72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2646
Sponsored by Representatives SHETTERLY, WILLIAMS (at the request
of Oregon Law Commission)
CHAPTER ................
AN ACT
Relating to judgments; creating new provisions; amending ORS
1.010, 1.655, 3.070, 3.260, 3.315, 3.425, 5.090, 5.120, 5.125,
7.010, 7.140, 7.160, 7.211, 9.330, 9.380, 9.536, 9.655, 9.735,
12.085, 18.325, 18.355, 18.365, 18.370, 18.420, 18.580, 18.600,
18.605, 18.607, 18.609, 18.610, 18.635, 18.638, 18.640, 18.645,
18.668, 18.672, 18.690, 18.700, 18.702, 18.705, 18.708, 18.710,
18.712, 18.718, 18.725, 18.730, 18.738, 18.740, 18.742, 18.752,
18.755, 18.770, 18.800, 18.810, 18.830, 18.832, 18.835, 18.838,
18.845, 18.910, 19.005, 19.205, 19.215, 19.270, 19.275, 19.345,
19.355, 19.415, 19.425, 19.445, 19.450, 20.077, 20.160, 21.020,
21.111, 21.325, 21.605, 21.607, 21.660, 23.160, 23.242, 23.280,
23.290, 23.300, 23.410, 23.445, 23.490, 23.530, 23.570, 24.115,
24.125, 24.129, 24.290, 24.305, 25.020, 25.025, 25.070, 25.080,
25.083, 25.100, 25.110, 25.167, 25.245, 25.255, 25.287, 25.670,
25.690, 25.710, 28.010, 28.050, 28.060, 28.070, 28.080, 28.150,
30.390, 33.125, 33.420, 33.460, 33.510, 33.720, 34.330, 34.360,
34.362, 34.600, 34.610, 34.710, 34.720, 35.265, 36.350, 36.425,
46.485, 46.488, 46.570, 52.600, 52.635, 58.377, 59.115, 59.127,
59.131, 59.265, 59.305, 59.895, 59.910, 60.671, 62.365, 62.695,
62.704, 63.621, 63.671, 65.671, 65.757, 65.870, 70.330,
72.7160, 72A.5210, 87.146, 87.342, 87.435, 87.445, 87.450,
87.455, 87.460, 87.470, 87.475, 87.480, 87.490, 87.585, 88.010,
88.020, 88.050, 88.060, 88.070, 88.080, 88.090, 88.100, 88.710,
93.190, 93.643, 93.730, 93.810, 94.816, 97.580, 97.890, 97.900,
97.920, 105.140, 105.240, 105.245, 105.260, 105.265, 105.270,
105.285, 105.360, 105.405, 105.580, 105.624, 105.755, 105.760,
105.860, 105.865, 105.890, 105.905, 106.030, 106.190, 107.005,
107.015, 107.025, 107.036, 107.065, 107.085, 107.095, 107.104,
107.105, 107.108, 107.115, 107.135, 107.159, 107.169, 107.174,
107.179, 107.400, 107.407, 107.412, 107.415, 107.425, 107.431,
107.445, 107.449, 107.455, 107.465, 107.475, 107.500, 107.765,
107.820, 107.835, 108.120, 109.015, 109.041, 109.053, 109.070,
109.096, 109.100, 109.119, 109.155, 109.165, 109.305, 109.307,
109.309, 109.311, 109.322, 109.324, 109.326, 109.335, 109.342,
109.346, 109.350, 109.353, 109.360, 109.381, 109.400, 109.410,
109.672, 109.704, 109.737, 114.135, 116.083, 116.093, 116.113,
116.203, 116.213, 116.253, 118.350, 118.830, 128.001, 128.005,
128.720, 135.280, 137.010, 137.071, 137.107, 137.270, 137.452,
138.083, 138.640, 138.650, 147.355, 153.820, 156.220, 161.327,
161.665, 161.715, 166.725, 167.162, 169.340, 180.360, 180.380,
183.485, 183.500, 205.125, 205.126, 205.515, 206.110, 221.346,
221.351, 221.785, 223.565, 223.593, 223.645, 225.300, 226.600,
226.620, 237.600, 238.462, 238.465, 243.507, 261.330, 261.615,
Enrolled House Bill 2646 (HB 2646-B) Page 1
264.220, 267.225, 267.385, 273.880, 305.440, 305.589, 311.615,
311.630, 311.691, 312.060, 312.070, 312.080, 312.090, 312.100,
312.110, 312.120, 312.122, 312.125, 312.130, 312.170, 312.190,
312.210, 312.220, 312.230, 312.240, 312.300, 312.360, 314.423,
316.567, 319.182, 319.742, 320.080, 321.570, 323.390, 323.610,
324.190, 327.480, 332.030, 334.095, 341.335, 358.925, 358.928,
373.060, 407.135, 407.215, 407.295, 411.650, 416.400, 416.422,
416.425, 416.427, 416.429, 416.440, 416.443, 417.060, 418.032,
419A.004, 419B.328, 419B.402, 419B.406, 419B.529, 419B.552,
419B.555, 419B.558, 419C.450, 419C.592, 419C.597, 432.230,
432.235, 432.408, 432.415, 453.065, 465.235, 465.325, 465.327,
471.650, 471.655, 475A.110, 517.100, 517.320, 523.420, 543.550,
545.253, 545.502, 545.504, 545.577, 545.579, 545.637, 545.639,
545.659, 545.663, 547.055, 547.215, 547.220, 547.235, 547.240,
547.245, 547.250, 547.255, 547.260, 548.110, 548.120, 548.350,
548.510, 548.945, 548.955, 552.710, 553.560, 553.570, 558.345,
583.106, 608.310, 616.295, 618.516, 645.220, 646.189, 646.632,
648.081, 656.440, 656.566, 657.396, 657.545, 657.557, 657.642,
658.415, 658.735, 663.205, 663.210, 663.220, 663.230, 673.732,
674.850, 679.165, 689.135, 696.585, 697.063, 708A.175, 709.170,
709.350, 709.430, 711.250, 711.554, 716.790, 722.068, 731.112,
731.258, 731.988, 732.529, 733.610, 734.440, 734.510, 743.601,
744.013, 756.600, 756.610, 756.990, 758.465, 759.565, 759.990,
772.030, 802.179, 809.410, 823.991 and 825.504 and section 14,
chapter 666, Oregon Laws 2001, sections 35 and 37, chapter 780,
Oregon Laws 2001, section 7, chapter 402, Oregon Laws 2003
(Enrolled Senate Bill 245), section 2, chapter 146, Oregon Laws
2003 (Enrolled House Bill 2645), and section 19, chapter ___,
Oregon Laws 2003 (Enrolled House Bill 2279), and ORCP 32 F, 32
M, 47 H, 63 E, 67 A, 67 B, 67 G, 68 C, 72 D, 81 A, 84 A, 84 B
and 84 C; and repealing ORS 7.040, 18.315, 18.320, 18.335,
18.350, 18.360, 18.400, 18.405, 18.410, 23.005, 23.030, 23.040,
23.050, 23.060, 23.070, 23.320, 23.330, 23.340, 23.350, 23.425,
23.710, 23.720, 23.730, 25.700, 107.126, 107.142, 137.073 and
137.180 and ORCP 70.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITIONS + }
SECTION 1. { + Definitions. As used in sections 1 to 44 of
this 2003 Act:
(1) 'Action' means any proceeding commenced in a court in which
the court may render a judgment.
(2) 'Child support award' means a money award or agency order
that requires the payment of child support in installments and
that is entered under ORS 108.010 to 108.550, 416.310 to 416.340,
416.400 to 416.470, 416.510 to 416.990, 419B.400 or 419C.590 or
ORS chapter 25, 107, 109 or 110.
(3) 'Civil action' means any action that is not a criminal
action.
(4) 'Claim' includes a charge in a criminal action.
(5) 'Court administrator' means a trial court administrator in
a circuit court that has a trial court administrator and the
clerk of the court in all other courts.
(6) 'Criminal action' has the meaning given in ORS 131.005.
(7) 'Execution' means enforcement of the money award portion of
a judgment or enforcement of a judgment requiring delivery of the
Enrolled House Bill 2646 (HB 2646-B) Page 2
possession or sale of specific real or personal property, by
means of writs of execution, writs of garnishment and other
statutory or common law writs or remedies that may be available
under the law.
(8) 'General judgment' means the judgment entered by a court
that decides all claims in the action except:
(a) A claim previously decided by a limited judgment; and
(b) A claim that may be decided by a supplemental judgment.
(9) 'Judgment' means the concluding decision of a court on one
or more claims in one or more actions, as reflected in a judgment
document.
(10) 'Judgment document' means a writing in the form provided
by section 4 of this 2003 Act that incorporates a court's
judgment.
(11) 'Judgment lien' means the effect of a judgment on real
property as described in section 14 (2) and (3) of this 2003 Act
for the county in which the judgment is entered, and as described
in section 15 (2) and (3) of this 2003 Act for a county in which
the judgment is recorded under section 15 of this 2003 Act. '
Judgment lien' includes any support arrearage lien attaching to
real property under section 14 (3) or 15 (3) of this 2003 Act.
(12) 'Judgment remedy' means:
(a) The ability of a judgment creditor to enforce a judgment
through execution; and
(b) Any judgment lien arising under section 14 or 15 of this
2003 Act.
(13) 'Limited judgment' means a judgment rendered before entry
of a general judgment in an action that disposes of at least one
but fewer than all claims in the action and that is rendered
pursuant to a statute or other source of law that specifically
authorizes disposition of fewer than all claims in the action. '
Limited judgment' includes:
(a) A judgment entered under ORCP 67B or 67G;
(b) A judgment entered before the conclusion of an action in a
circuit court for the partition of real property, defining the
rights of the parties to the action and directing sale or
partition; and
(c) An interlocutory judgment foreclosing an interest in real
property.
(14) 'Money award' means a judgment or portion of a judgment
that requires the payment of money.
(15) 'Supplemental judgment' means a judgment that by law may
be rendered after a general judgment has been entered in the
action and that affects a substantial right of a party.
(16) 'Support arrearage lien' means a lien that attaches to
real property under the provisions of section 14 (3) or 15 (3) of
this 2003 Act.
(17) 'Support award' means a money award or agency order that
requires the payment of child or spousal support in
installments. + }
SECTION 1a. { + (1) References in the statutes of this state
to decrees include judgments, and references in the statutes of
this state to judgments include decrees.
(2) References in the statutes of this state to judgments of
other states include decrees of other states, and references in
the statutes of this state to decrees of other states include
judgments of other states. + }
{ +
APPLICATION + }
Enrolled House Bill 2646 (HB 2646-B) Page 3
SECTION 2. { + Courts subject to sections 1 to 44 of this 2003
Act. Except as specifically provided by sections 1 to 44 of this
2003 Act, the provisions of sections 1 to 44 of this 2003 Act
apply to circuit courts, municipal courts and justice courts and
to county courts performing judicial functions. + }
{ +
FORM OF JUDGMENT DOCUMENT + }
SECTION 3. { + Preparation of judgment document. (1) In a
civil action, the court may designate one of the parties to
prepare a proposed judgment document. If the court does not
designate a party to prepare a proposed judgment document, the
prevailing party shall prepare a proposed judgment document. If
more than one party has prevailed in the action, the prevailing
parties may agree to designate one of the prevailing parties to
prepare a proposed judgment document. Nothing in this subsection
prevents any party to a civil action from preparing and
submitting a proposed judgment document to the court.
(2) In criminal actions and juvenile proceedings under ORS
chapters 419B and 419C, the judge shall ensure that a judgment
document complying with sections 4 and 6 of this 2003 Act is
created and filed. + }
SECTION 4. { + Form of judgment document generally. (1) A
judgment document must be plainly titled as a judgment.
(2) The title of a judgment document must indicate whether the
judgment is a limited judgment, a general judgment or a
supplemental judgment. This subsection does not apply to:
(a) Justice courts, municipal courts and county courts
performing judicial functions.
(b) Judgments in criminal actions.
(c) Judgments in juvenile proceedings under ORS chapters 419B
and 419C.
(3) A judgment document must be separate from any other
document in the action. The judgment document may have attached
affidavits, certificates, motions, stipulations and exhibits as
necessary or proper in support of the judgment.
(4) A judgment document must include:
(a) The name of the court rendering the judgment and the file
number or other identifier used by the court for the action or
actions decided by the judgment;
(b) The names of any parties in whose favor the judgment is
given and the names of any parties against whom the judgment is
given; and
(c) The signature of the judge rendering the judgment, or the
signature of the court administrator if the court administrator
is authorized by law to sign the judgment document, and the date
the judgment document is signed.
(5) This section does not apply to any foreign judgment filed
with a court under ORS 24.115 or 110.405. + }
SECTION 5. { + Judgment in civil action that includes money
award. (1) As a condition of creating a judgment lien, the
judgment document for a judgment in a civil action that includes
a money award must contain a separate section clearly labeled as
a money award. Any judgment in a civil action that includes a
money award, but does not contain a separate section clearly
labeled as a money award, does not create a judgment lien but may
be enforced by any other judgment remedy.
Enrolled House Bill 2646 (HB 2646-B) Page 4
(2) As a condition of creating a judgment lien, the judgment
document for a judgment in a civil action that includes a money
award must include all of the following:
(a) The name and address of each judgment creditor and the
name, address and telephone number of any attorney who represents
one or more of the judgment creditors.
(b)(A) The name of each judgment debtor and, to the extent
known by the judgment creditor:
(i) Address;
(ii) Date of birth;
(iii) Social Security number or tax identification number;
(iv) Driver license number and the state of issuance; and
(v) Name of any attorney for each judgment debtor.
(B) A public body, as defined in ORS 174.109, shall not include
the Social Security number or driver license number of a judgment
debtor if disclosure of the Social Security number or driver
license number violates federal law or any law of this state.
(c) The name of any person or public body, as defined in ORS
174.109, other than the judgment creditor's attorney, that is
known by the judgment creditor to be entitled to any portion of
the money award.
(d) The amount of the money award.
(e) Any interest owed as of the date the judgment is entered in
the register, either as a specific amount or as accrual
information, including the rate or rates of interest, the balance
or balances upon which interest accrues, the date or dates from
which interest at each rate on each balance runs, and whether
interest is simple or compounded and, if compounded, at what
intervals.
(f) Information about interest that accrues on the judgment
after entry in the register, including the rate or rates of
interest, the balance or balances upon which interest accrues,
the date or dates from which interest at each rate on each
balance runs, and whether interest is simple or compounded and,
if compounded, at what intervals.
(g) For monetary obligations that are payable on a periodic
basis, any accrued arrearages, required further payments per
period and payment dates.
(h) If the judgment requires the payment of costs and
disbursements or attorney fees, a statement indicating that the
award is made, any specific amounts awarded, a clear
identification of the specific claims for which any attorney fees
are awarded and the amount of attorney fees awarded for each
claim.
(3) The information required by subsection (2) of this section
must be set forth in the money award section of the judgment
document in the same order as the requirements appear in
subsection (2) of this section.
(4) The separate section required by subsection (2) of this
section must be placed immediately above the judge's or court
administrator's signature. The separate section must be clearly
labeled at its beginning as a money award. If the judgment
includes a support award, the label of the separate section must
so indicate. Except for information described in ORS 24.290, the
separate section of the judgment document may not contain any
provision except the information required by this section.
(5) The requirements of this section are not jurisdictional for
purposes of appellate review.
(6) The provisions of this section do not apply to foreign
judgments that are filed with a court under ORS 24.115 or
Enrolled House Bill 2646 (HB 2646-B) Page 5
110.405. If a foreign judgment is filed with the court under ORS
24.115, the separate statement required by ORS 24.125 must be
filed with the foreign judgment as a condition of the judgment
creating a judgment lien. + }
SECTION 6. { + Judgment in criminal action that contains
money award. (1) If a judgment document in a criminal action
contains a money award, whether by reason of a fine, restitution,
forfeiture of security under ORS 135.280, a fee, an assessment,
costs and disbursements or any other monetary obligation, and the
judgment is for conviction of a felony or misdemeanor, the court
administrator shall note in the register that the judgment
creates a judgment lien if the judgment document complies with
this section. If the judgment is for conviction of a violation as
described in ORS 153.008, the court administrator shall note in
the register that the judgment creates a judgment lien only if
the court has ordered that the judgment create a judgment lien.
(2) As a condition of creating a judgment lien, the judgment
document for a judgment in a criminal action that includes a
money award must contain a separate section setting forth the
money award, must meet the requirements of section 4 of this 2003
Act and must contain the following information:
(a) A listing of the specific amounts awarded as fines,
assessments, costs, restitution and any other monetary
obligations imposed in the sentence as part of the money award.
If the court is unable to determine the full amount of
restitution at the time of sentencing, the court may include the
amount that can be determined or may establish a maximum amount.
(b) If restitution or a compensatory fine is ordered, the name
and address of the person to whom the court should disburse
payments, unless the victim requests that this information be
exempt from disclosure in the public record.
(c) A statement that, subject to amendment of a judgment under
ORS 137.107, money required to be paid as a condition of
probation remains payable after revocation of probation only if
the amount is included in the money award portion of the judgment
document, even if the amount is referred to in other parts of the
judgment document.
(d) Unless immediate payment is required, the specific terms of
payment imposed or allowed by the court.
(e) If payment of all or part of a monetary obligation is
suspended, a statement specifying the nature and amount of the
suspended obligations.
(3) The requirements of this section and section 4 of this 2003
Act do not apply to a judgment document if the action was
commenced by the issuance of a uniform citation adopted under ORS
1.525 and the court has used the space on the citation for the
entry of a judgment. The exemption provided by this subsection
does not apply if any indictment, information or complaint other
than a uniform citation is filed in the action.
(4) A judgment in a criminal action that contains a money award
is a judgment in favor of the state and may be enforced only by
the state. + }
SECTION 7. { + Duty of judge with respect to form of judgment
document. (1) A judge rendering a judgment shall file with the
court administrator a judgment document that incorporates the
judgment. The judge must sign the judgment document unless the
court administrator is authorized by law to sign the judgment
document. Before signing a judgment document, the judge shall
ensure that all requirements imposed by law for entry of the
judgment have been fulfilled, including the making of any written
Enrolled House Bill 2646 (HB 2646-B) Page 6
findings of fact or conclusions of law. If a proposed judgment
document submitted under section 3 of this 2003 Act does not
comply with the requirements of sections 4, 5 and 6 of this 2003
Act, the judge may not sign the judgment document. Unless the
judgment is exempt under section 4 (2) of this 2003 Act, the
judge shall ensure that the title of the judgment document
indicates whether the judgment is a limited judgment, general
judgment or supplemental judgment. If the judgment is a limited
judgment rendered under the provisions of ORCP 67 B, the judge
must determine that there is no just reason for delay, but the
judgment document need not reflect that determination if the
title of the judgment document indicates that the judgment is a
limited judgment.
(2) A court administrator that signs a judgment under authority
granted by law has the same duties as a judge under the
provisions of this section.
(3) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 8. { + Duty of court administrator with respect to
form of judgment. (1) Except as provided in subsection (2) of
this section, the court administrator shall note in the register
that a judgment document has been filed if the judgment document
is signed by a judge of the court, or by the court administrator
if the court administrator is authorized by law to sign the
judgment document, and filed with the court administrator,
whether or not the judgment document complies with the
requirements of sections 4, 5 and 6 of this 2003 Act.
(2) If the title of a document filed with the court
administrator indicates that the document is a decree, or
indicates that the document is a judgment but fails to indicate
whether the judgment is a limited judgment, general judgment or
supplemental judgment, the court administrator may not note in
the register that a judgment document has been filed, and shall
return the document to the judge, unless the judgment is exempt
under section 4 (2) of this 2003 Act.
(3) The court administrator may rely on a judgment document for
entry of information in the register. The court administrator is
not liable for entering any information in the register that
reflects information contained in a judgment document, whether or
not the information in the judgment is correct or properly
presented.
(4) The court administrator may rely on the presence or absence
of a separate section in the judgment document required by
section 5 or 6 of this 2003 Act in determining whether a judgment
contains a money award. The court administrator shall enter
information in the register, and in the separate record required
by section 9 of this 2003 Act, only from the separate section
unless otherwise ordered by the court.
(5) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
ENTRY OF JUDGMENTS IN REGISTER + }
SECTION 9. { + Entry of judgments in circuit courts generally.
(1) A judgment is entered in circuit court when a court
administrator notes in the register that a judgment document has
been filed with the court administrator.
Enrolled House Bill 2646 (HB 2646-B) Page 7
(2) Subject to section 8 (2) of this 2003 Act, when a judge
files a judgment document with the court administrator, the court
administrator shall note in the register:
(a) That the judgment document has been filed and the day, hour
and minute that the judgment is entered.
(b) Whether the judgment is a limited judgment, a general
judgment or a supplemental judgment.
(c) Whether the judgment includes a money award.
(d) Whether the judgment creates a judgment lien under section
14 of this 2003 Act.
(3) If the court administrator notes in the register that a
judgment creates a judgment lien, the court administrator shall
note in a separate record maintained by the court administrator:
(a) The name of all judgment debtors.
(b) The name of all judgment creditors.
(c) The amount of the money award.
(d) Whether the money award is a support award.
(4) If the court administrator makes a notation of judgment in
the separate record required by subsection (3) of this section,
the court administrator shall thereafter also note in the
separate record:
(a) The date on which any appeal is filed.
(b) Whether a supersedeas undertaking, as defined in ORS
19.005, is filed.
(c) The date of any decision on appeal.
(d) Any execution issued by the court and the return on any
execution.
(e) Any satisfaction of the judgment, when entered.
(f) Other such information as may be deemed necessary by court
order or court rule.
(5) The court administrator shall enter a judgment in the
register within 24 hours after the judgment document is filed
with court administrator, excluding Saturdays and legal holidays.
If the court administrator is not able to enter the judgment
within the time prescribed in this subsection, or fails to do so,
the court administrator shall enter the judgment as soon as
practicable thereafter.
(6) Except as provided in section 8 of this 2003 Act, and in
ORCP 69 B (1) for judgments by default, the court administrator
shall be subject to the direction of the court in entering
judgments in the register.
(7) The court administrator shall not delay entry of judgment
under ORCP 68 for taxation of attorney fees or costs and
disbursements.
(8) Administrative orders entered in the register under ORS
416.440 have the effect provided for in that section.
(9) The State Court Administrator shall ensure that the
register, and the separate record required by subsection (3) of
this section, be established and maintained in a uniform manner
in the circuit courts.
(10) References in Oregon Revised Statutes to docketing of a
judgment are equivalent to entry of a judgment as described in
subsection (1) of this section.
(11) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 9a. { + (1) Notwithstanding any other provision of
sections 1 to 44 of this 2003 Act or any other law, a court
administrator need not make any entry in the register or in the
separate record maintained under section 9 of this 2003 Act that
is different from the entries made by the court administrator
Enrolled House Bill 2646 (HB 2646-B) Page 8
before the effective date of this 2003 Act until such time as
funding is available to make such modifications as may be
necessary to accommodate those entries in the computer systems
utilized by the circuit courts.
(2) All references to the docket in computer records and
documents of the circuit courts shall be construed to be
references to the separate record maintained under section 9 of
this 2003 Act, without regard to whether those records or
documents are created before, on or after the effective date of
this 2003 Act. Subject to availability of funding, the circuit
courts shall makes such changes in their computer systems and
other document-generating systems as soon as possible after the
effective date of this 2003 Act to eliminate references to the
docket.
(3) All references to decrees in computer records and documents
of the circuit courts shall be construed to be references to
judgments, without regard to whether those records or documents
are created before, on or after the effective date of this 2003
Act. Subject to availability of funding, the circuit courts shall
makes such changes in their computer systems and other
document-generating systems as soon as possible after the
effective date of this 2003 Act to eliminate references to
decrees.
(4) All references to money judgments in computer records and
documents of the circuit courts shall be construed to be
references to money awards, without regard to whether those
records or documents are created before, on or after the
effective date of this 2003 Act. Subject to availability of
funding, the circuit courts shall makes such changes in their
computer systems and other document-generating systems as soon as
possible after the effective date of this 2003 Act to eliminate
references to money judgments. + }
SECTION 10. { + Notice to attorneys of entry of judgment in
civil actions in circuit court. (1) Upon entering a judgment in a
civil action, or entry of any corrected judgment under section 12
of this 2003 Act, the court administrator shall mail the notice
described in subsection (2) of this section to the attorneys of
record for each party that is not in default for failure to
appear. If a party does not have an attorney of record, and is
not in default for failure to appear, the court administrator
shall mail the notice to the party. The court administrator shall
note in the register that the notice required by this section was
mailed as required by this section.
(2) The notice required by this section must reflect:
(a) The date the judgment was entered.
(b) Whether the judgment was entered as a limited judgment, a
general judgment or a supplemental judgment.
(c) Whether the court administrator noted in the register that
the judgment contained a money award.
(d) Whether the court administrator noted in the register that
the judgment creates a judgment lien.
(3) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions.
(4) This section does not apply to judgments in juvenile
proceedings under ORS chapter 419B or 419C, civil commitment
proceedings, probate proceedings, adoptions or guardianship or
conservatorship proceedings under ORS chapter 125. + }
SECTION 10a. { + Notwithstanding any other provision of
sections 1 to 44 of this 2003 Act or any other law, a court
administrator need not mail notice of judgment in the form
Enrolled House Bill 2646 (HB 2646-B) Page 9
provided by section 10 of this 2003 Act and may continue to use
the form of notice used by the court administrator before the
effective date of this 2003 Act until such time as funding is
available to allow use of notices of judgments in the form
provided by section 10 of this 2003 Act. + }
SECTION 11. { + Effect of entry of judgment. (1) Upon entry of
a judgment, the judgment:
(a) Becomes the exclusive statement of the court's decision in
the case and governs the rights and obligations of the parties
that are subject to the judgment;
(b) May be enforced in the manner provided by law;
(c) May be appealed in the manner provided by law;
(d) Acts as official notice of the court's decision; and
(e) May be set aside or modified only by the court rendering
the judgment or by another court or tribunal with the same or
greater authority than the court rendering the judgment.
(2) A general judgment incorporates a previous written decision
of the court that decides one or more claims in the case and
that:
(a) Is not a judgment;
(b) Is consistent with the terms of the general judgment and
any limited judgments in the case; and
(c) Reflects an express determination by the court that the
decision be final as to the claim or claims resolved.
(3) Upon entry of a general judgment, any claim in the action
that is not decided by the general judgment or by a previous
limited judgment, that has not been incorporated into the general
judgment under subsection (2) of this section, or that cannot be
decided by a supplemental judgment, is dismissed with prejudice
unless the judgment provides that the dismissal is without
prejudice.
(4) Subsection (3) of this section does not affect the right of
any party to assign error on appeal to any decision of a court
made by order during an action.
(5) Subsection (3) of this section does not apply to a general
judgment of dismissal. Except as otherwise provided by law, by
the Oregon Rules of Civil Procedure or by the terms of the
judgment, a general judgment of dismissal is without prejudice as
to any claim or charge in the action.
(6) If a document labeled as a decree is filed with the court
administrator, or a judgment document is filed with the court
administrator that does not indicate whether the judgment is a
limited, general or supplemental judgment, and the court
administrator fails to comply with section 8 of this 2003 Act and
makes an entry in the register indicating that a judgment has
been filed with court administrator, the document has the effect
of a general judgment entered in circuit court. + }
{ +
CORRECTIONS TO JUDGMENTS + }
SECTION 12. { + Corrections to civil judgments. (1) A court
may correct the terms of a civil judgment previously entered as
provided in ORCP 71. The court may make the correction by signing
a corrected judgment document and filing the document with the
court administrator. The title of the judgment document must
reflect that the judgment is a corrected limited judgment,
corrected general judgment or a corrected supplemental judgment.
Enrolled House Bill 2646 (HB 2646-B) Page 10
(2) Unless a correction to a judgment affects a substantial
right of a party, the time for appeal of the judgment commences
upon entry of the original judgment.
(3) If the correction of a judgment affects a substantial right
of a party, and the corrected judgment is entered before the time
for appealing the original judgment has expired, the time for
appeal of the judgment commences upon entry of the corrected
judgment. If the correction affects a substantial right of a
party, and the corrected judgment is entered after the time for
appealing the original judgment has expired, the time for appeal
of the corrected portions of the judgment and all other portions
of the judgment affected by the correction commences upon entry
of the corrected judgment.
(4) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions.
(5) This section does not apply to juvenile proceedings under
ORS chapter 419B. + }
SECTION 13. { + Correction of designation of judgment as
general judgment. (1) Upon motion of any party, the court may
enter a corrected judgment under section 12 of this 2003 Act that
changes the designation of a judgment from a general judgment to
a limited judgment if the moving party establishes that:
(a) Except by operation of section 11 (3) of this 2003 Act, the
judgment does not decide all claims in the action other than
claims previously decided by a limited judgment or claims that
could be decided by a supplemental judgment; and
(b) The judgment was inadvertently designated as a general
judgment under circumstances that indicate that the moving party
did not reasonably understand that the claims that were not
expressly decided by the judgment would be dismissed.
(2) A motion under subsection (1) of this section must be filed
within the time provided by ORCP 71 B.
(3) Upon motion of any party, the court shall enter a corrected
judgment under section 12 of this 2003 Act that changes to a
limited judgment any document that has the effect of a general
judgment under the provisions of section 11 (6) of this 2003 Act
unless all claims in the action are decided by the terms of the
document, by previous limited judgments entered in the action or
by written decisions of the court that are incorporated in a
general judgment under the provisions of section 11 (2) of this
2003 Act.
(4) Notwithstanding section 12 of this 2003 Act, the time for
appeal of the judgment corrected under this section commences
from the entry of the corrected judgment. A motion may be filed
under this section while an appeal is pending as provided in ORCP
71 B(2).
(5) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
JUDGMENT LIENS + }
SECTION 14. { + Judgment liens in circuit courts. (1) If a
judgment document filed with a court administrator under section
9 (2) of this 2003 Act includes a money award and complies with
section 5 or 6 of this 2003 Act, the court administrator shall
note in the register of a circuit court that the judgment creates
a judgment lien unless:
(a) The judgment is entered in the small claims department of a
circuit court in an amount of less than $3,000, exclusive of
Enrolled House Bill 2646 (HB 2646-B) Page 11
costs, and the judgment creditor has not created a judgment lien
for the judgment as provided in ORS 46.488;
(b) The judgment is entered in a criminal action for conviction
of a violation, and the court does not order under section 6 (1)
of this 2003 Act that the judgment creates a judgment lien;
(c) The judgment is entered under ORS 153.820; or
(d) The judgment does not create a lien by operation of other
law.
(2) Except as provided in this section, if the court
administrator notes in the register that a judgment creates a
judgment lien, the judgment has the following effect in the
county in which the judgment is entered:
(a) When the judgment is entered, the judgment lien attaches to
all real property of the judgment debtor in the county at that
time; and
(b) The judgment lien attaches to all real property that the
judgment debtor acquires in the county at any time after the
judgment is entered and before the judgment lien expires.
(3) Except as provided in this section, if the court
administrator notes in the register that a judgment creates a
judgment lien and the judgment contains a support award, the
support award portion of the judgment has the following effect in
the county in which the judgment is entered:
(a) When an installment becomes due under the terms of the
support award and is not paid, a support arrearage lien for the
unpaid installment attaches to all real property of the judgment
debtor in the county at that time; and
(b) When an installment becomes due under the terms of the
support award and is not paid, a support arrearage lien attaches
to all real property that the judgment debtor thereafter acquires
in the county for the purpose of enforcing the unpaid
installment, and remains attached to that property until
satisfaction is made for the installment or the judgment lien
arising from support award portion of the judgment expires.
(4) Real property may be conveyed or encumbered free of a
judgment lien created by the support award portion of a judgment,
but the conveyance or encumbrance is subject to any support
arrearage lien that attached to the real property under this
section or section 15 of this 2003 Act.
(5) A judgment lien does not attach to any real property of a
judgment debtor acquired after the debt giving rise to the
judgment is discharged under federal bankruptcy laws. Debts are
presumed to have not been discharged in bankruptcy until the
judgment debtor establishes that the debt has been discharged.
(6) A court administrator may rely on the judgment document to
determine whether a judgment creates a judgment lien.
(7) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 15. { + Establishing judgment lien in other counties.
(1) At any time after a judgment that creates a judgment lien is
entered under section 14 of this 2003 Act and before the
expiration of the judgment remedies for the judgment, a judgment
creditor may create a judgment lien for the judgment in any other
county of this state by recording the judgment in the County
Clerk Lien Record for that county. The judgment may be recorded
by recording a certified copy of the judgment document or a lien
record abstract for the judgment.
(2) Except as provided in this section, a judgment recorded
under this section has the following effect in the county in
which the judgment is recorded:
Enrolled House Bill 2646 (HB 2646-B) Page 12
(a) When the judgment is recorded, the judgment lien attaches
to all real property of the judgment debtor in the county at that
time; and
(b) The judgment lien attaches to all real property that the
judgment debtor acquires in the county at any time after the
judgment is recorded and before the judgment lien expires.
(3) Except as provided in this section, if a judgment recorded
under this section contains a support award, the support award
portion of the judgment has the following effect in the county in
which the judgment is recorded:
(a) When the judgment is recorded, a support arrearage lien
attaches to all real property of the judgment debtor in the
county at that time for any unpaid installment that became due
under the terms of the support award before the judgment was
recorded.
(b) A support arrearage lien for any unpaid installment that
became due under the terms of the support award before the
judgment was recorded attaches to all real property that the
judgment debtor acquires in the county at any time after the
judgment is recorded and before full satisfaction is made for the
installment or the judgment lien of the support award portion of
the judgment expires.
