72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
HA to HB 2110
 
LC 902/HB 2110-5
 
                       HOUSE AMENDMENTS TO
                         HOUSE BILL 2110
 
                    By COMMITTEE ON JUDICIARY
 
                            March 25
 
  On page 1 of the printed bill, delete line 3 and insert '
23.160, 25.010, 25.125, 25.372, 25.396, 25.414, 25.610, 109.103,
416.425, 419B.406, 419C.597 and 657.855.'.
  After line 4, insert:
  '  { +  SECTION 1. + } 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.
  ' (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.
  ' (m) Veterans' benefits and loans.
  ' (n) The debtor's right to receive an earned income tax credit
under the federal tax laws and any moneys that are traceable to a
payment of an earned income tax credit under the federal tax
laws.
  ' (o) 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 { +  except
ORS 657.855 + }, if a writ of garnishment or other execution is
issued to collect past due support as defined in ORS 18.600, 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 related to unemployment
compensation benefits provided by this subsection is subject to
ORS 657.855. + } 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 ORS 18.600, the lesser of 75 percent of the
payment or $7,500 is exempt.'.
  In line 5, delete '1' and insert '2'.
  On page 2, line 13, delete '2' and insert '3'.
  In line 33, delete 'Human Services' and insert 'Justice'.
  In line 41, delete 'hearings' and insert 'hearing' and delete
'of the department' and insert 'assigned from the Hearing Officer
Panel established under section 3, chapter 849, Oregon Laws
1999,'.
  In line 42, delete 'hearings' and insert 'hearing'.
  In line 43, delete 'hearings' and insert 'hearing'.
  On page 3, line 3, delete 'Human Services' and insert '
Justice'.
  In line 15, delete 'Human Services' and insert 'Justice'.
  In line 21, delete 'Human Services' and insert 'Justice'.
  In line 24, delete 'due to' and insert 'because of'.
  In line 25, restore the colon.
  In line 26, restore the bracketed material and delete the
boldfaced material and delete 'or' and insert 'and'.
  Delete lines 29 through 33 and insert:
  ' (B) The obligee does not object to suspending enforcement of
the support order.
  ' (b) The obligee may object under this subsection only on the
grounds that:
  ' (A) The child is not in the physical custody of the obligor;
  ' (B) The child is in the physical custody of the obligor
without the consent of the obligee; or
  ' (C) A credit balance would not result if the motion were
granted.'.
  After line 37, insert:
  '  { +  SECTION 4. + } ORS 25.125, as amended by section 3 of
this 2003 Act, is amended to read:
  ' 25.125. (1) The Department of Justice may return moneys to an
obligor when the department determines that the obligor has paid
more moneys than are due under a support obligation. However,
when the obligor has an ongoing support obligation, the
department may give the obligor credit for the excess amount paid
and apply the credit to the future support obligation until the
credit is fully used. When the department applies a credit to
offset a future support obligation, the department shall so
notify the obligee. The notice must inform the obligee that, if
the obligee requests, the department will conduct an
administrative review to determine if the record keeping and
accounting related to the calculation of the credit balance is
correct. The department shall conduct the administrative review
within 30 days after receiving the request.
  ' (2) An overpayment in favor of the state is created when the
Department of Justice, under ORS 25.020, has transmitted moneys
received from an obligor to an obligee or a collection agency, a
child support agency of another state or an agency of this state
and:
  ' (a) The amount transmitted is more than the support
obligation requires and the Department of Justice has returned
the excess to the obligor under subsection (1) of this section;
  ' (b) The Department of Justice has misapplied moneys received;
or
  ' (c) The amount transmitted is attributable in whole or in
part to a tax refund offset collection all or part of which has
been taken back by the Internal Revenue Service or the Department
of Revenue.
  ' (3)(a) The obligee or the agency to whom the moneys were
transmitted owes the amount of the overpayment to the state. The
Department of Justice shall:
  ' (A) Attempt to recover the overpayment if it is
cost-effective to do so;
  ' (B) Notify the obligee or the agency to whom the overpayment
was made that the obligee or agency owes money to the state and
specify the amount of the overpayment to be returned to the
department; and
  ' (C) Give the obligee opportunity to object.
  ' (b) If the obligee does not file a timely written objection,
the overpayment amount determined by the department is final and
the provisions of subsection (4) of this section apply.  If the
department does not resolve an objection to an obligee's
satisfaction, a hearing officer   { - assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999, - }  { + of the Employment Department + } shall hear
the objection. An order by the hearing officer is final. An
obligee may appeal the decision of a hearing officer to the
circuit court for a hearing de novo.
  ' (c) Notwithstanding paragraph (a) of this subsection, if an
agency of this or another state owes the overpayment, the agency
 
