71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1302
A-Engrossed
House Bill 2386
Ordered by the House March 15
Including House Amendments dated March 15
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Revises laws relating to garnishment.
A BILL FOR AN ACT
Relating to garnishment; creating new provisions; amending ORS
12.085, 18.335, 23.160, 23.166, 23.425, 25.083, 25.372, 29.367,
52.600, 205.126, 221.346, 310.635 and 652.610 and section 8,
chapter 745, Oregon Laws 1999, and ORCP 84 D; and repealing ORS
23.185, 29.087, 29.115, 29.125, 29.135, 29.137, 29.138, 29.139,
29.142, 29.145, 29.147, 29.155, 29.165, 29.185, 29.195, 29.205,
29.215, 29.225, 29.235, 29.237, 29.245, 29.255, 29.265, 29.275,
29.282, 29.285, 29.295, 29.305, 29.315, 29.325, 29.335, 29.343,
29.345, 29.355, 29.357, 29.365, 29.369, 29.371, 29.373, 29.375,
29.377, 29.395, 29.401, 29.405, 29.411 and 29.415.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITIONS + }
SECTION 1. { + Definitions. As used in sections 1 to 65 of
this 2001 Act:
(1) 'Check' has the meaning given that term in ORS 73.0104.
(2) 'Creditor' means a person to whom a debt is owed by a
debtor.
(3) 'Debt' means any monetary obligation for which a
garnishment may be issued under section 3 of this 2001 Act.
(4) 'Debtor' means a person whose property is being garnished
for the purpose of paying a debt owed to a creditor.
(5) 'Financial institution' means a financial institution or
trust company as those terms are defined in ORS 706.008.
(6) 'Garnishable property' means all property described in
section 7 of this 2001 Act, but does not include:
(a) Any property that is not subject to garnishment under
section 8 of this 2001 Act; and
(b) Any property that is applied as a setoff under section 9 or
56a of this 2001 Act.
(7) 'Garnishee' means a person to whom a writ of garnishment
has been delivered.
(8) 'Garnishor' means:
(a) The creditor, if the writ is issued by the clerk of the
court on behalf of the creditor under section 12 (2) of this 2001
Act; or
(b) The issuer, if the writ is issued under section 12 of this
2001 Act by any person other than the clerk of the court.
(9) 'Past due support' means the amount of child or spousal
support, or both, determined under a court or administrative
order in a proceeding under ORS 110.303 to 110.452 or ORS chapter
107, 108, 109, 416, 419B or 419C that has not been paid or is
certified to be owed by another state under ORS 25.083.
(10) 'Person' includes any public body, as defined in ORS
192.410.
(11) 'Wages' includes all amounts paid for the services of an
employee by an employer, including amounts paid as a commission
or bonus.
(12) 'Writ' means a writ of garnishment. + }
{ +
GARNISHMENT GENERALLY + }
SECTION 2. { + Garnishment described. For the purposes of
sections 1 to 65 of this 2001 Act, garnishment is the procedure
by which a creditor invokes the authority of a circuit court,
justice court or municipal court to acquire garnishable property
of a debtor that is in the possession, control or custody of a
person other than the debtor. + }
SECTION 3. { + Debts subject to garnishment; when writ may be
issued on debt. (1) Garnishment may be used to acquire
garnishable property for application against the following debts:
(a) A judgment requiring the payment of money that has been
entered in the register of a court or docketed in the docket of a
court.
(b) If the writ of garnishment is issued pursuant to
provisional process under ORCP 83 and 84, a claim of one party
against another party in a civil action.
(c) Support arrearage shown on the support records of the
Department of Justice pursuant to ORS 25.020 and 25.167, even
though such records may not constitute a full record of the
support arrearage owed.
(d) Monetary obligations imposed under agency orders or
warrants recorded pursuant to law in the County Clerk Lien
Record.
(2) For the purposes of sections 1 to 65 of this 2001 Act:
(a) A writ may be issued for a monetary obligation based on a
judgment other than a judgment for support after the judgment is
entered in the register of the court or, if the court does not
have a register, after the judgment is docketed in the docket of
the court.
(b) A writ may be issued for a monetary obligation based on a
judgment for support after the underlying judgment, decree, court
order or administrative order that creates the support obligation
is entered in the register of the court or after a request for
administrative enforcement services is received under ORS 25.083.
(c) A writ may be issued pursuant to provisional process under
ORCP 83 and 84 after the court order for provisional process is
entered in the register of the court.
(d) A writ may be issued for a monetary obligation based on an
agency order or warrant after the order or warrant is recorded in
the County Clerk Lien Record. + }
SECTION 4. { + Form of writ. (1) Except as otherwise provided
by law, a writ of garnishment must be in substantially the form
provided by section 59 of this 2001 Act. Notation on the writ of
additional information for purposes of identifying the debtor or
the garnishable property believed to be held by the garnishee
does not affect the validity or operation of the writ. A debt
calculation form, in substantially the form provided by section
60 of this 2001 Act, must be prepared for each writ of
garnishment issued.
(2) A writ of garnishment must contain all of the following
information:
(a) The name of the court whose authority is invoked.
(b) The names of the creditor and debtor.
(c) The name of the garnishor.
(d) The date on which judgment was entered against the debtor
or the debt otherwise became subject to garnishment under section
3 of this 2001 Act.
(e) The debtor's Social Security number or employer
identification number, if those numbers are known by the
garnishor. A public body, as defined in ORS 192.410, shall not
include the Social Security number of the debtor if the
disclosure of the Social Security number would violate federal
law or any law of this state.
(f) The amount subject to garnishment under the writ, as
determined by completing the debt calculation form provided in
section 60 of this 2001 Act.
(g) The date on which the writ is issued.
(h) All addresses required in the writ of garnishment form
provided by section 59 of this 2001 Act.
(3) If a writ of garnishment is issued by the clerk of the
court, the creditor must sign the certification in the writ
indicating that the creditor has read the writ and that to the
best of the knowledge, information and belief of the creditor
there is good ground to support issuance of the writ and the
amount indicated in the writ as subject to garnishment.
(4) If a writ is issued by any person other than the clerk of
the court, the person issuing the writ must sign the
certification described in subsection (3) of this section. + }
SECTION 5. { + Validity of writ after issuance. (1) A writ of
garnishment is valid only if the writ is delivered not more than
60 days after the writ is issued. If the writ is delivered within
the time specified in this section, the writ acts to garnish
property for the period of time specified by section 10 of this
2001 Act.
(2) If the clerk of the court is issuing a writ of garnishment,
the date of issuance for the writ is the date the clerk stamps
and signs the writ. If the writ is issued by any other person,
the date of issuance for the writ is the date on which the issuer
signs the certification described in section 4 (4) of this 2001
Act. + }
SECTION 6. { + Court with authority over writ. (1) Only the
following courts have authority over a writ of garnishment issued
for the enforcement of a judgment:
(a) The court in which the judgment to be enforced was
originally entered or first registered or docketed;
(b) The circuit court for the county in which a judgment debtor
resides if the requirements of ORS 23.030 have been met; and
(c) The circuit court for the county in which a debtor has
filed a challenge to the garnishment under section 36a of this
2001 Act.
(2) Only the following courts have authority over a writ of
garnishment issued for the enforcement of an agency order or
warrant:
(a) The circuit court for the county in which the order or
warrant was first recorded; and
(b) The circuit court for the county in which the debtor
resides if the order or warrant has also been recorded in that
county.
(3) The circuit court for the county in which the order for
provisional process is entered has sole authority for issuance of
a writ of garnishment issued pursuant to an order for provisional
process. + }
{ +
GARNISHABLE PROPERTY + }
SECTION 7. { + Garnishable property generally. Except as
specifically provided in sections 1 to 65 of this 2001 Act, a
writ of garnishment delivered to a garnishee garnishes all
personal property of the debtor, including but not limited to
property in safe deposit boxes, stocks, wages, monetary
obligations owing to the debtor that are then in existence
whether due or to become due, property held on expired and
unexpired bailments and leases, and property held by the
garnishee pursuant to a security interest granted by the debtor
to the garnishee. A writ of garnishment acts to garnish all
property of the debtor possessed by the garnishee, all property
of the debtor over which the garnishee has control and all
property of the debtor that is in the custody of the garnishee.
If a person other than the debtor has an interest in the
garnished property, the writ of garnishment acts only to garnish
the interest of the debtor in the property. + }
SECTION 8. { + Property not subject to garnishment. (1)
Notwithstanding section 7 of this 2001 Act, the following are not
garnishable property:
(a) Equitable interests.
(b) Property in the custody of the law.
(c) Property in the possession of a conservator.
(d) Property in the possession of a personal representative
that constitutes the subject matter of a trust contained in a
duly probated will of a decedent.
(2) Notwithstanding any other provision of law, if a voluntary
or involuntary bankruptcy petition has been filed by or on behalf
of the debtor after a writ of garnishment could be issued under
section 3 of this 2001 Act, the garnishment of any property of
the debtor in the garnishee's possession, control or custody is
stayed pursuant to section 362 of the United States Bankruptcy
Code (11 U.S.C. 101 to 1330). + }
SECTION 9. { + Setoff for certain amounts payable to
underlying lienholders. (1) Notwithstanding section 7 of this
2001 Act, a garnishee may apply a setoff against amounts owing to
the debtor under the terms of a land sale contract, under the
terms of a promissory note or other evidence of indebtedness that
is secured by a mortgage or trust deed, or under the terms of a
security agreement as defined in ORS 79.1050, to the extent that
those amounts are actually paid to another person:
(a) Who is entitled to receive the amounts under the terms of
the land sale contract, mortgage, trust deed or security
agreement, or under the terms of any other land sale contract,
mortgage, trust deed or security agreement that is secured by the
same property that is the subject of the land sale contract,
mortgage, trust deed or security agreement; and
(b) Who has an interest in the property that is the subject of
the land sale contract, mortgage, trust deed or security
agreement that is superior to the interest of the creditor under
the laws that would govern a foreclosure, trust deed sale,
repossession or other action against the property that is the
subject of the land sale contract, mortgage, trust deed or
security agreement.
(2) A garnishee must deliver in the manner required by sections
1 to 65 of this 2001 Act all amounts in the garnishee's
possession, control or custody at the time of delivery of the
writ of garnishment that are not actually paid by the garnishee
to another person as described in subsection (1) of this section,
unless those amounts are exempt from execution under other law.
(3) A garnishee who applies a setoff under this section must
disclose that the setoff has been applied, and the amount of the
setoff, in the garnishee response required by section 24 of this
2001 Act. The garnishee must certify in the garnishee response
that the amounts specified in the certificate were actually paid
by the garnishee to another person entitled to receive those
amounts under subsection (1) of this section. + }
{ +
DURATION OF WRIT'S EFFECT + }
SECTION 10. { + Duration of writ's effect. (1) For any
property other than wages, a writ of garnishment acts to garnish
only garnishable property of the debtor that is in the
garnishee's possession, control or custody at the time the writ
is delivered, including money that is owed but not yet due.
(2) A writ of garnishment acts to garnish all wages owed by the
garnishee to the debtor at the time the writ is delivered.
Except as provided in subsection (3) of this section, a writ also
acts to garnish all wages earned by the debtor by reason of
services to the garnishee during the period commencing with the
date the writ is delivered and ending on the earlier of:
(a) The expiration of 90 days after the date the writ is
delivered; or
(b) The date on which the garnishment is released or satisfied
in full.
(3) If a writ of garnishment is issued on behalf of a county or
county agency, the writ acts to garnish all wages earned by the
debtor by reason of services to the garnishee until the full
amount owed to the county or county agency is paid or until the
writ of garnishment is released by the county or county agency or
by a court order. A writ of garnishment issued on behalf of a
county or county agency shall contain language reasonably
designed to notify the garnishee of the provisions of this
subsection. + }
SECTION 11. { + Multiple writs. (1) Except as otherwise
provided by law, the first writ of garnishment delivered to a
garnishee has priority over all other writs delivered to the
garnishee for the same debtor. A garnishee shall make payments or
deliver property under a subsequently delivered writ only if
there is garnishable property of the debtor remaining in the
garnishee's possession, control or custody after complying with
the first writ delivered to the garnishee.
(2) If a debtor earns wages from a garnishee during the period
that a writ of garnishment is in effect under section 10 of this
2001 Act, the garnishee shall make payments under the first writ
delivered to the garnishee until the expiration of the period of
time specified in section 10 of this 2001 Act, and shall
thereafter make payments on subsequently delivered writs in the
order in which they were delivered to the garnishee as long as
each writ continues to be effective under section 10 of this 2001
Act. Any delay in payment under a writ by reason of this
subsection does not affect the expiration of the writ's effect at
the time specified in section 10 of this 2001 Act. If the first
writ does not garnish all wages of the debtor that are not exempt
from execution, the garnishee shall make concurrent payment on a
subsequently delivered writ of the balance of the wages that are
not exempt from execution.
(3) If a garnishee pays wages to a debtor and the garnishee
receives another writ of garnishment during the period that a
writ is in effect under section 10 of this 2001 Act, the
garnishee shall note those facts on the garnishee response and
indicate the date on which the previous writ will expire.
(4) A subsequent writ of garnishment issued on behalf of the
same creditor against the same debtor and delivered to the same
garnishee during the period that a previous writ is effective
under section 10 of this 2001 Act acts only to garnish property
of the debtor other than wages. + }
{ +
PERSONS AUTHORIZED TO ISSUE WRITS + }
SECTION 12. { + Who may issue writs. (1) A writ of garnishment
may be issued only by a person specified in this section.
(2) The clerk of a court may issue a writ pursuant to sections
13 and 14 of this 2001 Act only:
(a) For the enforcement of a judgment that requires the payment
of money and that has been entered in the register of the court
or docketed in the docket of the court;
(b) Pursuant to an order for provisional process under ORCP 83
and 84; or
(c) On behalf of a claimant under an order recorded pursuant to
ORS 671.707 or 701.150, if the claimant has complied with the
requirements of ORS 205.126.
(3) An attorney who is an active member of the Oregon State Bar
may issue a writ for the purpose of enforcing:
(a) A judgment that requires payment of money and that has been
entered in the register of a court of this state or docketed in
the docket of a court of this state; and
(b) An order or warrant that an agency has recorded in the
County Clerk Lien Record as authorized by law, including any
order that has been recorded pursuant to ORS 671.707 or 701.150.
(4) The administrator, as defined in ORS 25.010, may issue
writs of garnishment only for the collection of past due support.
Writs issued under this subsection are subject to the provisions
of section 15 of this 2001 Act. + }
{ +
WRITS ISSUED BY CLERK OF COURT + }
SECTION 13. { + Writs issued by clerks generally. (1) Unless
there are grounds for denying issuance of a writ of garnishment
under section 14 of this 2001 Act, the clerk of the court shall
issue writs of garnishment upon proper application and payment of
all required fees. A writ of garnishment issued by the clerk must
be signed by the creditor. The signature constitutes a
certificate by the person under ORCP 17 and is subject to the
sanctions provided by ORCP 17.
(2) The clerk of the court may not fill in or complete a writ
of garnishment on behalf of a creditor.
(3) The clerk of the court is not responsible for verifying the
amounts set forth in a writ issued by the clerk, and is not
liable for errors in the writ made by the creditor. + }
SECTION 14. { + Grounds for denying issuance of writ. (1) The
clerk of the court shall refuse to issue a writ of garnishment
that is not substantially in the form required by section 59 of
this 2001 Act.
(2) The clerk of the court shall refuse to issue a writ of
garnishment that is incomplete or contains improper instructions.
Grounds for refusing issuance of a writ under this subsection
include:
(a) The clerk's inability to verify the existence of the debt
claimed as the basis for the writ by a review of the register of
the court.
(b) A determination by the clerk, based on a review of the
register of the court, that a satisfaction of judgment has been
filed with the court.
(3) The clerk of the court shall refuse to issue a writ of
garnishment pursuant to an order for provisional process under
ORCP 83 and 84 if the party seeking issuance of the writ has not
complied with all requirements of ORCP 82 A(3), A(5) and A(6) and
B to G, 83 and 84. + }
{ +
WRITS ISSUED BY DIVISION OF CHILD SUPPORT + }
{ +
OR DISTRICT ATTORNEY + }
SECTION 15. { + Writs issued by Division of Child Support or
district attorney. (1) The administrator, as defined in ORS
25.010, may issue writs of garnishment for the collection of past
due support in the manner provided by this section. Except as
otherwise specifically provided in sections 1 to 65 of this 2001
Act, the provisions of sections 1 to 65 of this 2001 Act apply to
all writs issued under this section.
(2) Notwithstanding section 4 of this 2001 Act, a writ of
garnishment issued under this section need not contain the name
of the court whose authority is invoked.
(3) Notwithstanding section 28 of this 2001 Act, a garnishee
who receives a writ of garnishment issued under this section need
not deliver a copy of the garnishee response to the clerk of the
court.
(4) Notwithstanding section 38 of this 2001 Act, the issuer of
a writ under this section must hold any payments received from
the garnishee:
(a) For a period of 120 days after delivery of the writ, if the
garnishee is making a payment of wages; and
(b) For a period of 30 days after delivery of the writ, if the
garnishee is making a payment other than wages.
(5) When issuing writs under this section, the Administrator of
the Division of Child Support of the Department of Justice shall
modify the forms provided in sections 1 to 65 of this 2001 Act to
reflect the provisions of this section. + }
{ +
DELIVERY OF WRIT + }
SECTION 16. { + Items required to be delivered to garnishee.
(1) All of the following items must be delivered to a garnishee:
(a) The original writ of garnishment in substantially the form
provided by section 59 of this 2001 Act and a copy of the writ
certified to be true by the garnishor, or two copies of the
original writ certified to be true by the garnishor.
(b) A garnishee response form in substantially the form
provided by section 61 of this 2001 Act.
(c) An instructions to garnishee form in substantially the form
provided by section 62 of this 2001 Act.
(d) A wage exemption calculation form in substantially the form
provided by section 63 of this 2001 Act.
(e) Any search fee required by section 55 of this 2001 Act.
(2) If any of the items described in subsection (1) of this
section is not delivered to the garnishee, the garnishment is not
effective to garnish any property of the debtor, the garnishee is
not required to respond to the garnishment and the garnishee may
proceed to deal with any property of the debtor as though the
writ of garnishment had not been issued. + }
SECTION 17. { + Manner of delivery. (1) A writ of garnishment
may be delivered to the garnishee personally or by certified
mail, return receipt requested. Delivery is effective upon
receipt of the writ by the garnishee. If the garnishee refuses to
accept delivery by certified mail, the garnishor may attempt
personal delivery, but the garnishor must have a new writ issued
in order to claim additional delivery fees.
(2) Personal delivery of a writ of garnishment may be made only
by:
(a) The sheriff of the county where the writ of garnishment is
to be delivered; or
(b) A competent person 18 years of age or older who is a
resident of the State of Oregon and who is not a party or
attorney in the action.
(3) If personal delivery is made under this section, the person
serving the writ of garnishment must note the date of delivery
upon the writ delivered to the garnishee or upon a true copy
delivered to the garnishee.
(4) Notwithstanding subsection (2) of this section, a person
other than a sheriff may not deliver a writ of garnishment unless
the person has errors and omissions insurance with limits of not
less than $100,000 per occurrence from a company authorized to do
business in this state.