(c) If an installment becomes due under the terms of the
support award and is not paid after the judgment is recorded, a
support arrearage lien for the installment attaches to all real
property of the judgment debtor in the county at the time the
installment becomes due and attaches to all real property that
the judgment debtor thereafter acquires in the county until full
satisfaction is made for the installment or the judgment lien of
the support award portion of the judgment expires.
(4)(a) If a certificate of extension is filed under section 19
of this 2003 Act, and the certificate is filed before the
judgment is recorded under this section, a judgment creditor may
record a certified copy of the certificate or a lien record
abstract for the certificate with the judgment. The recording
shall act to extend the judgment lien of a judgment, and any
support arrearage lien, in the county for the time provided in
sections 18 to 22 of this 2003 Act.
(b) If a certificate of extension is filed under section 19 of
this 2003 Act, and the certificate is filed after the judgment is
recorded under this section, a judgment creditor may record a
certified copy of the certificate or a lien record abstract for
the certificate in the County Clerk Lien Record in any county in
which the judgment has been recorded under subsection (1) of this
section. If the recording is made before the time that the
judgment lien for the judgment would otherwise have expired under
sections 18 to 22 of this 2003 Act, the recording extends the
judgment lien of the judgment, without loss of priority, for the
time provided in sections 18 to 22 of this 2003 Act. If the
recording is made after the time that the judgment lien for the
judgment would otherwise have expired under sections 18 to 22 of
this 2003 Act, the recording extends the judgment lien of the
judgment for the time provided in section 18 to 22 of this 2003
Act, but the lien is subordinate to all other interests that are
of record on the date the certificate or lien record abstract is
recorded.
(5) When the judgment lien of a judgment expires in the county
in which the judgment was originally entered, the judgment lien
and any support arrearage lien created under this section expires
Enrolled House Bill 2646 (HB 2646-B) Page 13
in the other county or counties in which the judgment has been
recorded.
(6) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 16. { + Appeal; motion to eliminate lien. A judgment
debtor who appeals a judgment may move the trial court for
elimination of the judgment lien created by the judgment. A court
may grant a motion under this section if the judgment debtor
files a supersedeas undertaking, as defined in ORS 19.005, and
provides such additional security as may be required by the court
to ensure that adequate amounts will be available to satisfy the
judgment if affirmed on appeal. If the court grants the motion,
the court administrator shall note in the register, and in the
separate record required under section 9 of this 2003 Act, that
the judgment lien has been eliminated. + }
SECTION 17. { + Judgment lien based on judgment for child
support or spousal support entered in another state. (1) At any
time after a judgment for unpaid child support or unpaid spousal
support becomes effective in another state and before the
expiration or satisfaction of that judgment under the other
state's law, a judgment creditor under the judgment may record a
certified copy of the judgment or a lien record abstract for the
judgment in the County Clerk Lien Record for any county in this
state.
(2) If a judgment of another state described in subsection (1)
of this section is extended or renewed under the laws of the
state that rendered the judgment, a judgment creditor under the
judgment may record a certified copy of the extension or renewal
in the County Clerk Lien Record for any county in this state or
may record a lien record abstract for extension or renewal in the
County Clerk Lien Record for any county in this state.
(3) Upon recording a judgment, lien record abstract, extension
or renewal under this section, the judgment creates a judgment
lien as described in section 15 (3) of this 2003 Act.
(4) When the judgment expires in the state in which the
judgment was originally entered, the judgment lien and any
support arrearage lien created under this section expire in every
county in which the judgment has been recorded under this
section.
(5) Liens arising by operation of law in another state against
real property for amounts of overdue payments under a support
order, as defined in ORS 110.303, shall be accorded full faith
and credit if the state agency, party or other entity seeking to
enforce the lien follows the applicable procedures for recording
and service of notice of claim of lien as required by this
section. A state agency, party or other entity may not file an
action to enforce a lien described in this section until the
underlying judgment has been filed in Oregon as provided in ORS
110.303 to 110.452.
(6) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
EXPIRATION AND EXTENSION OF JUDGMENT REMEDIES + }
SECTION 18. { + Expiration of judgment remedies in circuit
court. (1) Judgment remedies for a judgment expire upon full
satisfaction of the money award portion of the judgment.
(2) If a judgment lien arises out of a support award under
section 14 (3) or 15 (3) of this 2003 Act, a support arrearage
Enrolled House Bill 2646 (HB 2646-B) Page 14
lien attaching to real property under the judgment lien expires
upon satisfaction of the unpaid installment that gave rise to the
support arrearage lien.
(3) Except as provided in sections 18 to 22 of this 2003 Act,
judgment remedies for a judgment in a civil action expire 10
years after the entry of the judgment.
(4) Judgment remedies for a judgment in a criminal action
expire 20 years after the entry of the judgment.
(5) Except as provided in section 22 of this 2003 Act, judgment
remedies for the child support award portion of a judgment, and
any lump sum money award for unpaid child support installments,
expire 25 years after the entry of the judgment that first
establishes the support obligation.
(6)(a) Except as provided by paragraph (b) of this subsection
and section 21 of this 2003 Act, judgment remedies for any unpaid
installment under the spousal support award portion of a
judgment, including any installment arrearage lien arising under
the judgment, expire 25 years after the entry of the judgment
that first establishes the support obligation, or 10 years after
an installment comes due under the judgment and is not paid,
whichever is later.
(b) The judgment lien for the spousal support award portion of
a judgment that is entered on or after the effective date of this
2003 Act, including any installment arrearage lien arising under
the judgment, expires 25 years after the entry of the judgment
that first establishes the support obligation unless a
certificate of extension is filed under section 20 of this 2003
Act.
(7)(a) If a money award in a judgment under ORS 107.105 (1)(f)
provides for a future payment of money, and the future payment
does not become due for 10 or more years after the judgment is
entered, judgment remedies for the portion of the judgment
providing for future payment expire 10 years after the date on
which the future payment becomes due. At any time before the
judgment remedies for a money award described in this subsection
expire, judgment remedies for the portion of the judgment
providing for a future payment may be extended as provided in
section 19 of this 2003 Act.
(b) This subsection does not apply to support awards.
(8) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 19. { + Extension of judgment remedies. (1) Judgment
remedies for a judgment may be extended by filing a certificate
of extension in the court that entered the judgment. The court
administrator shall enter the certificate in the register of the
court and in the separate record maintained under section 9 of
this 2003 Act. Except as provided in sections 18 to 22 of this
2003 Act, a judgment creditor may file a certificate of extension
only if:
(a) Judgment remedies for the judgment have not expired under
section 18 of this 2003 Act; and
(b) A full satisfaction document for the money award portion of
the judgment has not been filed.
(2) Notwithstanding subsection (1) of this section, if the
judgment debtor has been discharged from debt under federal
bankruptcy laws, a certificate of extension may not be filed
except as provided in this subsection. Judgments are presumed to
have not been discharged in bankruptcy until the judgment debtor
establishes that the judgment has been discharged. If the
Enrolled House Bill 2646 (HB 2646-B) Page 15
judgment debtor is discharged from a debt, a certificate of
extension may be filed if:
(a) The debtor owned real property and the judgment lien
attached to that property before the filing of the bankruptcy
petition;
(b) The judgment lien was not avoided by action of the
bankruptcy court;
(c) The judgment lien has not been discharged under ORS 18.420;
and
(d) The certificate of extension includes a legal description
of the real property and a statement that the extension affects
only the lien on the real property described in the certificate.
(3) A certificate of extension must be signed by the judgment
creditor, or by an attorney who represents the judgment creditor.
(4) Subject to sections 21 and 22 of this 2003 Act, if a
certificate of extension is filed after the date on which the
judgment remedies for the judgment expire under section 18 of
this 2003 Act, the certificate has no effect.
(5) The judgment remedies for a judgment that are extended
under the provisions of this section expire 10 years after the
certificate of extension is filed. Judgment remedies for a
judgment may be extended only once under the provisions of this
section.
(6) A certified copy of a certificate of extension, or a lien
record abstract for the certificate, may be recorded in any
county in which the judgment was recorded under section 15 of
this 2003 Act, with the effect provided by section 15 (4) of this
2003 Act.
(7) Except as provided in sections 20, 21 and 22 of this 2003
Act, the judgment remedies for the support award portion of a
judgment, and any lump sum money award for unpaid child support
installments, may not be extended under this section.
(8) The judgment remedies for a judgment in a criminal action
may not be extended under this section.
(9) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 20. { + Extension of judgment lien of spousal support
award. (1) If a judgment that is entered on or after the
effective date of this 2003 Act includes a spousal support award,
a judgment creditor may file a certificate of extension under
section 19 of this 2003 Act at any time more than 15 years after
the entry of the judgment that first establishes the support
obligation and before the judgment lien for the spousal support
award portion of a judgment expires under section 18 (6)(b) of
this 2003 Act. If a certificate of extension is filed under this
subsection:
(a) The judgment lien for the spousal support award portion of
the judgment expires 10 years after the certificate of extension
is filed; and
(b) Any installment arrearage lien that arises under the
judgment, whether before or after the filing of the certificate,
expires 10 years after the installment comes due and is not paid
or when the judgment lien for the spousal support award portion
of the judgment expires under paragraph (a) of this subsection,
whichever is first.
(2) Notwithstanding section 19 (5) of this 2003 Act,
certificates of extension under section 19 of this 2003 Act may
continue to be filed in the manner provided by subsection (1) of
this section and with like effect for as long as the judgment
lien for the spousal support award portion of a judgment has not
Enrolled House Bill 2646 (HB 2646-B) Page 16
expired and any installments remain to be paid under the
judgment. + }
SECTION 21. { + Spousal support judgments entered before
effective date of this 2003 Act. (1) The judgment lien for the
spousal support award portion of a judgment that is entered
before the effective date of this 2003 Act, including any
installment arrearage liens that arise under the judgment,
expires 10 years after the entry of the judgment that first
establishes the support obligation unless a certificate of
extension is filed under section 19 of this 2003 Act, or the
judgment was renewed in the manner provided by the statutes in
effect immediately before the effective date of this 2003 Act,
within 10 years after the judgment was entered.
(2) Section 18 (6) of this 2003 Act does not operate to revive
the judgment lien of any judgment that expired before the
effective date of this 2003 Act under the statutes in effect
immediately before the effective date of this 2003 Act.
(3) This section and section 18 (6) of this 2003 Act do not
limit the time during which judgment remedies are available for
any judgment entered before the effective date of this 2003 Act,
and those judgments may continue to be enforced for the time
provided by the law in effect immediately before the effective
date of this 2003 Act, subject to any requirement for renewal of
those judgments. + }
SECTION 22. { + Child support awards entered before January 1,
1994. (1) The judgment lien of the child support award portion of
a judgment entered before January 1, 1994, and any installment
arrearage lien that arose under the judgment lien, expires 10
years after the entry of the judgment that established the
support obligation unless the judgment was renewed in the manner
provided by the statutes in effect immediately before the
effective date of this 2003 Act within 10 years after the
judgment was entered.
(2) Section 18 (5) of this 2003 Act does not operate to revive
the judgment lien of any judgment that expired before the
effective date of this 2003 Act.
(3) This section and section 18 (5) of this 2003 Act do not
limit the time during which judgment remedies are available for
any judgment entered before January 1, 1994, and those judgments
may continue to be enforced for the time provided by the law in
effect immediately before the effective date of this 2003 Act,
subject to any requirement for renewal of those judgments. + }
{ +
RELEASE OF LIEN + }
SECTION 23. { + Release of lien. (1) A judgment creditor may
provide a release of lien document to a judgment debtor or to any
other person with an interest in real property to which a
judgment lien has attached. The release of lien document may be
for all real property in a county or for a single piece of real
property in a county. A release of lien document may be signed by
the judgment creditor, or by any attorney who represents the
creditor. The signature of the judgment creditor or attorney
signing a release of lien document must be witnessed by a notary
public.
(2) A release of lien document may be filed with the court
administrator at any time after a judgment lien attaches under
section 14 of this 2003 Act. The court administrator shall note
in the register and in the separate record maintained under
Enrolled House Bill 2646 (HB 2646-B) Page 17
section 9 of this 2003 Act that the release of lien document has
been filed, and also shall note whether the release is for all
real property in a county or only for a single piece of real
property in a county.
(3) A release of lien document may be recorded in any County
Clerk Lien Record in which the judgment was recorded under
section 15 of this 2003 Act.
(4) Upon filing or recording under this section, a release of
lien document operates to eliminate any judgment lien arising
from the entry or recording of the judgment to the extent
reflected in the document. The filing of a release of lien
document does not constitute a full or partial satisfaction of
the judgment.
(5) The court administrator may not charge a fee for filing a
release of lien document.
(6) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
ASSIGNMENT OF JUDGMENT + }
SECTION 24. { + Assignment of judgment. (1) A judgment
creditor may assign all or part of the creditor's rights under a
judgment. An assignment of judgment document must be signed by
the judgment creditor, or by an attorney who represents the
judgment creditor. The signature of the judgment creditor or
attorney signing the document must be acknowledged by a notary
public. The document may be:
(a) Filed with the court administrator for the court in which
the judgment was entered, and upon such filing shall be entered
in the register and in the separate record maintained under
section 9 of this 2003 Act; or
(b) Recorded in any County Clerk Lien Record in which the
judgment was recorded under section 15 of this 2003 Act.
(2) Upon filing or recording under this section, an assignment
of judgment document operates to assign the judgment creditor's
rights under the judgment to the extent reflected in the
document.
(3) If this or another state is assigned or subrogated to the
support rights of a person under ORS 418.032, 418.042, 419B.406
or 419C.597 or similar statutes of another state, an assignment
of judgment document bearing the signature of the Administrator
of the Division of Child Support of the Department of Justice or
the authorized representative of the administrator may be filed
or recorded in the same manner as an assignment of judgment
document under subsection (1) of this section and shall have the
same effect as an assignment of judgment document signed by the
judgment creditor.
(4) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
SATISFACTION OF MONEY AWARDS + }
SECTION 25. { + Satisfaction of money awards generally. (1) A
satisfaction document may be for full or partial satisfaction of
a money award. The title of the document must indicate whether
the money award has been partially or fully satisfied. A
satisfaction document must be signed by the judgment creditor or
by an attorney who represents the judgment creditor. The
Enrolled House Bill 2646 (HB 2646-B) Page 18
signature of the judgment creditor or attorney signing a
satisfaction document must be witnessed by a notary public.
(2) When the money award portion of a judgment has been fully
satisfied, the judgment creditor must:
(a) File a satisfaction document for the full amount of the
money award portion of the judgment in the county in which the
judgment was entered; and
(b) Deliver to the judgment debtor a satisfaction document for
the full amount of the money award portion of the judgment for
every county in which the judgment has been recorded under
section 15 of this 2003 Act.
(3) Upon request by a judgment debtor or any person with an
interest in real property subject to a judgment lien, a judgment
creditor must provide to the judgment debtor a satisfaction
document for all amounts credited against a money award as of the
date that the satisfaction document is signed.
(4) A satisfaction document may be filed with the court
administrator at any time after entry of a judgment. The court
administrator may not charge a fee for filing a satisfaction
document. The court administrator shall note in the register and
in the separate record maintained under section 9 of this 2003
Act that the satisfaction document has been filed, and shall note
if the document indicates that the money award has been fully
satisfied.
(5) Upon payment of all required fees, the court administrator
shall issue a certified copy of any satisfaction document filed
with the court administrator and entered in the court register.
The certified copy may be recorded in any County Clerk Lien
Record in which the judgment was recorded under section 15 of
this 2003 Act.
(6) A satisfaction document for a support award that is paid to
the Department of Justice may be filed with the court
administrator only as provided in section 26 of this 2003 Act.
(7) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
SECTION 26. { + Satisfaction of support awards payable to
Department of Justice. (1) If a support award is paid to the
Department of Justice, the judgment creditor may receive credit
for satisfaction of the judgment only in the manner provided by
this section. The department may provide judgment creditors with
forms and instructions for satisfaction of support awards under
this section.
(2) Any satisfaction document for a support award described in
subsection (1) of this section must be mailed to or delivered to
the Department of Justice, and not to the court administrator.
The department shall credit the amounts reflected in the
satisfaction document to the support award pay records maintained
by the department. Except as provided in subsection (3) of this
section, the department shall not credit amounts against the
support award pay records to the extent that the judgment is
assigned or subrogated to this or another state. The Department
of Justice shall thereafter promptly forward the satisfaction
document to the court administrator for the court in which the
money award was entered, together with a certificate from the
department stating the amounts reflected as paid in the support
award pay records maintained by the department. The court
administrator shall note in the register as paid only the amount
stated in the certificate, and not the amount shown on the
satisfaction document.
Enrolled House Bill 2646 (HB 2646-B) Page 19
(3) If a support award has been assigned to this state, the
Department of Justice may satisfy the support award to the extent
of the assignment. The department may credit the amounts
reflected in the satisfaction document to the support award pay
records maintained by the department and file the satisfaction
document with the court administrator for the court in which the
money award was entered, together with a certificate from the
department stating the amounts reflected as paid in the support
award pay records. The court administrator shall note in the
register and in the separate record maintained under section 9 of
this 2003 Act the amount of satisfaction shown on the
certificate, and not the amount shown on the satisfaction
document.
(4) Unless a judgment requires that payments under a support
award be paid to the Department of Justice or enforcement
services are provided pursuant to ORS 25.080, all satisfaction
documents for a support award must be filed with the court
administrator. + }
SECTION 27. { + Alternate method for satisfaction of support
awards payable to Department of Justice. (1) In addition to or in
lieu of the certificate and satisfaction document provided for in
section 26 of this 2003 Act, the Department of Justice may
execute and file a satisfaction document for a support award
requiring payment to the department if:
(a) The judgment debtor provides a sworn affidavit indicating
that the money award has been paid in full;
(b) The department certifies that the department has a complete
pay record for the payments under the support award; and
(c) The department certifies that there are no arrearages.
(2) The Department of Justice shall be considered to have a
complete pay record for the purposes of subsection (1) of this
section if the department has kept the pay record for the support
award from the date that the first payment was to be made under
the support award, or if the judgment creditor or an entity
providing enforcement services under ORS 25.080 establishes
arrearages for the time period the pay record was not kept by the
department.
(3) The signature of a person signing a satisfaction document
filed under this section need not be acknowledged by a notary
public.
(4) If a satisfaction document under this section is for any
payment made to the Department of Justice for amounts that have
not been assigned by the judgment creditor to the state, the
department shall give notice to the judgment creditor in the
manner provided by ORS 25.085. The notice must inform the
judgment creditor that the department will execute and file the
satisfaction of judgment unless the department receives a request
for a hearing within 30 days after the date the notice was
mailed. If a judgment creditor requests a hearing, the Department
of Justice shall conduct the hearing as a contested case under
ORS 183.310 to 183.550 before a hearing officer appointed by the
department. + }
SECTION 28. { + Motion to satisfy money award. (1) A judgment
debtor or person with an interest in real property against which
a judgment lien exists may move the court for an order declaring
that a money award has been satisfied or for a determination of
the amount necessary to satisfy the money award, when the person
cannot otherwise obtain a satisfaction document from a judgment
creditor.
Enrolled House Bill 2646 (HB 2646-B) Page 20
(2) Motions under this section shall be filed in the action in
which the judgment was entered. All proceedings on the motion
shall be conducted as part of the action in which the judgment
was entered. An appearance fee may not be charged for filing a
motion under this section.
(3) A motion under this section must include the following
information, to the extent known to the person making the motion:
(a) The date of entry and principal amount of the money award.
(b) The rate of interest and the date the interest commenced to
accrue.
(c) The date or dates and amounts of any payments on the money
award.
(d) Any amount that the person believes remains to be paid on
the money award, including any supporting mathematical
calculations.
(e) Any other information necessary or helpful to the court in
making its determination.
(4) A person making a motion under this section must serve the
motion on the judgment creditor. If the person making the motion
is not the judgment debtor, the person also must serve the motion
and supporting affidavit on the judgment debtor. If an assignment
of judgment document has been filed with the court under section
24 of this 2003 Act, the motion must be served on the person
named as the assignee of the judgment. Service on the judgment
creditor and judgment debtor under this subsection may be made as
provided in ORCP 9 if the motion is filed within one year after
entry of the judgment. If the motion is filed more than one year
after entry of the judgment, or service is to be made on an
assignee of the judgment, the motion may either be personally
served as provided in ORCP 7, or be served by certified mail,
return receipt requested with signed receipt. The court may waive
service on any person under this subsection if the person making
the motion files an affidavit with the court stating that the
person cannot be found after diligent effort by the person making
the motion. The party making the motion shall file proof of
service with the court.
(5) A person served with a motion under this section must file
a response within 21 days after service is made, or within such
time as may be allowed by the court. The response must
specifically identify those assertions in the motion that the
person contests. The response must contain any information or
mathematical calculations necessary to support the contentions of
the responding party.
(6) The court shall hear the motion not less than seven days
after notice of hearing is given to the person filing the motion
and to the parties served with the motion. The court shall hear
and determine the issues in a summary fashion without a jury. The
court shall give the parties a reasonable opportunity to present
evidence relevant to any factual issues.
(7) If the court determines that the person making the motion
is entitled to relief, the court shall issue an order providing
that the money award has been satisfied in full or, if the money
award has not been satisfied in full, the specific amount that
will satisfy the judgment on a specific date or within a period
of time specified in the order.
(8) If the court finds that the judgment creditor willfully
failed to provide a satisfaction document under section 25 of
this 2003 Act, the court may render a supplemental judgment
awarding reasonable attorney fees to the person making the
motion. The supplemental judgment may provide that the demanding
Enrolled House Bill 2646 (HB 2646-B) Page 21
party may satisfy the judgment by paying such amounts the court
determines to be necessary to satisfy the judgment less that sum
of money the court awards as attorney fees.
(9) If the court finds that the money award has been satisfied,
or if the amount specified by the court is paid to the court
administrator within the time specified by the court, the court
administrator shall note in the register and in the separate
record maintained under section 9 of this 2003 Act that the money
award has been satisfied in full. The court administrator shall
deliver any money paid to the court administrator to the party or
parties specified in the court's order.
(10) Upon request of the judgment debtor or person making the
motion, the court administrator shall issue a certificate
indicating that the money award has been satisfied. The
certificate may be recorded in any County Clerk Lien Record in
which the judgment was recorded under section 15 of this 2003
Act. Recording of the certificate eliminates any judgment lien
that was created by the recording of the judgment.
(11) At least five days before filing a motion under this
section, the person must serve by personal delivery or first
class mail a copy of the motion on the Administrator of the
Division of Child Support of the Department of Justice, or on the
branch office of the Department of Justice providing support
services to the county in which the motion will be made, if:
(a) The motion relates to satisfaction of a support award; and
(b) Child support rights, as defined in ORS 25.010, for the
judgment creditor have been assigned to the state.
(12) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
ENFORCEMENT OF JUDGMENTS + }
{ +
(Generally) + }
SECTION 29. { + Execution. (1) Except as provided in this
section, and subject to the terms of the judgment, a judgment may
be enforced by execution upon entry of the judgment. The ability
to enforce a judgment by execution expires as provided in
sections 18 to 22 of this 2003 Act.
(2) Any portion of a money award that by the terms of the
judgment is to be paid on some date after the date that the
judgment is entered may be enforced by execution when payment
becomes due under the terms of the money award and is not paid.
(3) Except as provided in section 30 of this 2003 Act or by
other law, a judgment may be enforced only by the court in which
the judgment is entered or, if the judgment is a foreign
judgment, the court in which the judgment is first filed under
ORS 24.115 or 110.405.
(4) Nothing in sections 29 to 44 of this 2003 Act affects the
ability of a judgment creditor to enforce a judgment by means
other than execution. + }
SECTION 30. { + Enforcement of judgment by circuit court for
county where debtor resides. (1) The circuit court for the county
where a judgment debtor resides may enforce a circuit court
judgment entered in another circuit court if a transcript of the
original judgment is filed with the court. The circuit court for
the county where a judgment debtor resides may issue a writ of
execution against real property under the provisions of this
section only if a certified copy of the original judgment, or a
Enrolled House Bill 2646 (HB 2646-B) Page 22
lien record abstract in the form provided by ORS 18.325, is
recorded in the County Clerk Lien Record for that county, in
addition to the filing of a transcript of the original judgment
with the circuit court for that county. In no event shall the
court administrator be liable for issuing a writ of execution,
writ of garnishment or other execution for a judgment transcribed
pursuant to this section.
(2) A judgment creditor who files a transcript of a judgment
under subsection (1) of this section must give written notice of
the filing to the circuit court in which the judgment was
originally entered.
(3) At the time a transcript of a judgment is filed under this
section, the judgment creditor or the attorney for the judgment
creditor must make and file with the court administrator a
statement containing the information required for a money award
under section 5 (2) of this 2003 Act and an affidavit setting
forth:
(a) The name and last-known address of the judgment creditor;
(b) The name and last-known address of the judgment debtor;
(c) A statement that the judgment creditor has a good faith
belief that the judgment debtor resides in the county in which
the transcript of the judgment is filed;
(d) A statement that the judgment has not been satisfied and
that execution on the judgment has not been stayed; and
(e) A statement that written notice of the filing has been
given to the circuit court in which the judgment was originally
entered.
(4) The circuit court in which a transcript of a judgment is
filed under this section is the only court with authority to
issue a writ of execution, writ of garnishment or other execution
on the transcribed judgment until the judgment creditor files an
affidavit with the circuit court certifying that the judgment
debtor no longer resides in that county. A copy of the affidavit
must be filed by the judgment creditor in the court in which the
judgment was originally entered. After the filing of an affidavit
under this subsection, only the circuit court in which the
judgment was originally entered may issue a writ of execution,
writ of garnishment or other execution on the judgment.
(5) When a transcribed judgment is filed with a circuit court
under this section, the court administrator shall enter the
transcribed judgment in the register but shall not note in the
register that the judgment creates a judgment lien. The files and
records of the court in which the judgment was originally entered
remain the official record of the proceeding, and files and
records maintained by a court in which a transcribed judgment has
been filed are auxiliary to the files and records of the court in
which the judgment was originally entered. Satisfaction documents
under section 25 of this 2003 Act and certificates of extension
under sections 18 to 22 of this 2003 Act may be filed only in the
court in which the judgment was originally entered.
(6) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions. + }
{ +
(Proceedings in support of execution) + }
SECTION 31. { + Debtor examination. (1) At any time after a
judgment is entered, a judgment creditor may upon motion obtain
an order requiring the judgment debtor to appear before the court
or a referee appointed by the court at the time and place
Enrolled House Bill 2646 (HB 2646-B) Page 23
specified in the order, and requiring the judgment debtor to
answer under oath questions concerning any property or interest
in property that the judgment debtor may have or claim. The
motion must be supported by one of the following:
(a) Proof of service of a notice of demand to pay the judgment
within 10 days. The notice of demand must be served in the same
manner as a summons or by any form of mail addressed to the
judgment debtor and requesting a receipt. Service by mail under
this paragraph is effective on the date of mailing.
(b) A return of a writ of execution showing that the judgment
has not been satisfied.
(c) A garnishee response to a writ of garnishment that does not
fully satisfy the judgment.
(2) Only the following courts may issue an order under this
section:
(a) The court in which the original judgment was entered.
(b) Any circuit court for the county in which the judgment
debtor resides and in which the judgment has been recorded under
section 15 of this 2003 Act.
(c) Any circuit court for the county in which the principal
place of employment of the judgment debtor is located and in
which the judgment has been recorded under section 15 of this
2003 Act.
(3) If a motion under this section is filed in the court
specified by subsection (2)(b) or (c) of this section, a
certified copy of the judgment or a certified copy of the
recording made in the County Clerk Lien Record of the county must
be filed with the motion unless a transcript of the judgment has
been filed with the court under section 30 of this 2003 Act.
(4) Except as provided in this section, a judgment debtor may
not be required to attend in a county other than the county in
which the judgment debtor resides or may be found at the time of
service of the order requiring the appearance, unless the place
where the judgment debtor is to appear is not more than 100 miles
from the residence of the judgment debtor.
(5) If the judgment debtor resides more than 100 miles from the
place of examination, the judgment debtor shall be required to
appear and shall be paid mileage at the time of the hearing as
provided for witnesses in ORS 44.415.
(6) Upon motion and good cause shown, the court may order that
proceedings under this section be conducted at a time or place
other than the time or place specified in the original order.
(7) The court may at any time enter an order restraining the
judgment debtor from selling, transferring or in any manner
disposing of any property of the judgment debtor that is subject
to execution pending an examination under this section. + }
SECTION 32. { + Conduct of debtor examination. (1) A judgment
debtor may be examined on oath concerning the judgment debtor's
property in a debtor's examination. Upon request by the judgment
creditor, the proceedings shall be reduced to writing and filed
with the court administrator. The judgment creditor and judgment
debtor may subpoena and examine witnesses.
(2) If it appears that the judgment debtor has any property
that may be applied against the judgment, the court may order
that the property be seized for application against the
judgment. + }
SECTION 33. { + Written interrogatories. (1) At any time after
a judgment is entered, a judgment creditor may serve written
interrogatories relating to the judgment debtor's property and
financial affairs on a judgment debtor. The interrogatories may
Enrolled House Bill 2646 (HB 2646-B) Page 24
be personally served in the manner provided for summons or may be
served by any form of mail addressed to the judgment debtor and
requesting a receipt. Service by mail under this paragraph is
effective on the date of mailing. The interrogatories shall
notify the judgment debtor that the judgment debtor's failure to
answer the interrogatories truthfully shall subject the judgment
debtor to the penalties for false swearing as provided in ORS
162.075 and for contempt of court as provided in ORS 33.015 to
33.155.
(2) Within 20 days after receipt of the interrogatories, the
judgment debtor must answer all questions under oath and return
the original interrogatories to the judgment creditor.
(3) Failure of the judgment debtor to comply with the
provisions of this section is contempt of court, and the judgment
creditor may commence proceedings under the provisions of ORS
33.015 to 33.155. + }
{ +
(Writs of execution) + }
SECTION 34. { + Writs of execution generally. (1) Except as
otherwise provided by law, upon request of a judgment creditor or
other prevailing party under a judgment, the court shall issue a
writ of execution for any judgment that includes a money award or
that requires the delivery of specific real or personal property.
Except as provided by sections 30 and 36 of this 2003 Act, writs
of execution may be issued only by the court administrator for
the court in which the judgment was entered. A writ of execution
may be issued:
(a) For application of real property of the judgment debtor
against a money award.
(b) For application of personal property of the judgment debtor
against a money award, other than personal property that is in
the possession of other persons.
(c) For the delivery of the possession of specific real or
personal property pursuant to the terms of the judgment.
(2) If a writ of execution is issued for application of real or
personal property of a judgment debtor against a money award, the
writ may be issued to the sheriff of any county in this state
where property of the judgment debtor is located. If the writ of
execution is issued for the delivery of the possession of
specific real or personal property, the writ must be issued to
the sheriff of the county where all or part of the property is
situated. More than one writ of execution may be issued at the
same time to different counties. + }
SECTION 35. { + Issuance of writs of execution by court;
contents. (1) The court administrator shall issue writs of
execution. The writ must be directed to the sheriff and must
contain the name of the court, the names of the parties to the
action, and the title of the action. The writ must describe the
judgment and, if the writ of execution is issued for application
of property of the judgment debtor against a money award, the
writ must state the amount due on the money award when the writ
is issued.
(2) If the judgment requires that specific real or personal
property of the judgment debtor be sold, the writ must
particularly describe the property and direct the sheriff to sell
the specified property and apply the proceeds as directed by the
judgment.
Enrolled House Bill 2646 (HB 2646-B) Page 25
(3) If the judgment requires the delivery of the possession of
real or personal property, the writ must direct the sheriff to
deliver the possession of the property. The writ must
particularly describe the property and specify the party to whom
the property is to be delivered.
(4) If the judgment does not require that specific real or
personal property of the judgment debtor be sold or delivered,
the writ may direct the sheriff to sell the real or personal
property specified by the judgment creditor in instructions given
to the sheriff. The judgment creditor must provide the sheriff
with instructions that particularly describe the personal
property to be seized and indicate where the property may be
found. The judgment creditor must provide the sheriff with
instructions that particularly describe any real property to be
sold.
(5) Upon issuance of a writ of execution to the sheriff of any
county, the judgment creditor must record a certified copy of the
writ or a lien record abstract of the writ in the County Clerk
Lien Record for the county if the writ of execution or the
accompanying instructions to the sheriff require the sale of real
property. The recorded documents must contain a legal description
of the real property. The recording of the writ or lien record
abstract in any county in which a judgment lien does not exist
under section 14 or 15 of this 2003 Act, or in a county in which
a notice of pendency under ORS 93.740 has not been previously
recorded, has the same effect as recording a notice of pendency
under ORS 93.740.
(6) A single writ of execution may be issued for the purposes
specified in subsections (2), (3) and (4) of this section.
(7) When issuing a writ of execution, the court administrator
may rely on the information provided by the person seeking
issuance of the writ and is not liable for any errors or
omissions in that information. + }
SECTION 36. { + Issuance of writs of execution for certain
judgments awarding child support. (1) If support enforcement
services are being provided under ORS 25.080, the administrator
as defined in ORS 25.010 may issue a writ of execution for the
support award portion of the judgment for which support
enforcement services are being provided. A copy of the writ of
execution must be filed with the circuit court of the county in
which the judgment was entered or recorded. A writ of execution
issued under this section must be executed by the sheriff in the
same manner as a writ issued by the court administrator under
section 35 of this 2003 Act.
(2) The Department of Justice shall adopt an appropriate form
for writs of execution under this section. The form must be
substantially as set forth for writs of execution issued under
section 35 of this 2003 Act. + }
SECTION 37. { + Sheriff's duties. (1) A sheriff shall comply
with the directions to the sheriff in a writ of execution. If the
writ directs the sale or delivery of personal property, the
sheriff shall promptly seize the property. If the writ directs
the sale of real property or a mobile home, the sheriff shall
give notice of an execution sale under ORS 23.450.
