Chapter
304
AN ACT
HB 2821
Relating to civil proceedings; creating new provisions; amending ORS 18.652, 18.705, 18.752, 18.755, 21.410, 105.158 and 206.030; and declaring an emergency.
Be It Enacted by the People of the State of
SECTION 1. ORS 206.030 is amended to read:
206.030. An officer to whom any process, order or paper is delivered shall execute or serve it according to its command or direction, or as required by law, and must make a written return of the execution or service thereof. If a sheriff is directed by a court to take personal property into custody at a specific premises, and the property is concealed in a building or enclosure, the sheriff shall demand its delivery. If delivery is not made, the sheriff shall use such reasonable force as is necessary to enter into the building or enclosure and take the property into possession.
SECTION 2. ORS 18.705 is amended to read:
18.705. (1) Except as provided in subsection (2) of this section, upon receiving notice of a challenge to a garnishment under ORS 18.702, 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 ORS 18.710, 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 ORS 18.755 (1) that the garnishor mail or deliver a written request for sale of property, and pay the fees determined by the sheriff under ORS 18.755 (3), not later than 20 days after the garnishee delivers the garnishee response to the clerk of the court specified in the writ of garnishment as having authority over the writ. The garnishor must note upon the request for sale that a challenge to the garnishment has been made by the debtor.
SECTION 3. ORS 18.752 is amended to read:
18.752. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in ORS 18.750, 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 to the clerk of the court specified in the writ of garnishment as having authority over the writ, 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 ORS 18.755 (4).
(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 4. ORS 18.755 is amended to read:
18.755. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in ORS 18.750, 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 to the clerk of the court specified in the writ of garnishment as having authority over the writ. 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 ORS 18.750 may be conducted under ORS 18.750 to 18.760 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 ORS 18.750. The sheriff shall conduct such investigation as may be necessary to determine the difficulty of conducting any sale of the property under ORS 18.758, including any costs that the sheriff may incur in taking into possession any of the property described in ORS 18.750 (3). The sheriff shall determine whether the property described in ORS 18.750 (3) 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 ORS 18.750 (2)(a) to (c) until the garnishee receives further instructions with respect to disposition of the property; and
(b) Deliver all property described in ORS 18.750 (2)(d) 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 5. ORS 18.652 is amended to read:
18.652. (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
(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 is $15.[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 6. ORS 21.410 is amended to read:
21.410. (1) The sheriff of a county shall collect the following fees in civil actions, suits and proceedings for each case delivered to the office of the sheriff:
(a) $28 for serving summons, subpoena, citation, order, notice, including notice of seizure and sale of personal or real property, notice of restitution and notice of seizure under writ of attachment or execution, or similar documents, including small claims or writ of execution, directed to not more than two [different] parties at the same address[, not less than $20 and not more than $25; otherwise not less than $20 and not more than $25 for each party for which service is requested]. If service is requested for more than two parties at the same address, the fee is $15 for each party at the same address. The fee authorized by this paragraph shall not be charged to the state in civil actions, suits and proceedings where one party is an indigent person who has been appointed counsel at state expense.
[(b) For serving notice of seizure and sale of personal or real property, notice of restitution, or other seizure under writ of attachment or execution, or other process or proceeding, $20.]
[(c)] (b) For seizure and sale of personal or real property, enforcement of writ of execution of judgment of restitution, or other enforcement or seizure under writ of attachment or execution, or other process or proceeding, $47, and, in addition, such sums as may be reasonable and necessary to secure each keeper or custodian of property in custody, the expense of inventory of property in custody and expense incurred in newspaper advertising required by law in the execution of process.
[(d)] (c) For making a conveyance of real property sold on any process, $15, to be paid by, or for, the grantee.
[(e)] (d) For making a copy of any process, order, notice or other instrument in writing, when necessary to complete the service thereof, for each folio, $3; but no charge shall be made for copy of complaint or other paper not actually made by the sheriff.
[(f)] (e) For entering and processing distraint warrants for state agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other documents may charge any fee agreed to between the server and the person requesting service.
(3) Fees collected for service by the sheriff shall be retained for the benefit of the county where the party to be served cannot be found.
(4) No mileage or commission shall be collected by a sheriff for service of any document or process but in any service involving travel in excess of 75 miles round trip an additional fee not to exceed $25 may be billed and collected by a sheriff. Mileage shall be measured from the location at which the service is made to the circuit court in that county.
(5) Amounts paid for service of process and other documents may be recovered as costs and disbursements to the extent provided by ORS 20.115.
(6) A sheriff may not collect a fee under this section for serving a foreign restraining order or an order that only grants relief under ORS 107.095 (1)(c).
(7) As used in this section:
(a) “Folio” means 100 words, counting two figures as one word. Any portion of a folio, when the whole paper contains less than a folio, or when such portion is an excess over the last folio, shall be deemed a folio.
(b) “Foreign restraining order” means a restraining order that is a foreign judgment as defined by ORS 24.105.
