72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2274
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for Oregon Law Commission)
CHAPTER ................
AN ACT
Relating to civil procedure; creating new provisions; and
amending ORS 12.085, 18.600, 18.607, 18.645, 18.650, 18.652,
18.655, 18.658, 18.665, 18.690, 18.692, 18.700, 18.705, 18.710,
18.730, 18.745, 18.790, 18.830, 18.835, 18.838, 18.840, 18.845,
18.850 and 18.900 and ORCP 85 C.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 12.085 is amended to read:
12.085. { + (1) Except as provided in subsection (2) of this
section, + } proceedings against a garnishee under ORS 18.775 to
18.782 must be commenced within one year { - from - } { +
after + } the delivery of the writ of garnishment.
{ + (2) If the writ of garnishment is delivered to a person
in the person's capacity as a personal representative of an
estate, proceedings against the garnishee under ORS 18.775 to
18.782 must be commenced within one year after the entry of a
decree of final distribution for the estate. + }
SECTION 2. ORS 18.600 is amended to read:
18.600. As used in ORS 18.600 to 18.850:
(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 ORS 18.605.
(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 ORS
18.615, but does not include:
(a) Any property that is not subject to garnishment under ORS
18.618; and
(b) Any property that is applied as a setoff under ORS 18.620
or 18.795.
(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 ORS 18.635 (2); or
(b) The issuer, if the writ is issued under ORS 18.635 by any
person other than the clerk of the court.
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(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 chapter 107, 108, 109, 110, 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 - } { + 174.109 + }.
(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.
SECTION 3. ORS 18.607 is amended to read:
18.607. (1) Except as otherwise provided by law, a writ of
garnishment must be in substantially the form provided by ORS
18.830. 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 ORS 18.832, 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 ORS
18.605.
(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 - }
{ + 174.109 + }, 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
ORS 18.832.
(g) The date on which the writ is issued.
(h) All addresses required in the writ of garnishment form
provided by ORS 18.830.
(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.
{ + (5) A single writ may be issued for two or more debtors
if those debtors are jointly liable on all or part of the
debt. + }
SECTION 4. ORS 18.645 is amended to read:
18.645. (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 ORS 18.600 to 18.850, the provisions of
ORS 18.600 to 18.850 apply to all writs issued under this
section.
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(2) Notwithstanding ORS 18.607, a writ of garnishment issued
under this section need not contain the name of the court whose
authority is invoked.
(3) Notwithstanding ORS 18.690, 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 ORS 18.730, payments under a writ
issued under this section must be delivered to the Department of
Justice. + }
{ - (4) - } { + (5) + } Notwithstanding ORS 18.730, the
{ - issuer of a writ under this section - } { + Department of
Justice + } must hold any payments received from the
garnishee { + under a writ issued pursuant to this section + }:
(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) - } { + (6) + } 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 ORS
18.600 to 18.850 to reflect the provisions of this section.
SECTION 5. ORS 18.650 is amended to read:
18.650. (1) All of the following items must be delivered to a
garnishee:
(a) The original writ of garnishment in substantially the form
provided by ORS 18.830 { - and - } { + or + } 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 ORS 18.835.
(c) An instructions to garnishee form in substantially the form
provided by ORS 18.838.
(d) A wage exemption calculation form in substantially the form
provided by ORS 18.840.
(e) Any search fee required by ORS 18.790.
(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 6. 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 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 { + original + } writ delivered to the garnishee or
upon
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{ - a true - } { + the + }copy { + of the writ + }
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 7. ORS 18.655 is amended to read:
18.655. (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 ORS 18.650 (1) 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 ORS 18.650 (1) 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.
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(f) If the property of the debtor is in the possession, control
or custody of a public body, as defined in ORS { - 192.410 - }
{ + 174.109 + }, the writ may be delivered to the board,
department, institution, commission or officer charged with
approving a claim for the property { + , or to such person or
place as may be designated by the public body + }.
(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 8. ORS 18.658 is amended to read:
18.658. (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 ORS 18.845.
(d) A challenge to garnishment form in substantially the form
provided by ORS 18.850 { + , with the names and addresses of the
garnishor and garnishee entered by the garnishor + }.