(5) The delivery fee for a writ of garnishment by a person
other than a sheriff shall be in an amount agreed to between the
person making the delivery and the garnishor. The delivery fee
for a writ of garnishment by a sheriff under this section shall
be no more than the following, based upon population as
determined by the most recent federal decennial census:
(a) $12.50 if the writ is delivered in a county with a
population of fewer than 400,000 persons.
(b) $9.50 if the writ is delivered in a county with a
population of 400,000 persons or more. + }
SECTION 18. { + Proper person to receive writ. (1) Except as
otherwise provided in this section, a writ of garnishment may be
delivered to any of the following persons:
(a) If the property of the debtor is in the possession, control
or custody of an individual, the writ may be delivered to the
individual. If the individual maintains an office for the conduct
of business, office delivery may be made by leaving all of the
items required by section 16 (1) of this 2001 Act at the office
during normal working hours with the person who is apparently in
charge. If office delivery is used, the person delivering the
writ, as soon as reasonably possible, shall cause to be mailed by
first class mail all of the items required by section 16 (1) of
this 2001 Act to the garnishee at the garnishee's place of
business or such other place under the circumstances that is most
reasonably calculated to apprise the garnishee of the
garnishment, together with a statement of the date, time and
place at which office delivery was made. Delivery under this
paragraph is effective upon the receipt of the writ by the person
who is apparently in charge of the office.
(b) If the property of the debtor is in the possession, control
or custody of a partnership, the writ may be delivered to any
partner or to any person designated by the partnership to accept
service of a writ of garnishment. However, if the partnership is
a limited partnership, the writ of garnishment may be delivered
only to a general partner or to a person designated by the
partnership to accept service.
(c) If the property of the debtor is in the possession, control
or custody of a corporation, the writ may be delivered to any
officer or managing agent of the corporation or to any person
designated by the corporation to accept service.
(d) If the property of the debtor is in the possession, control
or custody of a limited liability company, the writ may be
delivered to any member of the company or to any person
designated by the company to accept service.
(e) If the property of the debtor is in the possession, control
or custody of a financial institution, the writ may be delivered
to the manager, assistant manager or other designated person at
any office or branch of the financial institution where deposits
are received or that has been designated by the institution as a
place for receiving writs of garnishment. Delivery of a writ in
the manner prescribed in this paragraph is effective to garnish
all property of the debtor held at all offices and branches of
the financial institution located in this state.
(f) If the property of the debtor is in the possession, control
or custody of a public body, as defined in ORS 192.410, the writ
may be delivered to the board, department, institution,
commission or officer charged with approving a claim for the
property.
(2) Notwithstanding ORS 78.1120 (2), if the property of the
debtor is money that is owed to the debtor that is not evidenced
by a negotiable instrument, certificate, document or similar
instrument, the writ of garnishment must be delivered to the
person who owes the money in the manner provided by subsection
(1) of this section.
(3) Notwithstanding ORS 78.1120 (2), if the property of the
debtor is stock in a corporation, other than stock represented by
a negotiable certificate or similar instrument, the writ of
garnishment must be delivered to the corporation in the manner
provided by subsection (1) of this section.
(4) Notwithstanding ORS 77.6020 and 78.1120, if the property of
the debtor is a negotiable instrument, certificate, document or
similar instrument, the writ of garnishment must be delivered to
the person having possession of the instrument in the manner
provided by subsection (1) of this section. The garnishment does
not limit the rights of a holder in due course of a negotiable
instrument under ORS 73.0302, a holder to whom a negotiable
document has been duly negotiated under ORS 77.5010 or a
protected purchaser of a security under ORS 78.3030.
(5) If the property of the debtor is an interest of an heir or
legatee in an estate of a decedent, the writ of garnishment must
be delivered to the personal representative of the estate in the
manner provided by subsection (1) of this section. + }
SECTION 19. { + Documents to be delivered to debtor. (1)
Following delivery of a writ of garnishment to a garnishee, the
person who delivered the writ must mail or deliver promptly the
following documents to the debtor whose property is being
garnished by the writ:
(a) A copy of the writ of garnishment.
(b) The original of the debt calculation form.
(c) A notice of exemptions form in substantially the form
provided by section 64 of this 2001 Act.
(d) A challenge to garnishment form in substantially the form
provided by section 65 of this 2001 Act.
(2) A person serving a writ of garnishment may meet the
requirements of subsection (1) of this section by mailing the
documents to the address of the debtor that appears in the writ
of garnishment. If an address for the debtor does not appear in
the writ, the person serving the writ need not comply with
subsection (1) of this section. + }
{ +
DUTIES OF GARNISHEE GENERALLY + }
SECTION 20. { + Duties generally. (1) Upon receiving a writ of
garnishment, the garnishee shall determine whether a garnishee
response is required under sections 24 and 25 of this 2001 Act.
The garnishee has no duty to determine whether the garnishor,
sheriff or other person has complied with the requirements of
sections 1 to 65 of this 2001 Act, or to otherwise determine
whether the writ of garnishment is valid. If a garnishee response
is required, the garnishee must make a diligent effort to
determine whether the garnishee is the employer of the debtor and
whether the garnishee has possession, control or custody of any
property of the debtor as described in section 7 of this 2001
Act. If the garnishee has possession, control or custody of such
property, the garnishee must hold the property, or as much of the
property as is necessary to satisfy the garnishment, as required
by sections 1 to 65 of this 2001 Act, and thereafter make
delivery of the property in the manner required by sections 1 to
65 of this 2001 Act.
(2) The duty of a garnishee to hold and deliver property is not
affected by joint ownership of the property. If a garnishee holds
property that is owned, or appears to be owned, by the debtor and
one or more other persons, the garnishee must still hold and
deliver all of the property, or as much of the property as is
necessary to satisfy the garnishment. + }
SECTION 21. { + Immunity by payment to clerk or delivery to
sheriff. (1) Notwithstanding any provision of sections 1 to 65 of
this 2001 Act, a garnishee may pay to the garnishor or to the
clerk of the court any money that the garnishee reasonably
believes may have been garnished and may deliver to the sheriff
in the manner provided by sections 1 to 65 of this 2001 Act any
property that the garnishee reasonably believes to have been
garnished. The garnishee has no duty to determine whether money
or property held by the garnishee is exempt from garnishment or
to determine whether the money or property is garnishable
property.
(2) If the garnishee makes payment of garnished money to the
garnishor or to the clerk of the court under subsection (1) of
this section, or delivers garnished property to the sheriff in
the manner provided by sections 1 to 65 of this 2001 Act, the
garnishee is discharged from liability to the creditor for the
value of the money paid or property delivered.
(3) If the garnishee requests a receipt, the sheriff or clerk
of the court shall provide the garnishee with a receipt for any
property delivered to the sheriff or payment made to the
clerk. + }
SECTION 22. { + Exceptions to garnishee's duties. (1) A
garnishee has no duty to hold or deliver any property under a
writ of garnishment if the property has been released by a court
order or a release of garnishment has been delivered to the
garnishee under section 50 of this 2001 Act.
(2) The duty of a garnishee to hold or deliver any property
under a writ of garnishment is not breached if the property is
removed from the possession, control or custody of the garnishee
before the garnishee can act to stop that removal through the
exercise of reasonable care. + }
SECTION 23. { + Duties of personal representative who is
garnished. Garnishment does not impair the powers of a personal
representative over estate property for the purposes of
administration. If a personal representative receives a writ of
garnishment, the personal representative must prepare and deliver
a garnishee response in the manner provided by sections 1 to 65
of this 2001 Act, but no payment of money or delivery of property
need be made by the personal representative until such time as
specified in this section. The personal representative must note
on the response that the property is estate property subject to
administration. The personal representative must also file a copy
of the writ of garnishment and the garnishee response in the
office of the clerk of the court in which the estate is being
administered, and must report the garnishment to the court in any
petition for distribution. In a decree made upon such petition,
distribution shall be ordered to the heir or legatee, but
delivery shall be ordered to the sheriff or to the garnishor, as
required by sections 1 to 65 of this 2001 Act. + }
{ +
GARNISHEE RESPONSE + }
SECTION 24. { + Response required; time. (1) Except as
specifically provided under section 25 of this 2001 Act, a
garnishee must prepare a garnishee response in substantially the
form provided by section 61 of this 2001 Act and must deliver the
response in the manner provided in section 28 of this 2001 Act.
(2) Except as provided in subsection (3) of this section, a
garnishee response must be delivered by the garnishee not later
than seven calendar days after the date on which the writ of
garnishment was delivered to the garnishee.
(3) If the seventh calendar day after delivery of a writ of
garnishment is a Saturday, Sunday or legal holiday, a garnishee
response must be delivered by the garnishee on or before the next
following day that is not a Saturday, Sunday or legal
holiday. + }
SECTION 25. { + When response not required. A garnishee has no
duty to prepare and deliver a garnishee response if:
(1) The writ of garnishment is not delivered to the garnishee
within the time provided under section 5 of this 2001 Act;
(2) The garnishor fails to serve the garnishee with all items
required under section 16 of this 2001 Act;
(3) The garnishee receives a release of garnishment issued
under section 50 of this 2001 Act; or
(4) Any other law or court order directs that the response not
be made. + }
SECTION 26. { + Contents of response. A garnishee must note
upon a garnishee response the date on which the garnishee
received the writ of garnishment. The garnishee must also note
upon the response the following information and deliver the
response in the manner provided by section 28 of this 2001 Act:
(1) If the garnishee discovers that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the debtor
and the petition was filed after the date shown on the face of
the writ as the date on which the judgment was entered or
otherwise first became subject to garnishment.
(2) If the garnishee does not employ the debtor and the
garnishee does not have any garnishable property of the debtor in
the possession, control or custody of the garnishee, the
garnishee must so note on the response.
(3) If the garnishee employs the debtor, the garnishee must so
state on the response and make all other responses required by
this section or section 27 of this 2001 Act. The garnishee must
thereafter make payment under the writ in the manner provided by
section 40 of this 2001 Act.
(4) If the garnishee has any cash belonging to the debtor, or
the garnishee owes any money to the debtor other than wages that
is due as of the time the response is made, the garnishee must so
note on the response. The garnishee must make payment with the
response in the manner provided by section 38 of this 2001 Act of
the amount subject to the garnishment, or of such amount as will
satisfy the garnishment, whichever amount is less.
(5) If the garnishee owes any money to the debtor other than
wages that is not due as of the time the response is made but
that will become due within 45 days after the time the response
is made, the garnishee must so note on the response. When the
money becomes due, the garnishee must make payment in the manner
provided by section 39 of this 2001 Act of the amount subject to
the garnishment, or of such amount as will satisfy the
garnishment, whichever amount is less.
(6) If the garnishee owes any money to the debtor other than
wages that is not due as of the time the response is made and the
money will not become due within 45 days after the time the
response is made, the garnishee must so note on the response. The
garnishee must thereafter comply with sections 45 to 49 of this
2001 Act.
(7) If the garnishee has any garnishable property of the debtor
in the possession, control or custody of the garnishee that is
not cash or owed money, the garnishee must so note on the
response. The garnishee must thereafter comply with sections 45
to 49 of this 2001 Act.
(8) If the garnishee can determine from the writ that the
garnishee may owe money to or hold garnishable property of the
debtor, but is not sure what or how much, the garnishee must so
state on the response and must state that the garnishee will file
an amended response when the garnishee determines what or how
much money or property the garnishee owes or holds.
(9) If the garnishee determines that the writ of garnishment
does not comply on its face with sections 1 to 65 of this 2001
Act, or if the garnishee is unable to determine the identity of
the debtor from the information contained in the writ, the writ
of garnishment is ineffective to garnish the property of the
debtor. The garnishee must so note on the response and provide
an explanation.
(10) If, before delivering the garnishee response, the
garnishee receives an order to withhold income issued under ORS
chapter 25 that applies to the income of the debtor, the
garnishee must so note on the response. The garnishee must
provide details of the order to withhold income, including the
name of the agency serving the order, the date the order was
served on the garnishee and the amount to be withheld. If the
garnishee employs the debtor, the garnishee must make the
responses required under section 27 of this 2001 Act.
(11) If the garnishee receives notice of a challenge to the
garnishment before delivering the response, the garnishee must so
note on the response. The garnishee must thereafter comply with
section 33 of this 2001 Act. + }
SECTION 27. { + Response of garnishee who is employer of
debtor. In addition to the requirements of section 26 of this
2001 Act, if a garnishee employs the debtor, the garnishee must
so note on the garnishee response and indicate the pay period and
the next payday for the debtor. + }
SECTION 28. { + Delivery of garnishee response. (1) Except as
provided in subsection (2) of this section, a garnishee who is
required to deliver a garnishee response must mail or personally
deliver:
(a) The original of the response to the garnishor;
(b) A copy of the response to the debtor; and
(c) A copy of the writ of garnishment and a copy of the
response to the clerk of the court specified in the writ as
having authority over the writ.
(2) The garnishee shall not mail or personally deliver a copy
of the writ and a copy of the garnishee response to the clerk of
the court if:
(a) The garnishee discovers that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the debtor
after the debt was adjudicated as provided in section 3 of this
2001 Act, and the garnishee will not make payments or deliver
property under the writ pursuant to section 8 (2) of this 2001
Act; or
(b) The garnishee does not employ the debtor and the garnishee
has no property of the debtor in the garnishee's possession,
control or custody that is garnishable property.
(3) For the purpose of compliance with section 24 of this 2001
Act, delivery of a garnishee response under this section is
accomplished upon mailing or upon personal delivery of the
response. + }
SECTION 29. { + Supplemental garnishee response. (1) The
garnishee shall prepare a supplemental garnishee response in
substantially the form provided by subsection (2) of this
section, and deliver the supplemental response to the garnishor
and to the debtor, if either of the following occurs after the
garnishee has delivered an initial garnishee response and before
the garnishee delivers all property that is subject to
garnishment under the writ of garnishment:
(a) The garnishee discovers that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the debtor
under section 301, 302 or 303 of the United States Bankruptcy
Code (11 U.S.C. 101 to 1330) after the debt was adjudicated as
provided in section 3 of this 2001 Act; or
(b) The garnishee receives an order to withhold income that is
entitled to priority under ORS 25.375.
(2) The supplemental response required under subsection (1) of
this section must be in substantially the following form: + }
_________________________________________________________________
{ +
SUPPLEMENTAL GARNISHEE RESPONSE
To: The Garnishor and the Debtor
Re: Writ of garnishment delivered ___, 2__ (date), in the case
of _____ (Plaintiff) vs. _____ (Defendant), Circuit Court of ___
County, Oregon, Case No. ___. + }
{ + The undersigned garnishee furnished a garnishee response
to this garnishment on ___, 2__ (date). Since that time (check
appropriate box): + }
_ { + I have discovered that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the
Debtor after the judgment was entered against the Debtor. + }
_ { + I have received an order to withhold income of the
Debtor by reason of a support obligation. Under ORS 25.375,
the order to withhold income has priority over any other
legal process under Oregon law against the same income. The
withholding of income pursuant to the order to withhold
income might reduce or eliminate subsequent payments under
the garnishment. (Provide details, including the name of the
agency serving the order to withhold, the date the order was
served on you and the amount to be withheld.) + }
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
{ + Dated: ___, 2__ + }
{ + _______________ + }
{ + Name of Garnishee + }
{ + _______________ + }
{ + Signature + }
{ + _______________ + }
{ + Address + }
_________________________________________________________________
{ +
CHALLENGE TO GARNISHMENT + }
SECTION 30. { + Manner of making challenge to garnishment. (1)
A debtor may use a challenge to a garnishment to claim such
exemptions from garnishment as are permitted by law. A challenge
to a garnishment may also be used by a debtor:
(a) To assert that the amount specified in the writ of
garnishment as being subject to garnishment is greater than the
total amount owed by the debtor to the creditor; or
(b) To assert that property is not garnishable property.
(2) A debtor may make a challenge to a garnishment by
completing the challenge to garnishment form provided by section
65 of this 2001 Act, or a substantially similar form, and by
delivering the original of the completed form in person or by
first class mail to the clerk of the court named in the writ of
garnishment as the court with authority over the writ. A
challenge to a garnishment must be delivered:
(a) Within 120 days after a copy of the writ of garnishment is
delivered to the debtor, if the garnishee is the employer of the
debtor and the challenge is based on an exemption that is claimed
for wages earned by the debtor from the garnishee; or
(b) Within 30 days after a copy of the writ of garnishment is
delivered to the debtor, if the challenge is made on any other
basis.
(3) Upon receiving a challenge to a garnishment under
subsection (2) of this section, the clerk of the court shall
retain all payments sent to the clerk under sections 32 and 33 of
this 2001 Act until such time as the court enters a decision on
the challenge. The clerk shall reject any payment that is
received after the challenge is made and that is not payable to
the court, and shall return the payment to the garnishee with
instructions to reissue the payment as payable to the court.
(4) A court shall not require the payment of any fee for the
filing of a challenge to a garnishment. + }
SECTION 31. { + Notice to garnishor and garnishee of challenge
to garnishment. (1) Without unreasonable delay, a clerk of the
court who has received a challenge to a garnishment under section
30 of this 2001 Act shall provide written notice of the challenge
as provided in this section. The notice must include a statement
reflecting the consequences of failure of a garnishor or
garnishee to comply with the requirements of sections 32 and 33
of this 2001 Act. The notice may include the notice of hearing
under section 34 of this 2001 Act.
(2) The clerk of the court shall provide the notice of a
challenge required by subsection (1) of this section to:
(a) The garnishor.
(b) The garnishee, unless the clerk knows that the garnishee
has already delivered all garnishable property to the garnishor.
(c) The sheriff of the county identified in any notice
delivered to the clerk under section 47 (5) of this 2001 Act. + }
SECTION 32. { + Duties of garnishor created by challenge to
garnishment. (1) Except as provided in subsection (2) of this
section, upon receiving notice of a challenge to a garnishment
under section 31 of this 2001 Act, a garnishor must send to the
court specified in the writ of garnishment all amounts received
by the garnishor that the debtor has claimed to be exempt or not
subject to garnishment, unless the court specifically orders
otherwise. The payment to the court must be in cash or by check
made payable to the court. If the payment has not reached the
court by the time of the hearing under section 34 of this 2001
Act, the clerk of the court shall so notify the judge presiding
at the hearing. If the court determines that any of the garnished
money should be disbursed to the debtor and the payment has not
reached the court by the time of that determination, the court
may issue an order requiring that the garnishor appear and show
cause why the garnishor should not be held in contempt. In
addition to contempt proceedings, the court may require the
garnishor to pay attorney fees under ORS 20.105. A court's
imposition of sanctions under this subsection does not limit any
remedy otherwise available to the debtor.
(2) Subsection (1) of this section does not apply if the
garnishor is not required by law or allowed by law to disburse
the payment.
