR  97216
(503) 234-1541
Thursdays 1 – 4 pm

 

Neighborhood House (Southwest)

7688 SW Capitol Hwy
Portland, OR  97219
(503) 244-5204
2nd & 4th Tuesdays 9 am – noon

 North Senior Services

9009 N. Foss
Portland, OR  97217
(503) 288-8303
1st 7 3rd Tuesdays 9 am – noon

Impact NW SE Portland

4610 SE Belmont
Portland, OR  97215
(503) 721.6760
Wednesdays 10 am – 1 pm

Urban League Multi-Cultural Senior Center

5325 NE MLK Blvd
Portland, OR  97211
(503) 280-2600
2nd, 3rd 4th Tuesdays 1-4 pm

 

ProBonoOregon Listserv.  Legal service offices around the state post cases to this listserv one time per week. An attorney who is interested in accepting a pro bono opportunity contacts the listing office for full case information. Listings include the area of law, type of case, assistance expected and a brief description of the issue. Conflict information is discussed with interested attorneys when they contact the listing office.  This project allows pro bono attorneys to take a pro bono case when it fits best with their schedule. Sign up for the listserv on Legal Aid’s website, www.oregonadvocates.org.

 

Any attorney who is interested in pro bono opportunities in a specific area of law or case type, please contact Jill Mallery at Legal Aid Services of Oregon in the Portland Regional Office at [email protected] or 503.224.4086.

By Kelly Harpster and Eva Novick

 

Several bills passed in the 2015 legislative session that may impact your practice or your consumer clients. Many of these bills will go into effect on January 1, 2016. We summarized the bills and grouped them into three subject matters areas below: Foreclosure/Mortgage, Unlawful Trade Practices Act and Other Consumer Protection-Related Bills. A number of these bills do not have a private right of action; however, you may still want to be aware of these changes when you are giving clients advice or screening potential clients. To view the full text of any bill, go to https://olis.leg.state.or.us/.

 

Foreclosure/Mortgage

 

SB 252            : ODVA Exempt From Foreclosure Mediation

 

SB 252 amends ORS 86.726 to exempt the Oregon Department of Veterans’ Affairs from the requirement to request or participate in a resolution conference with the grantor of a residential trust deed prior to commencing a foreclosure.

 

The bill takes effect on January 1, 2016.

 

SB 277            : Expanded Use of NMLS for Financial Businesses

 

SB 277 amends provisions of ORS 697 and ORS 717 to authorize the Department of Consumer and Business Affairs to issue rules requiring check-cashing businesses, debt management service providers, and money transmission businesses to register and renew Oregon licenses through the Nationwide Multistate Licensing System (NMLS).

 

Originally authorized by Congress in 2008 to provide a single, nationwide, online licensing system for mortgage loan originators, NMLS has expanded to include licensing of other financial businesses. SB 277 authorizes DCBS to conform existing licensing procedures to NMLS requirements without changing the base statutory requirements.

 

The bill took effect on May 20, 2015; however, the amendments apply only to registrations and renewals issued on or after the operative date of August 19, 2015.

 

SB 367            : Liability for Condo and HOA Assessments During the Redemption Period After Foreclosure

 

After a judicial foreclosure, the purchaser obtains possession of the property immediately but the judgment debtor retains legal title until the six-month redemption period ends. SB 367 amends ORS 94.712 and ORS 100.475 to clarify that the purchaser—more precisely, the certificate holder as defined in ORS 18.960—is solely liable for all homeowner’s association or condominium assessments that come due during the redemption period. If the property is redeemed, SB 367 provides that the assessments paid by the purchaser or claimant are included, with interest, in the redemption amount.

 

The amendments apply to properties sold at an execution sale conducted on or after the effective date of January 1, 2016.

 

HB 2532: Required Disclosures for Reverse Mortgages

 

HB 2532 amends ORS 86A.196 to require that every advertisement, solicitation or communication intended to induce a person to apply for or enter into a reverse mortgage must contain a clear and conspicuous summary of the terms of the mortgage.

 

Specifically, if included in the mortgage contract, the summary must disclose that: (1) a borrower must repay with interest any amount still owing at the conclusion of the term, (2) certain fees and charges may be added to the loan, (3) the balance may increase with interest over the life of the loan, (4) the borrower is directly responsible for paying taxes, insurance and maintenance costs and that failure to pay these amounts may cause the loan to come due immediately, and (5) interest on the mortgage is not tax deductible until the loan is repaid.