(2) If personal property of the judgment debtor was attached
under ORCP 84, the sheriff shall apply the attached property
against the judgment in the manner provided by ORCP 84 E, and
make a return on the writ with any money that was attached and
the proceeds of any other property that was sold.
Enrolled House Bill 2646 (HB 2646-B) Page 26
(3) When property has been sold by the sheriff at an execution
sale, the sheriff shall pay the proceeds of the sale to the court
administrator. The proceeds must be paid by the date on which the
writ must be returned. If any property remains in the custody of
the sheriff after satisfaction of the money award, the sheriff
shall release the property to the judgment debtor. + }
SECTION 38. { + Return on writ of execution. Upon receipt of a
writ of execution, the sheriff shall indorse upon the writ of
execution the time when the sheriff received the writ. The
sheriff shall make a return on the writ of execution to the court
administrator within 60 days after the sheriff receives the
writ. The person that requested issuance of the writ may
authorize the sheriff to continue execution under the writ and
delay making a return on the writ for an additional period of
time not to exceed 90 days. + }
SECTION 39. { + Notice to judgment debtor. (1) Upon seizing
any personal property of a judgment debtor under section 37 of
this 2003 Act, or upon giving notice of an execution sale of any
real property or mobile home under ORS 23.450, the sheriff shall
promptly mail or deliver the following to each judgment debtor
who is not a corporation at the last-known address of each
judgment debtor:
(a) A copy of the writ of execution; and
(b) A challenge to execution form as provided by section 42 of
this 2003 Act.
(2) The sheriff may meet the requirements of subsection (1) of
this section by mailing the documents to the last-known address
of the judgment debtor as provided by the judgment creditor. The
sheriff may withhold execution of the writ until the judgment
creditor either provides such address or a statement that the
judgment creditor has no knowledge of the judgment debtor's
address. The sheriff has no duty under this section if the
judgment creditor provides a statement that the judgment creditor
has no knowledge of the judgment debtor's address. + }
{ +
CHALLENGES TO WRITS OF EXECUTION + }
SECTION 40. { + Challenge to writ of execution. (1) Except as
provided in subsection (2) of this section, a judgment debtor may
use a challenge to execution form only to claim such exemptions
under a writ of execution as are permitted by law.
(2) A judgment debtor may not use a challenge to execution form
to challenge execution on residential real property or a mobile
home of the debtor if the judgment creditor has obtained an order
under ORS 23.445 authorizing the sale or if the judgment directs
the sale or delivery of specific property.
(3) Any person other than a judgment debtor who has an interest
in any personal property seized by a sheriff under section 37 of
this 2003 Act, or in any real property or a mobile home for which
a notice of an execution sale has been given under ORS 23.450,
may assert that interest by delivering a challenge to execution
in the manner provided by subsection (4) of this section.
(4) A person may make a challenge to a execution by completing
the challenge to execution form provided in section 42 of this
2003 Act, or a substantially similar form, and by delivering, in
person or by first class mail, the original of the completed form
to the court administrator for the court identified in the writ
of execution and a copy of the challenge to the person who
requested issuance of the writ.
Enrolled House Bill 2646 (HB 2646-B) Page 27
(5) A challenge to execution against personal property must be
delivered in the manner provided by subsection (4) of this
section within 30 days after the property is seized under section
37 of this 2003 Act, or before the property is sold on execution,
whichever is first.
(6) A judgment debtor must deliver a challenge to execution
against real property or a mobile home in the manner provided in
subsection (4) of this section within 30 days after mailing of
the notice required by ORS 23.450, or before the property is sold
on execution, whichever is first. + }
SECTION 41. { + Notice of challenge to execution. Without
unreasonable delay, a court administrator who has received a
challenge to execution under section 40 of this 2003 Act shall
provide written notice of the challenge to all sheriffs for
counties to which writs of execution have been issued and no
return made, and to the person that requested issuance of the
writ. The notice may include the notice of hearing required by
section 43 of this 2003 Act. + }
SECTION 42. { + Challenge to execution form. (1) The challenge
to execution form described in this section does not expand or
restrict the law relating to exempt property. A determination as
to whether property is exempt from attachment or execution 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.
(2) A challenge to execution 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, )EXECUTION
)
vs. )Case No. ___
)
_____
)
Defendant. ) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + THIS FORM MAY BE USED BY THE DEBTOR ONLY TO CLAIM SUCH
EXEMPTIONS FROM EXECUTION AS ARE PERMITTED BY LAW. + }
{ + THIS FORM MAY BE USED BY PERSONS OTHER THAN THE DEBTOR
ONLY TO CLAIM AN INTEREST IN THE PROPERTY THAT IS TO BE SOLD ON
EXECUTION. + }
Enrolled House Bill 2646 (HB 2646-B) Page 28
{ + 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: + }
________________________________________________________________
________________________________________________________________
{ + I/We believe this property is exempt from execution
because (the Notice of Exempt Property at the end of this form
describes most types of property that you can claim as exempt
from execution): + }
________________________________________________________________
________________________________________________________________
{ + 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
Number _____
Number _____
(Required) (Required)
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + 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 Execution form that you received
with this notice.
(2) Mail or deliver the Challenge to Execution form to the
court administrator at the address shown on the writ of
execution.
Enrolled House Bill 2646 (HB 2646-B) Page 29
You should be prepared to explain your exemption in court. If
you have any questions about the execution or the debt, you
should see an attorney. + }
{ + YOU MAY USE THE CHALLENGE TO EXECUTION FORM ONLY TO CLAIM
SUCH EXEMPTIONS FROM EXECUTION AS ARE PERMITTED BY LAW. + }
{ + YOU MAY NOT USE THE CHALLENGE TO EXECUTION FORM TO
CHALLENGE THE VALIDITY OF THE DEBT. + }
{ + IF YOU CLAIM AN EXEMPTION IN BAD FAITH, YOU MAY BE
SUBJECT TO PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A
FINE. Penalties that you could be subject to are listed in
section 44 of this 2003 Act. + }
{ +
NOTICE OF EXEMPT PROPERTY + }
{ + Property belonging to you may have been taken or held in
order to satisfy a debt. The debt may be reflected in a judgment
or in a warrant or order issued by a state agency. Important
legal papers are enclosed.
YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE
CAREFULLY.
State and federal law specify that certain property may not be
taken. Some of the property that you may be able to get back is
listed below.
(1) Wages or a salary as described in ORS 23.175 and 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.
Enrolled House Bill 2646 (HB 2646-B) Page 30
(16) Domestic animals and poultry for family use with a
combined value not to exceed $1,000 and their food for 60 days.
(17) Provisions (food) and fuel for your family for 60 days.
(18) One rifle or shotgun and one pistol. The combined value of
all firearms claimed as exempt may not exceed $1,000.
(19) Public or private pensions.
(20) Veterans' benefits and loans.
(21) Medical assistance benefits.
(22) Health insurance proceeds and disability proceeds of life
insurance policies.
(23) Cash surrender value of life insurance policies not
payable to your estate.
(24) Federal annuities.
(25) Other annuities to $250 per month (excess over $250 per
month is subject to the same exemption as wages).
(26) Professionally prescribed health aids for you or any of
your dependents.
*(27) Elderly rental assistance allowed pursuant to ORS
310.635.
*(28) Your right to receive, or property traceable to:
*(a) An award under any crime victim reparation law.
*(b) A payment or payments, not exceeding a total of $10,000,
on account of personal bodily injury suffered by you or an
individual of whom you are a dependent.
*(c) A payment in compensation of loss of future earnings of
you or an individual of whom you are or were a dependent, to the
extent reasonably necessary for your support and the support of
any of your dependents.
(29) 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.
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. + }
________________________________________________________________
SECTION 43. { + Hearing on challenge to execution. (1) A
challenge to execution shall be adjudicated in a summary manner
at a hearing before the court with authority over the writ of
execution. Upon receipt of a challenge to execution, the court
administrator shall immediately set a hearing date and send
notice of the hearing to the judgment debtor and the judgment
creditor. The hearing shall be held as soon as possible. The
sheriff may not sell any property that is described in the
challenge to execution until the court has issued a decision on
the challenge, and the time for making a return on the writ is
suspended until the decision is made or the sale completed,
Enrolled House Bill 2646 (HB 2646-B) Page 31
whichever is later. The sheriff shall not delay sale if the
judgment debtor has filed the challenge to execution in violation
of section 40 (2) of this 2003 Act.
(2) Hearings on a challenge to execution may be held by
telecommunication devices.
(3) The judgment debtor has the burden to prove timely delivery
of a challenge to execution under section 40 of this 2003
Act. + }
SECTION 44. { + Sanctions. A court may impose sanctions
against any person who files a challenge to execution in bad
faith. The sanctions a court may impose under this section are a
penalty of not more than $100 and responsibility for attorney
fees under ORS 20.105. + }
SECTION 45. { + Applicability. (1) Except as provided by this
section or by sections 1 to 44 of this 2003 Act, sections 1 to 44
of this 2003 Act apply only to judgments entered on or after the
effective date of this 2003 Act. Nothing in this 2003 Act affects
the validity, lien effect or enforceability of any judgment or
decree entered before the effective date of this 2003 Act.
Nothing in this 2003 Act affects the validity, lien effect or
enforceability of any order or warrant docketed or recorded
before the effective date of this 2003 Act. Except as provided by
this section or sections 1 to 44 of this 2003 Act, any judgment
or decree entered before the effective date of this 2003 Act, and
any order or warrant docketed or recorded before the effective
date of this 2003 Act, shall continue to be governed by the law
in effect on the day immediately preceding the effective date of
this 2003 Act.
(2) Section 12 of this 2003 Act applies to any corrected
judgment entered on or after the effective date of this 2003 Act,
without regard to whether the original judgment is entered
before, on or after the effective date of this 2003 Act.
(3) A judgment creditor may create a judgment lien for a
judgment in a county other than the county in which a judgment is
entered in the manner provided by section 15 of this 2003 Act
without regard to whether the judgment is entered before, on or
after the effective date of this 2003 Act.
(4) Section 17 of this 2003 Act applies to all judgments,
whether entered before, on or after the effective date of this
2003 Act.
(5) Except as provided in sections 21 and 22 of this 2003 Act,
sections 18 and 19 of this 2003 Act apply to all judgments,
whether entered before, on or after the effective date of this
2003 Act. Notwithstanding section 19 of this 2003 Act, any order
of renewal entered before the effective date of this 2003 Act may
be recorded in the manner provided by section 19 (6) of this 2003
Act with the effect provided by section 15 (4) of this 2003 Act.
(6) Section 23 of this 2003 Act applies to the release of any
judgment lien after the effective date of this 2003 Act, without
regard to whether the judgment was entered before, on or after
the effective date of this 2003 Act.
(7) Section 24 of this 2003 Act applies to the assignment of
any judgment after the effective date of this 2003 Act, without
regard to whether the judgment was entered before, on or after
the effective date of this 2003 Act.
(8) Section 25 of this 2003 Act applies to any satisfaction of
judgment filed with a court on or after the effective date of
this 2003 Act, without regard to whether the judgment was entered
before, on or after the effective date of this 2003 Act.
Enrolled House Bill 2646 (HB 2646-B) Page 32
(9) Sections 26 and 27 of this 2003 Act apply to all judgments,
whether entered before, on or after the effective date of this
2003 Act.
(10) Section 28 of this 2003 Act applies to any motion for an
order declaring that a money award has been satisfied, or to
determine the amount necessary to satisfy a money award, filed
with a court on or after the effective date of this 2003 Act,
without regard to whether the judgment was entered before, on or
after the effective date of this 2003 Act.
(11) Sections 29 and 30 of this 2003 Act apply to execution on
any judgment, without regard to whether the judgment was entered
before, on or after the effective date of this 2003 Act.
(12) Sections 31 and 32 of this 2003 Act apply to any motion
for a debtor examination made on or after the effective date of
this 2003 Act, without regard to whether the judgment was entered
before, on or after the effective date of this 2003 Act.
(13) Section 33 of this 2003 Act applies to any written
interrogatories served on or after the effective date of this
2003 Act, without regard to whether the judgment was entered
before, on or after the effective date of this 2003 Act.
(14) Sections 34 to 44 of this 2003 Act apply to any writ of
execution issued on or after the effective date of this 2003 Act,
without regard to whether the judgment was entered before, on or
after the effective date of this 2003 Act. + }
SECTION 45a. ORS 18.370 is amended to read:
18.370. A conveyance of real property, or any portion thereof,
or interest therein, shall be void as against the lien of a
judgment, unless { - such - } { + the + } conveyance
{ - be - } { + is + } recorded at the time { - of docketing
such - } { + the + } judgment { - or the recording of a
certified copy of the judgment or a lien record abstract as the
case may be - } { + is entered, or at the time the judgment is
recorded under section 15 of this 2003 Act + }.
{ +
WRITS OF GARNISHMENT + }
SECTION 46. { + ORS 18.600, 18.602, 18.605, 18.607, 18.609,
18.610, 18.615, 18.618, 18.620, 18.625, 18.627, 18.635, 18.638,
18.640, 18.645, 18.650, 18.652, 18.655, 18.658, 18.665, 18.668,
18.670, 18.672, 18.680, 18.682, 18.685, 18.688, 18.690, 18.692,
18.700, 18.702, 18.705, 18.708, 18.710, 18.712, 18.715, 18.718,
18.725, 18.730, 18.732, 18.735, 18.738, 18.740, 18.742, 18.745,
18.750, 18.752, 18.755, 18.758, 18.760, 18.770, 18.775, 18.778,
18.780, 18.782, 18.790, 18.792, 18.795, 18.798, 18.800, 18.810,
18.830, 18.832, 18.835, 18.838, 18.840, 18.842, 18.845 and 18.850
are added to and made a part of sections 29 to 44 of this 2003
Act. + }
SECTION 47. 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.
Enrolled House Bill 2646 (HB 2646-B) Page 33
(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 { + administrator + } 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
{ + administrator + }.
(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.
(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 48. 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, 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 { + administrator + }, 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
Enrolled House Bill 2646 (HB 2646-B) Page 34
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 { + administrator + }, the person
issuing the writ must sign the certification described in
subsection (3) of this section.
SECTION 49. ORS 18.609 is amended to read:
18.609. (1) A writ of garnishment is valid only if the writ is
delivered not more than 60 days after the writ is issued. If the
writ is delivered within the time specified in this section, the
writ acts to garnish property for the period of time specified by
ORS 18.625.
(2) If the { - clerk of the - } court { + administrator + }
is issuing a writ of garnishment, the date of issuance for the
writ is the date the { - clerk - } { + court
administrator + } stamps and signs the writ. If the writ is
issued by any other person, the date of issuance for the writ is
the date on which the issuer signs the certification described in
ORS 18.607 (4).
SECTION 50. ORS 18.635 is amended to read:
18.635. (1) A writ of garnishment may be issued only by a
person specified in this section.
(2) The { - clerk of a - } court { + administrator + } may
issue a writ pursuant to ORS 18.638 and 18.640 only:
(a) For the enforcement of a judgment that requires the payment
of money and that has been entered in the register of
{ - the - } { + a circuit + } court or docketed in the docket
of { - the - } { + a justice or municipal + } court;
(b) Pursuant to an order for provisional process under ORCP 83
and 84; or
(c) On behalf of a claimant under an order recorded pursuant to
ORS 671.707 or 701.150, if the claimant has complied with the
requirements of ORS 205.126.
(3) An attorney who is an active member of the Oregon State Bar
may issue a writ for the purpose of enforcing:
(a) A judgment that requires payment of money and that has been
entered in the register of a { + circuit + } court of this state
or docketed in the docket of a { + justice or municipal + }
court of this state; and
(b) An order or warrant that an agency has recorded in the
County Clerk Lien Record as authorized by law, including any
order that has been recorded pursuant to ORS 671.707 or 701.150.
(4) The administrator, as defined in ORS 25.010, may issue
writs of garnishment only for the collection of past due support.
Writs issued under this subsection are subject to the provisions
of ORS 18.645.
SECTION 51. ORS 18.638 is amended to read:
18.638. (1) Unless there are grounds for denying issuance of a
writ of garnishment under ORS 18.640, the { - clerk of the - }
court { + administrator + } shall issue writs of garnishment
upon proper application and payment of all required fees. A writ
of garnishment issued by the { - clerk - } { + court
administrator + } must be signed by the creditor. The signature
constitutes a certificate by the person under ORCP 17 and is
subject to the sanctions provided by ORCP 17.
(2) The { - clerk of the - } court { + administrator + }
may not fill in or complete a writ of garnishment on behalf of a
creditor.
Enrolled House Bill 2646 (HB 2646-B) Page 35
(3) The { - clerk of the - } court { + administrator + } is
not responsible for verifying the amounts set forth in a writ
issued by the
{ - clerk, - } { + court administrator + } and is not liable
for errors in the writ made by the creditor.
SECTION 52. ORS 18.640 is amended to read:
18.640. (1) The { - clerk of the - } court
{ + administrator + } shall refuse to issue a writ of
garnishment that is not substantially in the form required by ORS
18.830.
(2) The { - clerk of the - } court { + administrator + }
shall refuse to issue a writ of garnishment that is incomplete or
contains improper instructions. Grounds for refusing issuance of
a writ under this subsection include:
(a) The { - clerk's - } inability { + of the court
administrator + } to verify the existence of the debt claimed as
the basis for the writ by a review of the register of the court.
(b) A determination by the { - clerk - } { + court
administrator + }, based on a review of the register of the
court, that a satisfaction of judgment has been filed with the
court.
(3) The { - clerk of the - } court { + administrator + }
shall refuse to issue a writ of garnishment pursuant to an order
for provisional process under ORCP 83 and 84 if the party seeking
issuance of the writ has not complied with all requirements of
ORCP 82 A(3), A(5) and A(6) and B to G, 83 and 84.
SECTION 53. 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.
(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
{ + administrator + }.
(4) Notwithstanding ORS 18.730, the issuer of a writ under this
section must hold any payments received from the garnishee:
(a) For a period of 120 days after delivery of the writ, if the
garnishee is making a payment of wages; and
(b) For a period of 30 days after delivery of the writ, if the
garnishee is making a payment other than wages.
(5) When issuing writs under this section, the Administrator of
the Division of Child Support of the Department of Justice shall
modify the forms provided in ORS 18.600 to 18.850 to reflect the
provisions of this section.
SECTION 53a. { + If House Bill 2114 becomes law, section 53 of
this 2003 Act (amending ORS 18.645) is repealed and ORS 18.645,
as amended by section 1, chapter 373, Oregon Laws 2003 (Enrolled
House Bill 2114), 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.
Enrolled House Bill 2646 (HB 2646-B) Page 36
(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) A single writ of garnishment may be issued under this
section for two or more judgments for past due support owed by
the same judgment debtor. A separate debt calculation form for
each of the judgments must be prepared as provided by ORS 18.832.
The writ must reflect the captions of all cases for which the
writ is issued. The writ also must reflect, as the amount subject
to garnishment under the writ, the sum of the amounts due under
all of the judgments subject to the writ. Notwithstanding ORS
18.700 (2), the debtor may file a challenge to a writ issued
under this subsection with the { - clerk of - } { + court
administrator for + } any court in which one of the judgments
subject to the writ was entered. Upon receipt of a notice of a
challenge to a garnishment under this subsection, the issuer of
the writ shall file with the { - clerk of the - } court { +
administrator + } a response to the challenge, attaching copies
of the writ and garnishee response, copies of all judgments for
which the writ is issued and the debt calculation forms for those
judgments, and any supporting documentation necessary or helpful
to the court in making a determination on the challenge. The
Department of Justice shall adopt rules governing the
distribution to judgment creditors of amounts received by the
administrator under a writ issued under this subsection.
(4) 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
{ + administrator + }.
(5) Notwithstanding ORS 18.730, the issuer of a writ under this
section must hold any payments received from the garnishee:
(a) For a period of 120 days after delivery of the writ, if the
garnishee is making a payment of wages; and
(b) For a period of 30 days after delivery of the writ, if the
garnishee is making a payment other than wages.
(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 54. ORS 18.668 is amended to read:
18.668. (1) Notwithstanding any provision of ORS 18.600 to
18.850, a garnishee may pay to the garnishor or to the
{ - clerk of the - } court { + administrator + } any money
that the garnishee reasonably believes may have been garnished
and may deliver to the sheriff in the manner provided by ORS
18.600 to 18.850 any property that the garnishee reasonably
believes to have been garnished. The garnishee has no duty to
determine whether money or property held by the garnishee is
exempt from garnishment or to determine whether the money or
property is garnishable property.
(2) If the garnishee makes payment of garnished money to the
garnishor or to the { - clerk of the - } court
{ + administrator + } under subsection (1) of this section, or
delivers garnished property to the sheriff in the manner provided
by ORS 18.600 to 18.850, the garnishee is discharged from
liability to the creditor for the value of the money paid or
property delivered.
(3) If the garnishee requests a receipt, the sheriff or
{ - clerk of the - } court { + administrator + } shall
provide the garnishee with a receipt for any property delivered
Enrolled House Bill 2646 (HB 2646-B) Page 37
to the sheriff or payment made to the { - clerk - } { + court
administrator + }.
SECTION 55. ORS 18.672 is amended to read:
18.672. Garnishment does not impair the powers of a personal
representative over estate property for the purposes of
administration. If a personal representative receives a writ of
garnishment, the personal representative must prepare and deliver
a garnishee response in the manner provided by ORS 18.600 to
18.850, but no payment of money or delivery of property need be
made by the personal representative until such time as specified
in this section. The personal representative must note on the
response that the property is estate property subject to
administration. The personal representative must also file a copy
of the writ of garnishment and the garnishee response in the
office of the { - clerk of the - } court { + administrator
for the court + } in which the estate is being administered, and
must report the garnishment to the court in any petition for
distribution. In a
{ - decree - } { + judgment + } made upon such petition,
distribution shall be ordered to the heir or legatee, but
delivery shall be ordered to the sheriff or to the garnishor, as
required by ORS 18.600 to 18.850.
SECTION 56. 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 { + administrator
for the court + } specified in the writ as having authority over
the writ.
(2) The garnishee shall not mail or personally deliver a copy
of the writ and a copy of the garnishee response to the
{ - clerk of the - } court { + administrator + } 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 57. 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
to the clerk of the court named in the writ of garnishment as the
Enrolled House Bill 2646 (HB 2646-B) Page 38
court with authority over the writ. A challenge to a garnishment
must be delivered: - }
{ + (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, in
person or by first class mail, the original of the completed form
to the court administrator for the court specified in the writ of
garnishment as the court with authority over the writ and a copy
of the completed form to the garnishor. 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
{ + administrator + } shall retain all payments sent to the
{ - clerk - } { + court administrator + } under ORS 18.705 and
18.708 until such time as the court enters a decision on the
challenge. The { - clerk - } { + court administrator + }
shall reject any payment that is received after the challenge is
made and that is not payable to the court, and { + the court
administrator + } shall return the payment to the garnishee with
instructions to reissue the payment as payable to the court.
(4) A court shall not require the payment of any fee for the
filing of a challenge to a garnishment.
SECTION 58. ORS 18.702 is amended to read:
18.702. (1) Without unreasonable delay, a { - clerk of
the - } court { + administrator + } who has received a challenge
to a garnishment under ORS 18.700 shall provide written notice of
the challenge as provided in this section. The notice must
include a statement reflecting the consequences of failure of a
garnishor or garnishee to comply with the requirements of ORS
18.705 and 18.708. The notice may include the notice of hearing
under ORS 18.710.
(2) The { - clerk of the - } court { + administrator + }
shall provide the notice of a challenge required by subsection
(1) of this section to:
(a) The garnishor.
(b) The garnishee, unless the { - clerk - } { + court
administrator + } knows that the garnishee has already delivered
all garnishable property to the garnishor.
(c) The sheriff of the county identified in any notice
delivered to the { - clerk - } { + court administrator + }
under ORS 18.755 (5).
SECTION 59. ORS 18.705, as amended by section 2, chapter 304,
Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:
18.705. (1) Except as provided in subsection (2) of this
section, upon receiving notice of a challenge to a garnishment
under ORS 18.702, a garnishor must send to the court specified in
the writ of garnishment all amounts received by the garnishor
that the debtor has claimed to be exempt or not subject to
garnishment, unless the court specifically orders otherwise. The
payment to the court must be in cash or by check made payable to
the court. If the payment has not reached the court by the time
of the hearing under ORS 18.710, the { - clerk of the - }
court { + administrator + } shall so notify the judge presiding
Enrolled House Bill 2646 (HB 2646-B) Page 39
at the hearing. If the court determines that any of the garnished
money should be disbursed to the debtor and the payment has not
reached the court by the time of that determination, the court
may issue an order requiring that the garnishor appear and show
cause why the garnishor should not be held in contempt. In
addition to contempt proceedings, the court may require the
garnishor to pay attorney fees under ORS 20.105. A court's
imposition of sanctions under this subsection does not limit any
remedy otherwise available to the debtor.
(2) Subsection (1) of this section does not apply if the
garnishor is not required by law or allowed by law to disburse
the payment.
(3) The receipt of a challenge to a garnishment does not affect
the requirement under ORS 18.755 (1) that the garnishor mail or
deliver a written request for sale of property, and pay the fees
determined by the sheriff under ORS 18.755 (3), not later than 20
days after the garnishee delivers the garnishee response to the
{ - clerk of the - } court { + administrator for the court + }
specified in the writ of garnishment as having authority over the
writ. The garnishor must note upon the request for sale that a
challenge to the garnishment has been made by the debtor.
SECTION 60. ORS 18.708 is amended to read:
18.708. (1) Upon receiving notice of a challenge to a
garnishment under ORS 18.702, a garnishee who would otherwise be
required to make a payment to the garnishor shall mail or deliver
the payment, by cash or by check made payable to the court, to
the
{ - clerk of the - } court { + administrator + }. The
garnishee must make the payment to the court within the time that
the garnishee would have otherwise been required to mail or
deliver the payment to the garnishor. A garnishee who fails to
make payment in the manner required by this section is subject to
liability under the provisions of ORS 18.775 to 18.782.
(2) Upon receiving notice of a challenge under ORS 18.702, a
garnishee who holds any property described in ORS 18.750 must
hold the garnished property for the period specified in ORS
18.752 (1). If the sheriff informs the garnishee before the end
of the period specified in ORS 18.752 (1) that the property held
by the garnishee will be sold, the garnishee shall continue to
hold the property until receiving further directions from the
court.
SECTION 61. 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 { + administrator + } shall immediately set a
hearing date and send notice of the hearing to the parties. The
hearing shall be held as soon as possible.
(2) Hearings on a challenge to a garnishment may be held by
telecommunication.
(3) The debtor has the burden to prove timely delivery of a
challenge to a garnishment.
SECTION 62. ORS 18.712 is amended to read:
18.712. (1) Except as provided in subsection (3) of this
section, if a challenge to a garnishment is allowed by the court,
the { - clerk of the - } court { + administrator + } shall
mail to the debtor from any payments made to the { - clerk - }
{ + court administrator + } all amounts determined to be exempt
from or not subject to garnishment within 10 judicial days after
the court's order allowing the challenge. If the challenge to a
Enrolled House Bill 2646 (HB 2646-B) Page 40
garnishment has been made for property described in ORS 18.750
and a request for sale of the property has been made by the
garnishor under ORS 18.755, the
{ - clerk - } { + court administrator + } shall give notice
of the court's decision to the garnishee and to the sheriff who
would conduct the sale.
(2) Except as provided in subsection (3) of this section, any
amount determined to be garnishable property that is not exempt
after a hearing shall be mailed to the garnishor within 10
judicial days after the court's order denying the challenge as to
that amount.
(3) The Judicial Department may by written policy establish
time limitations different from the 10-day period provided in
subsections (1) and (2) of this section for the delivery of
amounts after a judicial determination on a challenge to a
garnishment. The time limitations established by the department
may be longer or shorter than the 10-day period. The policy may
provide for a period longer than 10 days for a category of
payments only if the department determines that the category is
subject to special circumstances that create substantial
difficulties in meeting a requirement of delivery within 10 days.
The policy shall provide for delivery in less than 10 days for
any category of payments that the department determines can be
delivered within a shorter period of time. The department shall
consider federal guidelines and rules relating to the timing of
transactions in financial institutions in developing a policy
under this subsection. Any policy adopted under this subsection
applies to all courts of this state, except that municipal courts
and justice courts are not bound by any requirement that a
category of payments be delivered in less than 10 days.
SECTION 63. ORS 18.718 is amended to read:
18.718. (1) Notwithstanding ORS 18.700 (2), if a writ of
garnishment is issued pursuant to ORS 25.083, the debtor may:
(a) Challenge the enforcement of the past due support in the
appropriate tribunal of the state upon whose request the writ was
issued as indicated in the writ of garnishment; or
(b) File a challenge to the garnishment with the { - clerk of
the - } court { + administrator for the court + } in the county
in which the property was located when the writ was delivered, if
the debtor pays the filing fee required for an appearance under
ORS chapter 21 and files with the { - clerk of the - } court
{ + administrator + } copies of the writ of garnishment, the
debt calculation form and the garnishee response delivered to the
debtor under ORS 18.658.
(2) When a challenge to a garnishment is filed under this
section, the { - clerk of the - } court { + administrator + }
shall enter the filing in the court register and the court shall
decide the challenge in the manner provided by ORS 18.710.
(3) Immediately upon receipt of a notice of a challenge to a
garnishment under this section, the issuer of the writ shall file
with the { - clerk of the - } court { + administrator + } a
response to the challenge, attaching copies of the writ of
garnishment and garnishee response, and any supporting
documentation necessary or helpful to the court in making a
determination on the challenge.
SECTION 64. ORS 18.725 is amended to read:
18.725. Any person other than a debtor who has an interest in
any garnished property or in any part of the garnished property
may assert that interest by filing with the { - clerk of
the - } court { + administrator for the court + } specified in
Enrolled House Bill 2646 (HB 2646-B) Page 41
the writ of garnishment an application in substantially the form
set forth in ORS 18.850 for a challenge to a garnishment. The
provisions of ORS 18.700 to 18.715 apply to an application made
under this section.
SECTION 65. 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
{ + administrator + } 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 { +
administrator + } in the manner provided by ORS 18.708.
SECTION 66. ORS 18.738 is amended to read:
18.738. (1) The { - clerk of the - } court
{ + administrator + } is not liable for accepting any amount of
payment under a writ of garnishment, including any payment that
is sent to the { - clerk - } { + court administrator + } in
error or any payment that exceeds the amount required to satisfy
the garnishment.
(2) The { - clerk of the - } court { + administrator + }
may return to the garnishee any payment received from the
garnishee unless the garnishee has delivered a garnishee response
to the court in the manner required by ORS 18.690 or has provided
a statement to the
{ - clerk - } { + court administrator + } that the payment is
a voluntary payment on behalf of the debtor to be applied toward
satisfaction of the garnishment or is a payment under another law
or court order that requires or allows the garnishee to pay money
to the court.
SECTION 67. ORS 18.740 is amended to read:
18.740. (1) If a garnishee erroneously sends a payment to the
court that should have been sent to the garnishor, the
{ - clerk of the - } court { + administrator + } shall
immediately forward to the garnishor any cash or check made
payable to the garnishor. If a garnishee erroneously sends a
payment in the form of a check made payable to the court, the
{ - clerk - } { + court administrator + } may deposit and hold
the check until the check has cleared and then forward the
payment to the garnishor.
(2) The { - clerk of the - } court { + administrator + } is
not liable for interest on money erroneously sent to the court if
the { - clerk - } { + court administrator + } transmits the
money to the garnishor in a timely manner.
SECTION 68. ORS 18.742 is amended to read:
18.742. (1) If a garnishee makes payment to the garnishor, the
payment shall be credited against the debt on the date the
garnishor receives the payment.
(2) If a garnishee makes payment to the court, the payment
shall be credited against the debt on the date the { - clerk of
the - } court { + administrator + } disburses payment to the
Enrolled House Bill 2646 (HB 2646-B) Page 42
garnishor, unless the court otherwise orders. This subsection
applies even if the garnishee makes payment to the court in error
or when the { - clerk - } { + court administrator + } holds
money pending a decision on a challenge to the garnishment.
SECTION 69. ORS 18.755, as amended by section 4, chapter 304,
Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:
18.755. (1) If a garnishee indicates in the garnishee response
that the garnishee holds any property described in ORS 18.750,
the garnishor may require that the property be sold and that the
proceeds of the sale be applied against the debt owed to the
creditor. A sale of the property shall be conducted by the
sheriff only if the garnishor mails or delivers a written request
for sale of the property, and pays the fees determined by the
sheriff under subsection (3) of this section, not later than 20
days after the garnishee delivers the garnishee response to the
{ - clerk of the - } court { + administrator for the
court + } specified in the writ of garnishment as having
authority over the writ. A copy of the writ and a copy of the
garnishee response must be attached to the request for sale of
the property.
(2) A sale of the property described in ORS 18.750 may be
conducted under ORS 18.750 to 18.760 only by the sheriff of the
county in which the writ was delivered or, if the property is not
located within the county in which the writ was delivered, by the
sheriff of the county in which the property is located.
(3) A garnishor may request that the sheriff of a county
described in subsection (2) of this section provide a statement
to the garnishor of the fees that the sheriff will charge for
conducting a sale of property that is described in ORS 18.750.
The sheriff shall conduct such investigation as may be necessary
to determine the difficulty of conducting any sale of the
property under ORS 18.758, including any costs that the sheriff
may incur in taking into possession any of the property described
in ORS 18.750 (3). The sheriff shall determine whether the
property described in ORS 18.750 (3) should be taken into
possession of the sheriff, or whether the sheriff should enter
into an agreement with the garnishee for the garnishee to
continue to hold the property pending sale by the sheriff. The
sheriff shall provide the statement of fees to the garnishor not
later than five days after the garnishor requests the statement.