(3) The receipt of a challenge to a garnishment does not affect
the requirement under section 47 (1) of this 2001 Act that the
garnishor mail or deliver a written request for sale of property,
and pay the fees determined by the sheriff under section 47 (3)
of this 2001 Act, not later than 20 days after the garnishee
delivers the garnishee response. The garnishor must note upon the
request for sale that a challenge to the garnishment has been
made by the debtor. + }
SECTION 33. { + Duties of garnishee created by challenge to
garnishment. (1) Upon receiving notice of a challenge to a
garnishment under section 31 of this 2001 Act, a garnishee who
would otherwise be required to make a payment to the garnishor
shall mail or deliver the payment, by cash or by check made
payable to the court, to the clerk of the court. The garnishee
must make the payment to the court within the time that the
garnishee would have otherwise been required to mail or deliver
the payment to the garnishor. A garnishee who fails to make
payment in the manner required by this section is subject to
liability under the provisions of sections 51 to 54 of this 2001
Act.
(2) Upon receiving notice of a challenge under section 31 of
this 2001 Act, a garnishee who holds any property described in
section 45 of this 2001 Act must hold the garnished property for
the period specified in section 46 (1) of this 2001 Act. If the
sheriff informs the garnishee before the end of the period
specified in section 46 (1) of this 2001 Act that the property
held by the garnishee will be sold, the garnishee shall continue
to hold the property until receiving further directions from the
court. + }
SECTION 34. { + Hearing on challenge to garnishment. (1) A
debtor's challenge to a garnishment shall be adjudicated in a
summary manner at a hearing before the court with authority over
the writ of garnishment. The clerk of the court shall immediately
set a hearing date and send notice of the hearing to the parties.
The hearing shall be held as soon as possible.
(2) Hearings on a challenge to a garnishment may be held by
telecommunication.
(3) The debtor has the burden to prove timely delivery of a
challenge to a garnishment. + }
SECTION 35. { + Allowance or denial of challenge. (1) Except
as provided in subsection (3) of this section, if a challenge to
a garnishment is allowed by the court, the clerk of the court
shall mail to the debtor from any payments made to the clerk all
amounts determined to be exempt from or not subject to
garnishment within 10 judicial days after the court's order
allowing the challenge. If the challenge to a garnishment has
been made for property described in section 45 of this 2001 Act
and a request for sale of the property has been made by the
garnishor under section 47 of this 2001 Act, the clerk shall give
notice of the court's decision to the garnishee and to the
sheriff who would conduct the sale.
(2) Except as provided in subsection (3) of this section, any
amount determined to be garnishable property that is not exempt
after a hearing shall be mailed to the garnishor within 10
judicial days after the court's order denying the challenge as to
that amount.
(3) The Judicial Department may by written policy establish
time limitations different from the 10-day period provided in
subsections (1) and (2) of this section for the delivery of
amounts after a judicial determination on a challenge to a
garnishment. The time limitations established by the department
may be longer or shorter than the 10-day period. The policy may
provide for a period longer than 10 days for a category of
payments only if the department determines that the category is
subject to special circumstances that create substantial
difficulties in meeting a requirement of delivery within 10 days.
The policy shall provide for delivery in less than 10 days for
any category of payments that the department determines can be
delivered within a shorter period of time. The department shall
consider federal guidelines and rules relating to the timing of
transactions in financial institutions in developing a policy
under this subsection. Any policy adopted under this subsection
applies to all courts of this state, except that municipal courts
and justice courts are not bound by any requirement that a
category of payments be delivered in less than 10 days. + }
SECTION 36. { + Sanctions. (1) A court may impose sanctions
against any person who files a challenge to a garnishment in bad
faith. The sanctions a court may impose under this subsection are
a penalty of not more than $100 and responsibility for attorney
fees under ORS 20.105.
(2) The court shall order a creditor to return any property
that is garnished under a writ of garnishment and that was exempt
from garnishment or not subject to garnishment, and shall order
the creditor to pay a penalty of $200 to the debtor in addition
to all costs and reasonable attorney fees incurred by the debtor
in recovering the property and penalty, if:
(a) The creditor is the garnishor and fails to provide in the
writ any address for the debtor that is known to the creditor; or
(b) The creditor is not the garnishor and fails to provide to
the garnishor any address for the debtor that is known to the
creditor.
(3) The imposition of sanctions under this section does not
limit any remedy otherwise available to the creditor or
debtor. + }
SECTION 36a. { + Special rules for writs issued for past due
support. (1) Notwithstanding section 30 (2) of this 2001 Act, if
a writ of garnishment is issued pursuant to ORS 25.083, the
debtor may:
(a) Challenge the enforcement of the past due support in the
appropriate tribunal of the state upon whose request the writ was
issued as indicated in the writ of garnishment; or
(b) File a challenge to the garnishment with the clerk of the
court in the county in which the property was located when the
writ was delivered, if the debtor pays the filing fee required
for an appearance under ORS chapter 21 and files with the clerk
of the court copies of the writ of garnishment, the debt
calculation form and the garnishee response delivered to the
debtor under section 19 of this 2001 Act.
(2) When a challenge to a garnishment is filed under this
section, the clerk of the court shall enter the filing in the
court register and the court shall decide the challenge in the
manner provided by section 34 of this 2001 Act.
(3) Immediately upon receipt of a notice of a challenge to a
garnishment under this section, the issuer of the writ shall file
with the clerk of the court a response to the challenge,
attaching copies of the writ of garnishment and garnishee
response, and any supporting documentation necessary or helpful
to the court in making a determination on the challenge. + }
{ +
CLAIM BY PERSON OTHER THAN DEBTOR + }
SECTION 37. { + Claim by person other than debtor for all or
part of garnished property. Any person other than a debtor who
has an interest in any garnished property or in any part of the
garnished property may assert that interest by filing with the
clerk of the court specified in the writ of garnishment an
application in substantially the form set forth in section 65 of
this 2001 Act for a challenge to a garnishment. The provisions of
sections 30 to 36 of this 2001 Act apply to an application made
under this section. + }
{ +
PAYMENT OF MONEY UNDER WRIT + }
{ +
(Payments generally) + }
SECTION 38. { + Payment of money under writ; garnishor's duty
to hold payments. (1) Unless the court has directed otherwise or
the garnishee has received notice that a challenge to the
garnishment has been filed by the debtor, a garnishee shall make
payments of money under a writ of garnishment to the garnishor.
(2) Except as provided in sections 15 and 44 of this 2001 Act,
a garnishor receiving a payment under a writ of garnishment must
hold the payment for a period of 10 days after receipt. The
payments must be held in this state, must be clearly identifiable
and must be held separate and apart from any account used for
operating a business or used to pay personal or business
expenses. A payment under a writ may be commingled with other
garnished money.
(3) If a garnishee receives notice of a challenge to the
garnishment from the clerk of the court under section 31 of this
2001 Act, the garnishee shall cease making payments to the
garnishor and shall make all further payments to the clerk of the
court in the manner provided by section 33 of this 2001 Act. + }
SECTION 39. { + Money owed to debtor that is due within 45
days. (1) If the property garnished by a writ of garnishment is
money that is owed to the debtor and that is not due to be paid
at the time the writ is delivered but that will become due within
45 days after the delivery date, the garnishee is not required to
deliver the money until payment is due. Within five days after
the payment is due, unless the garnishment has been satisfied or
released, the garnishee must mail or deliver to the garnishor the
amount of the payment then due or a portion of the payment
sufficient to satisfy the garnishment, whichever is less.
(2) If the garnishee receives notice of a challenge to the
garnishment at any time before the garnishee mails or delivers
the amount due, the garnishee shall comply with section 33 of
this 2001 Act. + }
{ +
(Payment of nonexempt wages) + }
SECTION 40. { + Payment of wages subject to garnishment. Upon
delivery of a writ of garnishment, a garnishee that employs the
debtor shall pay to the garnishor all wages that are determined
to be subject to garnishment, and that are not exempt under
section 69b of this 2001 Act, at the following times:
(1) The garnishee must make an initial payment when the
garnishee next pays any wages to the debtor. The payment must be
for all wages that were owing to the debtor on the date that the
writ was delivered to the garnishee, and all amounts that are
being paid to the debtor for work performed after the writ was
delivered and before issuance of the paycheck. The garnishee must
compute the amount of wages subject to garnishment using the wage
exemption calculation form provided by section 63 of this 2001
Act and must mail a copy of the completed form along with the
first payment under the writ.
(2) Unless the writ of garnishment is satisfied or released,
the garnishee must make subsequent payments under the writ
whenever the garnishee makes any payment of wages to the debtor
during the period specified in section 10 of this 2001 Act. Each
time there is any change in the debtor's pay period or any change
in the amount paid to the debtor during the debtor's pay period,
the garnishee must complete a new wage exemption calculation form
and mail a copy of the completed form along with the payment.
(3) Unless the writ of garnishment is satisfied or released
sooner, the garnishee must make a final payment under the writ
when the garnishee next makes a payment of wages to the debtor
after the writ expires under the provisions of section 10 of this
2001 Act. The payment must be for all wages that were owing to
the debtor on the date that the writ expires. The garnishee must
complete a new wage exemption calculation form and mail a copy of
the completed form along with the final payment. + }
{ +
(Payments made to clerk of court) + }
SECTION 41. { + Acceptance or rejection of payments by clerk.
(1) The clerk of the court is not liable for accepting any amount
of payment under a writ of garnishment, including any payment
that is sent to the clerk in error or any payment that exceeds
the amount required to satisfy the garnishment.
(2) The clerk of the court may return to the garnishee any
payment received from the garnishee unless the garnishee has
delivered a garnishee response to the court in the manner
required by section 28 of this 2001 Act or has provided a
statement to the clerk that the payment is a voluntary payment on
behalf of the debtor to be applied toward satisfaction of the
garnishment or is a payment under another law or court order that
requires or allows the garnishee to pay money to the court. + }
SECTION 42. { + Payments erroneously sent to court. (1) If a
garnishee erroneously sends a payment to the court that should
have been sent to the garnishor, the clerk of the court shall
immediately forward to the garnishor any cash or check made
payable to the garnishor. If a garnishee erroneously sends a
payment in the form of a check made payable to the court, the
clerk may deposit and hold the check until the check has cleared
and then forward the payment to the garnishor.
(2) The clerk of the court is not liable for interest on money
erroneously sent to the court if the clerk transmits the money to
the garnishor in a timely manner. + }
{ +
(Crediting of payments) + }
SECTION 43. { + Crediting of payments against debt. (1) If a
garnishee makes payment to the garnishor, the payment shall be
credited against the debt on the date the garnishor receives the
payment.
(2) If a garnishee makes payment to the court, the payment
shall be credited against the debt on the date the clerk of the
court disburses payment to the garnishor, unless the court
otherwise orders. This subsection applies even if the garnishee
makes payment to the court in error or when the clerk holds money
pending a decision on a challenge to the garnishment. + }
SECTION 44. { + Excess payments. Within 10 days after
receiving a payment under a writ of garnishment, a garnishor must
return to the debtor any amount that exceeds the amount owing on
the debt. If payment was made by check, the garnishor is not
required to return the payment until 10 days after the check has
cleared. + }
{ +
PROPERTY SUBJECT TO SALE BY SHERIFF + }
SECTION 45. { + Application of sections 45 to 49. (1) A
garnishee shall not deliver the property described in this
section to the garnishor. If the garnishor seeks to apply the
property described in this section against the debt of the
debtor, the property must be sold by the sheriff in the manner
specified in sections 45 to 49 of this 2001 Act.
(2) The provisions of sections 45 to 49 of this 2001 Act apply
to:
(a) Any money owed by a garnishee to a debtor the payment of
which is not due at the time the writ of garnishment is delivered
to the garnishee and the payment of which does not become due
within 45 days after the date of delivery;
(b) Property of the debtor that the garnishee holds under an
unexpired bailment or lease;
(c) Property of the debtor in which the garnishee has a
security interest that was granted to the garnishee by the debtor
before the delivery of the writ; and
(d) Any other garnishable property that is not payable in
money.
(3) The property described in subsection (2)(a) to (c) of this
section must be delivered by the garnishee to the purchaser in
the manner provided by section 48 (3) of this 2001 Act if the
interest of the debtor in the property is sold by the sheriff
under section 48 of this 2001 Act. Subject to the provisions of
section 47 of this 2001 Act, the garnishee must deliver to the
sheriff any other garnishable property that is not payable in
money upon receiving notice from the sheriff under section 47 (4)
of this 2001 Act. + }
SECTION 46. { + Garnishee duties. (1) If a garnishee indicates
in the garnishee response that the garnishee holds any property
described in section 45 of this 2001 Act, the garnishee must hold
the garnished property, or a portion of the property sufficient
to satisfy the garnishment, for a period of 30 days after the
garnishee delivers the garnishee response, unless the sheriff or
the garnishor notifies the garnishee that the garnishment is
released or terminated. If the sheriff contacts the garnishee
during the 30-day period, the garnishee shall deliver the
property to the sheriff or take such other action as may be
specified in the notice given to the garnishee under section 47
(4) of this 2001 Act.
(2) If the garnishee is not contacted by the sheriff before the
end of the 30-day period provided for in subsection (1) of this
section, the garnishment is of no further force or effect with
respect to the property and the garnishee may deal with the
garnished property as if the writ of garnishment had not been
delivered to the garnishee. + }
SECTION 47. { + Request for sale; sheriff's fees. (1) If a
garnishee indicates in the garnishee response that the garnishee
holds any property described in section 45 of this 2001 Act, the
garnishor may require that the property be sold and that the
proceeds of the sale be applied against the debt owed to the
creditor. A sale of the property shall be conducted by the
sheriff only if the garnishor mails or delivers a written request
for sale of the property, and pays the fees determined by the
sheriff under subsection (3) of this section, not later than 20
days after the garnishee delivers the garnishee response. A copy
of the writ of garnishment and a copy of the garnishee response
must be attached to the request for sale of the property.
(2) A sale of the property described in section 45 of this 2001
Act may be conducted under sections 45 to 49 of this 2001 Act
only by the sheriff of the county in which the writ was delivered
or, if the property is not located within the county in which the
writ was delivered, by the sheriff of the county in which the
property is located.
(3) A garnishor may request that the sheriff of a county
described in subsection (2) of this section provide a statement
to the garnishor of the fees that the sheriff will charge for
conducting a sale of property that is described in section 45 of
this 2001 Act. The sheriff shall conduct such investigation as
may be necessary to determine the difficulty of conducting any
sale of the property under section 48 of this 2001 Act, including
any costs that the sheriff may incur in taking into possession
any of the property described in section 45 (3) of this 2001 Act.
The sheriff shall determine whether the property described in
section 45 (3) of this 2001 Act should be taken into possession
of the sheriff, or whether the sheriff should enter into an
agreement with the garnishee for the garnishee to continue to
hold the property pending sale by the sheriff. The sheriff shall
provide the statement of fees to the garnishor not later than
five days after the garnishor requests the statement.
(4) If the garnishor mails or delivers a written request for
sale of property and pays the sheriff fees determined under
subsection (3) of this section within the time allowed by
subsection (1) of this section, the sheriff shall promptly mail
or deliver a written notice to the garnishee. The notice shall
direct the garnishee to:
(a) Hold all property described in section 45 (2)(a) to (c) of
this 2001 Act until the garnishee receives further instructions
with respect to disposition of the property; and
(b) Deliver all property described in section 45 (2)(d) of this
2001 Act to the sheriff, unless the sheriff has agreed with the
garnishee that the property should continue to be held by the
garnishee pending sale.
(5) Upon sending a notice to a garnishee under subsection (4)
of this section, the sheriff shall mail or deliver a copy of the
notice to the clerk of the court with authority over the writ of
garnishment. + }
SECTION 48. { + Sheriff's sale. (1) A sheriff shall sell
property under sections 45 to 49 of this 2001 Act in the same
manner in which property is sold on execution. If the debtor owns
only part of the property, the sheriff shall sell the interest of
the debtor in the property. The sale of the property must be
conducted by the sheriff:
(a) Within 15 days after notice is sent to the garnishee under
section 47 (4) of this 2001 Act, if the garnishee is directed to
continue to hold the property pending sale by the sheriff; or
(b) Within 15 days after the property is delivered to the
sheriff, if the garnishee is directed to deliver the property to
the sheriff under section 47 (4) of this 2001 Act.
(2) If the garnishor notifies the sheriff that property should
be released to the debtor, the sheriff shall promptly release the
property.
(3) If the garnishee continues to hold property of the debtor
pending sale of the property under sections 45 to 49 of this 2001
Act, within five days after the sale of property under this
section the sheriff shall advise the garnishee in writing of the
identity of the purchaser and that the purchaser is entitled to
possession of the property or to possession of the debtor's
interest in the property. If the property is a debt owed to the
debtor for which payment is not due or is subject to a bailment,
lease or security interest that has not yet expired or been
satisfied or released, the garnishee need not deliver the
property to the purchaser until five days after payment is due,
the bailment or lease has expired, or the indebtedness secured by
the property is satisfied or the security interest is
released. + }
SECTION 49. { + Challenge to garnishment. If the sheriff
receives notice of a challenge to the garnishment pursuant to
section 31 of this 2001 Act after a request for sale of property
has been submitted by the garnishor under section 47 of this 2001
Act, the sheriff shall not take possession of or sell any
property that is subject to the challenge. If the sheriff has
taken property into possession before receiving the notice
provided for in section 31 of this 2001 Act, the sheriff shall
hold the property pending the court's determination on the
challenge. Upon receiving notice of the court's determination
under section 35 of this 2001 Act, the sheriff shall proceed as
directed by the court. + }
{ +
RELEASE OF GARNISHMENT + }
SECTION 50. { + Release of garnishment. (1) A garnishor may
issue a release of garnishment that covers all or any portion of
the property held under a writ of garnishment. The release must
be in substantially the form provided by section 63a of this 2001
Act. The garnishor must deliver a copy of the release to the
garnishee and the debtor. In addition, the garnishor must deliver
a copy of the release to:
(a) The sheriff, if the garnishor has made a request for sale
of property under section 47 of this 2001 Act; and
(b) The clerk of the court specified in the writ of garnishment
as the court with authority over the writ, if the garnishor has
made a request for sale of property under section 47 of this 2001
Act or if the garnishor has received a challenge to the
garnishment.
(2) A person who does not receive a copy of a release under
this section is not liable for treating the property as though
the writ were still in effect.
(3) Any proceedings for the sale of property under section 48
of this 2001 Act shall be terminated immediately upon receipt by
the sheriff of a copy of a release of garnishment.
(4) Upon receipt of a copy of a release under this section, the
garnishee may proceed to deal with the released property as
though the writ of garnishment had not been issued. + }
{ +
SANCTIONS AGAINST NONCOMPLYING GARNISHEE + }
SECTION 51. { + Liability of garnishee. (1) If a garnishee
fails to file a garnishee response within the time required by
law, or fails to deliver all garnishable property required to be
delivered under the writ of garnishment within the time required
by law, the garnishee is liable to the creditor in an amount
equal to the lesser of:
(a) The amount required to satisfy the garnishment; or
(b) The value of the debtor's garnishable property held by the
garnishee at the time the writ is delivered to the garnishee.
(2) A judgment may be entered against the garnishee for the
amounts specified in this section if, after a hearing, the court
finds that:
(a) The garnishee at the time of the delivery of the writ of
garnishment held garnishable property of the debtor beyond the
amount reported in the garnishee response;
(b) The garnishee held any garnishable property of the debtor
and the garnishee failed to make a response; or
(c) The garnishee failed to deliver garnishable property
required to be delivered under the writ.