(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.
SECTION 9. ORS 18.665 is amended to read:
18.665. (1) Upon receiving a writ of garnishment, the garnishee
shall determine whether a garnishee response is required under
ORS 18.680 and 18.682. The garnishee has no duty to determine
whether the garnishor, sheriff or other person has complied with
the requirements of ORS 18.600 to 18.850, 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
ORS 18.615. If the garnishee has possession, control or custody
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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 ORS 18.600 to 18.850, and thereafter make delivery
of the property in the manner required by ORS 18.600 to 18.850.
(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.
{ + (3) If a single writ is issued for two or more joint
debtors under ORS 18.607 (5) and the garnishable property in the
garnishee's possession, control or custody exceeds the amount
necessary to satisfy the garnishment, the garnishee must hold and
deliver as much of the property as is necessary to satisfy the
garnishment but may select, in the sole discretion of the
garnishee, the property to hold and deliver without regard to
which of the joint debtors owns the property. + }
SECTION 10. ORS 18.690 is amended to read:
18.690. (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
{ + of garnishment + } 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 ORS 18.605, and the
garnishee will not make payments or deliver property under the
writ pursuant to ORS 18.618 (2); 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 ORS 18.680, delivery of
a garnishee response under this section is accomplished upon
mailing or upon personal delivery of the response.
SECTION 11. ORS 18.692 is amended to read:
18.692. (1) The garnishee shall prepare a supplemental
garnishee response { - in substantially the form provided by
subsection (2) of this section, - } and deliver the supplemental
{ + garnishee + } 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 ORS 18.605; or
(b) The garnishee receives an order to withhold income that is
entitled to priority under ORS 25.375.
(2) The supplemental { + garnishee + } response required under
{ - subsection (1) of - } this section must be in
substantially the
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{ - following - } form { - : - } { + provided in the
instructions to garnishee form set forth in ORS 18.838. + }
µ _____________________________________________________________ º
{ -
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 - }
µ _____________________________________________________________ º
SECTION 12. ORS 18.700 is amended to read:
18.700. (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 ORS
18.850, or a substantially similar form, and by delivering the
original of the completed form in person or by first class mail
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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 ORS 18.705 and 18.708
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.
{ + (5) A challenge to a garnishment may be used only for the
purposes specified in this section and ORS 18.725. + }
SECTION 13. ORS 18.705 is amended to read:
18.705. (1) Except as provided in subsection { - (2) - }
{ + (4) + } of this section, upon receiving notice of a
challenge to a garnishment under ORS 18.702, a { + + }garnishor
{ + who is a creditor + } 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.
{ + (2) Except as provided in subsection (4) of this section,
if the garnishor is not a creditor, upon receiving notice of a
challenge to a garnishment under ORS 18.702, the garnishor must
promptly send to the court specified in the writ of garnishment
all amounts received under the writ that have not been delivered
to the creditor and that the debtor has claimed to be exempt or
not subject to garnishment. The creditor must promptly send to
the court specified in the writ all amounts that the creditor has
received under the writ and that the debtor has claimed to be
exempt or not subject to garnishment.
(3) + } { - The payment - } { + Payments made + } to the
court { + under this section + } 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 { + or creditor + } appear and show
cause why the garnishor { + or creditor + } should not be held
in contempt. In addition to contempt proceedings, the court may
require the garnishor { + or creditor + } 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) - } { + (4) + } { - Subsection (1) of - } This
section does not apply if the garnishor { + or creditor + } is
not { - required by law or - } allowed by law to disburse the
payment { + to the court + }.
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{ - (3) - } { + (5) + } 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. The garnishor must note upon the request
for sale that a challenge to the garnishment has been made by the
debtor.
SECTION 14. ORS 18.710 is amended to read:
18.710. (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 - } { + garnishor, garnishee and
debtor at the addresses provided in the challenge to garnishment
form + }. The hearing shall be held as soon as possible. { + The
garnishor shall provide a copy of the writ of garnishment to the
court on or before the date set for the hearing. + }
(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 15. ORS 18.730 is amended to read:
18.730. (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 ORS 18.645 and 18.745, 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 ORS 18.702, 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 ORS 18.708.