(4) If the garnishor mails or delivers a written request for
sale of property and pays the sheriff fees determined under
subsection (3) of this section within the time allowed by
subsection (1) of this section, the sheriff shall promptly mail
or deliver a written notice to the garnishee. The notice shall
direct the garnishee to:
(a) Hold all property described in ORS 18.750 (2)(a) to (c)
until the garnishee receives further instructions with respect to
disposition of the property; and
(b) Deliver all property described in ORS 18.750 (2)(d) to the
sheriff, unless the sheriff has agreed with the garnishee that
the property should continue to be held by the garnishee pending
sale.
(5) Upon sending a notice to a garnishee under subsection (4)
of this section, the sheriff shall mail or deliver a copy of the
notice to the { - clerk of the - } court { + administrator
for the court + } with authority over the writ.
SECTION 69a. ORS 18.752, as amended by section 3, chapter 304,
Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 43
18.752. (1) If a garnishee indicates in the garnishee response
that the garnishee holds any property described in ORS 18.750,
the garnishee must hold the garnished property, or a portion of
the property sufficient to satisfy the garnishment, for a period
of 30 days after the garnishee delivers the garnishee response to
the { - clerk of the - } court { + administrator for the
court + } specified in the writ of garnishment as having
authority over the writ, unless the sheriff or the garnishor
notifies the garnishee that the garnishment is released or
terminated. If the sheriff contacts the garnishee during the
30-day period, the garnishee shall deliver the property to the
sheriff or take such other action as may be specified in the
notice given to the garnishee under ORS 18.755 (4).
(2) If the garnishee is not contacted by the sheriff before the
end of the 30-day period provided for in subsection (1) of this
section, the garnishment is of no further force or effect with
respect to the property and the garnishee may deal with the
garnished property as if the writ had not been delivered to the
garnishee.
SECTION 70. ORS 18.770 is amended to read:
18.770. (1) A garnishor may issue a release of garnishment that
covers all or any portion of the property held under a writ of
garnishment. The release must be in substantially the form
provided by ORS 18.842. The garnishor must deliver a copy of the
release to the garnishee and the debtor. In addition, the
garnishor must deliver a copy of the release to:
(a) The sheriff, if the garnishor has made a request for sale
of property under ORS 18.755; and
(b) The { - clerk of the - } court { + administrator for
the court + } specified in the writ of garnishment as the court
with authority over the writ, if the garnishor has made a request
for sale of property under ORS 18.755 or if the garnishor has
received a challenge to the garnishment.
(2) A person who does not receive a copy of a release under
this section is not liable for treating the property as though
the writ were still in effect.
(3) Any proceedings for the sale of property under ORS 18.758
shall be terminated immediately upon receipt by the sheriff of a
copy of a release of garnishment.
(4) Upon receipt of a copy of a release under this section, the
garnishee may proceed to deal with the released property as
though the writ of garnishment had not been issued.
SECTION 71. ORS 18.800 is amended to read:
18.800. (1) Except as provided in this section, the provisions
of ORS 18.600 to 18.850 apply to all writs of garnishment issued
on behalf of agencies for the enforcement of agency orders or
warrants that are recorded in the County Clerk Lien Record.
(2) Notwithstanding ORS 18.690, a garnishee who receives a writ
of garnishment described in subsection (1) of this section need
not deliver a copy of the garnishee response to the { - clerk
of the - } court { + administrator for the court + } identified
as having authority over the writ.
(3) Notwithstanding ORS 18.700, a debtor who wishes to make a
challenge to a writ of garnishment described in subsection (1) of
this section must deliver the challenge in person or by first
class mail to the garnishor within the time specified by ORS
18.700 (2).
(4) A person issuing a writ of garnishment described in
subsection (1) of this section shall modify the forms provided in
ORS 18.600 to 18.850 to reflect that:
Enrolled House Bill 2646 (HB 2646-B) Page 44
(a) The writ of garnishment is issued pursuant to an order or
warrant recorded in the County Clerk Lien Record;
(b) A copy of the garnishee response need not be delivered or
mailed to the { - clerk of the - } court { + administrator
for the court + } identified in the writ; and
(c) A challenge to a writ of garnishment described in
subsection (1) of this section must be delivered to the garnishor
and not to the court.
(5) Within 14 days after receipt of a challenge to a
garnishment described in subsection (1) of this section, the
garnishor must either:
(a) Release all property claimed as exempt from or not subject
to garnishment under the challenge to the garnishment; or
(b) File with the { - clerk of the - } court
{ + administrator + } a response to the challenge attaching
copies of the writ and garnishee response { - , - } and any
supporting documentation necessary or helpful to the court in
making its determination on the challenge to the garnishment.
(6) The provisions of this section do not apply to writs of
garnishment issued by the { - clerk of the - } court { +
administrator + }, writs issued by an attorney for the
enforcement of an order recorded under ORS 671.707 or 701.150 or
writs issued by the administrator, as defined in ORS 25.010,
under ORS 18.645.
SECTION 72. ORS 18.810 is amended to read:
18.810. (1) Notwithstanding any other provision of ORS 18.600
to 18.850, a debt calculation form need not be prepared or
delivered for any writ of garnishment issued pursuant to an order
for provisional process under ORCP 83 and 84.
(2) Notwithstanding ORS 18.730, if a writ of garnishment is
issued pursuant to an order for provisional process under ORCP 83
and 84, all payments of money by the garnishee under the writ
shall be made to the { - clerk of the - } court
{ + administrator for the court + } specified in the writ as the
court with authority over the writ. The { - clerk - } { +
court administrator + } shall hold the money pending
{ - final - } { + entry of a + }judgment against the debtor
unless the court finds, upon a challenge to the garnishment made
by the debtor under ORS 18.700, that all or part of the money is
exempt from execution or not subject to garnishment. If
{ - final - } judgment is
{ - rendered - } { + entered + } in favor of the debtor, the
{ - court shall order the clerk - } { + + } { + judgment
must direct the court administrator + } to pay the money to the
debtor. If { - final - } judgment is { - rendered - }
{ + entered + } in favor of the creditor, the { - court shall
order the clerk - } { + judgment must direct the court
administrator + } to pay to the creditor as much of the money as
will satisfy the judgment and to pay the remainder to the debtor.
(3) Notwithstanding ORS 18.750 to 18.760, if a writ of
garnishment is issued pursuant to an order for provisional
process under ORCP 83 and 84, the sheriff shall not sell any
property described in ORS 18.750 before { - final - } { +
a + } judgment is entered in the proceedings, unless the court
finds, upon a challenge made by the debtor under ORS 18.700, that
all or part of the property is exempt from execution or is not
subject to garnishment. If { - final - } judgment is
{ - rendered - } { + entered + } in favor of the debtor, the
{ - court shall order - } { + judgment must direct + } the
sheriff to deliver the property to the debtor. If { - final - }
Enrolled House Bill 2646 (HB 2646-B) Page 45
judgment is { - rendered - } { + entered + } in favor of the
creditor, the { - court shall order - } { + judgment must
direct + } the sheriff to sell the property in the manner
provided by ORS 18.758.
(4) If property taken into the possession of the sheriff under
a writ of garnishment issued pursuant to an order for provisional
process under ORCP 83 and 84 is perishable, or the cost of
storing the property is great, the sheriff shall sell the
property in the same manner in which property is sold on
execution. The proceeds shall be held and distributed in the same
manner as provided in subsection (2) of this section for payments
made under the writ.
(5) The { - clerk of the - } court { + administrator + }
shall attach to any writ of garnishment issued pursuant to an
order for provisional process under ORCP 83 and 84 a notice that
informs the garnishee of the provisions of subsection (2) of this
section.
SECTION 73. 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:
_____ (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:
Enrolled House Bill 2646 (HB 2646-B) Page 46
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 { + employees + } 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 { +
administrator + }, by the attorney for the Creditor or by a
person who is specifically authorized by law to issue
garnishments. This writ is issued by:
_ The { - clerk of the - } court { + administrator + }
_ The attorney for the Creditor
_ Other authorized issuer:
Name and title _____
Authority to issue writ _____
This writ is valid only if it has been delivered to you within
60 days after the date of issuance. If the { - clerk of the - }
court { + administrator + } is issuing this writ, the date of
issuance is the date the { - clerk - } { + court
administrator + } 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 { + Administrator + })
_____ Court
Street address _____
City ___ County ___
State ___ Zip Code ___
(Debtor)
Name _____
Enrolled House Bill 2646 (HB 2646-B) Page 47
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 { + administrator + } 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 { +
administrator + }. 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
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
__________
Enrolled House Bill 2646 (HB 2646-B) Page 48
Oregon State Bar No. (if attorney)
COURT SEAL
(To be completed only if this writ is issued by the { - clerk
of the - } court { + administrator + }. The writ must be stamped
by the { - clerk - } { + court administrator + }. The
{ - clerk - } { + court administrator + } 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 { +
administrator + } this _ day of ____, 2_.
{ - CLERK OF THE - } COURT { + ADMINISTRATOR + }
By __________
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 74. ORS 18.832 is amended to read:
18.832. (1) A debt calculation form shall be prepared for each
writ of garnishment issued. A copy of the form need not be served
on the garnishee, but a copy must be delivered to the debtor
along with a copy of the writ in the manner required by ORS
18.658.
(2) A debt calculation 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.
_______________________________________________________________
____
)
Plaintiff, )DEBT
)CALCULATION
vs. )Case No. ___
)
____
)
Defendant. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
TO: _____ (Debtor).
The following amounts have been calculated to be owing from you
to _____ (Creditor). The amounts are owed by reason of:
Enrolled House Bill 2646 (HB 2646-B) Page 49
_ A judgment entered against you dated ___, 2_, in Case No.
___, ____ Court, ____ County.
_ Other debt subject to garnishment under the law (provide
details):
_______________
_______________
THE { - CLERK OF THE - } COURT { + ADMINISTRATOR + } HAS
NOT CALCULATED ANY AMOUNTS FOR THE PURPOSE OF THIS FORM AND IS
NOT LIABLE FOR ERRORS IN THIS FORM OR IN THE WRIT OF GARNISHMENT
MADE BY THE CREDITOR OR GARNISHOR.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Original Debt Amount $____
+ Pre-adjudication Intere$t___
_
+ Attorney Fees $____
+ Cost Bill $____
+ Post-adjudication Inter$st__
__
+ Delivery Fee for Writ $____
+ Sheriff's Fees other
than Delivery Fees $____
+ Other (Explain. Attach
additional sheets
if necessary.)
____
$____
____
$____
____
$____
____
$____
Total '
Other
'
from additional
sheets (if used)
+ Past Writ Issuance Fees$____
+ Past Delivery Fees $____
+ Transcript and Filing
Fees for Other Counties$____
= Subtotal $____
LESS Payments Made on De$(____
)
= Total Amount Required to
Satisfy Debt in Full $____
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 50
NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO
COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL
EXECUTION.
I certify that I have read this Debt Calculation form and to
the best of my knowledge, information and belief the amount shown
as owing is correct.
__________
Creditor (Creditor must sign if writ issued by { - clerk of - }
court { + administrator + }.)
__________
Garnishor (Attorney for Creditor or other person authorized by
law to issue writ.)
__________
Address
__________
Telephone Number
__________
Oregon State Bar Number (if attorney)
__________ , 2_
Date of Calculation
_________________________________________________________________
SECTION 75. 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.
Enrolled House Bill 2646 (HB 2646-B) Page 51
_________________________________________________________________
PART I: DEBTOR'S PROPERTY
GENERALLY
(ALL GARNISHEES MUST FILL OUT
THIS PORTION OF THE RESPONSE)
Place a check in front of all the following statements that
apply. You may need to check more than one statement.
_ I have discovered that a voluntary or involuntary bankruptcy
petition has been filed by or on behalf of the Debtor after
the date shown on the face of the writ as the date on which
the judgment was entered against the Debtor or after the debt
otherwise became subject to garnishment. (You need not
complete any other part of this response, but you must sign
the response and deliver it in the manner specified in Step 2
of the Instructions to Garnishee form.)
_ I do not employ the Debtor, I do not have in my possession,
control or custody any personal property of the Debtor, and I
do not owe any debts or other obligations to the Debtor.
_ I employ the Debtor. (You must complete Part II of this
response.)
_ I have in my possession, control or custody money that
belongs to the Debtor (other than wages), or I owe a debt or
other obligation to the Debtor (other than wages) that is due
as of the time of this response. I am forwarding this money,
or enough of it to satisfy the garnishment, to the Garnishor.
_ I owe a debt or other obligation to the Debtor (other than
wages) that is not due as of the time of this response but
will become due within 45 days. I will forward the money, or
enough of it to satisfy the garnishment, to the Garnishor
when the debt or other obligation becomes due.
_ I owe the following debt or other obligation to the Debtor
(other than wages) that will not become due within 45 days of
the time of this response. I will not make any payments on
the debt or obligation until I receive instructions from the
Sheriff or until 30 days have passed from the date on which I
deliver this response. (See Instructions to Garnishee form.)
_______________
_______________
_______________
_______________
_ I have in my possession, control or custody the following
personal property (other than money) that belongs to the
Debtor. I will hold all of the property for the Garnishor
until I receive instructions from the Sheriff or until 30
days have passed from the date on which I deliver this
response. (See Instructions to Garnishee form.)
Enrolled House Bill 2646 (HB 2646-B) Page 52
_______________
_______________
_______________
_______________
_ 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 { +
administrator + } all money that I would otherwise deliver to
the Garnishor. (See Step 3 of Instructions to Garnishee
form.)
Enrolled House Bill 2646 (HB 2646-B) Page 53
_ Other (Explain)
_______________
_______________
_______________
_______________
_____________________________________________________________
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
__________
Signature
__________
Address
_________________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 54
SECTION 76. ORS 18.838, as amended by section 19, chapter 85,
Oregon Laws 2003 (Enrolled House Bill 2274), 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 or a copy
of the writ.
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
also list all debts that you owe to the Debtor, whether or not
Enrolled House Bill 2646 (HB 2646-B) Page 55
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 2646 (HB 2646-B) Page 56
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 2646 (HB 2646-B) Page 57
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 2646 (HB 2646-B) Page 58
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
Garnishor at the address indicated on the writ under Important
Addresses.
(b) Send a copy of your Garnishee Response to the { - clerk
of the - } court { + administrator + } 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 2646 (HB 2646-B) Page 59
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 { +
administrator + }. 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.
_________________________________________________________________
SUPPLEMENTAL GARNISHEE RESPONSE
TO: The Garnishor and the Debtor
Enrolled House Bill 2646 (HB 2646-B) Page 60
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.
_________________________________________________________________
SECTION 77. 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
Enrolled House Bill 2646 (HB 2646-B) Page 61
described in this section is intended to expand or restrict the
law relating to exempt property. A determination as to whether
property is exempt from execution, attachment and garnishment
must be made by reference to other law. The form provided in this
section may be modified to provide more information or to update
the notice based on subsequent changes in exemption laws.
_________________________________________________________________
NOTICE OF EXEMPT PROPERTY
Property belonging to you may have been taken or held in order to
satisfy a debt. The debt may be reflected in a judgment or in a
warrant or order issued by a state agency. Important legal papers
are enclosed.
YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE
CAREFULLY.
State and federal law specify that certain property may not be
taken. Some of the property that you may be able to get back is
listed below.
(1) Wages or a salary as described in ORS 23.175 and 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.
Enrolled House Bill 2646 (HB 2646-B) Page 62
(22) Health insurance proceeds and disability proceeds of life
insurance policies.
(23) Cash surrender value of life insurance policies not
payable to your estate.
(24) Federal annuities.
(25) Other annuities to $250 per month (excess over $250 per
month is subject to the same exemption as wages).
(26) Professionally prescribed health aids for you or any of
your dependents.
*(27) Elderly rental assistance allowed pursuant to ORS
310.635.
*(28) Your right to receive, or property traceable to:
*(a) An award under any crime victim reparation law.
*(b) A payment or payments, not exceeding a total of $10,000,
on account of personal bodily injury suffered by you or an
individual of whom you are a dependent.
*(c) A payment in compensation of loss of future earnings of
you or an individual of whom you are or were a dependent, to the
extent reasonably necessary for your support and the support of
any of your dependents.
(29) 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 { + administrator + } 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
Enrolled House Bill 2646 (HB 2646-B) Page 63
time, so you should keep records showing when the challenge was
mailed or delivered.
(3) The law only requires that the Garnishor hold the garnished
money or property for 10 days before applying it to the
Creditor's use. You may be able to keep the property from being
used by the Creditor by promptly following (1) and (2) above.
You should be prepared to explain your exemption in court. If
you have any questions about the garnishment or the debt, you
should see an attorney.
IF YOU CLAIM AN EXEMPTION IN BAD FAITH, YOU MAY BE SUBJECT TO
PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A FINE.
Penalties that you could be subject to are listed in 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 77a. { + The amendments to ORS 18.830, 18.832, 18.835,
18.838 and 18.845 by sections 73, 74, 75, 76 and 77 of this 2003
Act apply only to writs of garnishment issued on or after the
effective date of this 2003 Act. Any writ of garnishment issued
before the effective date of this 2003 Act shall continue to be
governed by the law in effect on the day immediately preceding
the effective date of this 2003 Act. + }
{ +
WRITS OF EXECUTION + }
SECTION 78. { + ORS 23.310, 23.410, 23.440, 23.445, 23.450,
23.460, 23.470, 23.480, 23.490, 23.500, 23.510, 23.515, 23.520,
23.530, 23.540, 23.550, 23.560, 23.570, 23.580, 23.590 and 23.600
are added to and made a part of sections 29 to 44 of this 2003
Act. + }
SECTION 79. ORS 23.410 is amended to read:
23.410. When the writ of execution is against the property of
the judgment debtor, it shall be executed by the sheriff, as
follows:
(1) If the property has been attached, the sheriff shall
indorse on the execution, and pay to the { - clerk - }
{ + court administrator + } forthwith the amount, if any, of the
proceeds of sales of perishable property or debts due the
defendant received by the sheriff, sufficient to satisfy the
judgment.
(2) If the judgment is not then satisfied, and property has
been attached and remains in the custody of the sheriff, the
sheriff shall sell the same or sufficient thereof to satisfy the
judgment.
(3) If then any portion of the judgment remains unsatisfied, or
if no property has been attached, or the same has been
discharged, the sheriff shall levy on the property of the
judgment debtor sufficient to satisfy the judgment.
(4) Property shall be levied on in like manner and with like
effect as similar property is attached.
(5) Until a levy, property shall not be affected by the
execution. When property has been sold or debts received by the
Enrolled House Bill 2646 (HB 2646-B) Page 64
sheriff on execution, the sheriff shall pay the proceeds thereof,
or sufficient to satisfy the judgment, to the { - clerk - }
{ + court administrator + } by the day which the writ is
returnable.
(6) When property has been attached, and it is probable that
such property will not be sufficient to satisfy the judgment, the
execution may be levied on other property of the judgment debtor,
without delay. If, after satisfying the judgment, any property or
the proceeds thereof remain in the custody of the sheriff, the
sheriff shall deliver the same to the judgment debtor.
SECTION 80. ORS 23.490 is amended to read:
23.490. Whenever real property is sold on execution, the
provisions of this section shall apply to the subsequent
proceedings, as follows:
(1) The plaintiff in the writ of execution is entitled, on
motion therefor, to have an order confirming the sale at any time
after the expiration of 10 days from the date of filing the
return of sale, unless the judgment debtor, or in case of the
death of the judgment debtor, the representative of the judgment
debtor, files with the { - clerk - } { + court
administrator + } within 10 days after the return of the
execution, the objections of the judgment debtor or
representative thereto.
(2) If such objections are filed, the court or judge thereof
shall, notwithstanding, allow the order confirming the sale,
unless on the hearing of the motion it satisfactorily appears
that there were substantial irregularities in the proceedings
concerning the sale, to the probable loss or injury of the party
objecting. In the latter case, the court or judge shall disallow
the motion, and direct that the property be resold, in whole or
in part, as the case may be, as upon an execution received of
that date.
(3) Upon the return of the execution, the sheriff shall pay the
proceeds of the sale to the { - clerk - } { + court
administrator + }, who shall then apply the same, or so much
thereof as may be necessary, in satisfaction of the judgment. If
an order of resale is afterwards made, and the property sells for
a greater amount to any person, other than the former purchaser,
the { - clerk - } { + court administrator + } shall first
repay to such purchaser the amount of the bid of the purchaser,
out of the proceeds of the latter sale. Upon a resale, the bid
of the purchaser at the former sale shall be deemed to be renewed
and continue in force, and no bid shall be taken except for a
greater amount.
(4) An order confirming a sale shall be a conclusive
determination of the regularity of the proceedings concerning
such sale, as to all persons, in any other action, suit or
proceeding.
(5) If, after the satisfaction of the judgment, there are any
proceeds of the sale remaining, the { - clerk - } { + court
administrator + } shall pay such proceeds to the judgment debtor
or the representative of the judgment debtor, at any time before
the order is made upon the motion to confirm the sale, provided
such party files with the { - clerk - } { + court
administrator + } a waiver of all objections to the proceedings
concerning the sale. If the sale is confirmed, such proceeds
shall be paid to such party, of course; otherwise they shall
remain in the custody of the { - clerk - } { + court
administrator + }until the sale of the property has been
disposed of.
Enrolled House Bill 2646 (HB 2646-B) Page 65
SECTION 81. ORS 23.570 is amended to read:
23.570. The mode of redeeming shall be as provided in this
section:
(1) The person seeking to redeem shall give the purchaser or
redemptioner not less than two days' nor more than 30 days'
notice of an intention to apply to the sheriff for that purpose;
if with reasonable diligence personal service of such notice
cannot be made within the state, then proof thereof by affidavit
filed with the sheriff shall be equivalent to such personal
service. At the time and place specified in the notice, which
place shall be the office of the sheriff at the courthouse, such
person may redeem by paying to the sheriff the sum required. The
sheriff shall give the person redeeming a certificate, as in the
case of sale on execution, adding therein the sum paid on
redemption, from whom redeemed, and the date thereof. The
redemptioner shall file the certificate of redemption with the
{ - clerk of the - } court { + administrator for the
court + } out of which execution issued. The
{ - clerk - } { + court administrator + } shall note the
filing of the certificate of redemption in the court register and
shall place the certificate in the case file.
(2) A party seeking to redeem shall submit to the sheriff the
evidence of the right thereto as follows:
(a) Proof that the notice required by this section was given to
the purchaser or redemptioner or waived.
(b) If the party is a lien creditor, a copy { - of the
docket - } of the judgment { - or decree - } under which the
party claims the right to redeem, certified to by the { - clerk
of the - } court { + administrator for the court + } where such
judgment { - or decree is docketed - } { + was entered + },
or if the party seeks to redeem upon a mortgage, the certificate
of the record thereof.
(c) A copy of any assignment necessary to establish the claim,
verified by the affidavit of the party or agent; an affidavit by
the party or agent showing the amount then actually due on the
judgment { - , decree - } or mortgage.
(3) If the redemptioner or purchaser has a lien prior to that
of the lien creditor seeking to redeem, such redemptioner or
purchaser shall submit to the sheriff the like evidence thereof
and of the amount due thereon, or the same may be disregarded.
(4) When two or more persons apply to the sheriff to redeem at
the same time, the sheriff shall allow the person having the
prior lien to redeem first, and so on. The sheriff shall
immediately pay the money over to the person from whom the
property is redeemed, if the person attends at the redemption; or
if not, at any time thereafter when demanded. When a sheriff
wrongfully refuses to allow any person to redeem, the right of
the person thereto shall not be prejudiced thereby, and upon
submission of the evidence and the tender of the money to the
sheriff as provided in this section the sheriff may be required
by order of the court or judge thereof to allow such redemption.
{ +
EXEMPTIONS + }
SECTION 82. { + ORS 23.105, 23.160, 23.164, 23.166, 23.168,
23.170, 23.175, 23.186, 23.190, 23.200, 23.210, 23.220, 23.230,
23.240, 23.242, 23.250, 23.260, 23.280, 23.290, 23.300 and 23.305
are added to and made a part of sections 29 to 44 of this 2003
Act. + }
Enrolled House Bill 2646 (HB 2646-B) Page 66
SECTION 83. 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.
Enrolled House Bill 2646 (HB 2646-B) Page 67
(2) If the property { - selected or reserved - } { +
claimed + } 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 - } { +
seizing the property + } 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 - } { +
A sale may not + } be made under such execution unless the
highest bid made exceeds the appropriate exemption claimed and
allowed plus costs of sale. If no bid is received in excess of
the value allowed by the appropriate paragraph of subsection (1)
of this section, the costs of sale shall be borne by the judgment
creditor.
(3) If two or more members of a household are judgment debtors,
each judgment debtor shall be entitled to claim the exemptions in
subsection (1)(a), (b), (c), (d), (j), (k) and (L) of this
section in the same or different properties. The exemptions when
claimed for the same property shall be combined at the option of
the debtors.
(4) Notwithstanding any other provision of law, if a writ of
garnishment or other execution is issued to collect past due
support as defined in 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
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.
{ +
MISCELLANEOUS ADDITIONS TO ORS CHAPTER 18 + }
SECTION 84. { + ORS 18.325, 18.355, 18.365, 18.370 and 18.420
are added to and made a part of sections 1 to 44 of this 2003
Act. + }
{ +
APPEALS + }
SECTION 85. ORS 19.205 is amended to read:
19.205. { - (1) A judgment or decree may be reviewed on
appeal as prescribed in this chapter. - }
{ - (2) For the purpose of being reviewed on appeal the
following shall be deemed a judgment or decree: - }
{ - (a) An order affecting a substantial right, and which in
effect determines the action or suit so as to prevent a judgment
or decree therein. - }
{ - (b) An interlocutory decree in a suit for the partition
of real property, defining the rights of the parties to the suit
and directing sale or partition. - }
Enrolled House Bill 2646 (HB 2646-B) Page 68
{ - (c) A final order affecting a substantial right, and made
in a proceeding after judgment or decree. - }
{ - (d) An order setting aside a judgment and granting a new
trial. - }
{ - (e) A final judgment or decree entered in accordance with
ORCP 67 B. - }
{ + (1) Unless otherwise provided by law, a limited judgment,
general judgment or supplemental judgment, as those terms are
defined by section 1 of this 2003 Act, may be appealed as
provided in this chapter. A judgment corrected under ORCP 71 may
be appealed only as provided in sections 12 and 13 of this 2003
Act. + }
{ + (2) An order in an action that affects a substantial
right, and that effectively determines the action so as to
prevent a judgment in the action, may be appealed in the same
manner as provided in this chapter for judgments. + }
{ + (3) An order that is made in the action after a general
judgment is entered and that affects a substantial right,
including an order granting a new trial, may be appealed in the
same manner as provided in this chapter for judgments. + }
{ - (3) - } { + (4) + } No appeal to the Court of Appeals
shall be taken or allowed in any action for the recovery of money
or damages only unless it appears from the pleadings that the
amount in controversy exceeds $250.
{ - (4) - } { + (5) + } An appeal may be taken from the
circuit court in any special statutory proceeding under the same
conditions, in the same manner and with like effect as from a
judgment { - , decree - } or order entered in an action
{ - or suit - } , unless { - such - } appeal is expressly
prohibited by the law authorizing { - such - } { + the + }
special statutory proceeding.
{ + (6) Nothing in sections 1 to 44 of this 2003 Act affects
the authority of an appellate court to dismiss an appeal or to
remand a proceeding to the trial court under ORS 19.270 (4) based
on the appellate court's determination that the appeal has not
been taken from an appealable judgment or order. + }
SECTION 86. ORS 19.270 is amended to read:
19.270. (1) The Supreme Court or the Court of Appeals has
jurisdiction of the cause when the notice of appeal has been
served and filed as provided in ORS 19.240, 19.250 and 19.255.
The trial court may exercise those powers in connection with the
appeal as are conferred by law, and retains jurisdiction in the
matter for the following purposes:
(a) Deciding requests for attorney fees, costs and
disbursements or expenses pursuant to ORCP 68 or other provision
of law.
(b) Enforcing the judgment, subject to any stay of the
judgment.
(2) The following requirements of ORS 19.240, 19.250 and 19.255
are jurisdictional and may not be waived or extended:
(a) Service of the notice of appeal on all parties identified
in the notice of appeal as adverse parties or, if the notice of
appeal does not identify adverse parties, on all parties who have
appeared in the action, suit or proceeding, as provided in ORS
19.240 (2)(a), within the time limits prescribed by ORS 19.255.
(b) Filing of the original of the notice of appeal with the
Court of Appeals as provided in ORS 19.240 (3), within the time
limits prescribed by ORS 19.255.
(3) After the Supreme Court or the Court of Appeals has
acquired jurisdiction of the cause, the omission of a party to
Enrolled House Bill 2646 (HB 2646-B) Page 69
perform any of the acts required in connection with an appeal, or
to perform such acts within the time required, shall be cause for
dismissal of the appeal. In the event of such omission, the
court, on motion of a party or on its own motion may dismiss the
appeal. An appeal dismissed on a party's motion or on the
court's own motion may be reinstated upon showing of good cause.
(4) Notwithstanding the filing of a notice of appeal, the trial
court { - shall have - } { + has + } jurisdiction, with leave
of the appellate court, to enter an appealable judgment if the
appellate court determines that:
(a) At the time of the filing of the notice of appeal the trial
court intended to enter an appealable judgment; and
(b) The judgment from which the appeal is taken is defective in
form or was entered at a time when the trial court did not have
jurisdiction of the cause under subsection (1) of this section,
or the trial court had not yet entered an appealable judgment.
(5) Notwithstanding the filing of a notice of appeal, the trial
court has jurisdiction:
(a) To enter an order { + or supplemental judgment + } under
ORCP 71 or ORS 19.275 { + , 107.105 (4) + } or 107.452; and
(b) To enter an order or { + supplemental + } judgment for the
purpose of implementing a settlement as allowed by ORS 19.410
(3).
(6) Jurisdiction of the appellate court over a cause ends when
a copy of the appellate judgment is mailed by the State Court
Administrator to the court from which the appeal was taken
pursuant to ORS 19.450, except that the appellate court may:
(a) Recall the appellate judgment as justice may require;
(b) Stay enforcement of the appellate judgment to allow the
filing of a petition for writ of certiorari to the Supreme Court
of the United States; and
(c) Stay enforcement of the appellate judgment pending
disposition of the matter by the Supreme Court of the United
States or for such other time as the Oregon appellate court may
deem appropriate.
(7) After jurisdiction of the appellate court ends, all orders
which may be necessary to carry the appellate judgment into
effect shall be made by the court from which the appeal was
taken.
SECTION 87. ORS 19.275 is amended to read:
19.275. (1) Any motion that requires a showing of a change of
circumstances before the court may modify a judgment { - or
decree - } , including a motion to reconsider the spousal or
child support provisions of a { - decree - } { + judgment + }
pursuant to ORS 107.135, may be filed with the trial court while
an appeal from the judgment { - or decree - } is pending
before an appellate court. The filing of a motion under this
subsection does not affect the right of the appellant to pursue
the appeal of the judgment { - or decree - } .
(2) The trial court in its discretion may proceed to hear and
decide a motion under this section or may hold the motion in
abeyance pending disposition of the appeal.
{ - (3) Pursuant to the provisions of ORS 19.205 (2)(c), the
court's final decision on a motion under this section shall be
deemed a judgment separate from the decree or judgment sought to
be modified and may be appealed separately from the decree or
judgment sought to be modified. The appellate court in its
discretion may consolidate an appeal from a judgment under this
section with the pending appeal of the other judgment or decree,
Enrolled House Bill 2646 (HB 2646-B) Page 70
may direct that both appeals be heard at the same time or may
allow the appeals to proceed independently of one another. - }
{ + (3) Pursuant to the provisions of ORS 19.205, the court's
final decision on a motion under this section is a supplemental
judgment. The appellate court in its discretion may consolidate
an appeal from a supplemental judgment under this section with
the pending appeal of the general judgment in the case, may
direct that both appeals be heard at the same time or may allow
the appeals to proceed independently. + }
SECTION 88. ORS 19.415 is amended to read:
19.415. (1) Upon an appeal from a judgment in an action at law,
the scope of review shall be as provided in section 3, Article
VII (Amended) of the Oregon Constitution.
(2) No judgment shall be reversed or modified except for error
substantially affecting the rights of a party.
(3) Upon an appeal from a { - decree - } { + judgment + }
in a { + case that constituted a + } suit in equity { + under
common law + }, the Court of Appeals shall try the cause anew
upon the record.
(4) When the Court of Appeals has tried a cause anew upon the
record, the Supreme Court may limit its review of the decision of
the Court of Appeals to questions of law.
SECTION 89. ORS 19.450 is amended to read:
19.450. (1) As used in this section:
(a) 'Decision' means a memorandum opinion, an opinion
indicating the author or an order denying or dismissing an appeal
issued by the Court of Appeals or the Supreme Court. The decision
shall state the court's disposition of the judgment being
appealed, and may provide for final disposition of the cause. The
decision shall designate the prevailing party or parties, state
whether a party or parties will be allowed costs and
disbursements, and if so, by whom the costs and disbursements
will be paid.
(b) 'Appellate judgment' means the decision of the Court of
Appeals or Supreme Court, or such portion of the decision as may
be specified by the rule of the Supreme Court, together with an
award of attorney fees or allowance of costs and disbursements,
if any.
(2) As to appeals from circuit and tax { - court - } { +
courts + }, the appellate judgment is effective when a copy of
the appellate judgment is entered in the court's register and
mailed by the State Court Administrator to the court from which
the appeal was taken. When the State Court Administrator mails a
copy of the appellate judgment to the court from which the appeal
was taken, the administrator also shall mail a copy to the
parties to the appeal.