(3) The creditor may also recover costs of the creditor as
determined under ORCP 68. If the garnishee fails to file a
garnishee response within the time required by law, the costs of
the creditor may be recovered from the garnishee even if it is
determined that the garnishee held no garnishable property of the
debtor at the time the writ was delivered to the garnishee.
(4) Any amounts from a garnishee collected other than costs
under a judgment entered pursuant to this section must be
credited against the debt owed by the debtor to the creditor. + }
SECTION 52. { + Order to appear. (1) If a garnishee fails to
provide a garnishee response within the time required by law, or
the response is unsatisfactory to the garnishor, or the garnishee
fails to deliver garnishable property under the writ of
garnishment within the time required by law, upon application of
the garnishor, the garnishee may be ordered by the court to
appear at a specified time and place for an examination. In
addition to or in lieu of an order to appear for examination, the
court may order the garnishee to appear for a hearing under
section 54 of this 2001 Act to determine whether the garnishee
should be held liable for the amount specified in section 51 of
this 2001 Act.
(2) At any time after a garnishor applies for an order under
this section, the court may enter an order restraining the
garnishee from in any manner disposing of or injuring any of the
property of the debtor alleged by the garnishor to be in the
garnishee's possession.
(3) Disobedience of any order of the court under this section,
or refusal to answer any question upon appearance under an order
to appear for examination, may be punished as contempt. + }
SECTION 53. { + Pleadings; default judgment. (1) If the court
orders a garnishee to appear for a hearing under section 54 of
this 2001 Act, the garnishor must serve upon the garnishee
written allegations not less than 20 days before the time set for
the hearing or within such time as may be specified in the order.
The allegations must inform the garnishee that if the garnishee
fails to answer the allegations not less than 10 days before the
time when the garnishee is required to appear for hearing,
default judgment may be given against the garnishee for an amount
no greater than the judgment against the debtor, plus any costs
awarded by the court in the proceeding. The garnishor may also
serve upon the garnishee, not less than 20 days before the time
set for the hearing or within such time as may be specified in
the order, written interrogatories concerning matters relating to
the garnishment.
(2) Unless further time is allowed for good cause, not less
than 10 days before the time when the garnishee is required to
appear for hearing, the garnishee must file with the court an
answer to the allegations and interrogatories of the garnishor
and deliver a true copy of the answer to the garnishor. The
answer shall be on oath and shall contain a full response to all
of the allegations and interrogatories.
(3) The garnishor may except to the answer of the garnishee for
insufficiency, within such time as may be allowed by the court.
If the answer is adjudged insufficient, the garnishee may be
allowed to amend the answer.
(4) If the garnishee fails to answer as required under
subsection (2) of this section, the creditor may have judgment
against the garnishee for want of answer. In no case shall
default judgment be given against the garnishee for an amount
greater than the judgment against the debtor, plus any costs
awarded by the court in the proceeding. The judgment provided for
in this subsection is in lieu of any judgment under section 51 of
this 2001 Act. Any amounts other than costs collected from a
garnishee under a judgment entered pursuant to this subsection
must be credited against the debt owed by the debtor to the
creditor. + }
SECTION 54. { + Hearing. Witnesses, including the debtor and
garnishee, may be required to appear and testify at a hearing
held pursuant to an order issued under section 52 of this 2001
Act. The proceedings against a garnishee shall be tried by the
court as upon the trial of an issue of law between a plaintiff
and defendant. + }
{ +
FINANCIAL INSTITUTION AS GARNISHEE + }
SECTION 55. { + Search fee; garnishment processing fee. (1)
Except as provided in subsection (2) of this section, the
garnishor must pay a $10 search fee at the time of delivery of
any writ of garnishment on a financial institution, or at the
time a notice of garnishment is delivered to the financial
institution under section 81 of this 2001 Act. If the search fee
required by this section is not paid:
(a) The garnishment is not effective to garnish any property of
the debtor; and
(b) The financial institution need not file a garnishee
response.
(2) The search fee provided for in this section need not be
paid to a financial institution if the debtor is an employee of
the financial institution.
(3) Notwithstanding subsection (1) of this section, a financial
institution may enter into an agreement with any state agency
authorized to garnish pursuant to section 81 of this 2001 Act for
periodic billing and payment of garnishee search fees required
under this section.
(4) The right of a financial institution to receive the search
fee provided for in this section does not in any way restrict or
impair the right of the financial institution to charge and
collect an additional garnishment processing fee from any debtor
whose property the financial institution holds, or to whom the
financial institution owes money. However, a financial
institution may not charge or collect a garnishment processing
fee in violation of ORS 652.610. If a financial institution
charges a garnishment processing fee, the financial institution
may collect the fee by deducting the amount of the fee from any
amount that the financial institution owes to the debtor. + }
SECTION 56. { + Safe deposit boxes. Notwithstanding any other
provision of sections 1 to 65 of this 2001 Act, but subject to
the provisions of section 81 of this 2001 Act, the duty of a
financial institution that is a garnishee to deliver any property
of the debtor that may be contained in a safe deposit box that is
in the garnishee's possession, control or custody at the time the
writ of garnishment is delivered is conditioned upon the
garnishor first paying to the garnishee, in addition to the
search fee provided for in section 55 of this 2001 Act, all
reasonable costs incurred by the garnishee in gaining entry to
the safe deposit box. The costs must be paid to the garnishee by
the garnishor before access to the safe deposit box is granted.
If the garnishor fails to pay such costs to the garnishee within
20 days after the delivery of the garnishee response, the
garnishment shall not be effective to garnish any property of the
debtor that may be contained in the safe deposit box and the
garnishee may proceed to deal with the safe deposit box and its
contents as though the writ of garnishment had not been issued.
Nothing in this section limits the right of a garnishor to reach
the contents of any safe deposit box in any manner otherwise
provided by law. + }
SECTION 56a. { + Setoff for amounts owing to financial
institution. In addition to such rights as the garnishee may have
at law or in equity, a garnishee who is a financial institution
may, following delivery of a writ of garnishment to the
garnishee, set off such sums as are due from the debtor at the
time the writ of garnishment is delivered. A garnishee may not
set off any amounts that are not otherwise due to be paid but
that have been accelerated after the delivery of a writ of
garnishment. Notwithstanding any other provision of sections 1
to 65 of this 2001 Act, such a garnishee shall have no obligation
to remit any sums upon the garnishment that the garnishee has set
off pursuant to this section. A garnishee who sets off amounts
pursuant to this section shall disclose the fact and the amount
of the setoff in the garnishee response required by section 24 of
this 2001 Act, and must certify in the response that the amount
set off by the garnishee was due from the debtor to the garnishee
at the time the writ was delivered. + }
SECTION 56b. { + Effect of garnishment served on financial
institution. Notwithstanding any other provision of sections 1 to
65 of this 2001 Act, if a writ of garnishment is delivered to a
financial institution after 4 p.m. and the financial institution
has a deposit account held in the name of the debtor, the writ of
garnishment only garnishes moneys on deposit in the account at
the beginning of the business day next following the day on which
the writ is delivered. + }
{ +
WRITS ISSUED TO ENFORCE AGENCY ORDERS OR WARRANTS + }
SECTION 57. { + Special rules for writs issued to enforce
agency orders or warrants. (1) Except as provided in this
section, the provisions of sections 1 to 65 of this 2001 Act
apply to all writs of garnishment issued on behalf of agencies
for the enforcement of agency orders or warrants that are
recorded in the County Clerk Lien Record.
(2) Notwithstanding section 28 of this 2001 Act, a garnishee
who receives a writ of garnishment described in subsection (1) of
this section need not deliver a copy of the garnishee response to
the clerk of the court identified as having authority over the
writ.
(3) Notwithstanding section 30 of this 2001 Act, a debtor who
wishes to make a challenge to a writ of garnishment described in
subsection (1) of this section must deliver the challenge in
person or by first class mail to the garnishor within the time
specified by section 30 (2) of this 2001 Act.
(4) A person issuing a writ of garnishment described in
subsection (1) of this section shall modify the forms provided in
sections 1 to 65 of this 2001 Act to reflect that:
(a) The writ of garnishment is issued pursuant to an order or
warrant recorded in the County Clerk Lien Record;
(b) A copy of the garnishee response need not be delivered or
mailed to the clerk of the court identified in the writ; and
(c) A challenge to a writ of garnishment described in
subsection (1) of this section must be delivered to the garnishor
and not to the court.
(5) Within 14 days after receipt of a challenge to a
garnishment described in subsection (1) of this section, the
garnishor must either:
(a) Release all property claimed as exempt from or not subject
to garnishment under the challenge to the garnishment; or
(b) File with the clerk of the court a response to the
challenge attaching copies of the writ and garnishee response,
and any supporting documentation necessary or helpful to the
court in making its determination on the challenge to the
garnishment.
(6) The provisions of this section do not apply to writs of
garnishment issued by the clerk of the court, writs issued by an
attorney for the enforcement of an order recorded under ORS
671.707 or 701.150 or writs issued by the administrator, as
defined in ORS 25.010, under section 15 of this 2001 Act. + }
{ +
USE OF WRIT FOR PROVISIONAL PROCESS + }
SECTION 58. { + Use of writ for provisional process. (1)
Notwithstanding any other provision of sections 1 to 65 of this
2001 Act, a debt calculation form need not be prepared or
delivered for any writ of garnishment issued pursuant to an order
for provisional process under ORCP 83 and 84.
(2) Notwithstanding section 38 of this 2001 Act, if a writ of
garnishment is issued pursuant to an order for provisional
process under ORCP 83 and 84, all payments of money by the
garnishee under the writ shall be made to the clerk of the court
specified in the writ as the court with authority over the writ.
The clerk shall hold the money pending final judgment against the
debtor unless the court finds, upon a challenge to the
garnishment made by the debtor under section 30 of this 2001 Act,
that all or part of the money is exempt from execution or not
subject to garnishment. If final judgment is rendered in favor of
the debtor, the court shall order the clerk to pay the money to
the debtor. If final judgment is rendered in favor of the
creditor, the court shall order the clerk to pay to the creditor
as much of the money as will satisfy the judgment and to pay the
remainder to the debtor.
(3) Notwithstanding sections 45 to 49 of this 2001 Act, if a
writ of garnishment is issued pursuant to an order for
provisional process under ORCP 83 and 84, the sheriff shall not
sell any property described in section 45 of this 2001 Act before
final judgment is entered in the proceedings, unless the court
finds, upon a challenge made by the debtor under section 30 of
this 2001 Act, that all or part of the property is exempt from
execution or is not subject to garnishment. If final judgment is
rendered in favor of the debtor, the court shall order the
sheriff to deliver the property to the debtor. If final judgment
is rendered in favor of the creditor, the court shall order the
sheriff to sell the property in the manner provided by section 48
of this 2001 Act.
(4) If property taken into the possession of the sheriff under
a writ of garnishment issued pursuant to an order for provisional
process under ORCP 83 and 84 is perishable, or the cost of
storing the property is great, the sheriff shall sell the
property in the same manner in which property is sold on
execution. The proceeds shall be held and distributed in the same
manner as provided in subsection (2) of this section for payments
made under the writ.
(5) The clerk of the court shall attach to any writ of
garnishment issued pursuant to an order for provisional process
under ORCP 83 and 84 a notice that informs the garnishee of the
provisions of subsection (2) of this section. + }
{ +
FORMS + }
SECTION 59. { + Writ of garnishment form. A writ of
garnishment must be in substantially the following form: + }
_________________________________________________________________
{ +
_____ COURT + }
{ +
COUNTY OF _____ + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
_____
)
Plaintiff, )WRIT OF
)GARNISHMENT
)
vs. )Case No. ___
)
_____
)
Defendant. )
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + TO: _____. + }
{ + You are now a Garnishee. AS A GARNISHEE, YOU NEED TO KNOW
THE FOLLOWING: + }
{ + _____ (who is called the 'Debtor') owes money
to _____ (who is called the 'Creditor'). A judgment was entered
against the Debtor for the debt, or the debt otherwise became
subject to garnishment, on ___, 2_. The Debtor's Social Security
number or employer identification number is _________ (insert if
known). + }
{ + The amount subject to garnishment is $___. + }
{ + This writ garnishes all of the following: + }
o { + Wages that you owe the Debtor at the time this writ is
delivered to you, and all wages that the Debtor earns during
the 90-day period following the date on which you receive
this writ. + }
o { + All property of the Debtor (including money) that is in
your possession, control or custody at the time this writ is
delivered to you. + }
o { + All debts that you owe the Debtor at the time this writ
is delivered to you, whether or not payment is due on the
debt at the time you receive this writ. + }
{ + YOU MUST ANSWER THIS WRIT BY COMPLETING THE ATTACHED
GARNISHEE RESPONSE WITHIN THE TIME ALLOWED BY LAW, WHETHER OR NOT
YOU HOLD ANY OF THE DEBTOR'S PROPERTY OR OWE ANYTHING TO THE
DEBTOR. IF YOU DO NOT TRUTHFULLY ANSWER THIS WRIT, OR YOU DO NOT
DELIVER MONEY OR PROPERTY WHEN YOU ARE REQUIRED TO DO SO, YOU
WILL BE LIABLE TO THE CREDITOR. + }
{ + If you have questions, you should contact an attorney.
The clerk of the court cannot give you legal advice. The
Creditor's attorney cannot give you legal advice. + }
{ + A writ of garnishment may only be issued by the clerk of
the court, by the attorney for the Creditor or by a person who is
specifically authorized by law to issue garnishments. This writ
is issued by: + }
_ { + The clerk of the court + }
_ { + The attorney for the Creditor + }
_ { + Other authorized issuer: + }
{ + Name and title ________
+ }
{ + Authority to issue writ ________ + }
{ + This writ is valid only if it has been delivered to you
within 60 days after the date of issuance. If the clerk of the
court is issuing this writ, the date of issuance is the date the
clerk signs the writ (see 'COURT SEAL' below). If this writ is
issued by any other person, the date of issuance is the date on
which the issuer signs the certification (see 'CERTIFICATION '
below). + }
{ +
IMPORTANT ADDRESSES + }
{ +
(see Step 2 of Instructions to Garnishee form) + }
{ +
(Clerk of the Court) + }
{ + _____ Court
Street address _____
City ___ County ___
State ___ Zip Code ___
+ }
{ +
(Debtor) + }
{ + Name _____
Telephone number (if known) ___
+ }
_ { + Street address _____
+ }
{ + City ___ State ___ Zip Code ___
+ }
_ { + Creditor has no knowledge of Debtor's address + }
{ +
(Garnishor; check one) + }
_ { + Creditor: (Must be filled in if clerk of the court
issues writ.) + }
{ + Name _____
+ }
{ + Street address _____
+ }
{ + CityState ___ Zip Code ___ + }
___
_ { + Attorney for Creditor: + }
{ + Name _____
+ }
{ + Street address _____
+ }
{ + CityState ___ Zip Code ___
___
+ }
{ + Telephone number _____
+ }
{ + Oregon State Bar number _____
+ }
_ { + Other authorized issuer of writ: + }
{ + Name _____
+ }
{ + Street address _____
+ }
{ + CityState ___ Zip Code ___
___
+ }
{ + Telephone number _____
+ }
{ +
CERTIFICATION + }
{ + (The following certification must be signed by the Creditor
if this writ is issued by the clerk of the court. In all other
cases, the following certification must be signed by the person
issuing the writ.) + }
{ + I certify that I have read this writ of garnishment and
to the best of my knowledge, information and belief, there is
good ground to support issuance of the writ, and the amount
indicated as subject to garnishment is lawfully subject to
collection by this writ. + }
{ + __________ _____, 2_
Signature Date
__________
Oregon State Bar No. (if attorney) + }
{ +
COURT SEAL + }
{ + (To be completed only if this writ is issued by the clerk
of the court. The writ must be stamped by the clerk. The clerk
has not calculated any amounts on the writ and is not liable for
errors made in the writ by the Creditor.)
Issued by the clerk of the court this _ day of _____, 2_. + }
{ + CLERK OF THE COURT + }
{ + By __________ + }
_________________________________________________________________
SECTION 60. { + Debt calculation form. (1) A debt calculation
form shall be prepared for each writ of garnishment issued. A
copy of the form need not be served on the garnishee, but a copy
must be delivered to the debtor along with a copy of the writ in
the manner required by section 19 of this 2001 Act.
(2) A debt calculation form must be in substantially the
following form: + }
_________________________________________________________________
{ +
_____ COURT + }
{ +
COUNTY OF _____
+ }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
_____
)
Plaintiff, )DEBT CALCULATION
)
vs. )Case No. ___
)
_____
)
Defendant. ) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + TO: _____ (Debtor).
The following amounts have been calculated to be owing from you
to _____ (Creditor). The amounts are owed by reason of: + }
_ { + A judgment entered against you dated ___, 2_, in Case
No. ___, _____ Court, _____ County. + }
_ { + Other debt subject to garnishment under the law
(provide details): + }
_____________________________________________________________
_____________________________________________________________
{ + THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS FOR
THE PURPOSE OF THIS FORM AND IS NOT LIABLE FOR ERRORS IN THIS
FORM OR IN THE WRIT OF GARNISHMENT MADE BY THE CREDITOR OR
GARNISHOR. + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
Original Debt Amount $_____
+Pre-adjudication Intere$t____
_
+Attorney Fees $_____
+Cost Bill $_____
+Post-adjudication Inter$st___
__
+Delivery Fee for Writ $_____
+Sheriff's Fees other + }
¦{¦+¦
than Delivery Fees $_____
¦+¦}
¦{¦+¦
+Other (Explain. Attach¦+¦}
¦{¦+¦
additional sheets
if necessary.)
_____
$_____
_____
$_____
_____
$_____
_____
$_____
Total '
Other
'
from additional
sheets (if used)¦+¦}
¦{¦+¦
+Past Writ Issuance Fees$_____
+Past Delivery Fees $_____
+Transcript and Filing¦+¦}
¦{¦+¦
Fees for Other Countie$_____
¦+¦}
¦{¦+¦
=Subtotal $_____
¦+¦}
¦{¦+¦
LESS Payments Made on D$(t____
_
)
=Total Amount Required to¦+¦}
¦{¦+¦
Satisfy Debt in Full $_____
¦+¦}
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦ NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO
COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL
EXECUTION.
I certify that I have read this Debt Calculation form and to
the best of my knowledge, information and belief the amount shown
as owing is correct.
__________
Creditor (Creditor must sign if writ issued by clerk of court.)
__________
Garnishor (Attorney for Creditor or other person authorized by
law to issue writ.)