 

The requirements of HB 2532 apply to lenders and their agents and affiliates but do not apply to financial institutions as defined in ORS 706.008, licensees as defined in ORS 725.010, or mortgage bankers and mortgage brokers licensed under ORS 86A.106.

 

The bill took effect on May 18, 2015; however, the requirements apply only to reverse mortgage transactions that occur on or after the operative date of January 1, 2016.

 

Unlawful Trade Practices Act

 

SB 601            : Expanded Identity Theft Protection

 

SB 601 amends the Oregon Consumer Identity Theft Protection Act.  It expands the definition of “personal information” to include certain biometric data, health insurance policy numbers and health information.  It also adds that persons who had a breach of security must provide notice to the Attorney General if the breach affects more than 250 Oregonians.  HIPPA covered entities do not need to give notice of data breaches to Oregon consumers as long as they provide a copy of the notice sent under HIPAA to the Attorney General.

 

Enforcement of the Oregon Consumer Identity Theft Protection Act will also be under the Unlawful Trade Practices Act, ORS 646.607.

 

The bill takes effect January 1, 2016.

 

HB 2383: Registration of Telephonic Sellers

 

HB 2383 amends ORS 646.551, which relates to the registration of telephonic sellers.  The bill adds to the definition of telephone solicitation business opportunities.  Any person who solicits the purchase of a business opportunity by telephone needs to register as a telephonic seller pursuant to ORS 646.553 and provide certain disclosures at the time the solicitation is made pursuant to ORS 646.557.

 

The bill defines a business opportunity as a commercial arrangement in which three events must occur: (1) the seller solicits a prospective purchaser to enter into a new business or to buy ancillary services within 60 days after entering into a new business, (2) the prospective purchaser makes a payment for the business or services, and (3) the seller claims that it will find customers for the purchaser of the business or buy back goods or services from the purchaser.  Excluded from the definition of a business opportunity are sales of an ongoing business, certain sales of demonstration equipment and franchises.

 

The bill took effect on September 1, 2015.

 

HB 2377: Phishing Violates the UTPA

 

HB 2377 makes phishing a violation of the Unlawful Trade Practices Act, under ORS 646.607.  The bill provides that, unless for a lawful investigation, a person may not use a website, email, text message or other electronic means to induce another person to provide personal information by falsely representing who the person is.

 

The bill took effect May 21, 2015.

 

Other Consumer Protection-Related Bills

 

SB 278            : Unlicensed Consumer Finance Loans Void

 

Oregon law requires consumer finance, title loan and payday lenders to obtain a license from the Department of Consumer and Business Affairs. Under prior law, loans made without a license were merely voidable. SB 278 renders consumer finance, payday and title loans by an unlicensed lender void and therefore uncollectible.

 

SB 278 amends ORS 725, which applies to certain consumer finance loans of $50,000 or less, and ORS 725A, which applies to payday and title lenders. If a person makes a covered consumer finance loan, payday loan, or title loan without a license, the loan is void not voidable and the lender may not deposit the borrower’s check or money order, withdraw money from the borrower’s accounts, or otherwise collect principal, interest or fees in connection with the loan.

 

The bill contains an exception for lenders that held a license that lapsed inadvertently or by mistake. For lapsed title and payday lenders, the Director of DCBS may determine by order whether and how the licensee may collect.

 

The bill takes effect on June 18, 2015; however, the amendments apply only to loans made on or after the operative date of September 17, 2015.

 

HB 2282: New Requirements for Vehicle Dealers

 

In part, HB 2282 amends ORS 822.043.  The bill provides that vehicle dealers may charge a document processing fee for: issuing or transferring a certificate of title; registering a vehicle; issuing a license plate; verifying and clearing a title; perfecting, releasing or satisfying a lien; complying with federal security requirements; and rendering any other services in order to comply with state or federal law.  The dealer may charge $150 if it uses an electronic system and $115 if it processes the paperwork by hand. If a consumer pays a dealer a document processing fee, the dealer must prepare and submit all documents to complete the transaction as permitted by law.

 

The bill takes effect January 1, 2016.

 

HB 2832: Limits on Third-Party Financial Aid Contracts

 

HB 2832 creates new provisions and amends ORS 352.129.  The bill provides that if a public or private post-secondary institution of education has a contract with a third party to disburse and manage state or federal financial aid for students, the contract may not include a revenue sharing provision.  The contract must also prohibit the third party from charging students a fee for the initial disbursement of financial aid funds via paper check or electronic funds transfer, a transaction fee for debits from an account or an inactivity fee.  A college or university that enters into a contract with a third party to disburse and manage financial aid funds must post the contract on its website.