(3) If a new trial is ordered, upon the receipt of the
appellate judgment by the trial court administrator for the court
below, the trial court administrator shall enter the appellate
court's decision in the register of the court below and
thereafter the cause shall be deemed pending for trial in such
court, according to the directions of the court which rendered
the decision. If a new trial is not ordered, upon the receipt of
the appellate judgment by the trial court administrator, a
judgment shall be entered in the register { - and docketed - }
according to the directions of the court which rendered the
decision, in like manner and with like effect as if the same was
given in the court below.
(4) A party entitled to enforce an undertaking may obtain
judgment against a surety by filing a request with the State
Enrolled House Bill 2646 (HB 2646-B) Page 71
Court Administrator and serving a copy of the request on the
other parties and the surety. The request must identify the
surety against whom judgment is to be entered and the amount of
the judgment sought to be imposed against the surety. Unless
otherwise directed by the appellate court, upon receiving the
request the State Court Administrator shall include in the
appellate judgment a { - money - } judgment against the surety
in the amount specified.
(5) If the appellate judgment terminating an appeal contains a
{ - money - } judgment against a surety for an undertaking, the
trial court administrator shall enter { - and docket - } the
judgment against the surety in like manner and with like effect
as if the judgment was given in the court below.
(6) Except as provided in { - ORS 18.350 - } { + section 16
of this 2003 Act + }, an appeal { - shall - } { + does + }
not discharge the lien of a judgment and unless the
{ - same - } { + judgment + } is reversed, the lien
{ - thereof shall be merged - } { + of the judgment merges
with + } and
{ - continue - } { + continues + } in the affirmed or
modified judgment given on appeal, from the time of the entry
{ - and docketing - } of the { - same - } { + judgment + }
in the court below. The lien of any judgment created by recording
a certified copy of the judgment or a lien record abstract
{ - shall continue as a lien - } { + continues in force + } in
the same manner as the original judgment lien as provided in this
subsection.
SECTION 90. ORCP 67 B is amended to read:
B Judgment for less than all claims or parties in action. When
more than one claim for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or third party claim, or
when multiple parties are involved, the court may
{ - direct the entry of a final - } { + render a limited + }
judgment as to one or more but fewer than all of the claims or
parties { - only upon an express determination - } { + . + }
{ + A judge may render a limited judgment under this section
only if the judge determines + } that there is no just reason for
delay { + . + } { - and upon an express direction for the entry
of judgment. In the absence of such determination and direction,
any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties. - }
SECTION 90a. { + The amendments to ORS 19.205, 19.270, 19.275,
19.415 and 19.450 by sections 85 to 89 of this 2003 Act apply
only to the appeal of judgments entered on or after the effective
date of this 2003 Act. Any appeal of a judgment entered before
the effective date of this 2003 Act shall continue to be governed
by the law in effect on the day immediately preceding the
effective date of this 2003 Act. + }
{ +
LIEN EFFECT OF SMALL CLAIMS JUDGMENTS + }
SECTION 91. ORS 46.485 is amended to read:
46.485. (1) In addition to any other award, the prevailing
party shall be entitled to a judgment for the small claims filing
Enrolled House Bill 2646 (HB 2646-B) Page 72
fees and service expenses paid by the party and the prevailing
party fee provided for in ORS 20.190 (1)(c) or (2)(b). The
prevailing party may also be awarded prevailing party fees under
ORS 20.190 (3). The award shall be paid or the property delivered
upon such terms and conditions as the judge may prescribe.
(2) The court may allow to the defendant a setoff not to exceed
the amount of plaintiff's claim, but in such case the court shall
cause to be entered in the record the amount of the setoff
allowed.
(3) No attachment shall issue on any cause in the small claims
department.
(4) A judgment in the small claims department is conclusive
upon the parties and no appeal may be taken from the judgment.
(5) The clerk of the court shall keep a record of all actions,
proceedings and judgments in the small claims department.
(6) A judgment in the small claims department is a judgment of
the circuit court. The clerk shall enter such judgment in the
register of the circuit court { + in the manner provided by
section 9 of this 2003 Act + }. A judgment in the small claims
department may
{ - be docketed as provided in ORS 46.488. Money judgments
shall be subject to ORCP 70 A(2) and B. Execution and other
process on execution provided by law may issue on judgments in
the small claims department as in other cases in the circuit
court. - } { + create a lien as provided by ORS 46.488.
Judgments that include money awards, as defined by section 1 of
this 2003 Act, are subject to section 5 of this 2003 Act. + }
SECTION 92. ORS 46.488 is amended to read:
46.488. { - (1) A judgment entered in the small claims
department of a circuit court may be docketed in the docket of
the circuit court only as provided in subsection (2) of this
section if the judgment is in an amount of $10 or more and less
than $3,000, exclusive of costs or disbursements. A judgment
entered in the small claims department in an amount of $3,000 or
more shall be docketed in the docket of the circuit court in the
same manner as other judgments in circuit court, and shall become
a lien upon all real property of the judgment debtor in the
manner described by ORS 18.350. - }
{ + (1) A judgment creditor may not create a judgment lien
for a judgment entered in the small claims department of a
circuit court if the money award is less than $10, exclusive of
costs and disbursements. A judgment creditor may create a
judgment lien for a judgment entered in the small claims
department of a circuit court in an amount of $10 or more and
less than $3,000, exclusive of costs and disbursements, only as
provided in subsection (3) of this section.
(2) If a judgment is rendered in the small claims department in
an amount of $3,000 or more, the clerk shall note in the register
of the circuit court that the judgment creates a judgment lien if
the judgment otherwise complies with the requirements of sections
1 to 44 of this 2003 Act for creating a judgment lien. A judgment
creditor may create a lien for the judgment in other counties in
the manner provided by section 15 of this 2003 Act. + }
{ - (2) - } { + (3) + } When a judgment is entered in the
small claims department in an amount of $10 or more and less than
$3,000, exclusive of costs or disbursements, { - the - } { +
a + } judgment creditor may at any time before expiration of
{ + judgment remedies for + } the judgment under { - ORS
18.360 cause the judgment to be docketed - } { + section 18 of
this 2003 Act create a judgment lien for the judgment + } by
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paying to the clerk of the court that entered the judgment the
fees established by ORS 21.325 (1) and (2) and requesting
{ - the filing and docketing of the certified transcript of
judgment. Upon receipt of the fees and request for docketing, the
clerk shall docket the judgment in the judgment docket of the
circuit court. Upon docketing, the judgment shall become a lien
on real property of the judgment debtor in the county in which
the judgment is docketed. In any other county, the judgment may
become a lien on real property of the judgment debtor in the
county if a certified copy of the judgment, or a lien record
abstract for the docketed judgment in the form prescribed by ORS
18.325, is recorded in the County Clerk Lien Record. The judgment
becomes a lien on real property of the judgment debtor in the
other county on the date that the copy of the judgment or lien
record abstract is so recorded. - } { + that the clerk of the
court note in the register, and in the separate record maintained
under section 9 of this 2003 Act, that the judgment creates a
judgment lien. Upon receipt of the fees and request for creating
a judgment lien, the clerk shall note in the register that the
judgment creates a judgment lien. Upon entry of the notation in
the register, the judgment creates a lien as described in section
14 of this 2003 Act, and a judgment creditor may create a lien
for the judgment in other counties in the manner provided by
section 15 of this 2003 Act. + }
{ +
JUSTICE AND MUNICIPAL COURTS + }
SECTION 93. ORS 18.355 is amended to read:
18.355. (1) Subject to the requirements of this section and ORS
221.344, from the time that { - an original or renewed - }
{ + a + } judgment of a justice or municipal court is
transcribed or recorded as provided in ORS 52.635 or 221.351, the
judgment { + creates a judgment lien as described in section 15
of this 2003 Act. + } { - is a lien upon all the real property
of the judgment debtor within the county where the judgment is
transcribed or recorded, and upon any real property that the
judgment debtor may thereafter acquire in that county during the
time prescribed in ORS 18.365. The judgment is not a lien upon
any real property of the judgment debtor acquired after the
effective date of the discharge of the judgment under federal
bankruptcy laws. All transcribed or recorded judgments of justice
and municipal courts are presumed to be in force until the
judgment debtor has established that the judgment has been
discharged. - }
(2) { - A judgment lien based on a justice or municipal court
judgment expires if an appeal is taken from any judgment and a
supersedeas undertaking, as defined in ORS 19.005, is filed by
the judgment debtor. - } { + The judgment lien of a judgment
entered in a justice or municipal court may be eliminated as
provided in section 16 of this 2003 Act if an appeal is taken
from the judgment. + } The clerk of the justice or municipal
court shall note the { - expiration - } { + elimination + }
of the lien in the judgment docket.
{ - The lien expires when the time expires for the filing of
objections to the undertaking, or upon approval of the
undertaking by the court, whichever is later. - }
(3) When the lien of a justice or municipal court judgment
ceases in the county in which the judgment was originally
recorded { + or transcribed + }, the lien shall cease in every
Enrolled House Bill 2646 (HB 2646-B) Page 74
other county in which a certified copy of the judgment or a lien
record abstract has been recorded. When the judgment has been
fully satisfied, it is the responsibility of the judgment
creditor to file a full satisfaction in any circuit court to
which the judgment has been transcribed under ORS 52.635, and to
record the satisfaction in the County Clerk Lien Record for the
county in which the court is located if a certified copy of the
judgment or a lien record abstract for the judgment was recorded
in that County Clerk Lien Record. Upon satisfaction in full of
the judgment, the judgment creditor shall deliver to the judgment
debtor an executed satisfaction of the judgment for any other
county where a certified copy of the judgment or a lien record
abstract has been recorded. The county clerk shall charge a fee
as provided in ORS 205.320 for filing a satisfaction of judgment.
SECTION 94. ORS 18.365 is amended to read:
18.365. { - (1) Except as provided in this section, whenever
a period of 10 years elapses after the entry of a judgment by a
justice or municipal court, the judgment and any lien arising out
of recording the judgment expires. - }
{ - (2) Upon motion of the judgment creditor, the justice or
municipal court that rendered the judgment may renew the
judgment. The motion must be made before the expiration of the
judgment under subsection (1) of this section. The clerk of the
court that rendered the judgment must note in the judgment docket
for the court that the judgment has been renewed. The renewed
judgment and any lien created by the judgment expire 10 years
after the docketing of the renewed judgment. If the judgment is
renewed, the judgment creditor or the agent of the judgment
creditor may cause to be recorded in the County Clerk Lien Record
a certified copy of the renewed judgment, or a lien record
abstract in the form provided by ORS 18.325, in the same manner
as provided in ORS 52.635 and 221.351 for original judgments. If
the judgment is a civil judgment entered by a justice court, the
renewed judgment may be transcribed to the circuit court for the
county in which the justice court is located in the same manner
as provided in ORS 52.635 for original judgments. Execution may
issue upon the renewed judgment until the judgment expires or is
fully satisfied. - }
{ - (3) Notwithstanding subsection (1) of this section, a
judgment in a criminal action, as defined in ORS 131.005, and any
lien created by the recording of the judgment expire 20 years
after entry of the judgment and may not be renewed. - }
{ + (1) Judgment remedies for a judgment in justice and
municipal courts expire upon full satisfaction of the money award
portion of the judgment.
(2) Except as provided in this section, judgment remedies for a
judgment in a civil action expire 10 years after the entry of the
judgment.
(3) Judgment remedies for a judgment in a criminal action
expire 20 years after the entry of the judgment.
(4) Judgment remedies for a judgment in justice or municipal
court may be extended by filing a certificate of extension in the
court that entered the judgment. The clerk shall enter the
certificate in the docket of the court. A judgment creditor may
file a certificate of extension only if:
(a) Judgment remedies for the judgment have not expired; and
(b) A full satisfaction document for the money award portion of
the judgment has not been filed.
(5) Notwithstanding subsection (4) of this section, if the
judgment debtor has been discharged from debt under federal
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bankruptcy laws, a certificate of extension may not be filed
except as provided in this subsection. Judgments are presumed to
have not been discharged in bankruptcy until the judgment debtor
establishes that the judgment has been discharged. If the
judgment debtor is discharged from a debt, a certificate of
extension may be filed if:
(a) The debtor owned real property and the judgment lien
attached to that property before the filing of the bankruptcy
petition;
(b) The judgment lien was not avoided by action of the
bankruptcy court;
(c) The judgment lien has not been discharged under ORS 18.420;
and
(d) The certificate of extension includes a legal description
of the real property and a statement that the extension affects
only the lien on the real property described in the certificate.
(6) If a certificate of extension is filed under this section
after the date on which the judgment remedies for the judgment
expire, the certificate has no effect.
(7) The judgment remedies for a judgment that are extended
under the provisions of this section expire 10 years after the
certificate of extension is filed. Judgment remedies for a
judgment may be extended only once under the provisions of this
section.
(8) A certified copy of a certificate of extension, or a lien
record abstract for the certificate, may be recorded in any
county in which the judgment was transcribed or recorded as
provided in ORS 52.635 or 221.351, with the effect provided by
section 15 (4) of this 2003 Act.
(9) The judgment remedies for a judgment in a criminal action
may not be extended under this section. + }
SECTION 95. ORS 52.600 is amended to read:
52.600. (1) Upon the docketing of a judgment by a justice
court, the judgment may be enforced by the justice court in the
manner provided in this section.
(2) Enforcement proceedings on a judgment docketed by a justice
court may include:
(a) Writ of execution proceedings for personal property under
{ - ORS 23.030 to 23.105 and 23.410 to 23.600 - } { +
sections 29 to 44 of this 2003 Act + }.
{ - (b) Supplementary proceedings under ORS 23.710 to
23.730. - }
{ + (b) Proceedings in support of execution under sections
31, 32 and 33 of this 2003 Act. + }
(c) Garnishment proceedings under ORS 18.600 to 18.850.
(3) In addition to the enforcement proceedings specified in
subsection (2) of this section, a docketed justice court judgment
may be enforced by the court that rendered the judgment through
the issuance of a writ of execution on real property under
{ - ORS 23.030 to 23.105 and 23.410 to 23.600 - } { + sections
29 to 44 of this 2003 Act + }. A writ of execution on real
property may be issued by a justice court only after the judgment
has been transcribed or recorded in the manner provided by ORS
52.635. { - As required under ORS 23.030, upon issuance of a
writ of execution, the party requesting the writ must record a
certified copy of the writ or an abstract of the writ in the
County Clerk Lien Record of the county in which the real property
is located. - }
{ - (4) ORCP 70 A applies to civil judgments rendered by
justice courts. ORS 137.071 and 137.073 apply to judgments
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rendered by justice courts in actions and proceedings resulting
from a person being accused and tried for the commission of an
offense. - }
{ + (4) ORS 137.071 and sections 4, 5 and 6 of this 2003 Act
apply to judgments rendered in justice courts. + }
(5) Except as provided in subsection (6) of this section, the
provisions of this section apply to all judgments docketed by
justice courts, including judgments imposed in violation
proceedings and other criminal proceedings.
(6) The provisions of this section and ORS 52.635 do not apply
to proceedings for enforcement of ordinances governing the
parking of vehicles. Ordinances governing the parking of vehicles
shall be enforced as provided by other law.
SECTION 96. ORS 52.635 is amended to read:
52.635. (1) After a judgment { + that includes a money
award + } is docketed in a justice court, a certified copy of the
judgment or a lien record abstract for the judgment may be
recorded in the County Clerk Lien Record for the county that
contains the justice court that rendered the judgment. The
certified copy or lien record abstract may be recorded by the
judgment creditor or by the agent of the judgment creditor at any
time after the judgment is rendered and before the judgment
expires under ORS 18.365 or is fully satisfied. From the time the
certified copy of the judgment or the lien record abstract is
recorded in the County Clerk Lien Record, the judgment is a lien
upon the real property of the defendant in the county.
(2) In lieu of recording a certified copy of a judgment or a
lien record abstract for a judgment under subsection (1) of this
section, a judgment { + that includes a money award + } rendered
by a justice court in a civil action may be transcribed to the
circuit court for the county that contains the justice court that
rendered the judgment. The judgment may be transcribed by the
filing of a certified transcript of the judgment with the clerk
of the circuit court. The transcript must contain a copy of all
the docket entries made in the case and the judgment as rendered
by the justice { + court + }, certified to be a true and correct
transcript from the original entries by the justice court. Upon
filing of the certified transcript, the clerk shall
{ - docket - } { + enter + } the transcribed judgment in the
{ - judgment docket - } { + register + } of the circuit
court { + and in the separate record maintained under section 9
of this 2003 Act + }. { - From the time the judgment is
docketed in the circuit court, the judgment shall be a lien upon
the real property of the defendant in that county. - } { + The
clerk shall note in the register that the transcribed judgment
creates a judgment lien. + } A judgment in a criminal action may
not be transcribed to circuit court under the provisions of this
subsection.
(3) A certified copy of a judgment docketed in a justice court,
or a lien record abstract for the judgment, may be recorded in
any County Clerk Lien Record. The judgment or lien record
abstract may be recorded in a county other than the county that
contains the justice court that rendered the judgment without
transcribing the justice court judgment to the circuit court for
the county that contains the justice court that rendered the
judgment, or recording a certified copy of the judgment or a lien
record abstract for the judgment in the County Clerk Lien Record
for the county that contains the justice court. If the judgment
has been transcribed to circuit court, or a certified copy of the
judgment or a lien record abstract for the judgment has been
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recorded in any County Clerk Lien Record, a lien record abstract
for the judgment in the form provided by ORS 18.325 may be
recorded in the County Clerk Lien Record for any other county.
From the time the certified copy of the judgment or lien record
abstract for the judgment is recorded in the County Clerk Lien
Record of another county, the judgment is a lien upon the real
property of the defendant in that county.
(4) A certified copy of a { - justice court judgment
renewed - } { + certificate of extension filed + } under ORS
18.365, or a lien record abstract for the { - renewed
judgment - } { + certificate of extension + }, may be
transcribed to circuit court or recorded in a County Clerk Lien
Record in the same manner as provided for { - original - }
judgments under this section and with like effect.
(5) The transcribing of a justice court judgment to circuit
court under this section, or the recording of a certified copy of
a justice court judgment or a lien record abstract under this
section, does not extend the lien of the judgment more than 10
years from the original entry of the judgment in the justice
court.
(6) The fee for filing a transcript with the clerk of the
circuit court under subsection (2) of this section shall be as
provided in ORS 21.325 (2). The fee for recording a certified
copy of a justice court judgment or a lien record abstract under
this section shall be as provided in ORS 205.320.
(7) A justice court and circuit court may enter into an
agreement to allow for electronic transcription of justice court
judgments under this section. A justice court and county clerk
may enter into an agreement to allow for electronic recording of
judgments and lien record abstracts under this section.
SECTION 97. ORS 156.220 is amended to read:
156.220. { + Except as provided in section 6 (3) of this 2003
Act, + }any judgment rendered by a justice court on an offense
that imposes a monetary obligation must { - comply with ORS
137.071 and 137.073 - } { + contain the separate section
required by section 6 (2) of this 2003 Act + }.
SECTION 98. ORS 221.346 is amended to read:
221.346. (1) Subject to the requirements of ORS 221.344,
enforcement proceedings on a judgment docketed by a municipal
court may include:
(a) Writ of execution proceedings for personal property under
{ - ORS 23.030 to 23.105 and 23.410 to 23.600 - } { +
sections 29 to 44 of this 2003 Act + }.
{ - (b) Supplementary proceedings under ORS 23.710 to
23.730. - }
{ + (b) Proceedings in support of execution under sections
31, 32 and 33 of this 2003 Act. + }
(c) Garnishment proceedings under ORS 18.600 to 18.850.
(2) In addition to the enforcement proceedings specified in
subsection (1) of this section, a docketed municipal court
judgment may be enforced by the court that rendered the judgment
through the issuance of a writ of execution on real property
under
{ - ORS 23.030 to 23.105 and 23.410 to 23.600 - } { +
sections 29 to 44 of this 2003 Act + }. A writ of execution on
real property may be issued by a municipal court only after a
certified copy of the judgment or a lien record abstract for the
judgment is recorded in the County Clerk Lien Record for the
county in which the municipal court is located. { - As required
under ORS 23.030, upon issuance of a writ of execution, the party
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requesting the writ must record a certified copy of the writ or
an abstract of the writ in the County Clerk Lien Record of the
county in which the real property is located. - }
{ - (3) ORCP 70 A applies to civil judgments rendered by
municipal courts that are enforced pursuant to this section. ORS
137.071 and 137.073 apply to judgments enforced pursuant to this
section that are rendered in actions and proceedings resulting
from a person being accused and tried for the commission of an
offense. - }
{ + (3) ORS 137.071 and sections 4, 5 and 6 of this 2003 Act
apply to judgments rendered in municipal courts. + }
(4) The provisions of this section apply to all judgments
docketed in municipal courts, including judgments imposed in
violation proceedings and other criminal proceedings.
SECTION 99. ORS 221.351 is amended to read:
221.351. (1) Subject to the requirements of ORS 221.344, a lien
on real property of a judgment debtor may be acquired under a
judgment docketed in a municipal court in the manner provided in
this section. A lien on real property of a judgment debtor may be
acquired under the provisions of this section only if:
(a) The judgment when docketed in the municipal court exceeds
$3,000; or
(b) Two or more judgments against the same debtor are docketed
in a municipal court in favor of a single judgment creditor and
the total amount owing to the judgment creditor, determined by
adding the amount of each individual judgment as of the date the
judgment is docketed, is greater than $3,000.
(2) After a judgment is docketed in a municipal court, a
certified copy of the judgment or a lien record abstract for the
judgment may be recorded in the County Clerk Lien Record for the
county that contains the municipal court that rendered the
judgment. The judgment must be in an amount in excess of $3,000
as required by subsection (1) of this section, or be in excess of
$3,000 when added to one or more other judgments in favor of a
single judgment creditor as provided in subsection (1) of this
section. The certified copy or lien record abstract may be
recorded by the judgment creditor or by the agent of the judgment
creditor at any time after the judgment is rendered and before
the judgment expires under ORS 18.365 or is fully satisfied. From
the time the judgment is recorded in the County Clerk Lien
Record, the judgment is a lien upon the real property of the
defendant in the county.
(3) A certified copy of a docketed municipal court judgment or
a lien record abstract for the judgment may be recorded in any
County Clerk Lien Record. The judgment must be in an amount in
excess of $3,000 as required by subsection (1) of this section,
or be in excess of $3,000 when added to one or more other
judgments in favor of a single judgment creditor as provided in
subsection (1) of this section. A certified copy of the judgment
or a lien record abstract for the judgment need not be recorded
in the county that contains the court that rendered the judgment
before a certified copy or a lien record abstract is recorded in
any other county. If a certified copy of the judgment or a lien
record abstract for the judgment has been recorded in any County
Clerk Lien Record, a lien record abstract for the judgment in the
form provided by ORS 18.325 may be recorded in the County Clerk
Lien Record for any other county. From the time the certified
copy or lien record abstract is recorded in the County Clerk Lien
Record of another county, the judgment is a lien upon the real
property of the defendant in that county.
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(4) A certified copy of a { - municipal court judgment
renewed - } { + certificate of extension filed + } under ORS
18.365, or a lien record abstract for the { - renewed
judgment - } { + certificate of extension + }, may be recorded
in a County Clerk Lien Record in the same manner as provided for
{ - original - } judgments under this section and with like
effect. The judgment must meet the requirements of subsection (1)
of this section.
(5) The recording of a certified copy of a municipal court
judgment or a lien record abstract under this section does not
extend the lien of the judgment more than 10 years from the
original entry of the judgment in the municipal court.
(6) The fee for recording a certified copy of a municipal court
judgment or a lien record abstract under this section shall be as
provided in ORS 205.320.
(7) A municipal court and county clerk may enter into an
agreement to allow for electronic recording of judgments and lien
record abstracts under this section.
{ +
DOMESTIC RELATIONS + }
SECTION 100. { + Section 101 of this 2003 Act is added to and
made a part of ORS chapter 107. + }
SECTION 101. { + A judgment entered under this chapter may be
altered or modified only by the entry of a supplemental judgment
under sections 1 to 44 of this 2003 Act. + }
SECTION 102. ORS 107.005 is amended to read:
107.005. (1) A marriage may be declared void from the beginning
for any of the causes specified in ORS 106.020; and, whether so
declared or not, shall be deemed and held to be void in any
action, suit or proceeding in which it may come into question.
(2) When either husband or wife claims or pretends that the
marriage is void or voidable under the provisions of ORS 106.020,
it may at the suit of the other be declared valid or that it was
void from the beginning or that it is void from the time of the
{ - decree - } { + judgment + }.
(3) A marriage once declared valid by the { - decree - }
{ + judgment + } of a court having jurisdiction thereof, in a
suit for that purpose, cannot afterward be questioned for the
same cause directly or otherwise.
SECTION 103. ORS 107.015 is amended to read:
107.015. { + A judgment for + } the annulment or dissolution
of a marriage may be { - decreed - } { + rendered + } for the
following causes:
(1) When either party to the marriage was incapable of making
such contract or consenting thereto for want of legal age or
sufficient understanding;
(2) When the consent of either party was obtained by force or
fraud;
provided that in the situations described in subsection (1) or
(2) of this section the contract was not afterward ratified.
SECTION 104. ORS 107.025 is amended to read:
107.025. (1) { + A judgment for + } the dissolution of a
marriage or a permanent or unlimited separation may be
{ - decreed - } { + rendered + } when irreconcilable
differences between the parties have caused the irremediable
breakdown of the marriage.
Enrolled House Bill 2646 (HB 2646-B) Page 80
(2) { + A judgment for + } separation may be { - decreed - }
{ + rendered + } when:
(a) Irreconcilable differences between the parties have caused
a temporary or unlimited breakdown of the marriage;
(b) The parties make and file with the court an agreement
suspending for a period not less than one year their obligation
to live together as husband and wife, and the court finds such
agreement to be just and equitable; or
(c) Irreconcilable differences exist between the parties and
the continuation of their status as married persons preserves or
protects legal, financial, social or religious interest.
SECTION 105. ORS 107.036 is amended to read:
107.036. (1) The doctrines of fault and of in pari delicto are
abolished in suits for the annulment or dissolution of a marriage
or for separation.
(2) The court shall not receive evidence of specific acts of
misconduct, excepting where child custody is an issue and such
evidence is relevant to that issue, or excepting at a hearing
when the court finds such evidence necessary to prove
irreconcilable differences.
(3) In dividing, awarding and distributing the real and
personal property (or both) of the parties (or either of them)
between the parties, or in making such property or any of it
subject to a trust, and in fixing the amount and duration of the
contribution one party is to make to the support of the other,
the court shall not consider the fault, if any, of either of the
parties in causing grounds for the annulment or dissolution of
the marriage or for separation.
(4) Where satisfactory proof of grounds for the annulment or
dissolution of a marriage or for separation has been made, the
court shall { - not award a decree to either party but shall
only decree - } { + render a judgment for + } the annulment or
dissolution of the marriage or for separation. A { - decree - }
{ + judgment + } of separation shall state the duration of the
separation.
SECTION 106. ORS 107.085 is amended to read:
107.085. (1) A suit for marital annulment, dissolution or
separation shall be entitled: 'IN THE MATTER OF THE MARRIAGE OF
(names of parties): PETITION FOR (ultimate relief sought).' The
moving party shall be designated as the 'Petitioner' and the
other party the 'Respondent.' Nothing in this section shall
preclude both parties from acting as 'Copetitioners. '
(2) The petition shall state the following:
(a) The names, social security numbers, if known, and dates of
birth of all of the children born or adopted during the marriage,
and a reference to and expected date of birth of any children
conceived during the marriage but not yet born;
(b) The names, social security numbers, if known, and dates of
birth of all children born to the parties prior to the marriage;
and
(c) To the extent known, whether there is pending in this or
any other state a domestic relations suit, as defined in ORS
107.510, or any type of support proceeding involving dependents
of the same marriage, including one brought under ORS 108.110,
416.400 to 416.470 or this section.
(3) At or prior to the hearing of a suit for marital annulment,
dissolution or separation, the moving party or the party
attending the hearing shall file with the court a written
statement setting forth the full names and any former names of
the parties, the residence, mailing or contact addresses of the
Enrolled House Bill 2646 (HB 2646-B) Page 81
parties, the ages of both parties, their wage earner social
security account numbers, the date and place of the marriage of
the parties, and the names and ages of the children born to or
adopted by the parties. This information shall be incorporated in
and made a part of the { - decree - } { + judgment + }.
(4) If real property is involved, the petitioner may have a
notice of pendency of the action recorded at the time the
petition is filed, as provided in ORS 93.740.
SECTION 107. ORS 107.095 is amended to read:
107.095. (1) After the commencement of a suit for marital
annulment, dissolution or separation and until a { - decree - }
{ + general judgment + } therein, the court may provide as
follows:
(a) That a party pay to the clerk of the court such amount of
money as may be necessary to enable the other party to prosecute
or defend the suit, including costs of expert witnesses, and also
such amount of money to the Department of Justice, court clerk or
court administrator, whichever is appropriate, as may be
necessary to support and maintain the other party.
(b) For the care, custody, support and maintenance, by one
party or jointly, of the minor children as described in ORS
107.105 (1)(a) and for the parenting time rights as described in
ORS 107.105 (1)(b) of the parent not having custody of such
children.
(c) For the restraint of a party from molesting or interfering
in any manner with the other party or the minor children.
(d) That if minor children reside in the family home and the
court considers it necessary for their best interest to do so,
the court may require either party to move out of the home for
such period of time and under such conditions as the court may
determine, whether the home is rented, owned or being purchased
by one party or both parties.
(e) Restraining and enjoining either party or both from
encumbering or disposing of any of the real or personal property
of either or both of the parties, except as ordered by the court.
(f) For the temporary use, possession and control of the real
or personal property of the parties or either of them and the
payment of installment liens and encumbrances thereon.
(g) That even if no minor children reside in the family home,
the court may require one party to move out of the home for such
period of time and under such conditions as the court determines,
whether the home is rented, owned or being purchased by one party
or both parties if that party assaults or threatens to assault
the other.
{ - (2) In case default is made in the payment of any moneys
falling due under the terms of an order pending suit, any such
delinquent amount shall be entered and docketed as a judgment,
and execution or garnishment may issue thereon to enforce payment
thereof in the same manner and with like effect as upon a final
decree. The remedy provided in this subsection shall be deemed
cumulative and not exclusive. - }
{ + (2) A limited judgment under sections 1 to 44 of this
2003 Act may be entered in an action for dissolution or annulment
of a marriage providing for a support award, as defined by
section 1 of this 2003 Act, or other money award, as defined by
section 1 of this 2003 Act. Notwithstanding ORS 19.255, a limited
judgment entered under this subsection may not be appealed. Any
decision of the court in a limited judgment subject to this
subsection may be appealed as otherwise provided by law upon
entry of a general judgment. + }
Enrolled House Bill 2646 (HB 2646-B) Page 82
(3) The court shall not require an undertaking in case of the
issuance of an order under subsection (1)(c), (d), (e), (f) or
(g) of this section.
(4) In a suit for annulment or dissolution of marriage or for
separation, wherein the parties are copetitioners or the
respondent is found by the court to be in default or the
respondent having appeared has waived further appearance or the
parties stipulate to the entry of a { - decree - } { +
judgment + }, the court may, when the cause is otherwise ready
for hearing on the merits, in lieu of such hearing, enter a
{ - decree - } { + judgment + } of annulment or dissolution or
for separation based upon a current affidavit of the petitioner
or copetitioners, setting forth a prima facie case, and covering
such additional matters as the court may require. If child
support or custody of minor children is involved, then the
affidavit also shall include:
(a) The gross monthly income of each party, to the best of the
affiant's knowledge; and
(b) The name of the party with whom the children currently
reside and the length of time they have so resided.
(5) When a court orders relief under subsection (1)(c) or (d)
of this section, the court may include in its order an expiration
date for the order to allow entry of the order into the Law
Enforcement Data System and the databases of the National Crime
Information Center of the United States Department of Justice as
provided in ORS 107.720. If the person being restrained was
provided notice and an opportunity to be heard, the court shall
also include in the order, when appropriate, terms and findings
sufficient under 18 U.S.C. 922 (d)(8) or (g)(8) to affect the
person's ability to possess firearms and ammunition or engage in
activities involving firearms.
SECTION 108. ORS 107.104 is amended to read:
107.104. (1) It is the policy of this state:
(a) To encourage the settlement of suits for marital annulment,
dissolution or separation; and
(b) For courts to enforce the terms of settlements described in
subsection (2) of this section to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(2) In a suit for marital annulment, dissolution or separation,
the court may enforce the terms set forth in a stipulated
{ - decree - } { + judgment + } signed by the parties, a
{ - decree - } { + judgment + } resulting from a settlement on
the record or a { - decree - } { + judgment + } incorporating
a marital settlement agreement:
(a) As contract terms using contract remedies;
(b) By imposing any remedy available to enforce a
{ - decree - } { + judgment + }, including but not limited to
contempt; or
(c) By any combination of the provisions of paragraphs (a) and
(b) of this subsection.
(3) A party may seek to enforce an agreement and obtain
remedies described in subsection (2) of this section by filing a
motion, serving notice on the other party in the manner provided
by ORCP 7 and, if a remedy under subsection (2)(b) of this
section is sought, complying with the statutory requirements for
that remedy. All claims for relief arising out of the same acts
or omissions must be joined in the same proceeding.
(4) Nothing in subsection (2) or (3) of this section limits a
party's ability, in a separate proceeding, to file a motion to
Enrolled House Bill 2646 (HB 2646-B) Page 83
set aside, alter or modify a { - decree - } { + judgment + }
under ORS 107.135 or to seek enforcement of an ancillary
agreement to the { - decree - } { + judgment + }.