{ + (4) Notwithstanding subsection (1) of this section, if a
creditor is a state agency as defined by ORS 183.025, the
garnishor may require that checks issued for payments under a
writ be made payable to the garnishor or to such other person as
designated by the garnishor. A state agency may modify the forms
provided in ORS 18.600 to 18.850 to reflect the provisions of
this subsection. + }
SECTION 16. ORS 18.745 is amended to read:
18.745. Within 10 days after receiving a payment under a writ
of garnishment, a garnishor { + or creditor + } must return to
the debtor any amount that exceeds the amount owing on the debt.
If payment was made by check, the garnishor { + or creditor + }
is not required to return the payment until 10 days after the
check has cleared.
SECTION 16a. ORS 18.790 is amended to read:
18.790. (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 ORS 18.900. { + A separate search
fee must be delivered to the financial institution for each
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debtor if the writ is issued for more than one debtor under ORS
18.607 (5). + } 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 ORS 18.900 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 17. ORS 18.830 is amended to read:
18.830. A writ of garnishment must be in substantially the
following form:
_________________________________________________________________
_____
COURT
COUNTY OF _____
____NOTE_TO_WEB_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:
Enrolled House Bill 2274 (HB 2274-A) Page 10
_____ (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
{ + only + } 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 { + (check one) + }:
_ The clerk of the court
_ The attorney for the Creditor
_ Other authorized issuer:
Name and title _____
{ + Statutory + } 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 ___
Enrolled House Bill 2274 (HB 2274-A) Page 11
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 _____
City ___ State ___
Zip Code ___
_ Attorney for Creditor:
Name _____
Street address _____
City ___ State ___
Zip Code ___
Telephone number _____
Oregon State Bar number ____
_ Other authorized issuer of writ:
Name _____
Street address _____
City ___ State ___
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.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________
____
, 2_
Signature Date
Enrolled House Bill 2274 (HB 2274-A) Page 12
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
__________
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 __________
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 18. ORS 18.835 is amended to read:
18.835. A garnishee response must be in substantially the
following form:
_________________________________________________________________
_____
COURT
COUNTY OF _____
____NOTE_TO_WEB_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
Enrolled House Bill 2274 (HB 2274-A) Page 13
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.)
_______________
_______________
_______________
Enrolled House Bill 2274 (HB 2274-A) Page 14
_______________
_ 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)
_______________
_______________
Enrolled House Bill 2274 (HB 2274-A) Page 15
_______________
_______________
_____________________________________________________________
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_.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
I hereby certify that I have fully and accurately completed
this garnishee response.
Dated ___, 2_
__________
Name of Garnishee
__________
{ + Telephone number + } __________
{ + Fax number (if available) + } __________
Signature
__________
__________
Address
_________________________________________________________________
Enrolled House Bill 2274 (HB 2274-A) Page 16
SECTION 19. ORS 18.838 is amended to read:
18.838. 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 - } { + or + } 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 ORS 18.600 to 18.850.
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
Enrolled House Bill 2274 (HB 2274-A) Page 17
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 ORS 18.620. 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
Enrolled House Bill 2274 (HB 2274-A) Page 18
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
Enrolled House Bill 2274 (HB 2274-A) Page 19
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.
Enrolled House Bill 2274 (HB 2274-A) Page 20
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 - } { + Garnishor + } at the address
indicated on the writ under Important Addresses.
(b) Send a copy of your Garnishee Response to the
{ - Garnishor - } { + clerk of the court + } 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
Enrolled House Bill 2274 (HB 2274-A) Page 21
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 ORS 18.620.
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. { + If you have not delivered all
property that is subject to garnishment under this writ when you
discover that a bankruptcy petition has been filed, + } 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. { + If you have not delivered all property
that is subject to garnishment under this writ when you receive
an order to withhold income that has priority, + } you must mail
the following notice to the Garnishor and to the Debtor.