shall return the amount of the overpayment to the department
without notice and opportunity to object.
  ' (4) The amount of the overpayment specified in subsection
(3)(a) of this section is a liquidated debt and a delinquent
amount owed to the state. The Department of Justice may recover
the debt by obtaining from the obligee a voluntary assignment of
a portion of future support payments to be applied to the debt or
in any other way permitted by law.
  ' (5)(a) In addition to the debt created under subsection (2)
of this section, a debt in favor of the state is created when:
  ' (A) The Department of Justice receives a check for support
amounts due from an obligor or withholder subject to an order to
withhold under this chapter;
  ' (B) The Department of Justice transmits the amount to the
obligee, a child support agency of another state or an agency of
this state; and
  ' (C) The check is dishonored.
  ' (b) When a debt is created under paragraph (a) of this
subsection, the obligor or withholder who presented the check
owes the amount of money specified on the check to the state.
  ' (c) The Department of Justice shall:
  ' (A) Attempt to recover the debt if it is cost-effective to do
so;
  ' (B) Notify the obligor or withholder who presented the check
that the obligor or withholder owes the money to the state; and
  ' (C) Specify the amount of the debt to be paid to the
department.
  ' (d) The amount of the debt specified in paragraph (c) of this
subsection is a liquidated debt and a delinquent amount owed to
the state. The Department of Justice may recover the debt in any
way permitted under law.
  ' (6)(a) When a motion has been filed to terminate, vacate or
set aside a support order or to modify a support order because of
a change in physical custody of the child, the administrator may
suspend enforcement of the support order if:
  ' (A) Collection of support would result in a credit balance if
the motion were granted; and
  ' (B) The obligee does not object to suspending enforcement of
the support order.
  ' (b) The obligee may object under this subsection only on the
grounds that:
  ' (A) The child is not in the physical custody of the obligor;
  ' (B) The child is in the physical custody of the obligor
without the consent of the obligee; or
  ' (C) A credit balance would not result if the motion were
granted.
  ' (c) As used in this subsection, 'credit balance' means that
payments have been made in excess of all amounts owed by an
obligor for ongoing and past due child support.
  ' (7) The Department of Human Services shall adopt rules to
carry out the provisions of this section.
  '  { +  SECTION 5. + }  { + The amendments to ORS 25.125 by
section 4 of this 2003 Act become operative on June 30, 2005. + }
' .
  In line 38, delete '3' and insert '6'.
  In line 45, delete '4' and insert '7'.
  On page 4, line 17, after 'time' delete the rest of the line
and insert 'agree in writing to an alternative payment method;'.
  In line 18, delete 'is a party to and'.
  Delete line 19 and insert 'agrees in writing to the alternative
payment method;'.
  In line 20, delete 'previous support orders' and insert ' the
support order'.
  In line 23, delete 'payment agreement' and insert ' alternative
payment method'.
 