SECTION 109. ORS 107.105 is amended to read:
107.105. (1) Whenever the court { - grants a decree - } { +
renders a judgment + } of marital annulment, dissolution or
separation, { - it may further decree as follows - } { + the
court may provide in the judgment + }:
(a) For the future care and custody, by one party or jointly,
of all minor children of the parties born, adopted or conceived
during the marriage, and for minor children born to the parties
prior to the marriage, as the court may deem just and proper
under ORS 107.137. The court may hold a hearing to decide the
custody issue prior to any other issues. When appropriate, the
court shall recognize the value of close contact with both
parents and encourage joint parental custody and joint
responsibility for the welfare of the children.
(b) For parenting time rights of the parent not having custody
of such children, and for visitation rights pursuant to a
petition filed under ORS 109.119. When a parenting plan has been
developed as required by ORS 107.102, the court shall review the
parenting plan and, if approved, incorporate the parenting plan
into the court's final order. When incorporated into a final
order, the parenting plan is determinative of parenting time
rights. If the parents have been unable to develop a parenting
plan or if either of the parents requests the court to develop a
detailed parenting plan, the court shall develop the parenting
plan in the best interest of the child, ensuring the noncustodial
parent sufficient access to the child to provide for appropriate
quality parenting time and assuring the safety of the parties, if
implicated. The court may deny parenting time to the noncustodial
parent under this subsection only if the court finds that
parenting time would endanger the health or safety of the child.
The court shall recognize the value of close contact with both
parents and encourage, when practicable, joint responsibility for
the welfare of such children and extensive contact between the
minor children of the divided marriage and the parties. If the
court awards parenting time to a noncustodial parent who has
committed abuse, the court shall make adequate provision for the
safety of the child and the other parent in accordance with the
provisions of ORS 107.718 (4).
(c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established by
ORS 25.270 to 25.287 shall apply. The court may at any time
require an accounting from the custodial parent with reference to
the use of the money received as child support. The court is not
required to order support for any minor child who has become
self-supporting, emancipated or married, or who has ceased to
attend school after becoming 18 years of age.
(d) For spousal support, an amount of money for a period of
time as may be just and equitable for one party to contribute to
the other, in gross or in installments or both. The court may
approve an agreement for the entry of an order for the support of
a party. In making the spousal support order, the court shall
designate one or more categories of spousal support and shall
make findings of the relevant factors in the decision. The court
may order:
(A) Transitional spousal support as needed for a party to
attain education and training necessary to allow the party to
prepare for reentry into the job market or for advancement
Enrolled House Bill 2646 (HB 2646-B) Page 84
therein. The factors to be considered by the court in awarding
transitional spousal support include but are not limited to:
(i) The duration of the marriage;
(ii) A party's training and employment skills;
(iii) A party's work experience;
(iv) The financial needs and resources of each party;
(v) The tax consequences to each party;
(vi) A party's custodial and child support responsibilities;
and
(vii) Any other factors the court deems just and equitable.
(B) Compensatory spousal support when there has been a
significant financial or other contribution by one party to the
education, training, vocational skills, career or earning
capacity of the other party and when an order for compensatory
spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in
awarding compensatory spousal support include but are not limited
to:
(i) The amount, duration and nature of the contribution;
(ii) The duration of the marriage;
(iii) The relative earning capacity of the parties;
(iv) The extent to which the marital estate has already
benefited from the contribution;
(v) The tax consequences to each party; and
(vi) Any other factors the court deems just and equitable.
(C) Spousal maintenance as a contribution by one spouse to the
support of the other for either a specified or an indefinite
period. The factors to be considered by the court in awarding
spousal maintenance include but are not limited to:
(i) The duration of the marriage;
(ii) The age of the parties;
(iii) The health of the parties, including their physical,
mental and emotional condition;
(iv) The standard of living established during the marriage;
(v) The relative income and earning capacity of the parties,
recognizing that the wage earner's continuing income may be a
basis for support distinct from the income that the supported
spouse may receive from the distribution of marital property;
(vi) A party's training and employment skills;
(vii) A party's work experience;
(viii) The financial needs and resources of each party;
(ix) The tax consequences to each party;
(x) A party's custodial and child support responsibilities; and
(xi) Any other factors the court deems just and equitable.
(e) For the delivery to one party of such party's personal
property in the possession or control of the other at the time of
the giving of the { - decree - } { + judgment + }.
(f) For the division or other disposition between the parties
of the real or personal property, or both, of either or both of
the parties as may be just and proper in all the circumstances. A
retirement plan or pension or an interest therein shall be
considered as property. The court shall consider the contribution
of a spouse as a homemaker as a contribution to the acquisition
of marital assets. There is a rebuttable presumption that both
spouses have contributed equally to the acquisition of property
during the marriage, whether such property is jointly or
separately held. Subsequent to the filing of a petition for
annulment or dissolution of marriage or separation, the rights of
the parties in the marital assets shall be considered a species
of coownership, and a transfer of marital assets under a
Enrolled House Bill 2646 (HB 2646-B) Page 85
{ - decree - } { + judgment + } of annulment or dissolution of
marriage or of separation entered on or after October 4, 1977,
shall be considered a partitioning of jointly owned property. The
court shall require full disclosure of all assets by the parties
in arriving at a just property division. In arriving at a just
and proper division of property, the court shall consider
reasonable costs of sale of assets, taxes and any other costs
reasonably anticipated by the parties. If a spouse has been
awarded spousal support in lieu of a share of property, the court
shall so state on the record, and shall order the obligor to
provide for and maintain life insurance in an amount commensurate
with the obligation and designating the obligee as beneficiary
for the duration of the obligation. If the obligor dies prior to
the termination of such support and such insurance is not in
force, the court may modify the method of payment of spousal
support under the { - decree - } { + judgment + } or order of
support from installments to a lump sum payment to the obligee
from the estate of the obligor in an amount commensurate with the
present value of the spousal support at the time of death. The
obligee or attorney of the obligee shall cause a certified copy
of the { - decree - } { + judgment + } to be delivered to the
life insurance company or companies. If the obligee or the
attorney of the obligee delivers a true copy of the
{ - decree - } { + judgment + } to the life insurance company
or companies, identifying the policies involved and requesting
such notification under this section, the company or companies
shall notify the obligee, as beneficiary of the insurance policy,
whenever the policyholder takes any action that will change the
beneficiary or reduce the benefits of the policy. Either party
may request notification by the insurer when premium payments
have not been made. If the obligor is ordered to provide for and
maintain life insurance, the obligor shall provide to the obligee
a true copy of the policy. The obligor shall also provide to the
obligee written notice of any action that will reduce the
benefits or change the designation of the beneficiaries under the
policy.
(g) For the creation of trusts as follows:
(A) For the appointment of one or more trustees to hold,
control and manage for the benefit of the children of the
parties, of the marriage or otherwise, such of the real or
personal property of either or both of the parties, as the court
may order to be allocated or appropriated to their support and
welfare; and to collect, receive, expend, manage or invest any
sum of money
{ - decreed - } { + awarded + } for the support and welfare
of minor children of the parties.
(B) For the appointment of one or more trustees to hold, manage
and control such amount of money or such real or personal
property of either or both of the parties, as may be set aside,
allocated or appropriated for the support of a party.
(C) For the establishment of the terms of the trust and
provisions for the disposition or distribution of such money or
property to or between the parties, their successors, heirs and
assigns after the purpose of the trust has been accomplished.
Upon petition of a party or a person having an interest in the
trust showing a change of circumstances warranting a change in
the terms of the trust, the court may make and direct reasonable
modifications in its terms.
Enrolled House Bill 2646 (HB 2646-B) Page 86
(h) To change the name of either spouse to a name the spouse
held before the marriage. The court shall { - decree - } { +
order + } a change if it is requested by the affected party.
{ - (i) For a judgment against one party in favor of the
other for any sums of money found to be then remaining unpaid
upon any enforceable order or orders theretofore duly made and
entered in the proceedings under any of the provisions of ORS
107.095, and for a judgment against one party in favor of the
other or in favor of the other's attorney for any further sums as
additional attorney fees or additional costs and expenses of suit
or defense as the court finds reasonably and necessarily incurred
by such party; or, in the absence of any such order or orders
pendente lite, a like judgment for such amount of money as the
court finds was reasonably necessary to enable such party to
prosecute or defend the suit. The decree may include a judgment
for any arrearage in any sum ordered while litigation was
pending, but if such a judgment is not included in the decree,
such arrearages shall not be deemed satisfied. - }
{ + (i) For a money award for any sums of money found to be
then remaining unpaid upon any order or limited judgment entered
under ORS 107.095. If a limited judgment was entered under ORS
107.095, the limited judgment shall continue to be enforceable
for any amounts not paid under the limited judgment unless those
amounts are included in the money award made by the general
judgment.
(j) For an award of reasonable attorney fees in favor of a
party or in favor of a party's attorney. + }
(2) In determining the proper amount of support and the proper
division of property under subsection (1)(c), (d) and (f) of this
section, the court may consider evidence of the tax consequences
on the parties of its proposed { - decree - } { +
judgment + }.
(3) Upon the filing of the { - decree - } { + judgment + },
the property division ordered shall be deemed effective for all
purposes. This transfer by { - decree - } { + judgment + },
which shall effect solely owned property transferred to the other
spouse as well as commonly owned property in the same manner as
would a declaration of a resulting trust in favor of the spouse
to whom the property is awarded, shall not be deemed a taxable
sale or exchange.
(4) If an appeal is taken from a { - decree - } { +
judgment + } of annulment or dissolution of marriage or of
separation or from any part of a { - decree - } { +
judgment + } rendered in pursuance of the provisions of ORS
107.005 to 107.085, 107.095, 107.105, 107.115 to 107.174,
107.405, 107.425, 107.445 to 107.520, 107.540 and 107.610, the
court { - making such decree - } { + rendering the
judgment + } may provide in a { - separate order - } { +
supplemental judgment + } for any relief provided for in ORS
107.095 and shall provide that the { - order - } { + relief
granted in the judgment + } is to be in effect only during the
pendency of the appeal. A { - temporary order - } { +
supplemental judgment + } under this subsection may be enforced
as provided in ORS 33.015 to 33.155 { + and sections 1 to 44 of
this 2003 Act + }. { - On motion of a party the Court of
Appeals may review the trial court's disposition of a request for
a temporary order. A motion under this subsection must be filed
with the Court of Appeals within 14 days after the entry of the
temporary order. The Court of Appeals may modify the trial
court's order only if the Court of Appeals finds an abuse of
Enrolled House Bill 2646 (HB 2646-B) Page 87
discretion by the trial court. Upon such finding, the Court of
Appeals may enter a temporary order, affirm, modify or vacate the
trial court's order, remand the order to the trial court for
reconsideration or impose terms and conditions on the order. - }
{ + A supplemental judgment under this subsection may be
appealed in the same manner as provided for supplemental
judgments modifying a domestic relations judgment under ORS
19.275. + }
(5) If an appeal is taken from the { - decree - } { +
judgment + } or other appealable order in a suit for annulment or
dissolution of a marriage or for separation, and the appellate
court awards costs and disbursements to a party, it may also
award to that party, as part of the costs, such additional sum of
money as it may adjudge reasonable as an attorney fee on the
appeal.
(6) If, as a result of a suit for the annulment or dissolution
of a marriage or for separation, the parties to such suit become
owners of an undivided interest in any real or personal property,
or both, either party may maintain supplemental proceedings by
filing a petition in such suit for the partition of such real or
personal property, or both, within two years from the entry of
{ - said decree - } { + the judgment + }, showing among other
things that the original parties to { - such decree - } { +
the judgment + } and their joint or several creditors having a
lien upon any such real or personal property, if any there be,
constitute the sole and only necessary parties to such
supplemental proceedings. The procedure in the supplemental
proceedings, so far as applicable, shall be the procedure
provided in ORS 105.405, for the partition of real property, and
the court granting { - such decree - } { + the judgment + }
shall have in the first instance and retain jurisdiction in
equity therefor.
SECTION 110. ORS 107.108 is amended to read:
107.108. (1) In addition to any other authority of the court,
the court may enter an order against either parent, or both of
them, to provide for the support or maintenance of a child
attending school:
(a) After the commencement of a suit for annulment or
dissolution of a marriage or for separation from bed and board
and before the { - decree - } { + judgment + } therein;
(b) In a { - decree - } { + judgment + } of annulment or
dissolution of a marriage or of separation from bed and board;
and
(c) During the pendency of an appeal taken from all or part of
a { - decree - } { + judgment + } rendered in pursuance of
ORS 107.005 to 107.085, 107.095 to 107.174, 107.405, 107.425,
107.445 to 107.520, 107.540, 107.610 or this section.
(2) An order providing for temporary support pursuant to
subsection (1)(c) of this section may be modified at any time by
the court making the { - decree - } { + judgment + } appealed
from, shall provide that the support money be paid in monthly
installments, and shall further provide that it is to be in
effect only during the pendency of the appeal. No appeal lies
from any such temporary order.
(3) If the court provides for the support and maintenance of a
child attending school pursuant to this section, the child is a
party for purposes of matters related to that provision.
(4) When the court orders support under this section or the
administrator or a hearings officer orders support for a child
attending school under ORS 416.400 to 416.470, the court,
Enrolled House Bill 2646 (HB 2646-B) Page 88
administrator or hearings officer shall order that the support be
distributed to the child unless good cause is found for the
distribution of the payment to be made in some other manner. When
there are multiple children for whom support is ordered, the
amount paid directly to a child under this subsection is a
prorated share based on the number of children for whom support
is ordered unless otherwise ordered by the court, administrator
or hearings officer. The Department of Human Services shall adopt
rules to define good cause and circumstances under which the
administrator or hearings officer may allocate support by other
than a prorated share and to determine how support is to be
allocated in those circumstances.
(5) A child for whom support has been ordered under this
section:
(a) Must maintain the equivalent of a C average or better.
(b) Shall notify a parent paying support when the child ceases
to be a child attending school.
(c) Shall submit to the Department of Human Services and the
parent paying support, on a form developed by the department, all
information necessary to establish eligibility to receive support
under this section, including grades earned and the courses in
which the child is enrolled. The child shall submit the
information required by this paragraph within the first month of
each term or semester.
(6) If the child fails to comply with any of the requirements
imposed on the child by this section and upon written notice from
the obligor, the distribution of the support directly to the
child ceases and may not be reinstated unless the parent paying
support elects to continue to pay the support, in spite of the
child's failure to comply with the requirements of this section,
and notifies the Department of Human Services of the election in
writing. If the underlying support order is for the support of
more than one child, the parent shall pay the amount previously
paid directly to the child to the recipient of the rest of the
support until such time as the support order is modified. A
child's failure to comply with the requirements imposed by this
section is a substantial change of circumstances for purposes of
modification of a support order.
(7) Orders entered into prior to October 4, 1997, may be
modified to include the provisions of subsections (4) to (6) of
this section. However, the fact that an order entered, or
agreement entered into, prior to October 4, 1997, does not
contain any of the provisions of subsections (4) to (6) of this
section does not constitute a substantial change of circumstances
for purposes of modifying a child support order.
(8) As used in this section, 'child attending school' means a
child of the parties who is unmarried, is 18 years of age or
older and under 21 years of age and is a student regularly
attending school, community college, college or university, or
regularly attending a course of professional or technical
training designed to fit the child for gainful employment. A
child enrolled in an educational course load of less than
one-half that determined by the educational facility to
constitute 'full-time ' enrollment is not a 'child attending
school. '
SECTION 111. ORS 107.115 is amended to read:
107.115. (1) A { - decree - } { + judgment + } of annulment
or dissolution of a marriage restores the parties
{ - thereto - } to the status of unmarried persons, unless a
party is married to another person.
Enrolled House Bill 2646 (HB 2646-B) Page 89
{ - Such decree shall give - } { + The judgment gives + } the
court jurisdiction to award, to be effective immediately, the
relief provided by ORS 107.105. { - However, any judgment or
award provided for in the decree shall become effective as a lien
upon real property only upon docketing in the county where the
decree is originally entered as provided in ORS 18.320 and
18.360. In all other counties, the judgment or award shall become
a lien only upon recording a certified copy of the judgment or
lien record abstract or a certified copy of the decree in the
County Clerk Lien Record. The decree - } { + The judgment + }
shall revoke a will pursuant to the provisions of ORS 112.315.
(2) The marriage relationship is terminated when the court
signs the judgment of dissolution of marriage.
(3)(a) The Court of Appeals or Supreme Court shall continue to
have jurisdiction of an appeal pending at the time of the death
of either party. The appeal may be continued by the personal
representative of the deceased party. The attorney of record on
the appeal, for the deceased party, may be allowed a reasonable
attorney fee, to be paid from the decedent's estate. However,
costs on appeal may not be awarded to either party.
(b) The Court of Appeals or Supreme Court shall have the power
to determine finally all matters presented on such appeal.
Before making final disposition, the Court of Appeals or Supreme
Court may refer the proceeding back to the trial court for such
additional findings of fact as are required.
SECTION 112. ORS 107.135, as amended by section 4, chapter 116,
Oregon Laws 2003 (Enrolled House Bill 2277), is amended to read:
107.135. (1) The court may at any time after a { - decree - }
{ + judgment + } of annulment or dissolution of marriage or of
separation is granted, upon the motion of either party and after
service of notice on the other party in the manner provided by
ORCP 7, and after notice to the Division of Child Support when
required pursuant to subsection (9) of this section:
(a) Set aside, alter or modify so much of the { - decree - }
{ + judgment + } as may provide for the appointment and duties
of trustees, for the custody, parenting time, visitation, support
and welfare of the minor children and the children attending
school, as defined in ORS 107.108, including any provisions for
health or life insurance, or for the support of a party or for
life insurance under ORS 107.820 or 107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the
{ - decree - } { + judgment + } was given, were not residents
of the state, or were unknown to the court or were erroneously
omitted from the
{ - decree - } { + judgment + };
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
(d) Notwithstanding section 84 (2), chapter 827, Oregon Laws
1973, and after service of notice on the child in the manner
provided by law for service of a summons, suspend future support
for any child who has ceased to be a child attending school as
defined in ORS 107.108; and
(e) Set aside, alter or modify so much of the { - decree - }
{ + judgment + } as may provide for a property award based on
the enhanced earning capacity of a party that was awarded before
October 23, 1999. A property award may be set aside, altered or
modified under this paragraph:
Enrolled House Bill 2646 (HB 2646-B) Page 90
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) When a party moves to set aside, alter or modify the child
support provisions of the { - decree - } { + judgment + }:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the
{ - decree - } { + judgment + } the party is moving to set
aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the { - decree - } { + judgment + } the
party is moving to set aside, alter or modify. The party shall
use a certificate that is in a form established by court rule and
include information required by court rule and paragraph (a) of
this subsection.
(3) In a proceeding under this section to reconsider the
spousal or child support provisions of the { - decree - } { +
judgment + }, the following provisions apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the { - decree - } { + judgment + } provided for a
termination or reduction of spousal support at a designated age
in anticipation of the commencement of pension, social security
or other entitlement payments, and if the obligee is unable to
obtain the anticipated entitlement payments, that inability is
sufficient change in circumstances for the court to reconsider
its order of support.
(c) If social security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of social security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
(4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a { - decree - } { +
judgment + }, the following provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
Enrolled House Bill 2646 (HB 2646-B) Page 91
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits received on behalf of a child due
to a parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before March 1,
1999.
(E) Veterans' benefits received on behalf of a child due to a
parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before October 23,
1999.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
(5) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment order.
(6) Any modification of spousal support granted because of a
change of circumstances may be ordered effective retroactive to
the date the motion for modification was filed or to any date
thereafter.
Enrolled House Bill 2646 (HB 2646-B) Page 92
(7) The { - decree - } { + judgment + } is { - a final
judgment - } { + final + } as to any installment or payment of
money that has accrued up to the time either party makes a motion
to set aside, alter or modify the
{ - decree - } { + judgment + }, and the court does not have
the power to set aside, alter or modify such { - decree - }
{ + judgment + }, or any portion thereof, that provides for any
payment of money, either for minor children or the support of a
party, that has accrued prior to the filing of such motion.
However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or { - decree - } { +
judgment + }, during which the obligated parent has physical
custody of the child with the knowledge and consent of the
custodial parent; and
(b) The court or the administrator, as defined in ORS 25.010,
may allow, as provided in the rules of the Child Support Program,
a credit against child support arrearages for any Social Security
or Veterans' benefits paid retroactively to the child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of a parent's disability or retirement.
(8) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
(9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
(10)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
(11) In a proceeding under this section to reconsider
provisions in a { - decree - } { + judgment + } relating to
custody or parenting time, the court may consider repeated and
unreasonable denial of, or interference with, parenting time to
be a substantial change of circumstances.
(12) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
(13)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
Enrolled House Bill 2646 (HB 2646-B) Page 93
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 112a. If House Bill 2111 becomes law, ORS 107.135, as
amended by section 4, chapter 116, Oregon Laws 2003 (Enrolled
House Bill 2277), and section 112 of this 2003 Act, is amended to
read:
107.135. (1) The court may at any time after a judgment of
annulment or dissolution of marriage or of separation is granted,
upon the motion of either party and after service of notice on
the other party in the manner provided by ORCP 7, and after
notice to the Division of Child Support when required
{ - pursuant to - } { + under + } subsection (9) of this
section:
(a) Set aside, alter or modify { - so much - } { + any
portion + } of the judgment { - as may provide - } { + that
provides + } for the appointment and duties of trustees, for the
custody, parenting time, visitation, support and welfare of the
minor children and the children attending school, as defined in
ORS 107.108, including any
{ - provisions for - } health or life insurance { +
provisions + }, { - or - } for the support of a party or for
life insurance under ORS 107.820 or 107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the judgment was
given, were not residents of the state, or were unknown to the
court or were erroneously omitted from the judgment;
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
(d) Notwithstanding section 84 (2), chapter 827, Oregon Laws
1973, and after service of notice on the child in the manner
provided by law for service of a summons, suspend future support
for any child who has ceased to be a child attending school as
defined in ORS 107.108; and
(e) Set aside, alter or modify { - so much - } { + any
portion + } of the judgment { - as may provide - } { + that
provides + } for a property award based on the enhanced earning
capacity of a party that was awarded before October 23, 1999. A
property award may be set aside, altered or modified under this
paragraph:
Enrolled House Bill 2646 (HB 2646-B) Page 94
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) When a party moves to set aside, alter or modify the child
support provisions of the judgment:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
(3) In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, the
following provisions apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the judgment provided for a termination or reduction of
spousal support at a designated age in anticipation of the
commencement of pension, social security or other entitlement
payments, and if the obligee is unable to obtain the anticipated
entitlement payments, that inability is sufficient change in
circumstances for the court to reconsider its order of support.
(c) If social security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of social security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
(4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a judgment, the following
provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
Enrolled House Bill 2646 (HB 2646-B) Page 95
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits received on behalf of a child due
to a parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before March 1,
1999.
(E) Veterans' benefits received on behalf of a child due to a
parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before October 23,
1999.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
(5) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment order.
(6) Any modification of spousal support granted because of a
change of circumstances may be ordered effective retroactive to
the date the motion for modification was { - filed - } { +
served + } or to any date thereafter.
(7) The judgment is final as to any installment or payment of
money that has accrued up to the time { - either party
Enrolled House Bill 2646 (HB 2646-B) Page 96
makes - } { + the nonmoving party, other than the state, is
served with + } a motion to set aside, alter or modify the
judgment { + . + } { - , and - } The court { - does not have
the power to - } { + may not + } set aside, alter or modify
{ - such judgment, or - } any portion { - thereof, - } { +
of the judgment + } that provides for any payment of money,
either for minor children or { + for + } the support of a party,
that has accrued { - prior to the filing of such motion - }
{ + before the motion is served + }. However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or judgment, during which
the { - obligated parent - } { + obligor, with the knowledge
and consent of the obligee or pursuant to court order, + } has
physical custody of the child { - with the knowledge and
consent of the custodial parent - } ; and
(b) The court { - or the administrator, as defined in ORS
25.010, - } may allow, as provided in the rules of the Child
Support Program, a credit against child support arrearages for
any Social Security or Veterans' benefits paid retroactively to
the child, or to a representative payee administering the funds
for the child's use and benefit, as a result of a parent's
disability or retirement.
(8) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
(9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
(10)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
(11) In a proceeding under this section to reconsider
provisions in a judgment relating to custody or parenting time,
the court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
(12) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
(13)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
Enrolled House Bill 2646 (HB 2646-B) Page 97
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 112b. If House Bill 2111 becomes law, ORS 107.135, as
amended by section 1, chapter 419, Oregon Laws 2003 (Enrolled
House Bill 2111), is amended to read:
107.135. (1) The court may at any time after a { - decree - }
{ + judgment + } of annulment or dissolution of marriage or of
separation is granted, upon the motion of either party and after
service of notice on the other party in the manner provided by
ORCP 7, and after notice to the Division of Child Support when
required under subsection { - (8) - } { + (9) + } of this
section:
(a) Set aside, alter or modify any portion of the
{ - decree - } { + judgment + } that provides for the
appointment and duties of trustees, for the custody, parenting
time, visitation, support and welfare of the minor children and
the children attending school, as defined in ORS 107.108,
including any health or life insurance provisions, for the
support of a party or for life insurance under ORS 107.820 or
107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the
{ - decree - } { + judgment + } was given, were not residents
of the state, or were unknown to the court or were erroneously
omitted from the
{ - decree - } { + judgment + };
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
(d) Notwithstanding section 84 (2), chapter 827, Oregon Laws
1973, and after service of notice on the child in the manner
provided by law for service of a summons, suspend future support
for any child who has ceased to be a child attending school as
defined in ORS 107.108; and
(e) Set aside, alter or modify { - so much - } { + any
portion + } of the
{ - decree - } { + judgment + } { - as may provide - }
{ + that provides + } for a property award based on the
enhanced earning capacity of a party that was awarded before
Enrolled House Bill 2646 (HB 2646-B) Page 98
October 23, 1999. A property award may be set aside, altered or
modified under this paragraph:
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
{ + (2) When a party moves to set aside, alter or modify the
child support provisions of the judgment:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection. + }
{ - (2) - } { + (3) + } In a proceeding under this section
to reconsider the spousal or child support provisions of the
{ - decree - } { + judgment + }, the following provisions
apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the { - decree - } { + judgment + } provided for a
termination or reduction of spousal support at a designated age
in anticipation of the commencement of pension, social security
or other entitlement payments, and if the obligee is unable to
obtain the anticipated entitlement payments, that inability is
sufficient change in circumstances for the court to reconsider
its order of support.
(c) If social security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of social security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
{ - (3) - } { + (4) + } In considering under this section
whether a change in circumstances exists sufficient for the court
to reconsider spousal or child support provisions of a
{ - decree - } { + judgment + }, the following provisions
apply:
Enrolled House Bill 2646 (HB 2646-B) Page 99
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits received on behalf of a child due
to a parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before March 1,
1999.
(E) Veterans' benefits received on behalf of a child due to a
parent's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before October 23,
1999.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
{ - (4) - } { + (5) + } Upon terminating a duty of spousal
support, a court shall make specific findings of the basis for
the termination and shall include the findings in the judgment
order.
Enrolled House Bill 2646 (HB 2646-B) Page 100
{ - (5) - } { + (6) + } Any modification of spousal support
granted because of a change of circumstances may be ordered
effective retroactive to the date the motion for modification was
served or to any date thereafter.
{ - (6) - } { + (7) + } The { - decree - } { +
judgment + } is { - a final judgment - } { + final + } as to
any installment or payment of money that has accrued up to the
time the nonmoving party, other than the state, is served with a
motion to set aside, alter or modify the { - decree - } { +
judgment + }. The court may not set aside, alter or modify any
portion of the
{ - decree - } { + judgment + } that provides for any payment
of money, either for minor children or for the support of a
party, that has accrued before the motion is served. However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or { - decree - } { +
judgment + }, during which the obligor, with the knowledge and
consent of the obligee or pursuant to court order, has physical
custody of the child; and
(b) The court may allow, as provided in the rules of the Child
Support Program, a credit against child support arrearages for
any Social Security or veterans' benefits paid retroactively to
the child, or to a representative payee administering the funds
for the child's use and benefit, as a result of a parent's
disability or retirement.
{ - (7) - } { + (8) + } In a proceeding under subsection
(1) of this section, the court may assess against either party a
reasonable attorney fee and costs for the benefit of the other
party. If a party is found to have acted in bad faith, the court
shall order that party to pay a reasonable attorney fee and costs
of the defending party.
{ - (8) - } { + (9) + } Whenever a motion to establish,
modify or terminate child support or satisfy or alter support
arrearages is filed and the child support rights of one of the
parties or of a child of both of the parties have been assigned
to the state, a true copy of the motion shall be served by mail
or personal delivery on the Administrator of the Division of
Child Support of the Department of Justice or on the branch
office providing support services to the county in which the
motion is filed.
{ - (9)(a) - } { + (10)(a) + } Except as provided in ORS
109.701 to 109.834, the courts of Oregon, having once acquired
personal and subject matter jurisdiction in a domestic relations
action, retain such jurisdiction regardless of any change of
domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
{ - (10) - } { + (11) + } In a proceeding under this
section to reconsider provisions in a { - decree - } { +
judgment + } relating to custody or parenting time, the court may
consider repeated and unreasonable denial of, or interference
with, parenting time to be a substantial change of circumstances.
{ - (11) - } { + (12) + } Within 30 days after service of
notice under subsection (1) of this section, the party served
shall file a written response with the court.
{ - (12)(a) - } { + (13)(a) + } It is the policy of this
state:
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(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 113. ORS 107.159 is amended to read:
107.159. (1) In any court order or { - decree - } { +
judgment + } granting custody of a minor child and parenting time
or visitation rights relating to the child, except for an order
under ORS 107.700 to 107.732, the court shall include in its
order a provision requiring that neither parent may move to a
residence more than 60 miles further distant from the other
parent without giving the other parent reasonable notice of the
change of residence and providing a copy of such notice to the
court.
(2) Notwithstanding subsection (1) of this section, a parent is
not required to give notice of a change of residence if the
court, upon ex parte or other motion of the parent and for good
cause, enters an order suspending the requirement.
SECTION 114. ORS 107.169 is amended to read:
107.169. (1) As used in this chapter, 'joint custody' means an
arrangement by which parents share rights and responsibilities
for major decisions concerning the child, including, but not
limited to, the child's residence, education, health care and
religious training. An order providing for joint custody may
specify one home as the primary residence of the child and
designate one parent to have sole power to make decisions about
specific matters while both parents retain equal rights and
responsibilities for other decisions.
(2) The existence of an order of joint custody shall not, by
itself, determine the responsibility of each parent to provide
for the support of the child.
(3) The court shall not order joint custody, unless both
parents agree to the terms and conditions of the order.
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(4) When parents have agreed to joint custody in an order or a
{ - decree - } { + judgment + }, the court may not overrule
that agreement by ordering sole custody to one parent.
(5) Modification of a joint custody order shall require showing
of changed circumstances and a showing that the modification is
in the best interests of the child such as would support
modification of a sole custody order. Inability or unwillingness
to continue to cooperate shall constitute a change of
circumstances sufficient to modify a joint custody order.
SECTION 115. ORS 107.174 is amended to read:
107.174. (1) Except as otherwise provided in this subsection,
the court shall order modification under ORS 107.135 of so much
of a { - decree - } { + judgment + } as relates to the
parenting time with a minor child, if the parents submit to the
court a notarized stipulation signed by both of the parents and
requesting such modification together with a form of order. The
content and form of such stipulation and order shall be as
prescribed by the State Court Administrator. At its discretion,
the court may order the matter set for a hearing and require the
parties to appear personally before the court.
(2) This section shall not apply when the child to whom a duty
of support is owed is in another state which has enacted the
Uniform Child Custody Jurisdiction Act or the Uniform Child
Custody Jurisdiction and Enforcement Act and a court in that
state would have subject matter and personal jurisdiction under
that Act to determine custody and parenting time rights.
SECTION 116. ORS 107.179 is amended to read:
107.179. (1) When either party to a child custody issue, other
than one involving temporary custody, whether the issue arises
from a case of marital annulment, dissolution or separation, or
from a determination of paternity, requests the court to grant
joint custody of the minor children of the parties under ORS
107.105, the court, if the other party objects to the request for
joint custody, shall proceed under this section. The request
under this subsection must be made, in the petition or the
response, or otherwise not less than 30 days before the date of
trial in the case, except for good cause shown. The court in such
circumstances, except as provided in subsection (3) of this
section, shall direct the parties to participate in mediation in
an effort to resolve their differences concerning custody. The
court may order such participation in mediation within a
mediation program established by the court or as conducted by any
mediator approved by the court. Unless the court or the county
provides a mediation service available to the parties, the court
may order that the costs of the mediation be paid by one or both
of the parties, as the court finds equitable upon consideration
of the relative ability of the parties to pay those costs. If,
after 90 days, the parties do not arrive at a resolution of their
differences, the court shall proceed to determine custody.
(2) At its discretion, the court may:
(a) Order mediation under this section prior to trial and
postpone trial of the case pending the outcome of the mediation,
in which case the issue of custody shall be tried only upon
failure to resolve the issue of custody by mediation;
(b) Order mediation under this section prior to trial and
proceed to try the case as to issues other than custody while the
parties are at the same time engaged in the mediation, in which
case the issue of custody shall be tried separately upon failure
to resolve the issue of custody by mediation; or
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(c) Complete the trial of the case on all issues and order
mediation under this section upon the conclusion of the trial,
postponing entry of the { - decree - } { + judgment + }
pending outcome of the mediation, in which case the court may
enter a { - temporary decree - } { + limited judgment + } as
to issues other than custody upon completion of the trial or may
postpone entry of any { - decree - } { + judgment + } until
the expiration of the mediation period or agreement of the
parties as to custody.