_________________________________________________________________
{ -
NOTICE OF BANKRUPTCY FILING - }
{ -
OR RECEIPT OF ORDER - }
{ -
TO WITHHOLD INCOME - }
Enrolled House Bill 2274 (HB 2274-A) Page 22
{ +
SUPPLEMENTAL GARNISHEE RESPONSE + }
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 ORS
18.790 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 ORS 18.795. 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 ORS 18.790.
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 ORS 18.792.
Enrolled House Bill 2274 (HB 2274-A) Page 23
_________________________________________________________________
SECTION 20. ORS 18.840 is amended to read:
18.840. A wage exemption calculation form must be { - served
on - } { + delivered to + } 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_WEB_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
payme................. $__
2. Total amount required to be
withheld by law for amount in Line 1
(Federal and state
withholding, Social
Security, etc.).. $__
3. Debtor's disposable wages
(Subtract Line 2
from Line 1)..... $__
4. Normal exemption (Enter 75
percent of Line 3) $__
5. Minimum exemption (check one)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_ $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 $170 by number of weeks or
fraction of a week)
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
6. Wages exempt from garnishment
(Line 4 or 5,
whichever is greate$)_
_
7. Nonexempt wages (Subtract
Line 6 from Line 3)$__
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Enrolled House Bill 2274 (HB 2274-A) Page 24
8. Amount withheld { +
for this pay period + }
pursuant
to a support order under support
withholding process { +
or under another
writ with priority + }
..... $__
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
9. Wages subject to
garnishment (Subtract
Line 8 from Line 7)$__
____________________________________________________________
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
Enrolled House Bill 2274 (HB 2274-A) Page 25
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.
{ + If you receive more than one writ of garnishment. If you
receive more than one writ of garnishment for the same debtor,
the writs have priority based on the date on which you receive
them. If the full amount of wages subject to garnishment for a
given pay period is paid on the first writ, you should not make
any payment on subsequently received writs until the first writ
expires. In some cases, it may be necessary to make payments on
two or more writs for the same pay period. + }
{ + Example 4. You have received two writs of garnishment
for Debtor A. You pay Debtor A on a monthly basis. The first
writ expires on October 16. The second writ will not expire
until November 15. You will need to prepare two wage
exemption calculation forms for Debtor A's October wages and
make payments under both writs. The wage exemption
calculation form for the first writ will be for the wages
attributable to October 1 to October 15 as described in
Example 2. The wage exemption calculation form for the
second writ will be for all wages for the month of October,
but the amounts withheld under the first writ must be
subtracted on Line 8 to determine the October wages subject
to garnishment under the second writ. + }
_________________________________________________________________
SECTION 21. ORS 18.845 is amended to read:
18.845. 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.
Enrolled House Bill 2274 (HB 2274-A) Page 26
_________________________________________________________________
NOTICE OF EXEMPT PROPERTY
{ +
AND INSTRUCTIONS FOR CHALLENGE TO GARNISHMENT + }
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 23.186.
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.
Enrolled House Bill 2274 (HB 2274-A) Page 27
(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) Amounts paid to you as an earned income tax credit under
federal tax law.
(30) Interest in personal property to the value of $400, but
this cannot be used to increase the amount of any other
exemption.
(31) Equitable interests in property.
(32) 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.
Enrolled House Bill 2274 (HB 2274-A) Page 28
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.
{ + YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR
THE FOLLOWING PURPOSES:
(1) To claim such exemptions from garnishment as are permitted
by law.
(2) To assert that property is not garnishable property under
ORS 18.618.
(3) To assert that the amount specified in the writ of
garnishment as being subject to garnishment is greater than the
total amount owed. + }
{ + YOU MAY NOT USE THE CHALLENGE TO GARNISHMENT FORM TO
CHALLENGE THE VALIDITY OF THE DEBT. + }
IF YOU { - CLAIM AN EXEMPTION - } { + FILE A CHALLENGE TO A
GARNISHMENT + } 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 ORS 18.715.
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 ORS 18.705 and 18.708.