  In line 34, delete 'enter into a written payment agreement '
and insert 'agree in writing to an alternative payment method'.
  On page 5, line 8, delete the colon and insert 'the
administrator or the court, except that when support enforcement
services are being provided under ORS 25.080 the only permissible
alternative payment methods are an electronic funds transfer to
the Department of Justice or another method permitted under rules
adopted under this section.'.
  Delete lines 9 through 12.
  In line 13, delete the first 'an' and insert 'the'.
  In line 19, delete '5' and insert '8'.
  On page 7, after line 28, insert:
  '  { +  SECTION 9. + } ORS 25.610 is amended to read:
  ' 25.610. (1) Whenever support enforcement services are being
provided and those services are funded in part through Title IV-D
of the Social Security Act (42 U.S.C. 651, et seq.), the district
attorney or the Division of Child Support of the Department of
Justice, whichever is appropriate, may request the Department of
Revenue, through the Department of Human Services or its
designee, to collect past due child and spousal support from
income tax refunds due to the obligor.   { - Such - }
 { + The + } request shall be based upon the payment record
maintained pursuant to ORS 25.020.
  ' (2) If support payment records have not been maintained as
provided in ORS 25.020, then   { - such - }  a  { + support + }
payment record may be established pursuant to ORS 25.164, 25.167
and 416.429.
  ' (3) The Department of Human Services shall adopt rules:
  ' (a) Setting out additional criteria for requests pursuant to
subsection (1) of this section; and
  ' (b) Directing how any support obligation collected by the
Department of Revenue shall be distributed, consistent with
federal regulations.
  ' (4)   { - The obligor and the obligee must be sent a written
notice of the intent to apply the refund to the obligor's support
obligation. - }   { + Before the Department of Human Services
makes a request to the Department of Revenue under subsection (1)
of this section, the Department of Human Services shall provide
advance written notice to the obligor and the obligee of its
intent to refer the case to the Department of Revenue. + } The
notice shall inform the parties   { - of - } :
  ' (a)  { + Of + } the proposed action;
  ' (b)  { + Of + } the  { + obligor's + } right to request
 { - a hearing to contest - }   { + an administrative review
of + } the proposed action;   { - and - }
  ' (c) That   { - a hearing - }  { +  an administrative
review + }, if desired, must be requested  { + by the obligor + }
within 30 days { +  of the date of the notice; and
  ' (d) That the only issues that may be considered in the
administrative review are:
  ' (A) Whether the obligor is the person who owes the support
obligation; and
  ' (B) Whether the amount shown as the past due support is
correct + }.
  ' (5)   { - Hearings - }   { + An administrative review + }
must be requested within 30 days. At the   { - hearing, no - }
 { +  administrative review, an + } issue may  { + not + } be
considered if it was previously litigated or if the obligor
failed to exercise rights to appear and be heard or to appeal a
decision   { - which - }   { + that + } resulted in the accrual
of the arrearage being used as a basis for a request under
 { + subsection (1) of + } this section.
  ' (6) When the Department of Revenue has been requested to
collect past due child and spousal support from income tax
refunds due to the obligor, the Department of Revenue
 
 { - shall - }   { + may + } not allow the obligor to apply any
income tax refund to future taxes of the obligor.
  ' (7) Notwithstanding any other provision of this section, an
obligor who is not delinquent in payment of child or spousal
support may authorize the Department of Revenue, through the
Department of Human Services or its designee, to withhold any
income tax refund owing to that obligor for the purpose of
applying the moneys as a credit to the support account maintained
by the Department of Justice.'.
  In line 29, delete '6' and insert '10'.
  In line 42, delete '7' and insert '11'.
  On page 8, line 6, after the period insert 'Notwithstanding ORS
25.085,'.
  In line 39, delete '8' and insert '12'.
  On page 9, line 4, delete '9' and insert '13'.
  After line 13, insert:
  '  { +  SECTION 14. + } ORS 657.855 is amended to read:
  ' 657.855. (1) Except as provided in this section, benefits due
under this chapter   { - shall - }   { + may + } not be assigned,
pledged, encumbered, released or commuted and shall, except as
otherwise provided in this chapter, be exempt from all claims of
creditors and from levy, execution and attachment or remedy for
recovery or collection of a debt, which exemption may not be
waived. No agreement by an individual to waive the individual's
rights under this chapter is valid.
  ' (2) The exemption from execution or other process granted
under this section applies to only 75 percent of benefits payable
under this chapter if the execution or other process is issued
for a  { + child + } support obligation or an order or notice
entered pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B
or 419C { +  and the child support obligation or the order or
notice is being enforced pursuant to a plan approved under Title
IV-D of the Social Security Act + }.'.
  In line 14, delete '10' and insert '15' and delete '1 ' and
insert '2'.
  In line 17, delete '2' and insert '3'.
  In line 20, delete '4' and insert '7'.
  In line 22, delete '5' and insert '8'.
  After line 23, insert:
  ' (5) The amendments to ORS 25.610 by section 9 of this 2003
Act apply to requests made to the Department of Revenue on or
after the effective date of this 2003 Act.'.
  In line 24, delete '(5)' and insert '(6)' and delete ' 6' and
insert '10'.
  In line 26, delete '(6)' and insert '(7)' and delete ' 7' and
insert '11'.
  In line 28, delete '(7)' and insert '(8)' and delete '8 and 9'
and insert '12 and 13'.
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