(3) If either party objects to mediation on the grounds that to
participate in mediation would subject the party to severe
emotional distress and moves the court to waive mediation, the
court shall hold a hearing on the motion. If the court finds it
likely that participation in mediation will subject the party to
severe emotional distress, the court may waive the requirement of
mediation.
(4) Communications made by or to a mediator or between parties
as a part of mediation ordered under this section are privileged
and are not admissible as evidence in any civil or criminal
proceeding.
SECTION 117. ORS 107.400 is amended to read:
107.400. At any time prior to the entry of a { - decree - }
{ + judgment + }, upon motion of a party and due notice to the
other party in the manner provided by law for service of summons,
the court may allow an amendment of pleadings to change the
relief sought from annulment to dissolution or separation, from
dissolution to annulment or separation, or from separation to
annulment or dissolution.
SECTION 118. ORS 107.407 is amended to read:
107.407. If an individual has paid an amount of money in
installments for more than 10 years for the support of a former
spouse under a { - court decree - } { + judgment + } of
annulment or dissolution of marriage that ordered such payment,
and when the former spouse has not made a reasonable effort
during that period of time to become financially self-supporting
and independent of the support provided under the
{ - decree - } { + judgment + }, the individual paying the
support may petition the court that issued the { - decree - }
{ + judgment + } to set aside so much of the { - decree - }
{ + judgment + } as may provide for the support of the former
spouse. The petition shall not be granted if spousal support was
granted in the { - decree - } { + judgment + } in lieu of a
share of property in order to provide the other spouse with a tax
benefit.
SECTION 119. ORS 107.412 is amended to read:
107.412. (1) Upon petition of an individual and after service
of notice on the other party in the manner provided by law for
service of a summons, the court shall conduct a proceeding to
determine whether so much of its { - decree - } { +
judgment + } as provides for the support of a party shall be set
aside.
(2) Except as provided in subsections (3) and (4) of this
section, if the court finds that the party receiving support has
not made a reasonable effort during the previous 10 years to
become financially self-supporting and independent of the support
provided under the { - decree - } { + judgment + }, the court
shall order that support terminated. In making its finding under
this subsection, the court shall consider the following matters:
(a) The age of the party receiving support;
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(b) The health, work experience and earning capacity of the
party;
(c) The ages, health and dependency conditions of the minor
children of the party; and
(d) Efforts made by the party during the previous 10 years to
improve opportunities for gainful or improved employment
including, but not limited to, attendance at any school,
community college or university or attendance at courses of
professional or technical training.
(3) A court does not have power under ORS 107.407 and this
section to set aside any payment of money for the support of a
party that has accrued prior to the filing of the petition under
subsection (1) of this section.
(4) ORS 107.407 and this section do not affect a
{ - decree - } { + judgment + }, or any portion of it, that
provides for the payment of money for the support of minor
children or for the support of a party who is 60 years of age or
older when the proceeding under subsection (1) of this section is
held.
(5) In a proceeding held under subsection (1) of this section,
the court may assess against either party a reasonable attorney
fee for the benefit of the other party.
SECTION 120. ORS 107.415 is amended to read:
107.415. (1) If a party is required by a { - decree - } { +
judgment + } of a court in a domestic relations suit, as defined
in ORS 107.510, to contribute to the support, nurture or
education of a minor child while the other party has custody
thereof, the custodial parent shall notify the party contributing
such money when the minor child receives income from the gainful
employment of the child, or is married or enters the military
service.
(2) Any custodial parent who does not provide notice, as
required by subsection (1) of this section may be required by the
court to make restitution to the contributing party of any money
paid, as required by the { - decree - } { + judgment + }. The
court may enter a { + supplemental + } judgment or satisfy all
or part of { - any accrued judgment - } { + the support
award + } to accomplish the restitution.
SECTION 121. ORS 107.425 is amended to read:
107.425. (1) In suits or proceedings described in subsection
(4) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability and
financial worth of the parties for the purpose of protecting the
children's future interest. The court may defer the entry of a
{ - final - } { + general + } judgment until the court is
satisfied that its judgment in such suit or proceeding will
properly protect the welfare of such children. The investigative
findings shall be offered as and subject to all rules of
evidence. Costs of the investigation may be charged against one
or more of the parties or as a cost in the proceedings but shall
not be charged against funds appropriated for indigent defense
services.
(2) The court, on its own motion or on the motion of a party,
may order an independent physical, psychological, psychiatric or
mental health examination of a party or the children and may
require any party and the children to be interviewed, evaluated
and tested by an expert or panel of experts. The court may also
authorize the expert or panel of experts to interview other
persons and to request other persons to make available to the
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expert or panel of experts records deemed by the court or the
expert or panel of experts to be relevant to the evaluation. The
court may order the parties to authorize the disclosure of such
records. In the event the parties are unable to stipulate to the
selection of an expert or panel of experts to conduct the
examination or evaluation, the court shall appoint a qualified
expert or panel of experts. The court shall direct one or more of
the parties to pay for the examination or evaluation in the
absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses
be charged against funds appropriated for indigent defense
services. If more than one party is directed to pay, the court
may determine the amount that each party will pay based on
financial ability.
(3)(a) In addition to an investigation, examination or
evaluation under subsections (1) and (2) of this section, the
court may appoint an individual or a panel or may designate a
program to assist the court in creating parenting plans or
resolving disputes regarding parenting time and to assist parents
in creating and implementing parenting plans. The services
provided to the court and to parents under this section may
include:
(A) Gathering information;
(B) Monitoring compliance with court orders;
(C) Providing the parents, their attorneys, if any, and the
court with recommendations for new or modified parenting time
provisions; and
(D) Providing parents with problem solving, conflict management
and parenting time coordination services or other services
approved by the court.
(b) Services provided under this section may require the
provider to possess and utilize mediation skills, but the
services are not comprised exclusively of mediation services
under ORS 107.755 to 107.785. If only mediation services are
provided, the provisions of ORS 107.755 to 107.785 apply.
(c) The court may order one or more of the parties to pay for
services provided under this subsection, if the parties are
unable to agree on their respective responsibilities for payment.
The court may not order that expenses be charged against funds
appropriated for indigent defense services.
(d) The presiding judge of each judicial district shall
establish qualifications for the appointment and training of
individuals and panels and the designation of programs under this
section. In establishing qualifications, a presiding judge shall
take into consideration any guidelines recommended by the
statewide family law advisory committee.
(4) The provisions of this section apply when:
(a) A person files a domestic relations suit, as defined in ORS
107.510;
(b) A motion to modify an existing { - decree - } { +
judgment + } in a domestic relations suit is before the court;
(c) A parent of a child born out of wedlock initiates a civil
proceeding to determine custody or support under ORS 109.103;
(d) A person petitions or files a motion for intervention under
ORS 109.119;
(e) A person or state agency files a petition under ORS 109.125
to establish paternity and paternity is established; or
(f) A habeas corpus proceeding is before the court.
(5) Application of the provisions of subsection (1), (2) or (3)
of this section to the proceedings under subsection (4) of this
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section does not prevent initiation, entry or enforcement of an
order of support.
(6) The court, on its own motion or on the motion of a party,
may appoint counsel for the children. However, if requested to do
so by one or more of the children, the court shall appoint
counsel for the child or children. A reasonable fee for an
attorney so appointed may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged
against funds appropriated for indigent defense services.
(7) Prior to the entry of an order, the court on its own motion
or on the motion of a party may take testimony from or confer
with the child or children of the marriage and may exclude from
the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an
attorney for each party to attend the conference and question the
child, and the conference shall be reported.
SECTION 122. ORS 107.425, as amended by section 6c, chapter
873, Oregon Laws 2001, is amended to read:
107.425. (1) In suits or proceedings described in subsection
(4) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability and
financial worth of the parties for the purpose of protecting the
children's future interest. The court may defer the entry of a
{ - final - } { + general + } judgment until the court is
satisfied that its judgment in such suit or proceeding will
properly protect the welfare of such children. The investigative
findings shall be offered as and subject to all rules of
evidence. Costs of the investigation may be charged against one
or more of the parties or as a cost in the proceedings but shall
not be charged against funds appropriated for public defense
services.
(2) The court, on its own motion or on the motion of a party,
may order an independent physical, psychological, psychiatric or
mental health examination of a party or the children and may
require any party and the children to be interviewed, evaluated
and tested by an expert or panel of experts. The court may also
authorize the expert or panel of experts to interview other
persons and to request other persons to make available to the
expert or panel of experts records deemed by the court or the
expert or panel of experts to be relevant to the evaluation. The
court may order the parties to authorize the disclosure of such
records. In the event the parties are unable to stipulate to the
selection of an expert or panel of experts to conduct the
examination or evaluation, the court shall appoint a qualified
expert or panel of experts. The court shall direct one or more of
the parties to pay for the examination or evaluation in the
absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses
be charged against funds appropriated for public defense
services. If more than one party is directed to pay, the court
may determine the amount that each party will pay based on
financial ability.
(3)(a) In addition to an investigation, examination or
evaluation under subsections (1) and (2) of this section, the
court may appoint an individual or a panel or may designate a
program to assist the court in creating parenting plans or
resolving disputes regarding parenting time and to assist parents
in creating and implementing parenting plans. The services
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provided to the court and to parents under this section may
include:
(A) Gathering information;
(B) Monitoring compliance with court orders;
(C) Providing the parents, their attorneys, if any, and the
court with recommendations for new or modified parenting time
provisions; and
(D) Providing parents with problem solving, conflict management
and parenting time coordination services or other services
approved by the court.
(b) Services provided under this section may require the
provider to possess and utilize mediation skills, but the
services are not comprised exclusively of mediation services
under ORS 107.755 to 107.785. If only mediation services are
provided, the provisions of ORS 107.755 to 107.785 apply.
(c) The court may order one or more of the parties to pay for
services provided under this subsection, if the parties are
unable to agree on their respective responsibilities for payment.
The court may not order that expenses be charged against funds
appropriated for public defense services.
(d) The presiding judge of each judicial district shall
establish qualifications for the appointment and training of
individuals and panels and the designation of programs under this
section. In establishing qualifications, a presiding judge shall
take into consideration any guidelines recommended by the
statewide family law advisory committee.
(4) The provisions of this section apply when:
(a) A person files a domestic relations suit, as defined in ORS
107.510;
(b) A motion to modify an existing { - decree - } { +
judgment + } in a domestic relations suit is before the court;
(c) A parent of a child born out of wedlock initiates a civil
proceeding to determine custody or support under ORS 109.103;
(d) A person petitions or files a motion for intervention under
ORS 109.119;
(e) A person or state agency files a petition under ORS 109.125
to establish paternity and paternity is established; or
(f) A habeas corpus proceeding is before the court.
(5) Application of the provisions of subsection (1), (2) or (3)
of this section to the proceedings under subsection (4) of this
section does not prevent initiation, entry or enforcement of an
order of support.
(6) The court, on its own motion or on the motion of a party,
may appoint counsel for the children. However, if requested to do
so by one or more of the children, the court shall appoint
counsel for the child or children. A reasonable fee for an
attorney so appointed may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged
against funds appropriated for public defense services.
(7) Prior to the entry of an order, the court on its own motion
or on the motion of a party may take testimony from or confer
with the child or children of the marriage and may exclude from
the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an
attorney for each party to attend the conference and question the
child, and the conference shall be reported.
SECTION 123. ORS 107.431, as amended by section 5, chapter 116,
Oregon Laws 2003 (Enrolled House Bill 2277), is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 108
107.431. (1) At any time after a { - decree - } { +
judgment + } of annulment or dissolution of a marriage or a
separation is granted, the court may set aside, alter or modify
so much of the { - decree - } { + judgment + } relating to
parenting time with a minor child as it deems just and proper or
may terminate or modify that part of the order or
{ - decree - } { + judgment + } requiring payment of money for
the support of the minor child with whom parenting time is being
denied after:
(a) Motion to set aside, alter or modify is made by the parent
having parenting time rights;
(b) Service of notice on the parent or other person having
custody of the minor child is made in the manner provided by law
for service of a summons;
(c) Service of notice on the Administrator of the Division of
Child Support of the Department of Justice when the child support
rights of one of the parties or of a child of both of the parties
have been assigned to the state. As an alternative to the service
of notice on the administrator, service may be made upon the
branch office of the division which provides service to the
county in which the motion was filed. Service may be accomplished
by personal delivery or first class mail; and
(d) A showing that the parent or other person having custody of
the child or a person acting in that parent or other person's
behalf has interfered with or denied without good cause the
exercise of the parent's parenting time rights.
(2) When a party moves to set aside, alter or modify the child
support provisions of the { - decree - } { + judgment + }:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the child,
including a proceeding brought under ORS 25.287, 107.135,
109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the child, other than the { - decree - } { +
judgment + } the party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the { - decree - } { + judgment + } the
party is moving to set aside, alter or modify. The party shall
use a certificate that is in a form established by court rule and
include information required by court rule and paragraph (a) of
this subsection.
(3) The court may request the appearance of the administrator
in any proceeding under this section in which it finds that the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state.
(4) This section does not apply when the child to whom a duty
of support is owed is in another state that has enacted the
Uniform Child Custody Jurisdiction Act or the Uniform Child
Custody Jurisdiction and Enforcement Act and a court in that
state would have subject matter and personal jurisdiction under
that Act to determine custody and parenting time rights.
SECTION 124. ORS 107.445 is amended to read:
107.445. In any proceeding brought under ORS 107.095, 108.110
and 108.120, and in any contempt proceeding in any suit for
marital annulment, dissolution or separation, the court may
{ - make an order - } { + render a judgment + } awarding to a
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party, or directly to the party's attorney, a sum of money
determined to be reasonable as an attorney fee at trial and on
appeal therein. When a district attorney initiates or prosecutes
a proceeding pursuant to ORS 33.015 to 33.155 for enforcement of
a restraining order issued under ORS 107.716, 107.718, 124.015 or
124.020 or for enforcement of a support order, the court may
{ - order - } { + enter a judgment for + } a reasonable
attorney fee to be paid by the respondent to the county in which
the district attorney holds office. { - The order shall be
entered and docketed as a judgment, and execution may issue
thereon in the same manner and with like effect as upon a final
decree. - } A judgment so { - ordered or decreed - } { +
entered + } is enforceable by the party or attorney in whose
favor the { - order is issued - } { + judgment is given + }
against property of the other party or against any property held
jointly or in common between the parties.
SECTION 125. ORS 107.449 is amended to read:
107.449. (1) Upon motion of a party to a proceeding under ORS
107.135 (1) that is not otherwise covered under the provisions of
ORS 25.100 (1), based upon convenience of the parties, the court
that has entered the original judgment { - or decree - } may
order that the matter be transferred to an auxiliary circuit
court where either party resides for the purpose of hearing the
matter.
(2) Upon entry of an order under this section and payment by
the moving party of the copying and certification costs, the
clerk of the court that ordered the transfer shall transmit
certified copies of the files, records and prepared transcripts
of testimony in the original proceeding to the clerk of the court
receiving the matter. Upon receipt of such certified copies, the
circuit court of the county to which such certified copies have
been transmitted shall have jurisdiction the same as if it were
the court that made and entered the original order or
{ - decree - } { + judgment + }.
(3) The only court having jurisdiction to modify any provision
of the original order or { - decree - } { + judgment + } is
the court having original jurisdiction of the cause in which such
order or
{ - decree - } { + judgment + } was entered or the circuit
court of the county in which either party resides if that court
has received the certified copies referred to in subsection (2)
of this section. The provisions of ORS 25.100 (2) to (4) shall
apply to all records maintained and orders issued in the
auxiliary proceeding.
SECTION 126. ORS 107.455 is amended to read:
107.455. The provisions of law pertaining to separation are not
intended to and shall not repeal or affect any existing law
pertaining to the granting of a { - decree - } { +
judgment + } of dissolution of marriage. The entry of a
{ - decree - } { + judgment + } of separation under ORS
107.475 shall not be a bar to a suit for dissolution by either
party. { - No - } { + A + } decree { + or judgment + }of
dissolution of marriage granted by a court of this or any other
state upon constructive service of summons { - shall - }
{ + does not + } affect an award of support or maintenance in a
{ - decree - } { + judgment + } of separation made pursuant to
ORS 107.095 or 107.105.
SECTION 127. ORS 107.465 is amended to read:
107.465. (1) Upon motion of a party for an order to show cause
why a { - decree - } { + judgment + } of separation should
Enrolled House Bill 2646 (HB 2646-B) Page 110
not be converted to a { - decree - } { + judgment + } of
dissolution and after service of notice to the other party at
least 30 days before the scheduled hearing, the court may, within
two years after the entry of a
{ - decree - } { + judgment + } of separation, convert a
{ - decree - } { + judgment + } of separation into a
{ - decree - } { + judgment + } of dissolution of the
marriage. The other party may file a written consent to
conversion and waiver of the hearing at any time before the
hearing. { - Any - } { + A + } supplemental { - decree - }
{ + judgment + } of dissolution { - shall - } { + entered
under this section does + } not set aside, alter or modify any
part of the { - decree - } { + judgment + } of separation
that has created or granted rights that have vested.
(2) Nothing in this section is intended to prevent either party
to a { - decree - } { + judgment + } of separation from
commencing at any time in the manner required by law a suit for
dissolution of the marriage.
SECTION 128. ORS 107.475 is amended to read:
107.475. The court shall determine and fix in its
{ - decree - } { + judgment + } the duration of the
separation. At the expiration of such time { + , + } the
{ - decree - } { + judgment + } shall have no further effect.
However, no rights created or granted in the { - decree - }
{ + judgment + } which have vested shall be affected by its
termination. Upon motion of a party and service upon the other
party of notice in the manner provided by law for service of
summons, the court may renew or extend the duration. When the
{ - decree - } { + judgment + } is for unlimited separation, a
party may by motion alleging that the cause for separation no
longer exists and after due service of notice upon the other
party in the manner provided by law for service of summons, apply
for an order modifying or vacating the { - decree - } { +
judgment + }, subject to the provisions of ORS 107.135.
SECTION 129. ORS 107.500 is amended to read:
107.500. Each circuit court shall make available with
appropriate forms an instructional brochure prescribed by the
State Court Administrator and describing the procedures set forth
in this section and ORS 107.485 and 107.490. The content of the
forms used pursuant to this section and ORS 107.485 and 107.490
shall be substantially as follows:
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, PETITION FOR
SUMMARY
Enrolled House Bill 2646 (HB 2646-B) Page 111
DISSOLUTION
and OF MARRIAGE
)
______
, )
Respondent. )
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
1. (________, Petitioner,) (________, Respondent,) has been a
resident of Oregon continuously for the past six months before
filing this petition.
2. Statistical Facts:
a. Date of marriage:
_______________
b. Place of marriage:
_______________
c. Wife's address:
_______________
d. Wife's maiden name:
_______________
e. Wife's former legal names:
_______________
f. Wife's age:
_______________
g. Wife's social security number:
_______________
h. Husband's address:
_______________
i. Husband's former legal names:
_______________
j. Husband's age:
_______________
k. Husband's social security number:
_______________
3. My spouse and I have not been married more than 10 years.
4. Petitioner does not know of any pending (not yet decided by
a judge) domestic relations suits involving this marriage in this
or any other state.
5. There are no minor children born to the parties or born
during the marriage. There are no adopted minor children. The
wife is not now pregnant.
6. Petitioner requests a dissolution because irreconcilable
differences between the parties have caused the irremediable
breakdown of the marriage.
7. The personal property of the parties is not worth more than
$30,000. Petitioner requests that the Court divide the property
as follows:
(a) The wife should be awarded the following personal property:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Additional pages have been attached and labeled '7a.
continued. '
Enrolled House Bill 2646 (HB 2646-B) Page 112
(b) The husband should be awarded the following personal
property:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Additional pages have been attached and labeled '7b.
continued. '
(c) The husband and wife should each sign any documents
necessary to remove his or her name as owner of personal property
awarded to the other party.
8. Neither the husband nor the wife own any real property.
9. The debts incurred by the husband and wife together or
separately from the date of the marriage are not greater than
$15,000.
Petitioner requests the following division of debts:
(a) The wife be required to pay the debts listed below. The
husband is awarded a judgment against the wife in the sum of
$____. The wife can satisfy this judgment by paying off the
following debts:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name of Creditor Amount Owed
________
_____
________
_____
________
_____
________
_____
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(b) The husband be required to pay the debts listed below. The
wife is awarded a judgment against the husband in the sum of
$____. The husband can satisfy the judgment by paying off the
following debts:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name of Creditor Amount Owed
________
_____
________
_____
________
_____
Enrolled House Bill 2646 (HB 2646-B) Page 113
________
_____
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
10. I relinquish all rights I may have to spousal support and
waive any right to pendente lite orders (temporary orders) except
those pursuant to ORS 107.700 to 107.732 (the Family Abuse
Prevention Act) or 124.005 to 124.040 (the Elderly and Disabled
Person Abuse Prevention Act).
(Complete only if petitioner is paying fees and wants
reimbursement from spouse or if fees are being deferred for the
petitioner.)
11. (a) If petitioner has paid court costs and service fees,
petitioner requests that costs and fees paid by petitioner be
repaid by respondent spouse, _____, and that a judgment in the
amount of such costs and fees be entered in favor of
petitioner, _____, in the amount of $____.
(b) If fees are being deferred for petitioner:
Petitioner requests that judgment be entered against
(________, Petitioner)
(________, Respondent) in favor of the state in the amount of
$____.
12. Petitioner requests that:
wife's legal name be restored to
______________
husband's legal name be restored to
______________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
(Petitioner's signature)
Address:
____________
____________
____________
Telephone:_______
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 114
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, SUMMONS FOR SUMMARY
DISSOLUTION
Marriage Dissolution Suit
and )
)
______
, )
Respondent. )
)
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
TO: Name of Respondent
______________
Address of Respondent
______________
__________
, Oregon
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
YOU HAVE BEEN SUED. The court may decide against you without
your being heard unless you respond within 30 days of the day you
received these papers. Read the information below.
NOTICE TO RESPONDENT:
READ THESE PAPERS CAREFULLY
Your spouse has filed a petition with the court to end your
marriage and asking to divide your property and debts, if any.
You must 'appear' in this case or the court will grant your
spouse's requests. To 'appear,' you must file with the court a
legal paper called a 'motion' or 'answer.' The 'motion' or '
answer' must be given to the Court Clerk or Administrator at:
(location) _________ within 30 days of the day you received these
papers, along with the required filing fee. The 'motion' or '
answer' must be in proper form and you must show that your spouse
has been served with a copy of it.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
Name of Petitioner
____________
Address of Petitioner
____________
City/State/Zip Code
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 115
Important Information about Respondent (A recent photo may be
attached in addition to the requested information.)
Height:__________
Weight:__________
Race:__________
Date of Birth:_______
Automobile license number and description:
_________________
Other identifying information:
_________________
Best time and place to locate:
_________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, AFFIDAVIT OF PROOF
OF SERVICE
)
and )
)
______
, )
Respondent. )
)
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
STATE OF OREGON)
) ss.
County of )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ______________, swear/affirm under oath that:
I am a resident of the State of Oregon. I am a competent person
over 18 years of age. I am not an attorney for or a party to this
case, or an officer, director or employee of any party to this
case. On the ___ day of _____, 2_, I served the Summons and
Petition in this case personally upon the above named respondent
in _____ County by delivering to the respondent a copy of those
papers, each of which was certified to be a true copy of each
original.
______________
Signature of _______
Enrolled House Bill 2646 (HB 2646-B) Page 116
SUBSCRIBED AND SWORN TO before me this ___ day of _____, 2_.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
_____________
NOTARY PUBLIC FOR OREGON
My Commission Expires: ___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, MOTION AND ORDER FOR
WAIVER OF FEES
)
and )
)
______
, )
Respondent. )
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Petitioner moves the Court for an order waiving payment of
filing fees, service fees, and other costs.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________
Petitioner
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
POINTS AND AUTHORITIES
ORS 21.605; the Court shall waive all fees and costs if the
Court finds that the party is unable to pay such fees and costs.
ORDER
IT IS SO ORDERED.
DATED: This __ day of ___, 2_.
Enrolled House Bill 2646 (HB 2646-B) Page 117
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________
COURT
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, AFFIDAVIT FOR
WAIVER OF
and FEES AND COSTS
)
______
, )
Respondent. )
)
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
STATE OF OREGON)
) ss.
County of )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ______________ { + , + } being first duly sworn upon oath,
depose and declare that I am the petitioner for a
{ - Decree - } { + Judgment + } of Summary Dissolution and am
unable to pay necessary filing fees, service fees and court
costs. My total monthly income from all sources is $_____. I have
$_____ as assets and $_____ as savings. I support ___ people. My
monthly expenses are $___ housing, $___ food, $___ utilities,
$___ transportation, $___ laundry, cleaning and personal
requirements, $___ medical expenses, $___ clothing, $___
telephone, $___ total installment payments, $___ other expenses,
for total monthly expenses of $_____.
____________
Signature of _______
Enrolled House Bill 2646 (HB 2646-B) Page 118
SUBSCRIBED AND SWORN TO before me this ___ day of _____, 2_.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
_____________
NOTARY PUBLIC FOR OREGON
My Commission Expires ____
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, PETITIONER'S
AFFIDAVIT, MOTION
AND ORDER FOR
and DEFAULT { -
DECREE - }
{ +
JUDGMENT + }
OF DISSOLUTION
)
______
, )
Respondent. )
)
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
STATE OF OREGON)
) ss.
County of )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ___, swear/affirm under oath that:
I am the Petitioner. The Respondent is not now nor was at the
time of the commencement of this suit in the military service of
the United States; nor is the Respondent a legally mentally
incapacitated person; nor is the Respondent under 18 years of
age.
Enrolled House Bill 2646 (HB 2646-B) Page 119
The Respondent was served with Summons and Petition for
Dissolution on the ___ day of _____, 2_, in _____ County, Oregon,
and has failed to answer or appear.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
Petitioner
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SUBSCRIBED AND SWORN TO before me this __ day of _____, 2_.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
_____________
NOTARY PUBLIC FOR OREGON
My Commission Expires ___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Petitioner moves the Court for an Order entering the default of
Respondent.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
Petitioner
____________
Address of Petitioner
____________
City, State Zip
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
ORDER
IT IS SO ORDERED.
DATED: This __ day of ___, 2_.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________
CIRCUIT COURT JUDGE
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 120
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matte) of
the Marriage)of
No.______
______
, )
Petitioner, ) { -
DECREE - }
{ +
JUDGMENT + }
OF SUMMARY
DISSOLUTION
)
and )
)
______
, )
Respondent. )
)
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Statistical Facts:
a. Date of marriage:
_______________
b. Place of marriage:
_______________
c. Wife's address:
_______________
d. Wife's maiden name:
_______________
e. Wife's former legal names:
_______________
f. Wife's age:
_______________
g. Wife's social security number:
_______________
h. Husband's address:
_______________
i. Husband's former legal names:
_______________
j. Husband's age:
_______________
k. Husband's social security number:
_______________
This matter came before the Court for default. Petitioner
appeared (in person) (by affidavit), and Respondent did not
appear. THE COURT HAS BEEN FULLY ADVISED, AND { - THEREFORE IT
IS HEREBY DECREED THAT - } { + JUDGMENT IS RENDERED AS
FOLLOWS + }:
Enrolled House Bill 2646 (HB 2646-B) Page 121
1. Dissolution: This marriage is dissolved and shall terminate
on _______.
2. Prior Wills: Any will previously executed by either spouse
with provisions in favor of the other spouse is revoked with
respect to those provisions, unless the will expresses a
different intent.
3. Division of Property: (a) The wife is awarded and shall own
by herself the following personal property:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Additional pages have been attached as C-1.
(b) The husband is awarded and shall own by himself the
following personal property:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Additional pages have been attached as C-2.
(c) Husband and wife each shall sign any documents necessary to
remove his or her name as owner of personal property awarded to
the other. If either fails to sign the necessary documents, a
certified copy of the { - Decree - } { + Judgment + } shall
serve as a conveyance of the property.
4. Payment of Debts: (a) The wife shall pay the debts listed
below. The husband is awarded a judgment against the wife in the
sum of $____. The wife can satisfy this judgment by paying the
following debts:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name of Creditor Amount Owed
________
_____
________
_____
________
_____
________
_____
Additional pages have been added as D-1.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(b) The husband shall pay the debts listed below. The wife is
awarded a judgment against the husband in the sum of $____. The
husband can satisfy the judgment by paying the following debts:
Enrolled House Bill 2646 (HB 2646-B) Page 122
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name of Creditor Amount Owed
________
_____
________
_____
________
_____
________
_____
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Additional pages have been added as D-2.
5. The wife shall have her former legal name restored. The
restored name is { + : + } { - __ - }
_______________ .
The husband shall have his former legal name restored. The
restored name is { + : + } { - __ - }
_______________ .
6. A judgment against (the husband) (the wife) for court costs
and service fees in the amount of $____ is awarded to (the
husband) (the wife) (this state if fees were waived or deferred).
DATED: This __ day of ___, 2_.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__________
CIRCUIT COURT JUDGE
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
SECTION 130. ORS 107.765 is amended to read:
107.765. (1) In a domestic relations suit, where it appears on
the face of one or more pleadings, appearances, petitions or
motions, including any form of application for the setting aside,
alteration or modification of an order or { - decree - } { +
judgment + }, that custody, parenting time or visitation of a
child is contested, the court may, when appropriate, refer the
matter for mediation of the contested issues prior to or
concurrent with the setting of the matter for hearing. The
purpose of the mediation is to assist the parties in reaching a
workable settlement of the contested issues instead of litigating
those issues before the court. Unless the court provides for the
mediation of financial issues under ORS 107.755 (4), the mediator
shall not consider issues of property division or spousal or
child support, in connection with the mediation of a dispute
concerning child custody, parenting time or visitation, or
otherwise, without the written approval of both parties or their
counsel.
Enrolled House Bill 2646 (HB 2646-B) Page 123
(2) The mediator shall report to the court and to counsel for
the parties the outcome of the mediation at the conclusion of the
mediation proceeding. The mediator shall report in writing to the
court and to counsel for the parties any agreement reached by the
parties as a result of the mediation, and the agreement shall be
incorporated in a proposed order or { - decree - } { +
judgment + } provision prepared for the court. If the parties do
not reach an agreement, the mediator shall report only that fact
to the court and to counsel for the parties, but shall not make a
recommendation to the court without the written consent of the
parties or their counsel.
SECTION 131. ORS 107.820 is amended to read:
107.820. A court order for the payment of spousal or child
support whether issued prior to, on or following November 1,
1981, constitutes an insurable interest in the party awarded the
right to receive the support. In any case of marital annulment,
dissolution or separation, the issue of life insurance shall be
determined as follows:
(1) When the { - decree - } { + judgment + } creates an
obligation of spousal or child support or awards a share of a
pension or retirement plan, the { - court - }
{ + judgment + } may also { - order - } { + require that + }
the obligated party to maintain any existing insurance policies
on the life of the obligated spouse and in which the dependent
spouse is named as beneficiary. The { - court may order - }
{ + judgment may require that + } the policies { + be + }
maintained until the obligation is fulfilled. The premiums may be
paid by the obligated spouse, and the court may consider the cost
of premiums when determining the obligation. Any life insurance
policies on the life of the obligated spouse owned by parties
outside of the marriage or purchased and held for purposes
clearly outside the marriage relationship are exempt from this
subsection.
(2) If the party ordered to pay support or a share of a pension
or retirement plan has no life insurance policy naming as
beneficiary the party ordered to receive either support or a
share of a pension or retirement plan, or if an existing policy
is inadequate to cover the obligation, the court in { - its
decree - } { + a judgment + } may order that the party ordered
to pay shall purchase a life insurance policy naming as
beneficiary the party ordered to receive the support or a share
of a pension or retirement plan and that the obligated party
shall pay premiums on the policy and keep the policy in force
until the obligation ends. The obligated spouse has the option of
obtaining a nonreducing term life insurance policy or any other
type of policy in lieu of using existing policies.
(3) Additionally, the party awarded the right to receive
support or a share of a pension or retirement plan may purchase a
life insurance policy on the life of the obligated party. In such
case the court shall order the obligated party to undergo a
physical examination. All rights of policy ownership, including
those regarding the extent of coverage, shall be in the party
purchasing the policy under this subsection who shall also be
responsible for paying the premiums. The provisions of this
subsection may be exercised at the time of annulment, dissolution
or separation, or at any later time while the obligation
continues.
(4) Upon motion of either party, the court shall order a party
to renew a life insurance policy allowed to lapse for any reason
during the pendency of the suit.
Enrolled House Bill 2646 (HB 2646-B) Page 124
(5) A party who is the beneficiary of any policy under this
section upon which the other party is obligated to pay premiums,
is entitled, in the event of default by the paying party, to pay
the premiums on the policy and to obtain { + a supplemental + }
judgment for reimbursement of any money so expended. A default in
the payment of premiums by the party obligated by the
{ - decree - } { + judgment + } or order is a contempt of the
court.
(6) Life insurance retained or purchased by an obligor under
subsection (1) or (2) of this section for the purpose of
protecting the support, pension or retirement plan obligation
shall not be reduced by loans or any other means of reduction
until the obligation has been fulfilled. The obligee or the
attorney of the obligee shall cause a certified copy of the
{ - decree - } { + judgment + } to be delivered to the life
insurance company or companies. If the obligee or the attorney of
the obligee delivers a true copy of the { - decree - } { +
judgment + } to the life insurance company or companies,
identifying the policies involved and requesting such
notification under this section, the company or companies shall
notify the obligee, as beneficiary of the insurance policy,
whenever the policyholder takes any action that will change the
beneficiary or reduce the benefits of the policy. Either party
may request notification by the insurer when premium payments
have not been made. If the obligor is ordered to provide for and
maintain life insurance, the obligor shall provide to the obligee
a true copy of the policy. The obligor shall also provide to the
obligee written notice of any action that will reduce the
benefits or change the designation of the beneficiaries under the
policy.