 

The bill takes effect January 1, 2016.

By Joel Shapiro.
The Consumer Financial Protection Bureau (CFPB) recently issued a comprehensive report to Congress on arbitration clauses.  The study was mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.  The report covers pre-dispute arbitration clauses in six different consumer financial product markets: credit cards, checking accounts, prepaid cards, private student loans, payday loans, and mobile wireless third-party billing.

The report found that:

• over 50% of credit card loans contain binding arbitration clauses
• 94% of credit card loans would include binding arbitration clauses if not for an antitrust suit against a number of card issuers
• 44% of deposits in checking account  include arbitration clauses in the account contracts
• close to 100% of market share in the six product markets studied prohibit class action suits in their arbitration provisions
• Consumers are generally unaware that their credit card contracts include arbitration clauses
• Consumers don’t understand that they don’t have the right to go to court
• Most consumers whose agreements contain arbitration clauses wrongly believe that they can participate in class action suits

See the report here:  http://www.consumerfinance.gov/reports/arbitration-study-report-to-congress-2015/”

On November 4, 2014, the U.S. Supreme Court heard oral arguments in Jesinoski v. Countrywide, Docket No. 13-684, a Truth in Lending Act case arising from the Eighth Circuit.

The Truth in Lending Act (“TILA”) is a comprehensive consumer protection statute that regulates the disclosure and, to a lesser extent, the substance of consumer loans. One of its most powerful provisions creates the right for consumer borrowers to rescind refinanced or second mortgages secured by their primary residence for any reason within three days after closing, or for up to three years post-closing if material disclosures are not given or are inaccurate. At issue in Jesinoski is whether merely mailing a notice of rescission within three years of closing a loan is sufficient to “exercise” the right to rescind under 15 U.S.C. § 1635(a) or, alternatively, whether a borrower who wants to rescind the loan must file a lawsuit within the three-year statutory period.

The case has garnered considerable attention from the banking industry and consumer advocates because it stands to resolve a circuit split. The Third, Fourth and Eleventh Circuits have ruled that mailing a letter notifying the creditor of the borrower’s intent to cancel within the three-year period is enough exercise the right to rescind. Conversely, our Circuit, the Ninth, and the First, Sixth, Eighth, and Tenth Circuits hold that the three-year period set forth in 15 U.S.C. §1635(f) to exercise the “right of rescission” requires a borrower to file a lawsuit within three years of consummation of the loan. Because resolution of this and related TILA rescission issues is so critical to preserving borrowers’ rights, six of amicus briefs have been filed.

Those interested in following the progress of Jesinowski can subscribe to updates on the SCOTUSblog website at http://www.scotusblog.com/case-files/cases/jesinoski-v-countrywide-home-loans-inc/

By: Jeremiah Ross
503.224.1658
http://www.rosslawllc.com/

I often get frantic calls from people who have recently purchased and financed a vehicle.  These people are asking for help because the dealer is claiming the consumer must return to the dealership and sign additional financing documents with terms less favorable to the consumer.   Consumers are confused and angry when they learn the financing fell through and the dealer no longer has their trade-in to return to them.   Most of the time these consumers are victims of a bushing scam.  These bushing scams are also known as “spot delivery” or yo-yo sales.

Here is the way bushing scams typically work.  The dealer will sell a person a car and offer to finance the vehicle.  The consumer signs financing paperwork and takes the vehicle home.  Usually the consumer is under the impression the financing is complete and the vehicle is theirs.   Unbeknownst to the consumer, after the consumer leaves the lot the dealer is still attempting to find a finance company to finance the vehicle.  Consumers may receive credit denial letters in the mail, but think it is in error because the dealer told them the vehicle was financed.  Eventually, the dealer contacts the consumer and informs them financing could not be obtained.  The scam is complete when the dealer has the consumer agree to new less favorable financing terms for the vehicle.  This often results in the consumer paying a higher interest rate and putting an additional down-payment down on the vehicle.

The dealer benefits from this transaction because the consumer is usually under the impression the vehicle was theirs the day they drove it off the lot.  Consumers have often put money into the vehicle to buy things like floor mats, a stereo, or other items.  As a result, they feel trapped and will sign new less favorable financing terms.  Additionally, dealers may inform the consumer that their trade-in has been sold and the dealer does not have “authority” to refund their down-payment.  These are frustrating issues for consumers and practitioners alike.  However, in Oregon there are laws to protect consumers in these situations.