__________
Address
__________
Telephone Number
__________
Oregon State Bar Number (if attorney)
__________ , 2_
Date of Calculation
¦+¦}
_________________________________________________________________
SECTION 61. ¦{¦+¦Garnishee response form. A garnishee response
must be in substantially the following form:¦+¦}
_________________________________________________________________
¦{¦+¦
_____ COURT¦+¦}
¦{¦+¦
COUNTY OF _____
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
_____
)
Plaintiff, )GARNISHEE RESPONSE
)
vs. )Case No. ___
)
_____
)
Defendant. )¦+¦}
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦ The writ of garnishment was delivered to me on the __ day
of ___, 2_. The following responses are accurate and complete as
of that date.¦+¦}
_________________________________________________________________
¦{¦+¦
PART I: DEBTOR'S PROPERTY GENERALLY¦+¦}
¦{¦+¦
(ALL GARNISHEES MUST FILL OUT¦+¦}
¦{¦+¦
THIS PORTION OF THE RESPONSE)¦+¦}
¦{¦+¦ Place a check in front of all the following statements that
apply. You may need to check more than one statement.¦+¦}
_ ¦{¦+¦I have discovered that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the
Debtor after the date shown on the face of the writ as the
date on which the judgment was entered against the Debtor or
after the debt otherwise became subject to garnishment. (You
need not complete any other part of this response, but you
must sign the response and deliver it in the manner specified
in Step 2 of the Instructions to Garnishee form.)¦+¦}
_ ¦{¦+¦I do not employ the Debtor, I do not have in my
possession, control or custody any personal property of the
Debtor, and I do not owe any debts or other obligations to
the Debtor.¦+¦}
_ ¦{¦+¦I employ the Debtor. (You must complete Part II of this
response.)¦+¦}
_ ¦{¦+¦I have in my possession, control or custody money that
belongs to the Debtor (other than wages), or I owe a debt or
other obligation to the Debtor (other than wages) that is due
as of the time of this response. I am forwarding this money,
or enough of it to satisfy the garnishment, to the
Garnishor.¦+¦}
_ ¦{¦+¦I owe a debt or other obligation to the Debtor (other
than wages) that is not due as of the time of this response
but will become due within 45 days. I will forward the money,
or enough of it to satisfy the garnishment, to the Garnishor
when the debt or other obligation becomes due.¦+¦}
_ ¦{¦+¦I owe the following debt or other obligation to the
Debtor (other than wages) that will not become due within 45
days of the time of this response. I will not make any
payments on the debt or obligation until I receive
instructions from the Sheriff or until 30 days have passed
from the date on which I deliver this response. (See
Instructions to Garnishee form.)¦+¦} ¦{¦+¦
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
¦+¦}
_ ¦{¦+¦I have in my possession, control or custody the
following personal property (other than money) that belongs
to the Debtor. I will hold all of the property for the
Garnishor until I receive instructions from the Sheriff or
until 30 days have passed from the date on which I deliver
this response. (See Instructions to Garnishee form.)¦+¦}
¦{¦+¦
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
¦+¦}
_ ¦{¦+¦I may owe money to or hold property of the Debtor, but
I am not sure what or how much it might be. (You must provide
an explanation in the following space and you must deliver an
amended response when you find out. You must deliver an
amended response even if you find out that you have no
property of the Debtor or owe no money to the Debtor.)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
¦+¦}
_ ¦{¦+¦The writ of garnishment delivered to me, on its face,
does not comply with the Oregon laws governing writs of
garnishment, or I cannot determine the identity of the Debtor
from the information in the writ. (You must provide an
explanation in the following space.)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
¦+¦}
_ ¦{¦+¦I have received an order to withhold income that
applies to the income of the Debtor. The order to withhold
income has priority over the writ of garnishment, and
compliance with the order will reduce or eliminate the money
that I would otherwise deliver under the writ. (Provide
details, including the name of the agency serving the order
to withhold income, the date the order was served on you and
the amount to be withheld. If you employ the Debtor, you must
still complete Part II of this response.)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
¦+¦}
_ ¦{¦+¦I have received notice of a challenge to the
garnishment. I will deliver to the clerk of the court all
money that I would otherwise deliver to the Garnishor. (See
Step 3 of Instructions to Garnishee form.)¦+¦}
_ ¦{¦+¦Other (Explain)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
¦+¦}
¦{¦+¦
PART II: DEBTOR'S EMPLOYER¦+¦}
¦{¦+¦
(GARNISHEES WHO EMPLOY THE DEBTOR¦+¦}
¦{¦+¦
MUST FILL OUT THIS PORTION OF THE RESPONSE)¦+¦}
¦{¦+¦ Place a check in front of all the following statements that
apply. You may need to check more than one statement.¦+¦}
¦{¦+¦ NOTE: THE LAW PROHIBITS DISCHARGE OF THE DEBTOR FROM
EMPLOYMENT BY REASON OF GARNISHMENT.¦+¦}
_ ¦{¦+¦I employ the Debtor. The Debtor is paid on a ___¦basis
(insert 'weekly,' 'monthly' or other pay period). Wages will
next be payable to the Debtor on the __ day of ___, 2_. I
will complete a Wage Exemption Calculation form for each
payment of wages that is made during the 90-day period
immediately following the date that the writ of garnishment
was delivered to me. I will also complete a Wage Exemption
Calculation form for the payday immediately following the end
of the 90-day period. I will forward to the Garnishor on each
of these occasions those wages calculated to be subject to
garnishment, or enough of those wages to satisfy the
garnishment.¦+¦}
_ ¦{¦+¦I had already received a writ of garnishment from
another Garnishor before this writ was delivered to me. Under
Oregon law, the previous writ has priority. The previous writ
will terminate on the __ day of ___, 2_.
¦+¦}
_________________________________________________________________
¦{¦+¦ I hereby certify that I have fully and accurately
completed this garnishee response.
Dated ___, 2_
__________
Name of Garnishee
__________
Signature
__________
Address
_________________________________________________________________
¦+¦}
SECTION 62. ¦{¦+¦Instructions to garnishee form. Instructions
to garnishees must be in substantially the following form:¦+¦}
_________________________________________________________________
¦{¦+¦
INSTRUCTIONS TO GARNISHEE¦+¦}
¦{¦+¦ Except as specifically provided in these instructions,
you must complete and deliver the Garnishee Response within seven
calendar days after you receive the writ of garnishment. If the
writ does not comply with Oregon law, the writ is not effective
to garnish any property of the Debtor, but you still must
complete and deliver the Garnishee Response. You must complete
and deliver the response even though you cannot determine from
the writ whether you hold any property or owe any debt to the
Debtor. If the seventh calendar day is a Saturday, Sunday or
legal holiday, you must deliver your response on or before the
next following day that is not a Saturday, Sunday or legal
holiday.
The writ is not effective, and you need not make a Garnishee
Response, if:¦+¦}
o ¦{¦+¦You do not receive the writ within 60 days after the
date of issuance shown on the face of the writ.¦+¦}
o ¦{¦+¦You do not receive an original writ of garnishment and
a copy of the writ certified to be true by the Garnishor, or
two copies of the original writ certified to be true by the
Garnishor.¦+¦}
¦{¦+¦ Statutes that may affect your rights and duties under the
writ can be found in sections 1 to 65 of this 2001 Act.
NOTE: The Garnishor may be the Creditor, the attorney for the
Creditor or some other person who is authorized by law to issue
the writ of garnishment. See the writ to determine who the
Garnishor is.
¦+¦} ¦{¦+¦ STEP 1. FILL OUT THE GARNISHEE RESPONSE.¦+¦}
¦{¦+¦ All garnishees who are required to deliver a garnishee
response must fill in Part I of the Garnishee Response.
Garnishees who employ the Debtor must also fill in Part II of the
response. You should keep a copy of the response for your
records.
Completing Part I of the Garnishee Response. If you discover
before you deliver your response that a bankruptcy petition has
been filed by or on behalf of the Debtor, and the bankruptcy
petition was filed after a judgment was entered against the
Debtor or after the debt otherwise became subject to garnishment
(see the date specified in the writ), you must put a check by the
appropriate statement in Part I. If a bankruptcy petition has
been filed, you should not make any payments to the Garnishor
unless the court orders otherwise. You need not complete any
other part of the response, but you still must sign the response
and deliver it in the manner described in Step 2 of these
instructions.
In all other cases you must list in Part I all money and
personal property of the Debtor that is in your possession,
control or custody at the time of delivery of the writ. You must
also list all debts that you owe to the Debtor, whether or not
those debts are currently due (e.g., money loaned to you by the
Debtor that is to be repaid at a later time).
If you are the employer of the Debtor at the time the writ is
delivered to you, you must put a check by the appropriate
statement in Part I. In addition, you must complete Part II of
the response.
If you believe that you may hold property of the Debtor or that
you owe a debt to the Debtor, but you are not sure, you must put
a check by the appropriate statement and provide an explanation.
When you find out what property you hold that belongs to the
Debtor, or you find out whether you owe money to the Debtor and
how much, you must prepare and deliver an amended response. You
must do this even if you find out that you have no property of
the Debtor or that you do not owe anything to the Debtor.
If you determine that the writ, on its face, does not comply
with Oregon laws governing writs of garnishment, or if you are
unable to determine the identity of the Debtor from the
information in the writ, then the writ is not effective to
garnish any property of the Debtor. You must put a check by the
appropriate statement in Part I and provide an explanation. You
still must complete the response and deliver the response in the
manner described in Step 2 of these instructions.
If you have received an order to withhold income that applies
to the income of the Debtor and that order has priority over the
garnishment, and if compliance with the order will reduce or
eliminate the money or property that you would otherwise deliver
under the garnishment, you must put a check by the appropriate
statement in Part I. You still must fill out the remainder of the
response and deliver the response in the manner described in Step
2 of these instructions. If you employ the Debtor, you still must
complete Part II of the response.
If you receive notice of a challenge to the garnishment before
you send your response, you must complete and deliver your
response as otherwise required by these instructions. However,
see Step 3 of these instructions regarding payment of money or
delivery of property after receipt of notice of a challenge to
the garnishment.
If you owe a debt to the Debtor and the Debtor owes a debt to
the holder of an underlying lien on your property, you may be
able to offset the amount payable to the underlying lienholder.
See section 9 of this 2001 Act. You must note that you have made
the offset in Part I of the response (under 'Other') and specify
the amount that was offset.
Completing Part II of the Garnishee Response (employers only).
You must fill in Part II of the response if you employ the Debtor
on the date the writ of garnishment is delivered to you, or if
you previously employed the Debtor and still owe wages to the
Debtor on the date the writ is delivered to you.
Wages affected. The writ garnishes all wages that you owe to
the Debtor for work performed before the date you received the
writ, even though the wages will not be paid until a later date.
The writ also garnishes all wages that are attributable to
services performed during the 90-day period following the date
you received the writ, even though you would not pay the Debtor
for all or part of those services until after the end of the
90-day period. Wages subject to garnishment under the writ
include all amounts paid by you as an employer, whether on an
hourly, weekly or monthly basis, and include commission payments
and bonuses.¦+¦}
¦{¦+¦ Example 1: Debtor A is employed by you and is paid a
monthly salary on the first day of each month. You receive a
writ of garnishment on July 17. The writ garnishes all wages
that you owe to Debtor A for work performed on or before
July 17. If Debtor A was paid on July 1 for services
performed in the month of June, the writ garnishes Debtor
A's salary for the period beginning July 1 and ending
October 15 (90 days after receipt of the writ).
Calculation of wages subject to garnishment. A Wage Exemption
Calculation form is attached to the writ of garnishment. You must
use this form to calculate the amount of the Debtor's wages that
is subject to garnishment. You should read the instructions
printed on the Wage Exemption Calculation form to determine the
normal wage exemption and the minimum wage exemption for each
payment you make under the writ.
A Wage Exemption Calculation form must be sent with the first
payment you make under the writ. For the 90-day period during
which the writ is effective, you must also fill out and return a
Wage Exemption Calculation form with a subsequent payment any
time the initial calculation changes. Finally, you must fill out
and return a Wage Exemption Calculation form with the final
payment that you make under the writ.
Payment of amount subject to garnishment. Payments under the
writ must be made at the following times, unless the amount owing
on the judgment or other debt is fully paid before the final
payment is made or the writ is released:
(a) You must make a payment to the Garnishor of all wages
subject to garnishment at the time you next pay wages to the
Debtor. Complete the wage exemption computation, using the Wage
Exemption Calculation form, to determine the portion of the
Debtor's wages that is subject to garnishment. Be sure to adjust
the minimum exemption amount for any payment that covers less
than a full pay period. You must include a copy of the Wage
Exemption Calculation form with this first payment.¦+¦}
¦{¦+¦ Example 2: Using the facts given in Example 1, when
you next make any payment of wages to Debtor A after you
receive the writ on July 17, you must complete the Wage
Exemption Calculation form and send the form to the
Garnishor along with all amounts determined to be subject to
garnishment that are attributable to the period covered by
the payment. If you pay Debtor A on August 1, the payment
will be for all wages attributable to the period beginning
July 1 and ending July 31.
(b) Unless the writ of garnishment is satisfied or released,
during the 90-day period following the date you received the
writ, you must pay to the Garnishor all wages that are determined
to be subject to garnishment whenever you issue a paycheck to the
Debtor. If the Debtor is paid on a weekly basis, you must make
payment under the writ on a weekly basis. If the Debtor is paid
on a monthly basis, you must make payment under the writ on a
monthly basis. If the amount paid to the Debtor varies from
paycheck to paycheck, or changes at any time from the amount
being paid at the time the writ was delivered to you, you must
perform a new wage exemption computation to determine the amount
of wages subject to garnishment under the writ. You must send a
copy of the new Wage Exemption Calculation form with your payment
to the Garnishor.¦+¦}
¦{¦+¦ Example 3: Using the facts given above, as you make
each subsequent payment of wages to Debtor A you must make a
payment of that portion of the Debtor's wages that are
subject to garnishment. If you continue to pay Debtor A on
the first of each month, payments must be made on September
1 and October 1.
(c) Upon the expiration of the 90-day period, you must make a
final payment to the Garnishor for all wages that were owing to
the Debtor for the work performed by the Debtor through the 90th
day following your receipt of the writ. This payment may be made
at the time of the Debtor's next paycheck. You will need to
complete another Wage Exemption Calculation form to determine the
amount of the wages subject to garnishment.¦+¦}
¦{¦+¦ Example 4: Using the facts given above, you must make
a final payment for the wages owing to Debtor A for the
period beginning October 1 and ending October 15. You may
make this payment at the time you issue Debtor A's paycheck
on November 1, but you must make the payment at any time you
issue a paycheck to Debtor A after October 15. Be sure that
in completing the wage exemption computation for the final
payment you adjust the minimum exemption amount to take into
account the fact that the period covered is only 15 days of
the full month (see instructions on Wage Exemption
Calculation form).
If you receive more than one writ of garnishment. If you
receive a second writ of garnishment for the same Debtor from
another Garnishor, the first writ will have priority for wages.
The priority of the first writ lasts for the 90-day period
following delivery of that writ to you, or until the first writ
is paid in full, whichever comes first. In your response to the
second writ, you must put a check by the appropriate statement in
Part II and indicate the date on which the first writ will expire
(90 days after the date you received the writ). You should make
no payments under the second writ until expiration of the first
writ. The expiration date of the second writ is 90 days after
the date you received the second writ; the expiration date is not
affected by any delay in payment attributable to the priority of
the first writ.
¦+¦} ¦{¦+¦ STEP 2. DELIVER THE GARNISHEE RESPONSE.¦+¦}
¦{¦+¦ You must deliver your Garnishee Response and copies of
the response in the manner provided in this step. The response
and copies may be mailed or delivered personally.
You must complete and deliver the Garnishee Response within
seven calendar days after you receive the writ of garnishment. If
the seventh calendar day is a Saturday, Sunday or legal holiday,
you must deliver your response on or before the next following
day that is not a Saturday, Sunday or legal holiday.
If you are required to hold any property under the writ or make
any payment under the writ, either at the time of making your
response or later, you must:
(a) Send the original of your Garnishee Response to the clerk
of the court at the address indicated on the writ under Important
Addresses.
(b) Send a copy of your Garnishee Response to the Garnishor at
the address indicated on the writ under Important Addresses.
(c) Send a copy of your Garnishee Response to the Debtor if an
address is indicated on the writ under Important Addresses.
If you are not required to hold any property under the writ or
make any payment under the writ, either at the time of making
your response or later, you must:
(a) Send the original of your Garnishee Response to the
Garnishor at the address indicated on the writ under Important
Addresses.
(b) Send a copy of your Garnishee Response to the Debtor if an
address is indicated on the writ under Important Addresses.
¦+¦} ¦{¦+¦ STEP 3. DELIVER THE FUNDS OR OTHER PROPERTY.¦+¦}
¦{¦+¦ As long as the writ is in effect, you may be liable to
the Creditor if you pay any debt or turn over any property to the
Debtor except as specifically allowed by law. If you have any
money or property of the Debtor in your possession, control or
custody at the time of delivery of the writ, or owe any debt to
the Debtor, you must pay the money or hold the property as
required by this step. Exceptions to this requirement are listed
below.
IF YOU ARE HOLDING MONEY FOR THE DEBTOR OR OWE A DEBT THAT IS
CURRENTLY DUE, you must pay the money to the Garnishor with your
response. You must send your payment to the Garnishor at the
address indicated on the writ under Important Addresses. Make
your check payable to the Garnishor.
IF YOU OWE A DEBT TO THE DEBTOR THAT WILL BECOME DUE WITHIN 45
DAYS AFTER THE DATE YOU RECEIVED THE WRIT, you must send your
payment directly to the Garnishor at the address provided in the
writ when the debt becomes due. Make your check payable to the
Garnishor.
IF YOU ARE HOLDING PROPERTY THAT BELONGS TO THE DEBTOR, OR OWE
A DEBT TO THE DEBTOR THAT WILL NOT BECOME DUE WITHIN 45 DAYS
AFTER THE DATE YOU RECEIVED THE WRIT, you must keep the property
or debt in your possession, control or custody until you receive
written notice from the Sheriff. The Sheriff's notice will tell
you what to do with the property or debt. If you have followed
all of the instructions in the writ and you receive no notice
from the Sheriff within 30 days after the date on which you
delivered your Garnishee Response, you may treat the writ as
being of no further force or effect.
EXCEPTIONS:
1. Challenge to garnishment or specific directions from court.
If you are making any payments under the garnishment and before
making a payment you receive notice of a challenge to the
garnishment from the court, or receive a specific direction from
the court to make payments to the court, you must send or deliver
the payment directly to the clerk of the court. If the money is
currently due when you receive the notice, send the payment
promptly to the court. If the payment is for a debt that is
payable within 45 days after you receive the writ, make the
payment to the court promptly when it becomes due. If you make
payment by check, make the check payable to the State of Oregon.
Because you may be liable for any payment that does not reach the
court, it is better not to send cash by mail.
A challenge to the garnishment does not affect your duty to
follow the instructions you receive from the Sheriff for property
that belongs to the Debtor and debts that you owe to the Debtor
that do not become due within 45 days.
2. Previous writ of garnishment. If you receive a second writ
of garnishment for the same Debtor from another Garnishor, the
first writ will have priority and you need not make payments or
deliver property under the second writ to the extent that
compliance with the first writ will reduce or eliminate the
payment of money or delivery of property that you would otherwise
make under the garnishment. You must still deliver a Garnishee
Response to the second writ, and must commence payment under the
second writ as soon as the first writ is satisfied or expires.
3. Offset for payment of underlying lien. If you owe a debt to
the Debtor and the Debtor owes a debt to the holder of an
underlying lien on your property, you may be able to offset the
amount payable to the underlying lienholder. See section 9 of
this 2001 Act.