SECTION 7. ORS 21.410, as amended by section 86, chapter 962, Oregon Laws 2001, is amended to read:
21.410. (1) The sheriff of a county shall collect the following fees in civil actions, suits and proceedings for each case delivered to the office of the sheriff:
(a) $28 for serving summons, subpoena, citation, order, notice, including notice of seizure and sale of personal or real property, notice of restitution and notice of seizure under writ of attachment or execution, or similar documents, including small claims or writ of execution, directed to not more than two [different] parties at the same address[, not less than $20 and not more than $25; otherwise not less than $20 and not more than $25 for each party for which service is requested]. If service is requested for more than two parties at the same address, the fee is $15 for each party at the same address. The fee authorized by this paragraph shall not be charged to the state in civil actions, suits and proceedings where one party is a person who has been appointed counsel at state expense.
[(b) For serving notice of seizure and sale of personal or real property, notice of restitution, or other seizure under writ of attachment or execution, or other process or proceeding, $20.]
[(c)] (b) For seizure and sale of personal or real property, enforcement of writ of execution of judgment of restitution, or other enforcement or seizure under writ of attachment or execution, or other process or proceeding, $47, and, in addition, such sums as may be reasonable and necessary to secure each keeper or custodian of property in custody, the expense of inventory of property in custody and expense incurred in newspaper advertising required by law in the execution of process.
[(d)] (c) For making a conveyance of real property sold on any process, $15, to be paid by, or for, the grantee.
[(e)] (d) For making a copy of any process, order, notice or other instrument in writing, when necessary to complete the service thereof, for each folio, $3; but no charge shall be made for copy of complaint or other paper not actually made by the sheriff.
[(f)] (e) For entering and processing distraint warrants for state agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other documents may charge any fee agreed to between the server and the person requesting service.
(3) Fees collected for service by the sheriff shall be retained for the benefit of the county where the party to be served cannot be found.
(4) No mileage or commission shall be collected by a sheriff for service of any document or process but in any service involving travel in excess of 75 miles round trip an additional fee not to exceed $25 may be billed and collected by a sheriff. Mileage shall be measured from the location at which the service is made to the circuit court in that county.
(5) Amounts paid for service of process and other documents may be recovered as costs and disbursements to the extent provided by ORS 20.115.
(6) A sheriff may not collect a fee under this section for serving a foreign restraining order or an order that only grants relief under ORS 107.095 (1)(c).
(7) As used in this section:
(a) “Folio” means 100 words, counting two figures as one word. Any portion of a folio, when the whole paper contains less than a folio, or when such portion is an excess over the last folio, shall be deemed a folio.
(b) “Foreign restraining order” means a restraining order that is a foreign judgment as defined by ORS 24.105.
SECTION 8. ORS 105.158 is amended to read:
105.158. (1) For purposes of this section, “process server” means any competent person 18 years of age or older who:
(a) Is a resident of the State of Oregon;
(b) Is not the plaintiff, a relative of the plaintiff or an agent of the plaintiff for purposes of management of the premises;
(c) Is a person regularly employed in the business of serving process; and
(d) Charges a fee no greater than that set by ORS 21.410 [(1)(b)] (1)(a) for service of the notice of restitution.
(2) The sheriff or a process server shall serve the notice of restitution under ORS 105.152 or 105.153 in the manner provided by this subsection. Notwithstanding ORCP 10, by the end of the next judicial day following the payment of fees:
(a) The sheriff or process server shall mail a copy of the notice of restitution by first class mail to the defendant at the premises; and
(b) The sheriff or process server shall serve the notice of restitution at the premises by personal delivery to the defendant or, if the defendant is not available for service, by attaching a copy of the notice in a secure manner to the main entrance to that portion of the premises of which the defendant has possession.
(3) If service of the notice of restitution is made by a process server, by the end of the next judicial day following service the process server shall file with the clerk of the court a certificate of service in the same manner as provided by ORCP 7 F(2)(a).
SECTION 9. Section 10 of this 2003 Act is added to and made a part of ORS 107.700 to 107.732.
SECTION 10. A sheriff may serve a restraining order under ORS 107.718 in the county in which the sheriff was elected and in any other county that is adjacent to the county in which the sheriff was elected.
SECTION 11. Section 12 of this 2003 Act is added to and made a part of ORS 124.005 to 124.040.
SECTION 12. A sheriff may serve a restraining order under ORS 124.020 in the county in which the sheriff was elected and in any other county that is adjacent to the county in which the sheriff was elected.
SECTION 13. Section 14 of this 2003 Act is added to and made a part of ORS 419B.800 to 419B.929.
SECTION 14. A sheriff may serve a restraining order under ORS 419B.845 in the county in which the sheriff was elected and in any other county that is adjacent to the county in which the sheriff was elected.
SECTION 15. The amendments to ORS 18.652, 21.410 and 105.158 by sections 5 to 8 of this 2003 Act apply only to documents received for service on or after the effective date of this 2003 Act.
SECTION 16. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.
Approved
by the Governor
Filed
in the office of Secretary of State
Effective date June 11, 2003
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