_________________________________________________________________
SECTION 22. ORS 18.850 is amended to read:
18.850. A challenge to garnishment form must be in
substantially the following form:
_________________________________________________________________
_____
COURT
COUNTY OF _____
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____
)CHALLENGE TO
Plaintiff, ) GARNISHMENT
)
vs. )Case No. ___
)
____
)
Defendant. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + THIS FORM MAY BE USED BY THE DEBTOR ONLY FOR THE
FOLLOWING PURPOSES:
Enrolled House Bill 2274 (HB 2274-A) Page 29
(1) To claim such exemptions from garnishment as are permitted
by law.
(2) To assert that property is not garnishable property under
ORS 18.618.
(3) To assert that the amount specified in the writ of
garnishment as being subject to garnishment is greater than the
total amount owed.
THIS FORM MAY BE USED BY PERSONS OTHER THAN THE DEBTOR ONLY TO
CLAIM AN INTEREST IN THE PROPERTY THAT IS GARNISHED.
THIS FORM MAY NOT BE USED TO CHALLENGE THE VALIDITY OF THE
DEBT. + }
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/We claim that the total amount owed is:
_________________________________________________________________
_________________________________________________________________
+ }
________ ________
I am a person other than the Debtor and I have the following
interest in the property:
_________________________________________________________________
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name ____
Name ____
Signature ____
Signature ____
Address ____
Address ____
________
________
Telephone Telephone
Enrolled House Bill 2274 (HB 2274-A) Page 30
Number ____
Number ____
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(Required) (Required)
{ +
TO BE COMPLETED BY GARNISHOR: + }
{ +
Name of Garnishor____
Name of Garnishee
____
Address of Garnishor_
___
Address of Garnishee
____
______________
______________
+ }
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 23. ORS 18.900 is amended to read:
18.900. (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 ORS 18.650 (1)(b) to (d); and
(d) Any garnishee's search fee payable as provided in ORS
18.790.
(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 ORS 18.800 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 ORS 18.652, 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 ORS 18.652.
Enrolled House Bill 2274 (HB 2274-A) Page 31
(5) Notwithstanding any provision of ORS 18.600 to 18.850, a
debt calculation form need not be prepared or delivered for any
notice of garnishment.
(6) Notwithstanding ORS 18.792, 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 ORS 18.790, 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 ORS 18.902 and
18.905, all provisions of ORS 18.600 to 18.850 apply to notices
of garnishment. The state agency or county tax collector shall
modify the forms provided in ORS 18.600 to 18.850 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 { + and other documents + } issued by state agencies
and county tax collectors { + under this section and ORS 18.902
and 18.905 + }. 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 ORS 18.600 to 18.850, and
with the provisions of this section and ORS 18.902 and 18.905,
with respect to the form of notices of garnishment.
SECTION 24. ORCP 85 C is amended to read:
C Custody and delivery of property. Upon receipt of the order
of provisional process issued by the court as provided in Rule
83, the sheriff shall forthwith take the property described in
the order, if it be in the possession of the defendant or another
person, and retain it in the sheriff's custody. { + If any part
of the property is concealed in a building or other enclosure,
the sheriff shall demand delivery of the property. If the
property is not delivered, the sheriff shall break open the
building or enclosure and take the property into possession. + }
The sheriff shall keep { - it - } { + the property + } in a
secure place { - , - } and deliver it to the party entitled
thereto upon receiving the lawful fees for taking, and the
necessary expenses for keeping the same. The court may waive the
payment of such fees and expenses upon a showing of indigency.
SECTION 25. { + The amendments to ORS 12.085, 18.645, 18.650,
18.652, 18.655, 18.658, 18.690, 18.692, 18.705, 18.710, 18.730,
18.745, 18.790, 18.830, 18.835, 18.838, 18.840, 18.845, 18.850
Enrolled House Bill 2274 (HB 2274-A) Page 32
and 18.900 by sections 1, 4 to 8, 10, 11 and 13 to 23 of this
2003 Act apply only to writs of garnishment issued on or after
the effective date of this 2003 Act. + }
----------
Passed by House February 19, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 1, 2003
...........................................................
President of Senate
Enrolled House Bill 2274 (HB 2274-A) Page 33
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2274 (HB 2274-A) Page 34