4. Subsequent events:
(a) Bankruptcy. If you make your response and then discover
that a voluntary or involuntary bankruptcy petition has been
filed by or on behalf of the Debtor after the judgment was
entered against the Debtor or after the debt otherwise became
subject to garnishment (see date in writ), you may not make any
further payments or delivery of property under the writ unless
the court orders otherwise. You must mail the following notice to
the Garnishor and to the Debtor.
(b) Order to withhold income. If you make your response and
then receive an order to withhold income that has priority over
the writ, you may make payments or deliver property under the
writ only after payment of the amounts required under the order
to withhold income. You must mail the following notice to the
Garnishor and to the Debtor.¦+¦}
_________________________________________________________________
¦{¦+¦
NOTICE OF BANKRUPTCY FILING OR RECEIPT OF¦+¦}
¦{¦+¦
ORDER TO WITHHOLD INCOME
TO: The Garnishor and the Debtor
RE: Writ of garnishment received ___, 2_ (date), in the case of
_____ (Plaintiff) vs. _____ (Defendant), Circuit Court of _____
County, Oregon, Case No. ___.¦
The undersigned Garnishee furnished a Garnishee Response to
this writ of garnishment on ___, 2_ (date). Since that time
(check appropriate statement):¦+¦}
_ ¦{¦+¦I have discovered that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the
Debtor after the judgment was entered against the Debtor or
after the debt otherwise became subject to garnishment.¦+¦}
_ ¦{¦+¦I have received an order to withhold income of the
Debtor by reason of a support obligation. Under ORS 25.375,
the order to withhold income has priority over any other
legal process under Oregon law against the same income. The
withholding of income pursuant to the order to withhold
income might reduce or eliminate subsequent payments under
the garnishment. (Provide details, including the name of the
agency serving the order to withhold, the date the order was
served on you and the amounts to be withheld.)¦+¦}
¦{¦+¦ Dated ___, 2_¦
__________
Name of Garnishee
__________
Signature
__________
Address¦+¦}
_________________________________________________________________
¦{¦+¦
SPECIAL INSTRUCTIONS FOR BANKS¦+¦}
¦{¦+¦
AND OTHER FINANCIAL INSTITUTIONS¦+¦}
¦{¦+¦ If the Garnishor fails to pay the search fee required by
section 55 of this 2001 Act and you do not employ the Debtor, you
are not required to deliver a Garnishee Response and you may deal
with any property of the Debtor as though the garnishment had not
been issued.
If the Debtor owes a debt to you that was due at the time you
received the writ of garnishment, you may be able to offset the
amount of that debt. See section 56a of this 2001 Act. You must
note that you have made the offset in Part I of the Garnishee
Response (under 'Other') and specify the amount that was offset.
Before making a payment under the writ, you may first deduct
any processing fee that you are allowed under section 55 of this
2001 Act.
You need not deliver any property contained in a safe deposit
box unless the Garnishor pays you in advance for the costs that
will be incurred in gaining entry to the box. See section 56 of
this 2001 Act.
_________________________________________________________________
¦+¦}
SECTION 63. ¦{¦+¦Wage exemption calculation form. A wage
exemption calculation form must be served on the garnishee with
each writ of garnishment. A wage exemption calculation form must
be in substantially the following form:
_________________________________________________________________
¦+¦}
¦{¦+¦
WAGE EXEMPTION CALCULATION¦+¦}
¦{¦+¦
(to be filled out by employers only)¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
1. Debtor's gross wages
for period covered by this
payment............ $__
2. Total amount required to be
withheld by law for amount
in Line 1 (Federal and state¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
withholding, Social
Security, etc.)$__
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
3. Debtor's disposable
wages (Subtract Line 2¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
from Lin...........$__
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
4. Normal exemption (Enter 75¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
percent ...........$__
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
5. Minimum exemption (check one)¦+¦}
_ ¦{¦+¦$170 (payment of wages weekly)¦+¦}
_ ¦{¦+¦$340 (payment of wages every two weeks)¦+¦}
_ ¦{¦+¦$368 (payment of wages half-monthly)¦+¦}
_ ¦{¦+¦$731 (payment of wages monthly)¦+¦}
_ ¦{¦+¦$__ (Any other period longer than one week, including
partial payments for less than full pay period) (Multiply
$170 by number of weeks or fraction of a week)¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
6. Wages exempt
from garnishment¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
(Line 4 or 5,
whichever is gr$ater)
__
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
7. Nonexempt wages (Subtract
Line 6 from Line 3) $__
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
8. Amount withheld pursuant
to a support order under
support withholding
process............ $__
9. Wages subject to
garnishment (Subtract¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
Line 8 f.......$_7¦+¦}
_
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦
INSTRUCTIONS FOR WAGE EXEMPTION CALCULATION FORM¦+¦}
¦{¦+¦ If you employ the Debtor named in the writ of
garnishment, you must fill out and return this Wage Exemption
Calculation form. A Wage Exemption Calculation form must be sent
with the first payment you make under the writ. For the 90-day
period during which the writ is effective, you must also fill out
and return a Wage Exemption Calculation form with a subsequent
payment any time the initial calculation changes. Finally, you
must fill out and return a Wage Exemption Calculation form with
the final payment that you make under the writ.
Normal wage exemption. The wage exemption calculation is based
on the amount of the payment you make under the writ of
garnishment. The normal wage exemption in Line 4 is 75 percent of
the employee's disposable wages in Line 3.
Minimum wage exemption. The minimum exemption in Line 5 is also
based on the amount of the payment you are making. The minimum
exemption is designed to ensure that an employee receives at
least a certain minimum amount in any one-week period. If the
payment is for a one-week period (without regard to whether the
period is a calendar week or any other seven-day period), the
minimum exemption is $170. The minimum exemption is $340 if the
payment is for a two-week period. If the payment is for one-half
of one month (i.e., the Debtor is paid twice each month), the
minimum exemption is $368. The minimum exemption for a monthly
payment is $731.
If the payment you are making is based on some period of time
other than one week, two weeks, half month or month, and the
payment is for more than one week, you must calculate the minimum
exemption by multiplying $170 by the number of weeks covered by
the paycheck, including any fraction of a week. You should round
the amount calculated to the nearest dollar.¦+¦}
¦{¦+¦ Example 1: You pay Debtor A every 10 days. Each 10-day
period is equal to 1.429 weeks (10 divided by 7). The
minimum exemption is $243 ($170 X¦+¦} ¦{¦+¦1.429 rounded to
the nearest dollar).¦+¦}
¦{¦+¦ You must use this same calculation for computing the
minimum exemption when making a payment for less than a full pay
period (e.g., for the final payment at the end of the 90-day
period covered by the writ).¦+¦}
¦{¦+¦ Example 2: You pay Debtor A on a monthly basis. You
are required to make a final payment under a writ of
garnishment for the wages owing to Debtor A for the period
beginning October 1 and ending October 15. This period is
equal to 2.143 weeks (15 divided by 7). The minimum
exemption is $364 ($170 X¦+¦} ¦{¦+¦2.143 rounded to the
nearest dollar).
The amount of time actually worked by the Debtor during the
period covered by the paycheck does not affect the calculation of
the minimum exemption.¦+¦}
¦{¦+¦ Example 3: You pay Debtor A on a weekly basis. Debtor
A works two days per week. The minimum exemption is $170 for
each weekly payment you make for Debtor A.
If the payment you are making is based on a period of time less
than one week, the minimum wage exemption may not exceed $170 for
any one-week period.¦+¦}
_________________________________________________________________
SECTION 63a. ¦{¦+¦Release of garnishment form. A release of
garnishment must be in substantially the following form:¦+¦}
_________________________________________________________________
¦{¦+¦
_____ COURT¦+¦}
¦{¦+¦
COUNTY OF _____
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
_____
)
Plaintiff, )RELEASE OF GARNISHMENT
)
vs. )Case No. ___
)
)
_____
)
Defendant. )¦+¦}
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦ TO: __________ (Garnishee).
A writ of garnishment was delivered to you by the Garnishor
named below on the __ day of ___, 2_. The following money or
other property that is subject to the writ is hereby
released:¦+¦}
_ ¦{¦+¦All money and property of the Debtor held by you.¦+¦}
_ ¦{¦+¦The following money or property of the Debtor held by
you (provide details):
_____________________________________________________________
_____________________________________________________________
The writ of garnishment has no further force or effect with
respect to the specified property.
Dated ___, 2_
__________
Name of Garnishor
__________
Signature
__________
Address
¦+¦}
_________________________________________________________________
SECTION 64. ¦{¦+¦Notice of exemptions form. A notice of
exemptions form must be in substantially the form set forth in
this section. Nothing in the notice form described in this
section is intended to expand or restrict the law relating to
exempt property. A determination as to whether property is exempt
from execution, attachment and garnishment must be made by
reference to other law. The form provided in this section may be
modified to provide more information or to update the notice
based on subsequent changes in exemption laws.¦+¦}
_________________________________________________________________
¦{¦+¦
NOTICE OF EXEMPT PROPERTY¦+¦}
¦{¦+¦ Property belonging to you may have been taken or held in
order to satisfy a debt. The debt may be reflected in a judgment
or in a warrant or order issued by a state agency. Important
legal papers are enclosed.
YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE
CAREFULLY.
State and federal law specify that certain property may not be
taken. Some of the property that you may be able to get back is
listed below.
(1) Wages or a salary as described in ORS 23.175 and section
69b of this 2001 Act. Whichever of the following amounts is
greater:
(a) 75 percent of your take-home wages; or
(b) $170 per workweek.
(2) Social Security benefits.
(3) Supplemental Security Income (SSI).
(4) Public assistance (welfare).
(5) Unemployment benefits.
(6) Disability benefits (other than SSI benefits).
(7) Workers' compensation benefits.
(8) Exempt wages, Social Security benefits (other than SSI),
welfare, unemployment benefits and disability benefits when
placed in a checking or savings account (up to $7,500).
(9) Spousal support, child support or separate maintenance to
the extent reasonably necessary for your support or the support
of any of your dependents.
(10) A homestead (home, farm, manufactured dwelling or
houseboat) if you live in it, to the value of $20,000 ($23,000
for a manufactured dwelling with land included; $25,000 for any
other homestead with land included) or proceeds from its sale for
one year.
(11) Household goods, furniture, radios, a television set and
utensils with a combined value not to exceed $3,000.
*(12) An automobile, truck, trailer or other vehicle with a
value not to exceed $1,700.
*(13) Tools, implements, apparatus, team, harness or library
that are necessary to carry on your occupation, with a combined
value not to exceed $3,000.
*(14) Books, pictures and musical instruments with a combined
value not to exceed $600.
*(15) Wearing apparel, jewelry and other personal items with a
combined value not to exceed $1,800.
(16) Domestic animals and poultry for family use with a
combined value not to exceed $1,000 and their food for 60 days.
(17) Provisions (food) and fuel for your family for 60 days.
(18) One rifle or shotgun and one pistol. The combined value of
all firearms claimed as exempt may not exceed $1,000.
(19) Public or private pensions.
(20) Veterans' benefits and loans.
(21) Medical assistance benefits.
(22) Health insurance proceeds and disability proceeds of life
insurance policies.
(23) Cash surrender value of life insurance policies not
payable to your estate.
(24) Federal annuities.
(25) Other annuities to $250 per month (excess over $250 per
month is subject to the same exemption as wages).
(26) Professionally prescribed health aids for you or any of
your dependents.
*(27) Elderly rental assistance allowed pursuant to ORS
310.635.
*(28) Your right to receive, or property traceable to:
*(a) An award under any crime victim reparation law.
*(b) A payment or payments, not exceeding a total of $10,000,
on account of personal bodily injury suffered by you or an
individual of whom you are a dependent.
*(c) A payment in compensation of loss of future earnings of
you or an individual of whom you are or were a dependent, to the
extent reasonably necessary for your support and the support of
any of your dependents.
(29) Interest in personal property to the value of $400, but
this cannot be used to increase the amount of any other
exemption.
(30) Equitable interests in property.
(31) If the amount shown as owing on the Debt Calculation form
exceeds the amount you actually owe to the creditor, the
difference between the amount owed and the amount shown on the
Debt Calculation form.
Note: If two or more people in your household owe the claim or
judgment, each of them may claim the exemptions marked by an
asterisk (*).¦+¦}
_________________________________________________________________
¦{¦+¦ SPECIAL RULES APPLY FOR DEBTS THAT ARE OWED FOR CHILD
SUPPORT AND SPOUSAL SUPPORT. Some property that may not otherwise
be taken for payment against the debt may be taken to pay for
overdue support. For instance, Social Security benefits, workers'
compensation benefits, unemployment benefits, veterans' benefits
and pensions are normally exempt, but only 75 percent of a lump
sum payment of these benefits is exempt if the debt is owed for a
support obligation.
YOU MUST ACT PROMPTLY IF YOU WANT TO GET YOUR MONEY OR PROPERTY
BACK. You may seek to reclaim your exempt property by doing the
following:
(1) Fill out the Challenge to Garnishment form that you
received with this notice.
(2) Mail or deliver the Challenge to Garnishment form to the
clerk of the court at the address shown on the writ of
garnishment. If you wish to claim wages or salary as exempt, you
must mail or deliver the form within 120 days after you receive
this notice. If you wish to claim that any other money or
property is exempt, or claim that the property is not subject to
garnishment, you must mail or deliver the form within 30 days
after you receive this notice. You have the burden of showing
that your challenge is made on time, so you should keep records
showing when the challenge was mailed or delivered.
(3) The law only requires that the Garnishor hold the garnished
money or property for 10 days before applying it to the
Creditor's use. You may be able to keep the property from being
used by the Creditor by promptly following (1) and (2) above.
You should be prepared to explain your exemption in court. If
you have any questions about the garnishment or the debt, you
should see an attorney.
IF YOU CLAIM AN EXEMPTION IN BAD FAITH, YOU MAY BE SUBJECT TO
PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A FINE.
Penalties that you could be subject to are listed in section 36
of this 2001 Act.
When you file a Challenge to Garnishment form, the Garnishee
may be required to make all payments under the garnishment to the
court, and the Garnishor may be required to pay to the court all
amounts received by the Garnishor that are subject to the
challenge to the garnishment. The Garnishee and Garnishor are
subject to penalties if they do not. For a complete explanation
of their responsibilities, see sections 32 and 33 of this 2001
Act.
_________________________________________________________________
¦+¦}
SECTION 65. ¦{¦+¦Challenge to garnishment form. A challenge to
garnishment form must be in substantially the following form:¦+¦}
_________________________________________________________________
¦{¦+¦
_____ COURT¦+¦}
¦{¦+¦
COUNTY OF _____¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
_____
)CHALLENGE TO GARNISHMENT
Plaintiff, )
)
vs. )Case No. ___
)
_____
)
Defendant. )¦+¦}
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦ I/We claim that the following described property or money
is exempt from execution or is not subject to garnishment:
_________________________________________________________________
_________________________________________________________________
I/We believe this property is exempt from or not subject to
garnishment because (the Notice of Exempt Property that you
received lists most types of property that you can claim as
exempt from or not subject to garnishment.):
_________________________________________________________________
_________________________________________________________________
I am a person other than the Debtor and I have the following
interest in the property:¦+¦}
_________________________________________________________________
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
Name _____
Name _____
Signature _____
Signature _____
Address _____
Address _____
________
________
Telephone Telephone
Number _____
Number _____
¦+¦}
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
¦{¦+¦
(Re(Required)
_________________________________________________________________
¦+¦}
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
¦{¦+¦
CONFORMING AMENDMENTS¦+¦}
SECTION 66. ORS 12.085 is amended to read:
12.085. ¦{¦-¦Garnishment proceedings pursuant to ORS 29.282 to
29.345 shall¦-¦} ¦{¦+¦Proceedings against a garnishee under
sections 51 to 54 of this 2001 Act must¦+¦} be commenced within
one year from the delivery of the writ of garnishment ¦{¦-¦under
ORS 29.155¦-¦} .
SECTION 67. ORS 18.335 is amended to read:
18.335. (1) In every proceeding, the clerk shall attach
together, file and maintain in the office of the clerk the
following documents in the order in which they are filed until
all actions in such proceeding have been completed and thereafter
for such period of time as may be required under the minimum
retention schedule prescribed by the State Court Administrator
pursuant to ORS 8.125:
(a) The original papers filed in the court, whether before or
after judgment, including but not limited to the summons and
proof of service, pleadings, motions, affidavits, depositions,
stipulations and orders.
(b) The judgment.
(c) The notice of appeal and the undertaking on appeal, if any.
(2) Except as provided in ORS 23.030, the court in which the
judgment was originally entered is the only court with authority
to issue post-judgment process under ORS chapter 23 or
¦{¦-¦29¦-¦} ¦{¦+¦ sections 1 to 65 of this 2001 Act¦+¦} against
personal property involving that judgment. Except as provided in
ORS 23.030, the court in this state where a foreign judgment is
first filed is the only court with authority to issue
post-judgment process against personal property involving that
judgment.
(3) Subsection (2) of this section does not apply to justice
courts.
SECTION 68. ORS 23.160 is amended to read:
23.160. (1) All property, including franchises, or rights or
interest therein, of the judgment debtor, shall be liable to an
execution, except as provided in this section and in other
statutes granting exemptions from execution. If selected and
reserved by the judgment debtor or the agent of the judgment
debtor at the time of the levy, or as soon thereafter before sale
thereof as the same shall be known to the judgment debtor, the
following property, or rights or interest therein of the judgment
debtor, except as provided in ORS 23.220, shall be exempt from
execution:
(a) Books, pictures and musical instruments to the value of
$600.
(b) Wearing apparel, jewelry and other personal items to the
value of $1,800.
(c) The tools, implements, apparatus, team, harness or library,
necessary to enable the judgment debtor to carry on the trade,
occupation or profession by which the judgment debtor habitually
earns a living, to the value of $3,000.
(d) A vehicle to the value of $1,700. As used in this paragraph
'vehicle' includes an automobile, truck, trailer, truck and
trailer or other motor vehicle.
(e) Domestic animals and poultry kept for family use, to the
total value of $1,000 and food sufficient to support such animals
and poultry for 60 days.
(f) Household goods, furniture, radios, a television set and
utensils all to the total value of $3,000, if the judgment debtor
holds the property primarily for the personal, family or
household use of the judgment debtor; provisions actually
provided for family use and necessary for the support of a
householder and family for 60 days and also 60 days' supply of
fuel.
(g) All property of the state or any county or incorporated
city therein, or of any other public or municipal corporation of
like character.
(h) All professionally prescribed health aids for the debtor or
a dependent of the debtor.
(i) Spousal support, child support, or separate maintenance to
the extent reasonably necessary for the support of the debtor and
any dependent of the debtor.
(j) The debtor's right to receive, or property that is
traceable to, an award under any crime victim reparation law.