Below is a list of questions and answers to assist practitioners and consumers that are facing a spot delivery issue:

Is Spot Delivery Legal In Oregon? Yes, but dealers must comply with ORS 646A.90 and OAR 137-020-0020 (3).  These requirements allow dealers to make an offer to sell or lease a vehicle to a consumer that is subject to future acceptance by a lender.  ORS 646A.90 (2)

How long does a dealer who spot delivers a vehicle have to obtain financing for the vehicle? A dealer must find financing for the vehicle under the exact terms negotiated between the dealer and consumer within 14 days after the date on which the buyer takes possession of the vehicle. ORS 646A.90 (3) (a)

What happens to a Consumer’s trade-in in a spot delivery deal?  In a spot delivery deal, the dealer cannot sell or lease the consumer’s trade-in before the dealer has received final approval of funding from the lender. ORS 646A.90 (3) (b) 

Can a dealer offer to obtain financing for a vehicle knowing that the financing will not be approved?  No, a dealer cannot spot deliver a vehicle to a consumer unless the dealer has a “reasonable basis to believe the consumer could qualify for the terms of financing quoted at the time of delivery.” 137-020-0020 (3) (x)  This is a powerful rule that consumers with horrible credit can use when the dealer initially has them sign a retail installment contract or lease with a low interest rate and little money down.

Does a dealer that fails to finance a spot delivered vehicle have to tell a person why the financing fell through? Yes, if a dealer spot delivers a vehicle and fails to obtain financing under the original terms, the dealer cannot make a misrepresentation regarding why the consumer does not qualify for the original financing terms or misrepresent why the transaction cannot be completed under the original terms. 137-020-0020 (3) (y)  This rule prohibits dealers from calling the consumer back to the lot to sign new less favorable financing terms, even after the consumers original terms were approved by the lender.

What does the dealer have to do if they cannot obtain financing for the vehicle under the original terms?

A dealer that spot delivered a vehicle to a consumer and later learns the consumer does not qualify for the original terms must do the following prior to offering, negotiating, or entering into new terms for the purchase or lease of the vehicle:

1. Inform the consumer that the consumer is entitled to have all items of value received from the consumer as part of the transaction, including any trade-in and down payment, returned to the consumer.

 

2. If the consumer is physically present when the dealer informs the consumer that the consumer does not qualify for the terms offered, the dealer must return all items received from the consumer as part of the transaction. The dealer must have a refund check and the Trade-In keys immediately available.

 

3. If the dealer informs the consumer by telephone, text, e-mail, letter, or other means without the consumer present, that the consumer did not qualify for the terms offered. The dealer must clearly disclose the consumer’s right to receive the immediate return of all items of value, i.e. trade in and down payment, when the consumer returns the vehicle.  The consumer must have the actual ability to obtain these items of value and the dealer cannot simply inform them of their right to receive these items back. The dealer must have a refund check and the Trade-In keys immediately available.  Dealers usually have a difficult time complying with this law as they usually sell the consumers trade-in prior to obtaining the financing.

Dealers shall inform consumers of these options and cannot hold the trade-in and down payment for ransom to have the consumer enter into a less favorable financing agreement.  The Commentary 137-020-0020 (3) (z)  makes it clear; “The consumer has an absolute right to walk away from the deal if the original offer is not going to be honored.”  137-020-0020 (3) (x); See Also, ORS 646A.90 (4)

In a failed Spot Delivery, can the dealer charge the consumer for vehicle damage and the mileage the consumer put on the vehicle? Yes, but only if the offer or contract to sell the vehicle provided in writing that the buyer is liable for: the fair market value of damage, excessive wear and tear, or loss of the motor vehicle while the vehicle is in the consumer’s possession.  Additionally, if within 14 days of that date the buyer takes possession of the vehicle the seller sends notice to the buyer by first class mail that financing is unavailable, the dealer may charge for mileage the buyer put on the vehicle.  ORS 646A.90 (4) (b) explains how the mileage is computed and notes, “The [mileage] charge may not exceed the rate per mile allowed under federal law as a deduction for federal income tax purposes for an ordinary and necessary business expense.” ORS 646A.90 (4) (b).

The above list is not exhaustive as many other statutory violations often occur during bushing scams.  However, each situation is unique and these statues and rules are helpful in guiding the practitioner and consumer who is facing a spot delivery issue.  ORS 646A.90  and 137-020-0020 (3) do not explicitly state a consumer has a right of action to sue under these statutes and rules.  However, a creative practitioner can use these laws as a basis for a claim for relief.

Please remember the law is constantly changing and you should refer to the statute and applicable case law before relying on any of the information in this post.