(k) The debtor's right to receive, or property that is
traceable to, a payment or payments, not to exceed a total of
$10,000, on account of personal bodily injury of the debtor or an
individual of whom the debtor is a dependent. ¦{¦-¦If the
execution arises out of a support obligation or an order or
notice entered or issued under ORS chapter 25, 107, 108, 109,
110, 416, 419B or 419C, the amount exempt from execution is 75
percent of the payment or payments, not to exceed a total of
$7,500.¦-¦}
(L) The debtor's right to receive, or property that is
traceable to, a payment in compensation of loss of future
earnings of the debtor or an individual of whom the debtor is or
was a dependent, to the extent reasonably necessary for the
support of the debtor and any dependent of the debtor. ¦{¦-¦If
the execution arises out of a support obligation or an order or
notice entered or issued under ORS chapter 25, 107, 108, 109,
110, 416, 419B or 419C, the amount exempt from execution is 75
percent of the payment or payments.¦-¦}
(m) Veterans' benefits and loans. ¦{¦-¦If the execution arises
out of a support obligation or an order or notice entered or
issued under ORS chapter 25, 107, 108, 109, 110, 416, 419B or
419C, the amount of veterans' benefits other than loans that are
exempt from execution is 75 percent of the benefits.¦-¦}
(n) The debtor's interest, not to exceed $400 in value, in any
personal property. However, this exemption may not be used to
increase the amount of any other exemption.
(2) If the property selected or reserved by the judgment debtor
as exempt is adjudicated by the court out of which the execution
issued to be of a value in excess of that allowed by the
appropriate paragraph of subsection (1) of this section, the
officer making the levy shall proceed to sell such property. Out
of the proceeds of such sale, the officer shall deduct costs of
sale and shall pay to the judgment debtor an amount equivalent to
the value declared to be exempt by any of the paragraphs of
subsection (1) of this section and shall apply the balance of the
proceeds of sale on the execution. No sale shall be made under
such execution unless the highest bid made exceeds the
appropriate exemption claimed and allowed plus costs of sale. If
no bid is received in excess of the value allowed by the
appropriate paragraph of subsection (1) of this section, the
costs of sale shall be borne by the judgment creditor.
(3) If two or more members of a household are judgment debtors,
each judgment debtor shall be entitled to claim the exemptions in
subsection (1)(a), (b), (c), (d), (j), (k) and (L) of this
section in the same or different properties. The exemptions when
claimed for the same property shall be combined at the option of
the debtors.
¦{¦+¦ (4) Notwithstanding any other provision of law, if a writ
of garnishment or other execution is issued to collect past due
support as defined in section 1 of this 2001 Act, 75 percent of
unemployment compensation benefits, workers' compensation
benefits and other benefits paid to the debtor by the United
States, by the state or by a political subdivision of the state
are exempt. The exemption provided by this subsection applies
without regard to whether the payment is made on a periodic basis
or in a lump sum, including any lump sum payable pursuant to a
settlement or judgment. Notwithstanding subsection (1)(k) of this
section, if a payment is made under a settlement or judgment on
account of personal bodily injury and the garnishment or other
execution is issued to collect past due support as defined in
section 1 of this 2001 Act, the lesser of 75 percent of the
payment or $7,500 is exempt.¦+¦}
SECTION 69. ORS 23.166 is amended to read:
23.166. (1) All funds exempt from execution and other process
under ORS 23.170 ¦{¦-¦, 23.185 (1)(b), (c), (d) and (e)¦-¦} ,
238.445, 344.580, 401.405, 407.595, 411.760, 412.115, 412.610,
413.130, 414.095, 655.530, 656.234, 657.855 and 748.207 ¦{¦+¦and
section 69b (2) to (4) of this 2001 Act¦+¦} and section 3101,
title 38, United States Code and section 407, title 42, United
States Code shall remain exempt when deposited in an account of a
judgment debtor as long as the exempt funds are identifiable.
(2) The provisions of subsection (1) of this section shall not
apply to any accumulation of funds greater than $7,500.
SECTION 69a. ¦{¦+¦ORS 23.185 is repealed and section 69b of
this 2001 Act is enacted in lieu thereof.¦+¦}
SECTION 69b. ¦{¦+¦(1) Except as provided in this section, 75
percent of the disposable earnings of an individual are exempt
from execution.
(2) The disposable earnings of an individual are exempt from
execution to the extent that payment under a garnishment would
result in net disposable earnings for an individual of less than
the following amounts:
(a) $170 for any period of one week or less;
(b) $340 for any two-week period;
(c) $368 for any half-month period;
(d) $731 for any one-month period; and
(e) For any other period longer than one week, $170 multiplied
by that fraction produced by dividing the number of days for
which the earnings are paid by seven. The amount calculated under
this paragraph must be rounded to the nearest dollar.
(3) If an individual is paid for a period shorter than one
week, the exemption calculated under subsection (2) of this
section may not exceed $170 for any one-week period.
(4) An employer shall deduct from the amount of disposable
earnings determined to be nonexempt under subsections (1) to (3)
of this section any amounts withheld from the individual's
earnings for the same period of time under an order issued
pursuant to ORS 25.378, 110.303 to 110.452, 419B.408 or 419C.600.
The employer shall make payment under a garnishment only of those
amounts remaining after the deduction is made.
(5) Subsections (1) to (4) of this section do not apply to:
(a) Any order of a court of bankruptcy.
(b) Any debt due for federal tax.
(6) Subsections (2) to (4) of this section do not apply to any
debt due for state tax. Subsection (1) of this section does not
apply to a debt due for state tax if a state agency issues a
special notice of garnishment under section 82 (6) of this 2001
Act.
(7) A court may not make, execute or enforce any order or
process in violation of this section.
(8) Any waiver by an individual of the provisions of this
section is void.
(9) An employer may not discharge any individual because the
individual has had earnings garnished.¦+¦}
SECTION 70. ORS 23.425 is amended to read:
23.425. (1) Following levy by the sheriff pursuant to ORS
23.410, the sheriff shall promptly mail or deliver the following
to each judgment debtor who is not a corporation at the
last-known address of each such judgment debtor:
(a) A copy of the writ; ¦{¦-¦and¦-¦}
(b) A ¦{¦-¦copy of the¦-¦} notice of exemptions ¦{¦-¦and
claim form described in ORS 29.225¦-¦} ¦{¦+¦form provided by
section 64 of this 2001 Act; and
(c) A challenge to garnishment form provided by section 65 of
this 2001 Act¦+¦}.
(2) The sheriff may meet the requirements of subsection (1) of
this section by mailing the documents to the last-known address
of the judgment debtor as provided by the judgment creditor. The
sheriff may withhold execution of the writ until the judgment
creditor either provides such address or a statement that the
judgment creditor has no knowledge of the judgment debtor's
address. The sheriff shall have no duty under this section if the
judgment creditor provides a statement that the judgment creditor
has no knowledge of the judgment debtor's address.
SECTION 71. ORS 25.083 is amended to read:
25.083. (1) As necessary to meet the requirements of 42 U.S.C.
666(a)(14), the Division of Child Support of the Department of
Justice, when requested by another state, shall provide
high-volume automated administrative enforcement services. In
providing services to another state under this section, the
division may:
(a) Through automated data matches with financial institutions
and other entities where assets may be found, identify assets
owned by persons who owe child support in other states; and
(b) Seize such assets through levy or by other appropriate
processes. For purposes of this paragraph, 'levy' means the
process for garnishment under ¦{¦-¦ORS 29.137 (3)¦-¦} ¦{¦+¦
sections 1 to 65 of this 2001 Act¦+¦} or execution under ORS
23.050 (2) or such other processes to seize property as the
division is authorized by law to use.
(2) A request by another state for services provided under
subsection (1) of this section:
(a) Must include information, as required by rule, that will
enable the department to compare the information about the case
with information in databases within Oregon; and
(b) Constitutes a certification by the state requesting the
services:
(A) Of the amount of periodic support under an order, the
payment of which is in arrears; and
(B) That it has complied with all procedural due process
requirements applicable to the case.
(3) The administrator is authorized to request from other
states services of the type provided under subsection (1) of this
section.
SECTION 72. ORS 29.367 is amended to read:
29.367. This section establishes the right of a plaintiff to
recover certain moneys the plaintiff has expended to recover a
debt under ¦{¦-¦ORS 29.375¦-¦} ¦{¦+¦section 81 of this 2001
Act¦+¦} or to enforce a judgment and establishes procedures for
that recovery. The following apply to this section:
(1) When a plaintiff receives moneys under a garnishment,
attachment or payment, the plaintiff may proceed as follows:
(a) Before crediting the total amount of moneys received
against the judgment or debt, the plaintiff may recover and keep
from the total amount received under the garnishment, attachment
or payment any moneys allowed to be recovered under this section.
(b) After recovering moneys as allowed under paragraph (a) of
this subsection, the plaintiff shall credit the remainder of the
moneys received against the judgment or debt as provided by law.
(2) Moneys recovered under subsection (1)(a) of this section
shall not be considered moneys paid on and to be credited against
the original judgment or debt sought to be enforced. No
additional judgment is necessary to recover moneys in the manner
provided in subsection (1)(a) of this section.
(3) The only moneys a plaintiff may recover under subsection
(1)(a) of this section are those described in subsection (4) of
this section that the plaintiff has paid to enforce the existing
specific judgment or debt that the specific garnishment or
attachment was issued to enforce or upon which the payment was
received. Moneys recoverable under subsection (1)(a) of this
section remain recoverable and, except as provided under
subsection (8) of this section, may be recovered from moneys
received by the plaintiff under subsequent garnishments,
attachments or payments on the same specific judgment or debt.
(4) This section allows the recovery only of the following:
(a) Statutorily established moneys that meet the requirements
under subsection (3) of this section, as follows:
(A) Garnishee's search fees under ¦{¦-¦ORS 29.377 (1)¦-¦}
¦{¦+¦ section 55 of this 2001 Act¦+¦}.
(B) Fees for delivery of writs of garnishment under ¦{¦-¦ORS
29.165¦-¦} ¦{¦+¦ section 17 of this 2001 Act¦+¦}.
(C) Circuit court fees as provided under ORS 21.325.
(D) County court fees as provided under ORS 5.125.
(E) County clerk recording fees as provided in ORS 205.320.
(F) Actual fees or disbursements made under ORS 21.410.
(G) Costs of execution as provided in ORS 105.112.
(b) Interest on the amounts specified in paragraph (a)(A) to
(G) of this subsection at the rate provided for judgments in ORS
82.010 for the period of time beginning with the expenditure of
the amount and ending upon recovery of the amount under this
section.
(5) The plaintiff shall be responsible for doing all of the
following:
(a) Maintaining a precise accounting of moneys recovered under
subsection (1)(a) of this section and making the accounting
available for any proceeding relating to that judgment or debt.
(b) Providing reasonable notice to the defendant of moneys the
plaintiff recovers under subsection (1)(a) of this section.
(6) Moneys recovered under subsection (1)(a) of this section
remain subject to all other provisions of law relating to
payments, or garnished or attached moneys including, but not
limited to, those relating to exemption, claim of exemption,
overpayment and holding periods.
(7) Nothing in this section limits the right of a plaintiff to
recover moneys described in this section or other moneys in any
manner otherwise allowed by law.
(8) A writ of garnishment or attachment is not valid if issued
solely to recover moneys recoverable under subsection (1)(a) of
this section unless the right to collect the moneys is first
reduced to a judgment or to a debt enforceable under ¦{¦-¦ORS
29.375¦-¦} ¦{¦+¦ section 81 of this 2001 Act¦+¦}.
SECTION 73. ORS 25.372 is amended to read:
25.372. ORS 25.372 to 25.427 and the amendments to ORS 23.170,
23.175, 23.185 ¦{¦+¦(1999 Edition)¦+¦}, 25.010, 25.070, 25.381,
25.384, 29.145 ¦{¦+¦(1999 Edition)¦+¦}, 29.147 ¦{¦+¦(1999
Edition)¦+¦}, 29.411 ¦{¦+¦(1999 Edition)¦+¦}, 29.415 ¦{¦+¦(1999
Edition)¦+¦}, 109.015, 238.445, 409.021, 419B.408, 419C.600,
656.234, 657.780, 659.010 and 659.121 by sections 4 and 22 to 49,
chapter 798, Oregon Laws 1993, apply to current support, arrears
and interest on arrears, independently or combined, whether
arrears are owed to an obligee, the state or a foreign
jurisdiction.
SECTION 74. ORS 52.600 is amended to read:
52.600. (1) Upon the docketing of a judgment by a justice
court, the judgment may be enforced by the justice court in the
manner provided in this section.
(2) Enforcement proceedings on a judgment docketed by a justice
court may include:
(a) Writ of execution proceedings for personal property under
ORS 23.030 to 23.105 and 23.410 to 23.600.
(b) Supplementary proceedings under ORS 23.710 to 23.730.
(c) ¦{¦-¦Garnishee¦-¦} ¦{¦+¦ Garnishment¦+¦} proceedings under
¦{¦-¦ORS 29.282 to 29.335¦-¦} ¦{¦+¦ sections 1 to 65 of this 2001
Act¦+¦}.
(3) In addition to the enforcement proceedings specified in
subsection (2) of this section, a docketed justice court judgment
may be enforced by the court that rendered the judgment through
the issuance of a writ of execution on real property under ORS
23.030 to 23.105 and 23.410 to 23.600. A writ of execution on
real property may be issued by a justice court only after the
judgment has been transcribed or recorded in the manner provided
by ORS 52.635. As required under ORS 23.030, upon issuance of a
writ of execution, the party requesting the writ must record a
certified copy of the writ or an abstract of the writ in the
County Clerk Lien Record of the county in which the real property
is located.
(4) ORCP 70 A applies to civil judgments rendered by justice
courts. ORS 137.071 and 137.073 apply to judgments rendered by
justice courts in actions and proceedings resulting from a person
being accused and tried for the commission of an offense.
(5) Except as provided in subsection (6) of this section, the
provisions of this section apply to all judgments docketed by
justice courts, including judgments imposed in violation
proceedings and other criminal proceedings.
(6) The provisions of this section and ORS 52.635 do not apply
to proceedings for enforcement of ordinances governing the
parking of vehicles. Ordinances governing the parking of vehicles
shall be enforced as provided by other law.
SECTION 75. ORS 205.126 is amended to read:
205.126. (1) At any time after recording an order or warrant in
the County Clerk Lien Record, a claimant or an attorney for an
agency or claimant may file in the circuit court for the county
where the order or warrant is recorded, a copy of the original
order or warrant certified by the agency to be a true copy of
original, and an affidavit of the claimant or attorney verifying
that the order or warrant was recorded in the County Clerk Lien
Record for that county, the date that the order or warrant was
recorded and the date on which any notice of renewal was recorded
under subsection (2) of this section. Subject to any other
requirements that may apply to the enforcement remedy sought by
the agency or claimant, proceedings may thereafter be commenced
by the agency or claimant for the enforcement of the order or
warrant, in the same manner as provided for the enforcement of
judgments issued by a court. Enforcement proceedings may include:
(a) Writ of execution proceedings under ORS 23.030 to 23.105
and 23.410 to 23.600.
(b) Supplementary proceedings under ORS 23.710 to 23.730.
(c) ¦{¦-¦Garnishee¦-¦} ¦{¦+¦Garnishment¦+¦} proceedings under
¦{¦-¦ORS 29.282 to 29.335¦-¦} ¦{¦+¦ sections 1 to 65 of this 2001
Act¦+¦}.
¦{¦-¦(d) A writ of garnishment issued by the clerk of the
court on behalf of a claimant pursuant to ORS 29.137 (1).¦-¦}
(2) At any time within 10 years after the recording of an order
or warrant, an agency or claimant, acting with or without the
assistance of an attorney, may renew an order or warrant by
recording a notice of renewal in the County Clerk Lien Record. A
notice of renewal recorded within the time specified by this
subsection has the attributes and effect of a renewal of judgment
noted in the register and judgment docket, as provided in ORS
18.360, from the date that the notice is recorded. A notice of
renewal recorded under this section must state:
(a) The name of the agency that issued the warrant or order or
the name of the claimant in whose favor an order of the
Construction Contractors Board or State Landscape Contractors
Board has been given;
(b) The name of all persons against whom a monetary obligation
is imposed under the order or warrant; and
(c) The date of recording and the recording number, the book
and page number for the recording, or the volume and page number
for the recording.
(3) For the purposes of this section:
(a) 'Agency' means any state officer, board, commission,
corporation, institution, department or other state body that has
authority to record an order or warrant in the County Clerk Lien
Record.
(b) 'Claimant' means a person in favor of which a board order
has been recorded under the provisions of ORS 671.707 or 701.150.
SECTION 76. ORS 221.346 is amended to read:
221.346. (1) Subject to the requirements of ORS 221.344,
enforcement proceedings on a judgment docketed by a municipal
court may include:
(a) Writ of execution proceedings for personal property under
ORS 23.030 to 23.105 and 23.410 to 23.600.
(b) Supplementary proceedings under ORS 23.710 to 23.730.
(c) ¦{¦-¦Garnishee¦-¦} ¦{¦+¦ Garnishment¦+¦} proceedings under
¦{¦-¦ORS 29.282 to 29.335¦-¦} ¦{¦+¦ sections 1 to 65 of this 2001
Act¦+¦}.
(2) In addition to the enforcement proceedings specified in
subsection (1) of this section, a docketed municipal court
judgment may be enforced by the court that rendered the judgment
through the issuance of a writ of execution on real property
under ORS 23.030 to 23.105 and 23.410 to 23.600. A writ of
execution on real property may be issued by a municipal court
only after a certified copy of the judgment or a lien record
abstract for the judgment is recorded in the County Clerk Lien
Record for the county in which the municipal court is located. As
required under ORS 23.030, upon issuance of a writ of execution,
the party requesting the writ must record a certified copy of the
writ or an abstract of the writ in the County Clerk Lien Record
of the county in which the real property is located.
(3) ORCP 70 A applies to civil judgments rendered by municipal
courts that are enforced pursuant to this section. ORS 137.071
and 137.073 apply to judgments enforced pursuant to this section
that are rendered in actions and proceedings resulting from a
person being accused and tried for the commission of an offense.
(4) The provisions of this section apply to all judgments
docketed in municipal courts, including judgments imposed in
violation proceedings and other criminal proceedings.
SECTION 77. ORS 310.635 is amended to read:
310.635. (1) A taxpayer who is eligible for elderly rental
assistance shall be granted the rental assistance either in the
amount determined under subsection (2) of this section or by
using the schedule for renters set forth in subsection (3) of
this section, whichever is greater. A taxpayer is eligible for
elderly rental assistance under this section if:
(a) The taxpayer is 58 years of age or older before the close
of the calendar year immediately preceding the year in which the
rental assistance is claimed;
(b) The household income of the taxpayer is less than $10,000;
(c) The gross rent of the taxpayer is in excess of 20 percent
of household income; and
(d) The taxpayer files a claim with the Department of Revenue
as required by ORS 310.657.
(2) A taxpayer eligible for elderly rental assistance under
this section shall be paid by the department an amount equal to
the positive difference between the taxpayer's gross rent, not to
exceed $2,100, and 20 percent of household income.
(3) The schedule for renters referred to in subsection (1) of
this section is:
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Maximum
Refundable
Rent
Household Constituting
Income Property Tax
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
$ 0 - 499 $ 250
500 - 999 245
1,000 1,499 238
1,500 1,999 228
2,000 2,499 217
2,500 2,999 205
3,000 3,499 192
3,500 3,999 179
4,000 4,499 165
4,500 4,999 151
5,000 5,499 136
5,500 5,999 121
6,000 6,499 106
6,500 6,999 91
7,000 7,499 77
7,500 7,999 63
8,000 8,499 50
8,500 8,999 38
9,000 9,499 27
9,500 9,999 18
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(4) The elderly rental assistance payments required by
subsection (2) of this section shall be made by the department
during the month of October.
(5) The elderly rental assistance granted under this section
applies to gross rent paid in the calendar year for which the
claim is filed.
(6)(a) Only one taxpayer per household per year shall be
granted elderly rental assistance under this section.
(b) Neither a person who is, as of December 31 of the year for
which elderly rental assistance is claimed, a tenant-stockholder
of a cooperative housing corporation nor a resident of a
nonprofit home for the elderly owned or being purchased by a
corporation described in ORS 307.375 shall be granted elderly
rental assistance.
(c) No elderly rental assistance shall be granted under this
section for less than $5, after offsets for all amounts owed to
the state.
(d) No elderly rental assistance shall be granted under this
section for any period during which the taxpayer's needs were
included in a payment made by the Adult and Family Services
Division pursuant to ORS 418.172. However, if it is determined
that the taxpayer's needs were included in a payment made by the
Adult and Family Services Division under ORS 418.172 and the
taxpayer is eligible for the period for elderly rental assistance
in an amount greater than the payment, the department shall grant
elderly rental assistance in the amount of the difference.
(7) Elderly rental assistance ¦{¦-¦,¦-¦} allowed pursuant to
this section ¦{¦-¦,¦-¦} is not subject to ¦{¦-¦the¦-¦}
garnishment ¦{¦-¦provisions of ORS 29.125 to 29.395¦-¦} ¦{¦+¦
under sections 1 to 65 of this 2001 Act¦+¦}, except by a
government entity.
SECTION 78. ORS 652.610 is amended to read:
652.610. (1) All persons, firms, partnerships, associations,
cooperative associations, corporations, municipal corporations,
the state and its political subdivisions, except the federal
government and its agencies, employing, in this state, during any
calendar month one or more persons, and withholding for any
purpose, any sum of money from the wages, salary or commission
earned by an employee, shall provide such employee on regular
paydays with a statement sufficiently itemized to show the amount
and purpose of such deductions made during the respective period
of service which said payment covers.
(2) The itemized statement shall be furnished to the employee
at the time payment of wages, salary or commission is made, and
may be attached to or be a part of the check, draft, voucher or
other instrument by which payment is made, or may be delivered
separately from such instrument.
(3) No employer may withhold, deduct or divert any portion of
an employee's wages unless:
(a) The employer is required to do so by law;
(b) The deductions are authorized in writing by the employee,
are for the employee's benefit, and are recorded in the
employer's books;
(c) The employee has voluntarily signed an authorization for a
deduction for any other item, provided that the ultimate
recipient of the money withheld is not the employer, and that
such deduction is recorded in the employer's books;
(d) The deduction is authorized by a collective bargaining
agreement to which the employer is a party; or
(e) The deduction is made from the payment of wages upon
termination of employment and is authorized pursuant to a written
agreement between the employee and employer for the repayment of
a loan made to the employee by the employer, if all of the
following conditions are met:
(A) The employee has voluntarily signed the agreement;
(B) The loan was paid to the employee in cash or other medium
permitted by ORS 652.110;
(C) The loan was made solely for the employee's benefit and was
not used, either directly or indirectly, for any purpose required
by the employer or connected with the employee's employment with
the employer;
(D) The amount of the deduction at termination of employment
does not exceed the amount permitted to be garnished under ORS
23.185 ¦{¦-¦(1)(a) or (d)¦-¦} ; and
(E) The deduction is recorded in the employer's books.
(4) Nothing in this section shall be construed as prohibiting
the withholding of amounts authorized in writing by the employee
to be contributed by the employee to charitable organizations,
including contributions made pursuant to ORS 243.666 and 663.110;
nor shall this section prohibit deductions by check-off dues to
labor organizations or service fees, where such is not otherwise
prohibited by law; nor shall this section diminish or enlarge the
right of any person to assert and enforce a lawful setoff or
counterclaim or to attach, take, reach or apply an employee's
compensation on due legal process.
SECTION 79. ORCP 84 D is amended to read:
D Writ of attachment.
D(1) Issuance; contents; to whom directed; issuance of several
writs. If directed by an order authorizing provisional process
under Rule 83, the clerk shall issue a writ of attachment. The
writ shall be directed to the sheriff of any county in which
property of the defendant may be, and shall require the sheriff
to attach and safely keep all the property of the defendant
within the county not exempt from execution, or so much thereof
as may be sufficient to satisfy the plaintiff's demand, the
amount of which shall be stated in conformity with the complaint,
together with costs and expenses. Several writs may be issued at
the same time to the sheriffs of different counties.
D(2) Manner of executing writ. The sheriff to whom the writ is
directed and delivered shall note upon the writ the date of such
delivery, and shall execute the writ without delay, as follows:
D(2)(a) Personal property not in possession of third party.
Tangible personal property not in the possession of a third
person shall be attached by taking it into the sheriff's custody.
If any property attached is perishable, or livestock, where the
cost of keeping is great, the sheriff shall sell the same in the
manner in which property is sold on execution. The proceeds
thereof and other property attached shall be retained by the
sheriff to answer any judgment that may be recovered in the
action, unless sooner subjected to execution upon another
judgment. Plaintiff's lien shall attach when the property is
taken into the sheriff's custody.
D(2)(b) Other personal property. Tangible and intangible
personal property in the possession, control or custody of or
debts or other monetary obligations owing by a third person shall
be attached by writs of garnishment issued by the clerk of a
court or by an attorney as provided in ¦{¦-¦ORS 29.125 to 29.375
and 29.401 to 29.415¦-¦} ¦{¦+¦ sections 1 to 65 of this 2001
Act¦+¦}.
¦{¦+¦ D(3) Notice to defendant. After taking property into
custody under subsection (2)(a) of this section, the sheriff
shall promptly mail or deliver to the defendant, at the
last-known address of the defendant, a copy of the writ of
attachment, a copy of the claim of lien filed pursuant to section
C of this rule, if any, a notice of exemptions form provided by
section 64 of this 2001 Act, and a challenge to garnishment form
provided by section 65 of this 2001 Act. The sheriff may meet the
requirements of this subsection by mailing the documents to the
last-known address of the defendant as provided by the plaintiff.
The sheriff may withhold execution of the writ until the
plaintiff provides such address or a statement that the plaintiff
has no knowledge of the defendant's address. The sheriff shall
have no duty under this subsection if the plaintiff provides a
statement that the plaintiff has no knowledge of the defendant's
address.¦+¦}
¦{¦-¦D(3)¦-¦} ¦{¦+¦ D(4)¦+¦} Return of writ; inventory. When
the writ of attachment has been fully executed or discharged, the
sheriff shall return the same, with the sheriff's proceedings
indorsed thereon, to the clerk of the court where the action was
commenced, and the sheriff shall make a full inventory of the
property attached and return the same with the writ.
¦{¦-¦D(4)¦-¦} ¦{¦+¦ D(5)¦+¦} Indemnity to sheriff. Whenever a
writ of attachment is delivered to the sheriff, if the sheriff
has actual notice of any third party claim to the personal
property to be levied on or is in doubt as to ownership of the
property, or of encumbrances thereon, or damage to the property
held that may result by reason of its perishable character, such
sheriff may require the plaintiff to file with the sheriff a
surety bond, indemnifying the sheriff and the sheriff's bondsmen
against any loss or damage by reason of the illegality of any
holding or sale on execution, or by reason of damage to any
personal property held under attachment. Unless a lesser amount
is acceptable to the sheriff, the bond shall be in double the
amount of the estimated value of the property to be seized.
SECTION 80. Section 8, chapter 745, Oregon Laws 1999, is
amended to read:
¦{¦+¦ Sec. 8.¦+¦} (1) Except as provided in subsection (2) of
this section, the amendments to ORS 23.160, 23.170, 29.225¦{¦+¦
(1999 Edition)¦+¦}, 238.445, 412.115, 412.610 and 657.855 by
sections 1 to 7¦{¦+¦, chapter 745, Oregon Laws 1999,¦+¦} ¦{¦-¦of
this 1999 Act¦-¦} apply to all judgments, whether issued before,
on or after ¦{¦-¦the effective date of this 1999 Act¦-¦}
¦{¦+¦October 23, 1999¦+¦}.
(2) The amendments to ORS 23.160, 23.170, 29.225¦{¦+¦ (1999
Edition)¦+¦}, 238.445, 412.115, 412.610 and 657.855 by sections 1
to 7¦{¦+¦, chapter 745, Oregon Laws 1999,¦+¦} ¦{¦-¦of this 1999
Act¦-¦} do not apply to any execution issued before ¦{¦-¦the
effective date of this 1999 Act¦-¦} ¦{¦+¦ October 23, 1999¦+¦}.
¦{¦+¦
NOTICE OF GARNISHMENT¦+¦}
SECTION 81. ¦{¦+¦Notices of garnishment generally. (1) Any
state agency authorized to issue warrants to collect taxes and
debts owed to the State of Oregon, including but not limited to
warrants issued pursuant to ORS 179.655, 267.385, 293.250,
314.430, 316.207, 320.080, 321.570, 323.390, 657.642 and 825.504,
or any county tax collector authorized to issue warrants to
collect taxes and debts owed to the county pursuant to ORS
311.625, may garnish property of a debtor in the possession,
control or custody of a person other than the debtor by
delivering to the person all of the following:
(a) A notice of garnishment;
(b) A warrant, or a true copy of a warrant;
(c) The items specified in section 16 (1)(b) to (d) of this
2001 Act; and
(d) Any garnishee's search fee payable as provided in section
55 of this 2001 Act.
(2) A notice of garnishment may be issued by any person
designated by the state agency or by the county tax collector. A
warrant need not be recorded in the County Clerk Lien Record as a
condition of issuing a notice of garnishment under the provisions
of this section. The provisions of section 57 of this 2001 Act do
not apply to a notice of garnishment.
(3) If any of the items described in subsection (1) of this
section are not delivered to the garnishee, a notice of
garnishment shall not be effective to garnish any property of the
debtor, and the garnishee shall not be required to respond to the
garnishment and may proceed to deal with any property of the
debtor as though the notice of garnishment had not been issued.
(4) Notwithstanding section 17 of this 2001 Act, a notice of
garnishment and the other items required by subsection (1) of
this section may be delivered in person by any employee of the
state agency or of the county tax collector authorized by the
agency or the county to deliver the notice of garnishment, or by
certified mail, return receipt requested. The employee need not
be covered by the errors and omissions insurance required in
section 17 of this 2001 Act.
(5) Notwithstanding any provision of sections 1 to 65 of this
2001 Act, a debt calculation form need not be prepared or
delivered for any notice of garnishment.
(6) Notwithstanding section 56 of this 2001 Act, the duty of a
garnishee to deliver any property of the debtor that may be
contained in a safe deposit box that is in the garnishee's
possession, control or custody at the time of delivery of the
notice of garnishment to the garnishee is conditioned upon the
state agency or the county tax collector first paying to the
garnishee, in addition to the search fee provided for in section
55 of this 2001 Act, all reasonable costs incurred by the
garnishee in gaining entry to the safe deposit box. The costs
shall be paid to the garnishee by the state agency or the county
tax collector at least five days before the date the state agency
or the county tax collector takes possession of the property in
the safe deposit box. If the state agency or the county tax
collector fails to pay such costs to the garnishee within 20 days
after the delivery of the garnishee response, the garnishment
shall not be effective to garnish any property of the debtor that
may be contained in the safe deposit box and the garnishee may
proceed to deal with the safe deposit box and its contents as
though the notice of garnishment had not been issued. Nothing in
this subsection limits the rights of a state agency or county tax
collector to reach the contents of any safe deposit box in any
manner otherwise provided by law.
(7) Except as provided in this section and sections 82 and 83
of this 2001 Act, all provisions of sections 1 to 65 of this 2001
Act apply to notices of garnishment. The state agency or county
tax collector shall modify the forms provided in sections 1 to 65
of this 2001 Act as necessary to allow use of those forms for
notices of garnishment. The form of the notice of garnishment
must clearly indicate that the document is a notice of
garnishment and must reflect the date of all warrants on which
the notice of garnishment is based.
(8) The Attorney General may adopt model forms for notices of
garnishment issued by state agencies and county tax collectors.
There is a presumption, as described in ORS 40.120, that any
state agency or county tax collector that uses a model form
adopted by the Attorney General under this subsection has
complied with the requirements of sections 1 to 65 of this 2001
Act, and with the provisions of this section and sections 82 and
83 of this 2001 Act, with respect to the form of notices of
garnishment.¦+¦}
SECTION 82. ¦{¦+¦Notices of garnishment issued by state
agencies. (1) Notwithstanding section 4 of this 2001 Act, a
notice of garnishment issued by a state agency need not contain
the name of a court whose authority is invoked.
(2) State agencies shall make such modifications as are
necessary in the wage exemption calculation form provided by
section 63 of this 2001 Act if a notice of garnishment is issued
for a debt due for a state tax that is subject to the provisions
of section 69b (6) of this 2001 Act.
(3) Notwithstanding section 10 of this 2001 Act, a notice of
garnishment issued by a state agency acts to garnish all wages
earned by the debtor by reason of services to the garnishee until
the full amount of the debt is paid or until the notice of
garnishment is released by the state agency or by court order. A
notice of garnishment issued by a state agency must contain
language reasonably designed to notify the garnishee of the
provisions of this subsection.
(4) Notwithstanding section 28 of this 2001 Act, a garnishee
who receives a notice of garnishment issued by a state agency
need not deliver a copy of the garnishee response to the clerk of
the court, but must deliver the original of the response to the
state agency.
(5) Notwithstanding section 30 of this 2001 Act, a debtor who
wishes to make a challenge to a notice of garnishment issued by a
state agency must deliver the challenge in person or by first
class mail to the state agency within the time specified by
section 30 (2) of this 2001 Act. The state agency shall resolve
the challenge.
(6) If a state agency is issuing a notice of garnishment for
collection of a state tax, and the state agency has reason to
believe that the debtor intends to leave the state or do any
other act that would jeopardize collection of the tax, the state
agency may issue a special notice of garnishment. Any earnings,
as defined in ORS 23.175, garnished under a special notice of
garnishment are not subject to a claim of exemption under section
69b of this 2001 Act. A special notice of garnishment issued
under this subsection garnishes only that property of the debtor
that is in the garnishee's possession, control or custody at the
time the special notice is delivered, including debts not yet
due, and all wages owed by the garnishee to the debtor at the
time the special notice is delivered. A special notice of
garnishment does not act to garnish wages earned by the debtor by
reason of services rendered to the garnishee after the delivery
of the special notice of garnishment.
(7) A special notice of garnishment issued under subsection (6)
of this section shall contain a statement indicating that it is a
special notice of garnishment under subsection (6) of this
section and a statement reflecting the provisions of subsection
(6) of this section. Notwithstanding section 81 (1) of this 2001
Act, a wage exemption calculation form shall not be delivered to
the garnishee with a special notice of garnishment.¦+¦}
SECTION 83. ¦{¦+¦Notice of garnishment issued by county tax
collector. (1) A notice of garnishment issued by a county tax
collector must name the circuit court for the county that employs
the tax collector as the court whose authority is invoked.
(2) At least 15 days before any county tax collector issues a
notice of garnishment, the tax collector must mail to the debtor
by certified mail, return receipt requested, at the debtor's
last-known address, a notification of all amounts owing to the
county, a statement that further collection enforcement actions
may be taken by the county to collect those amounts, and a
statement that those enforcement actions may include seizing any
real property owned by the debtor, imposing a lien against any
real property owned by the debtor, or garnishing bank accounts,
wages and other property owned by the debtor. Only one such
notification shall be required and any number of garnishments may
be issued after the notification is mailed.
(3) Notwithstanding section 7 of this 2001 Act, a notice of
garnishment issued by a county tax collector acts to garnish only
that property of the debtor that is in the garnishee's
possession, control or custody at the time the notice is
delivered, including debts not yet due, and all wages owed by the
garnishee to the debtor at the time the notice is delivered. A
notice of garnishment issued by a county tax collector does not
act to garnish wages earned by the debtor by reason of services
rendered to the garnishee after the delivery of the notice of
garnishment.
(4) Notwithstanding section 28 of this 2001 Act, a garnishee
who receives a notice of garnishment issued by a county tax
collector need not deliver a copy of the garnishee response to
the clerk of the court, but must deliver the original of the
response to the county tax collector.
(5) Notwithstanding section 30 of this 2001 Act, a debtor who
wishes to make a challenge to a notice of garnishment issued by a
county tax collector must deliver the challenge in person or by
first class mail to the county tax collector within the time
specified by section 30 (2) of this 2001 Act.
(6) Within 14 days after receipt of a challenge to a
garnishment under subsection (5) of this section, the county tax
collector must either:
(a) Release all property claimed as exempt from or not subject
to garnishment under the challenge to the garnishment; or
(b) File with the clerk of the court a response to the
challenge, attaching copies of the notice of garnishment and the
garnishee response, and any supporting documentation necessary or
helpful to the court in making its determination on the challenge
to the garnishment.¦+¦}
¦{¦+¦
REPEALS¦+¦}
SECTION 84. ¦{¦+¦ORS 29.087, 29.115, 29.125, 29.135, 29.137,
29.138, 29.139, 29.142, 29.145, 29.147, 29.155, 29.165, 29.185,
29.195, 29.205, 29.215, 29.225, 29.235, 29.237, 29.245, 29.255,
29.265, 29.275, 29.282, 29.285, 29.295, 29.305, 29.315, 29.325,
29.335, 29.343, 29.345, 29.355, 29.357, 29.365, 29.369, 29.371,
29.373, 29.375, 29.377, 29.395, 29.401, 29.405, 29.411 and 29.415
are repealed.¦+¦}
¦{¦+¦
APPLICABILITY¦+¦}
SECTION 85. ¦{¦+¦(1) Sections 1 to 65 of this 2001 Act, the
amendments to statutory sections and Oregon Rules of Civil
Procedure by sections 66 to 69 and 70 to 80 of this 2001 Act and
the repeal of statutory sections, other than ORS 29.375, by
section 84 of this 2001 Act apply only to writs of garnishment
issued on or after the effective date of this 2001 Act. Any writ
of garnishment issued before the effective date of this 2001 Act
shall continue to be governed by the law in effect immediately
before the effective date of this 2001 Act.
(2) Sections 81 to 83 of this 2001 Act and the repeal of ORS
29.375 by section 84 of this 2001 Act apply only to notices of
garnishment issued on or after the effective date of this 2001
Act. Any notice of garnishment issued before the effective date
of this 2001 Act shall continue to be governed by the law in
effect immediately before the effective date of this 2001 Act.
(3) The repeal of ORS 23.185 by section 69a of this 2001 Act
and the enactment in lieu thereof of section 69b of this 2001 Act
apply only to execution issued on or after the effective date of
this 2001 Act.¦+¦}
¦{¦+¦
UNIT AND SECTION CAPTIONS¦+¦}
SECTION 86. ¦{¦+¦The unit and section captions used in this
2001 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2001 Act.¦+¦}
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