SECTION 132. ORS 107.835 is amended to read:
107.835. (1) When any court enters a { - decree - } { +
judgment + }, order or modification of any { - decree - } { +
judgment + } or order under ORS chapter 25, 107, 108, 109, 110 or
416, the court shall allow any party to the { - decree - }
{ + judgment + } or order to include in the { - decree - }
{ + judgment + } or order a waiver of personal service in a
subsequent contempt proceeding. The content of the waiver shall
be substantially as follows:
_________________________________________________________________
In order to maintain the confidentiality of my residential
address, I hereby waive my right to personal service if I am
subsequently charged with contempt. I am giving the following
contact address for service of process and select the following
method of substituted service:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
( ) Mailing address:________
( ) Business address:________
( ) Specified agent:________
Signed:________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Enrolled House Bill 2646 (HB 2646-B) Page 125
_________________________________________________________________
(2) Any time after a party has waived personal service under
subsection (1) of this section, the party may file an amended
waiver in substantially the same form designating a different
method of substituted service or a different address for
substituted service. The party must give notice of the amendment
to all other parties.
SECTION 133. ORS 108.120 is amended to read:
108.120. (1) After the hearing of the petition for an order of
support { + , + } the court shall make an order granting or
denying it and fixing, if allowed, the terms and amount of the
support.
(2) The court has the same power to compel the attendance of
witnesses or the production of testimony as in actions and suits,
to make such { - decree - } { + judgment + } or orders as are
equitable in view of the circumstances of both parties and to
punish violations thereof as other contempts are punished.
(3) The { - decree - } { + judgment + } or order is { - a
final judgment - } { + final + } as to any installment or
payment of money which has accrued up to the time either party
makes a motion to set aside, alter or modify the { - decree - }
{ + judgment + } or order, and the court does not have the
power to set aside, alter or modify such { - decree - } { +
judgment + } or order, or any portion thereof, which provides for
any payment of money, either for minor children or the support of
a party, which has accrued prior to the filing of such motion.
However, the court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or { - decree - } { +
judgment + }, during which the obligated parent has physical
custody of the child with the knowledge and consent of the
custodial parent.
SECTION 133a. { + If House Bill 2111 becomes law, section 133
of this 2003 Act (amending ORS 108.120) is repealed and ORS
108.120, as amended by section 2, chapter 419, Oregon Laws 2003
(Enrolled House Bill 2111), is amended to read: + }
108.120. (1) After the hearing of the petition for an order of
support the court shall make an order granting or denying it and
fixing, if allowed, the terms and amount of the support.
(2) The court has the same power to compel the attendance of
witnesses or the production of testimony as in actions and suits,
to make such { - decree - } { + judgment + } or orders as are
equitable in view of the circumstances of both parties and to
punish violations thereof as other contempts are punished.
(3) The { - decree - } { + judgment + } or order is { - a
final judgment - } { + final + } as to any installment or
payment of money that has accrued up to the time the nonmoving
party, other than the state, is served with a motion to set
aside, alter or modify the { - decree - } { + judgment + } or
order. The court may not set aside, alter or modify any portion
of the { - decree - } { + judgment + } or order that provides
for any payment of money, either for minor children or for the
support of a party, that has accrued before the motion is served.
However, the court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or { - decree - } { +
judgment + }, during which the obligor, with the knowledge and
consent of the obligee or pursuant to court order, has physical
custody of the child.
Enrolled House Bill 2646 (HB 2646-B) Page 126
SECTION 134. ORS 109.041 is amended to read:
109.041. (1) The effect of a { - decree - } { +
judgment + } of adoption heretofore or hereafter granted by a
court of this state shall be that the relationship, rights and
obligations between an adopted person and the descendants of the
adopted person and
(a) The adoptive parents of the adopted person, their
descendants and kindred, and
(b) The natural parents of the adopted person, their
descendants and kindred
shall be the same to all legal intents and purposes after the
entry of such { - decree - } { + judgment + } as if the
adopted person had been born in lawful wedlock to the adoptive
parents and had not been born to the natural parents.
(2) { - Where - } { + When + } a person has been or shall
be adopted in this state by a stepparent, this section shall
leave unchanged the relationship, rights and obligations between
such adopted person and descendants of the adopted person and
natural parent of the adopted person, who is the spouse of the
person who adopted the person, and the descendants and kindred of
such natural parent.
SECTION 135. ORS 109.053 is amended to read:
109.053. (1) The expenses of the family and the education of
minor children, including stepchildren, are chargeable upon the
property of both husband and wife, or either of them. However,
with regard to stepchildren, the obligation shall cease upon
entry of a { - decree - } { + judgment + } of dissolution.
(2) As used in this section, 'stepchild' means a child under
the age of 18, or a child attending school as defined in ORS
107.108 who is in the custody of one biological or adoptive
parent who is married to and not legally separated from a person
other than the second biological or adoptive parent of such
child.
(3) Notwithstanding subsection (1) of this section, the legal
duty of a parent to provide support for a child, as otherwise
required by law, shall not be affected.
SECTION 136. ORS 109.070 is amended to read:
109.070. (1) The paternity of a person may be established as
follows:
(a) The child of a wife cohabiting with her husband who was not
impotent or sterile at the time of the conception of the child
shall be conclusively presumed to be the child of her husband,
whether or not the marriage of the husband and wife may be void.
(b) A child born in wedlock, there being no { - decree - }
{ + judgment + } of separation from bed or board, shall be
presumed to be the child of the mother's husband, whether or not
the marriage of the husband and wife may be void. This shall be a
disputable presumption.
(c) By the marriage of the parents of a child after birth of
the child.
(d) By filiation proceedings.
(e) By filing with the State Registrar of the Center for Health
Statistics the voluntary acknowledgment of paternity form as
provided for by ORS 432.287. Except as otherwise provided in
subsection (2) of this section, this filing establishes paternity
for all purposes.
(f) By having established paternity through a voluntary
acknowledgment of paternity process in another state.
Enrolled House Bill 2646 (HB 2646-B) Page 127
(g) By paternity being established or declared by other
provision of law.
(2)(a) A party to a voluntary acknowledgment of paternity may
rescind the acknowledgment within the earlier of:
(A) Sixty days after filing the voluntary acknowledgment of
paternity; or
(B) The date of a proceeding relating to the child, including a
proceeding to establish a support order, in which the party
wishing to rescind the acknowledgment is also a party to the
proceeding. For the purposes of this subparagraph, the date of a
proceeding is the date on which an order is entered in the
proceeding.
(b)(A) A signed voluntary acknowledgment of paternity filed in
this state may be challenged:
(i) At any time after the 60-day period on the basis of fraud,
duress or material mistake of fact. The party bringing the
challenge has the burden of proof.
(ii) Within one year after the voluntary acknowledgment has
been filed, unless the provisions of paragraph (c) of this
subsection apply. No challenge to the voluntary acknowledgment
may be allowed more than one year after the voluntary
acknowledgment has been filed, unless the provisions of
sub-subparagraph (i) of this subparagraph apply.
(B) Legal responsibilities arising from the voluntary
acknowledgment of paternity, including child support obligations,
may not be suspended during the challenge, except for good cause.
(c) No later than one year after a voluntary acknowledgment of
paternity form is filed in this state and if genetic parentage
tests have not been previously completed, a party to the
acknowledgment or the state, if child support enforcement
services are being provided under ORS 25.080, may apply to the
court or to the administrator, as defined in ORS 25.010, for an
order requiring that the parties and the child submit to genetic
parentage tests.
(d) If the results of the tests exclude the male party as a
possible father of the child, a party or the state, if child
support enforcement services are being provided under ORS 25.080,
may apply to the court for an order of nonpaternity. Upon receipt
of an order of nonpaternity, the Director of Human Services shall
correct any records maintained by the State Registrar of the
Center for Health Statistics that indicate that the male party is
the parent of the child.
(e) The state child support program shall pay any costs for
genetic parentage tests subject to recovery from the party who
requested the tests.
SECTION 137. ORS 109.096 is amended to read:
109.096. (1) When the paternity of a child has not been
established under ORS 109.070, the putative father shall be
entitled to reasonable notice in adoption, juvenile court, or
other court proceedings concerning the custody of the child if
the petitioner knows, or by the exercise of ordinary diligence
should have known:
(a) That the child resided with the putative father at any time
during the 60 days immediately preceding the initiation of the
proceeding, or at any time since the child's birth if the child
is less than 60 days old when the proceeding is initiated; or
(b) That the putative father repeatedly has contributed or
tried to contribute to the support of the child during the year
immediately preceding the initiation of the proceeding, or during
Enrolled House Bill 2646 (HB 2646-B) Page 128
the period since the child's birth if the child is less than one
year old when the proceeding is initiated.
(2) Except as provided in subsection (3) or (4) of this
section, a verified statement of the mother of the child or of
the petitioner, or an affidavit of another person with knowledge
of the facts, filed in the proceeding and asserting that the
child has not resided with the putative father, as provided in
subsection (1)(a) of this section, and that the putative father
has not contributed or tried to contribute to the support of the
child, as provided in subsection (1)(b) of this section, shall be
sufficient proof to enable the court to grant the relief sought
without notice to the putative father.
(3) The putative father shall be entitled to reasonable notice
in a proceeding for the adoption of the child if notice of the
initiation of filiation proceedings as required by ORS 109.225
was on file with the Center for Health Statistics of the
Department of Human Services prior to the child's being placed in
the physical custody of a person or persons for the purpose of
adoption by them. If the notice of the initiation of filiation
proceedings was not on file at the time of the placement, the
putative father shall be barred from contesting the adoption
proceeding.
(4) Except as otherwise provided in subsection (3) of this
section, the putative father shall be entitled to reasonable
notice in juvenile court or other court proceedings if notice of
the initiation of filiation proceedings as required by ORS
109.225 was on file with the Center for Health Statistics prior
to the initiation of the juvenile court or other court
proceedings.
(5) Notice under this section shall not be required to be given
to a putative father who was a party to filiation proceedings
under ORS 109.125 which either were dismissed or resulted in a
finding that he was not the father of the child.
(6) The notice required under this section shall be given in
the manner provided in ORS 109.330.
(7) No notice given under this section need disclose the name
of the mother of the child.
(8) A putative father has the primary responsibility to protect
his rights, and nothing in this section shall be used to set
aside an act of a permanent nature including, but not limited to,
adoption or termination of parental rights, unless the father
establishes within one year after the entry of the final
{ - decree - } { + judgment + } or order fraud on the part of
a petitioner in the proceeding with respect to matters specified
in subsections (1) to (5) of this section.
SECTION 138. ORS 109.119 is amended to read:
109.119. (1) Any person, including but not limited to a related
or nonrelated foster parent, stepparent, grandparent or relative
by blood or marriage, who has established emotional ties creating
a child-parent relationship or an ongoing personal relationship
with a child may petition or file a motion for intervention with
the court having jurisdiction over the custody, placement,
guardianship or wardship of that child, or if no such proceedings
are pending, may petition the court for the county in which the
child resides, for an order providing for relief under subsection
(3) of this section.
(2)(a) In any proceeding under this section, there is a
presumption that the legal parent acts in the best interest of
the child.
Enrolled House Bill 2646 (HB 2646-B) Page 129
(b) In an order granting relief under this section, the court
shall include findings of fact supporting the rebuttal of the
presumption described in paragraph (a) of this subsection.
(c) The presumption described in paragraph (a) of this
subsection does not apply in a proceeding to modify an order
granting relief under this section.
(3)(a) If the court determines that a child-parent relationship
exists and if the court determines that the presumption described
in subsection (2)(a) of this section has been rebutted by a
preponderance of the evidence, the court shall grant custody,
guardianship, right of visitation or other right to the person
having the child-parent relationship, if to do so is in the best
interest of the child. The court may determine temporary custody
of the child or temporary visitation rights under this paragraph
pending a final order.
(b) If the court determines that an ongoing personal
relationship exists and if the court determines that the
presumption described in subsection (2)(a) of this section has
been rebutted by clear and convincing evidence, the court shall
grant visitation or contact rights to the person having the
ongoing personal relationship, if to do so is in the best
interest of the child. The court may order temporary visitation
or contact rights under this paragraph pending a final order.
(4)(a) In deciding whether the presumption described in
subsection (2)(a) of this section has been rebutted and whether
to award visitation or contact rights over the objection of the
legal parent, the court may consider factors including, but not
limited to, the following, which may be shown by the evidence:
(A) The petitioner or intervenor is or recently has been the
child's primary caretaker;
(B) Circumstances detrimental to the child exist if relief is
denied;
(C) The legal parent has fostered, encouraged or consented to
the relationship between the child and the petitioner or
intervenor;
(D) Granting relief would not substantially interfere with the
custodial relationship; or
(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor.
(b) In deciding whether the presumption described in subsection
(2)(a) of this section has been rebutted and whether to award
custody, guardianship or other rights over the objection of the
legal parent, the court may consider factors including, but not
limited to, the following, which may be shown by the evidence:
(A) The legal parent is unwilling or unable to care adequately
for the child;
(B) The petitioner or intervenor is or recently has been the
child's primary caretaker;
(C) Circumstances detrimental to the child exist if relief is
denied;
(D) The legal parent has fostered, encouraged or consented to
the relationship between the child and the petitioner or
intervenor; or
(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor.
(5) In addition to the other rights granted under this section,
a stepparent with a child-parent relationship who is a party in a
dissolution proceeding may petition the court having jurisdiction
for custody or visitation under this section or may petition the
court for the county in which the child resides for adoption of
Enrolled House Bill 2646 (HB 2646-B) Page 130
the child. The stepparent may also file for { - post decree - }
{ + post-judgment + } modification of a { - decree - } { +
judgment + } relating to child custody.
(6)(a) A motion for intervention filed under this section shall
comply with ORCP 33 and state the grounds for relief under this
section.
(b)(A) A motion for intervention filed under ORS 419B.875 by a
person other than a grandparent may be denied or a petition may
be dismissed on the motion of any party or on the court's own
motion if the petition does not state a prima facie case of
emotional ties creating a child-parent relationship or ongoing
personal relationship or does not allege facts that the
intervention is in the best interest of the child.
(B) A motion for intervention filed under ORS 419B.875 by a
grandparent may be granted upon a finding by clear and convincing
evidence that the intervention is in the best interests of the
child.
(c) Costs for the representation of an intervenor under this
section or ORS 419B.875 may not be charged against funds
appropriated for indigent defense services.
(7) In a proceeding under this section, the court may:
(a) Cause an investigation, examination or evaluation to be
made under ORS 107.425 or may appoint an individual or a panel or
may designate a program to assist the court in creating parenting
plans or resolving disputes regarding parenting time and to
assist the parties in creating and implementing parenting plans
under ORS 107.425 (3).
(b) Assess against a party reasonable attorney fees and costs
for the benefit of another party.
(8) As used in this section:
(a) 'Child-parent relationship' means a relationship that
exists or did exist, in whole or in part, within the six months
preceding the filing of an action under this section, and in
which relationship a person having physical custody of a child or
residing in the same household as the child supplied, or
otherwise made available to the child, food, clothing, shelter
and incidental necessaries and provided the child with necessary
care, education and discipline, and which relationship continued
on a day-to-day basis, through interaction, companionship,
interplay and mutuality, that fulfilled the child's psychological
needs for a parent as well as the child's physical needs.
However, a relationship between a child and a person who is the
nonrelated foster parent of the child is not a child-parent
relationship under this section unless the relationship continued
over a period exceeding 12 months.
(b) 'Circumstances detrimental to the child' includes but is
not limited to circumstances that may cause psychological,
emotional or physical harm to a child.
(c) 'Grandparent' means the legal parent of the child's legal
parent.
(d) 'Legal parent' means a parent as defined in ORS 419A.004
whose rights have not been terminated under ORS 419B.500 to
419B.524.
(e) 'Ongoing personal relationship' means a relationship with
substantial continuity for at least one year, through
interaction, companionship, interplay and mutuality.
SECTION 139. ORS 109.119, as amended by section 1e, chapter
873, Oregon Laws 2001, is amended to read:
109.119. (1) Any person, including but not limited to a related
or nonrelated foster parent, stepparent, grandparent or relative
Enrolled House Bill 2646 (HB 2646-B) Page 131
by blood or marriage, who has established emotional ties creating
a child-parent relationship or an ongoing personal relationship
with a child may petition or file a motion for intervention with
the court having jurisdiction over the custody, placement,
guardianship or wardship of that child, or if no such proceedings
are pending, may petition the court for the county in which the
child resides, for an order providing for relief under subsection
(3) of this section.
(2)(a) In any proceeding under this section, there is a
presumption that the legal parent acts in the best interest of
the child.
(b) In an order granting relief under this section, the court
shall include findings of fact supporting the rebuttal of the
presumption described in paragraph (a) of this subsection.
(c) The presumption described in paragraph (a) of this
subsection does not apply in a proceeding to modify an order
granting relief under this section.
(3)(a) If the court determines that a child-parent relationship
exists and if the court determines that the presumption described
in subsection (2)(a) of this section has been rebutted by a
preponderance of the evidence, the court shall grant custody,
guardianship, right of visitation or other right to the person
having the child-parent relationship, if to do so is in the best
interest of the child. The court may determine temporary custody
of the child or temporary visitation rights under this paragraph
pending a final order.
(b) If the court determines that an ongoing personal
relationship exists and if the court determines that the
presumption described in subsection (2)(a) of this section has
been rebutted by clear and convincing evidence, the court shall
grant visitation or contact rights to the person having the
ongoing personal relationship, if to do so is in the best
interest of the child. The court may order temporary visitation
or contact rights under this paragraph pending a final order.
(4)(a) In deciding whether the presumption described in
subsection (2)(a) of this section has been rebutted and whether
to award visitation or contact rights over the objection of the
legal parent, the court may consider factors including, but not
limited to, the following, which may be shown by the evidence:
(A) The petitioner or intervenor is or recently has been the
child's primary caretaker;
(B) Circumstances detrimental to the child exist if relief is
denied;
(C) The legal parent has fostered, encouraged or consented to
the relationship between the child and the petitioner or
intervenor;
(D) Granting relief would not substantially interfere with the
custodial relationship; or
(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor.
(b) In deciding whether the presumption described in subsection
(2)(a) of this section has been rebutted and whether to award
custody, guardianship or other rights over the objection of the
legal parent, the court may consider factors including, but not
limited to, the following, which may be shown by the evidence:
(A) The legal parent is unwilling or unable to care adequately
for the child;
(B) The petitioner or intervenor is or recently has been the
child's primary caretaker;
Enrolled House Bill 2646 (HB 2646-B) Page 132
(C) Circumstances detrimental to the child exist if relief is
denied;
(D) The legal parent has fostered, encouraged or consented to
the relationship between the child and the petitioner or
intervenor; or
(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor.
(5) In addition to the other rights granted under this section,
a stepparent with a child-parent relationship who is a party in a
dissolution proceeding may petition the court having jurisdiction
for custody or visitation under this section or may petition the
court for the county in which the child resides for adoption of
the child. The stepparent may also file for { - post decree - }
{ + post-judgment + } modification of a { - decree - } { +
judgment + } relating to child custody.
(6)(a) A motion for intervention filed under this section shall
comply with ORCP 33 and state the grounds for relief under this
section.
(b)(A) A motion for intervention filed under ORS 419B.875 by a
person other than a grandparent may be denied or a petition may
be dismissed on the motion of any party or on the court's own
motion if the petition does not state a prima facie case of
emotional ties creating a child-parent relationship or ongoing
personal relationship or does not allege facts that the
intervention is in the best interest of the child.
(B) A motion for intervention filed under ORS 419B.875 by a
grandparent may be granted upon a finding by clear and convincing
evidence that the intervention is in the best interests of the
child.
(c) Costs for the representation of an intervenor under this
section or ORS 419B.875 may not be charged against funds
appropriated for public defense services.
(7) In a proceeding under this section, the court may:
(a) Cause an investigation, examination or evaluation to be
made under ORS 107.425 or may appoint an individual or a panel or
may designate a program to assist the court in creating parenting
plans or resolving disputes regarding parenting time and to
assist the parties in creating and implementing parenting plans
under ORS 107.425 (3).
(b) Assess against a party reasonable attorney fees and costs
for the benefit of another party.
(8) As used in this section:
(a) 'Child-parent relationship' means a relationship that
exists or did exist, in whole or in part, within the six months
preceding the filing of an action under this section, and in
which relationship a person having physical custody of a child or
residing in the same household as the child supplied, or
otherwise made available to the child, food, clothing, shelter
and incidental necessaries and provided the child with necessary
care, education and discipline, and which relationship continued
on a day-to-day basis, through interaction, companionship,
interplay and mutuality, that fulfilled the child's psychological
needs for a parent as well as the child's physical needs.
However, a relationship between a child and a person who is the
nonrelated foster parent of the child is not a child-parent
relationship under this section unless the relationship continued
over a period exceeding 12 months.
(b) 'Circumstances detrimental to the child' includes but is
not limited to circumstances that may cause psychological,
emotional or physical harm to a child.
Enrolled House Bill 2646 (HB 2646-B) Page 133
(c) 'Grandparent' means the legal parent of the child's legal
parent.
(d) 'Legal parent' means a parent as defined in ORS 419A.004
whose rights have not been terminated under ORS 419B.500 to
419B.524.
(e) 'Ongoing personal relationship' means a relationship with
substantial continuity for at least one year, through
interaction, companionship, interplay and mutuality.
SECTION 140. ORS 109.155 is amended to read:
109.155. (1) The court, in a private hearing, shall first
determine the issue of paternity. If the respondent admits the
paternity, such admission shall be reduced to writing, verified
by the respondent and filed with the court. If the paternity is
denied, corroborating evidence, in addition to the testimony of
the parent or expectant parent, shall be required.
(2) If the court finds, from a preponderance of the evidence,
that the petitioner or the respondent is the father of the child
who has been, or who may be born out of wedlock, the court shall
then proceed to a determination of the appropriate relief to be
granted. The court may approve any settlement agreement reached
between the parties and incorporate the same into any
{ - decree - } { + judgment + } rendered, and it may order
such investigation or the production of such evidence as it deems
appropriate to establish a proper basis for relief.
(3) The court, in its discretion, may postpone the hearing from
time to time to facilitate any investigation or the production of
such evidence as it deems appropriate.
(4) The court shall have the power to order either parent to
pay such sum as it deems appropriate for the past and future
support and maintenance of the child during its minority and
while the child is attending school, as defined in ORS 107.108,
and the reasonable and necessary expenses incurred or to be
incurred in connection with prenatal care, expenses attendant
with the birth and postnatal care. The court may grant the
prevailing party reasonable costs of suit, which may include
expert witness fees, and reasonable attorney fees at trial and on
appeal. The provisions of ORS 107.108 apply to an order entered
under this section for the support of a child attending school.
(5) An affidavit certifying the authenticity of documents
substantiating expenses set forth in subsection (4) of this
section is prima facie evidence to establish the authenticity of
such documents.
(6)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under this section, the court may enforce
the terms set forth in a stipulated { - decree - } { +
judgment + } of paternity signed by the parties, a
{ - decree - } { + judgment + } of paternity resulting from a
settlement on the record or a { - decree - } { + judgment + }
of paternity incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce a
{ - decree - } { + judgment + }, including but not limited to
contempt; or
Enrolled House Bill 2646 (HB 2646-B) Page 134
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a { - decree - } { + judgment + }
under ORS 109.165 or to seek enforcement of an ancillary
agreement to the { - decree - } { + judgment + }.
SECTION 141. ORS 109.165, as amended by section 10, chapter
116, Oregon Laws 2003 (Enrolled House Bill 2277), is amended to
read:
109.165. (1) Upon motion of either party { + , + } the court
may set aside, alter or modify so much of the { - decree - }
{ + judgment + } as may provide for the support of the minor
child or child attending school, as defined in ORS 107.108. As to
any installment or payment of money that has accrued up to the
time either party files a motion to set aside, alter or modify
the { - decree - } { + judgment + }, the { - decree - }
{ + judgment + } is final and the court does not have power to
change it. However, the court may allow a credit against child
support arrearages for periods of time, excluding reasonable
parenting time unless otherwise provided by order or
{ - decree - } { + judgment + }, during which the obligated
parent has physical custody of the child with the knowledge and
consent of the custodial parent. A child attending school is a
party for purposes of this section.
(2) The moving party shall state in the motion, to the extent
known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the child,
including a proceeding brought under ORS 25.287, 109.100,
125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter
110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the child, other than the { - decree - } { +
judgment + } the party is moving to set aside, alter or modify.
(3) The moving party shall include with the motion a
certificate regarding any pending support proceeding and any
existing support order other than the { - decree - } { +
judgment + } the party is moving to set aside, alter or modify.
The party shall use a certificate that is in a form established
by court rule and include information required by court rule and
subsection (2) of this section.
(4)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
Enrolled House Bill 2646 (HB 2646-B) Page 135
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 142. ORS 109.305 is amended to read:
109.305. (1) The rule that statutes in derogation of common law
are to be strictly construed does not apply to the adoption laws
of this state.
(2) Nothing in the adoption laws of this state shall be
construed to prevent the adoptive parents, the birth parents and
the child from entering into a written agreement, approved by the
court, to permit continuing contact between the birth relatives
and the child or the adoptive parents. As used in this
subsection, ' birth relatives' includes birth parents,
grandparents, siblings and other members of the child's birth
family.
(3) Failure to comply with the terms of an agreement made under
subsection (2) of this section is not grounds for setting aside
an adoption { - decree - } { + judgment + } or revocation of
a written consent to an adoption.
(4)(a) An agreement made under subsection (2) of this section
may be enforced by a civil action. However, before a court may
enter an order requiring compliance with the agreement, the court
must find that the party seeking enforcement participated, or
attempted to participate, in good faith in mediating the dispute
giving rise to the action prior to filing the civil action.
(b) The court may modify an agreement made under subsection (2)
of this section if the court finds that the modification is
necessary to serve the best interests of the adopted child, that
the party seeking modification participated, or attempted to
participate, in good faith in mediation prior to seeking
modification of the agreement and that:
(A) The modification is agreed to by all parties to the
original agreement; or
(B) Exceptional circumstances have arisen since the parties
entered into the agreement that justify modification of the
agreement.
SECTION 143. ORS 109.307 is amended to read:
109.307. (1) Not earlier than provided in ORS 109.309 and not
later than six months from the date on which the petition for
leave to adopt another is filed under ORS 109.309, the court
before which the petition is pending shall hold a hearing and
shall:
Enrolled House Bill 2646 (HB 2646-B) Page 136
(a) Enter a { - final decree - } { + judgment + } under ORS
109.350;
(b) Continue the guardianship or legal custodial status of the
child;
(c) Waive the child to a court having jurisdiction under ORS
419B.100 or 419C.005; or
(d) Take such other action as the court considers necessary.
(2) The court before which the petition is pending, on its own
motion, may take testimony from or confer with the child to be
adopted and may exclude from the conference the parents or
guardians of the child, the proposed adoptive parents and other
persons if the court finds that such action would be likely to be
in the best interests of the child. However, the court shall
permit an attorney for each party to attend the conference, and
the conference shall be reported.
(3) The clerk of the court before which petitions for leave to
adopt another are pending shall periodically notify the court and
the Department of Human Services of all such petitions which have
been pending before the court for more than six months without
final disposition pursuant to subsection (1) of this section.
(4) The clerk of the court before which a petition is filed for
leave to adopt a minor child shall provide to the Director of
Human Services a copy of the court's order of disposition of the
petition.
SECTION 144. ORS 109.309 is amended to read:
109.309. (1) Any person may petition the circuit court for
leave to adopt another person and, if desired, for a change of
the other person's name. One petitioner, the child, one parent or
the person consenting to the adoption as required under ORS
109.312 (1) must be a resident of this state. As used in this
subsection, ' resident' means a person who has resided in this
state continuously for a period of six months prior to the date
of the petition.
(2) When the petition is for the adoption of a minor child, the
adoption shall be governed by the Uniform Child Custody
Jurisdiction and Enforcement Act, ORS 109.701 to 109.834.
(3) The petition to adopt a person 18 years of age or older may
be filed in the county where the petitioner, the person to be
adopted or the person who consents to the adoption resides.
(4) In a petition to adopt a minor child, venue shall lie in
the Oregon county with which the child has the most significant
connection or in the Oregon county in which the licensed adoption
agency is located.
(5)(a) When the petition is for the adoption of a minor child,
the petitioner shall also file at the time of filing the
petition:
(A) A written statement containing the full names and permanent
addresses of:
(i) The petitioners;
(ii) All persons whose consent to the adoption is required
under ORS 109.312 when such names are either known or may be
readily ascertained by the petitioners; and
(iii) The Oregon licensed adoption agency, if any, or the
relative or person that privately placed the child for adoption.
(B) The documents demonstrating consent under ORS 109.312 to
the adoption of the minor child.
(C) Written evidence documenting a current home study that has
been approved by either the Department of Human Services or an
Oregon licensed adoption agency submitted for the purpose of
demonstrating that the petitioners meet the minimum standards for
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adoptive homes as set forth in the department's administrative
rules.
(b) A relative who qualifies under the department
administrative rules for a waiver of the department's home study
requirements described in paragraph (a)(C) of this subsection may
file the request for waiver along with the petition for adoption.
(c) The department, upon request by the petitioner, may waive
the home study requirements described in paragraph (a)(C) of this
subsection in an adoption in which one of the child's biological
or adoptive parents retains parental rights. The department shall
waive post-placement reports in an adoption in which one of the
child's biological or adoptive parents retains parental rights.
(6)(a) The petitioner shall cause copies of the documents
required to be filed with the court under subsection (5) of this
section to be served upon the Director of Human Services, by
either registered or certified mail with return receipt or
personal service, within 30 days after the documents have been
filed with the court.
(b) In the case of an adoption described in subsection (5)(c)
of this section, the petition shall also be served by either
registered or certified mail with return receipt or personal
service:
(A) On all persons whose consent to the adoption is required
under ORS 109.312 unless the person's written consent is filed
with the court; and
(B) On the parents of the party whose parental rights would be
terminated, if the names and addresses are known or may be
readily ascertained by the petitioners. Service required by this
subparagraph may be waived by the court for good cause.
(c) The court shall not rule upon the petition until at least
90 days after the date that the documents were served upon the
director. However, the department may waive the 90-day period.
(7)(a) Within 90 days of the service on the director, the
department shall investigate and file for the consideration of
the judge before whom the petition for adoption is pending a
placement report containing information regarding the status of
the child and evidence concerning the suitability of the proposed
adoption. The department may designate an Oregon licensed
adoption agency to investigate and report to the court. If the
department designates an Oregon licensed adoption agency to
investigate and report to the court, the department shall make
the designation and provide all necessary information and
materials to the Oregon licensed adoption agency no later than 30
days after the service on the director. However, the department
may waive the placement report requirement.
(b) Upon receipt of a written request by the petitioner's
attorney, the department shall furnish to that attorney copies of
any information that the department has filed with the court.
(c) The department may charge the petitioner a fee for
investigating a proposed non-agency adoption and preparing the
home study report described in subsection (5)(a)(C) of this
section and the placement report described in paragraph (a) of
this subsection. The petitioner shall report the fee amount to
the court. The court granting the adoption shall make a finding
as to whether the fee is necessary and reasonable. Any fee
charged shall not exceed reasonable costs for investigation, home
study and placement report preparation. The department shall
prescribe by rule the procedure for computing the investigation,
home study and placement report preparation fee. The rules shall
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provide a waiver of either part or all of the fee based upon the
petitioner's ability to pay.
(8) The amounts of any fees collected under subsection (7) of
this section are continuously appropriated to the department for
use in preparing the home study and placement reports required
under subsections (5)(a)(C) and (7)(a) of this section.
(9)(a) Except as provided in paragraph (b) of this subsection,
a court shall not grant a { - decree - } { + judgment + } for
the adoption of a minor child unless the petitioners have filed
with the court the documents described in subsections (5) and
(7)(a) of this section.
(b) A person shall not be required to file a home study or a
placement report with the court when the department has granted
the person a waiver under department rules.
(10) The adoption shall comply with the Indian Child Welfare
Act (25 U.S.C. 1901 et seq.), if applicable. Every adoption
petition involving the Indian Child Welfare Act shall include the
following:
(a) A statement of the efforts to notify the appropriate Indian
tribe or tribes of the adoption; and
(b) A statement of the efforts to comply with the placement
preferences of the Indian Child Welfare Act (25 U.S.C. 1901 et
seq.) or the placement preferences of the appropriate Indian
tribe.
SECTION 145. ORS 109.311 is amended to read:
109.311. (1) Each adoption petition filed pursuant to ORS
109.309 seeking adoption of a minor child shall be accompanied by
a written disclosure statement containing an itemized accounting
of all moneys paid or estimated to be paid by the petitioner for
fees, costs and expenses related to the adoption, including all
legal, medical, living and travel expenses. The form of the
disclosure statement shall be prescribed by the Department of
Human Services after consultation with approved Oregon licensed
adoption agencies.
(2) { - No court shall grant a decree - } { + A court may
not grant a judgment + } for an adoption of a minor child in the
absence of a placement report by the department or an Oregon
licensed adoption agency unless the filing of such report has
been waived by the department. { - No court shall grant a
decree - } { + A court may not grant a judgment + } for an
adoption of a minor child in the absence of a written disclosure
statement as described in subsection (1) of this section or in
the absence of a verified statement by the petitioner that, to
the best of the petitioner's knowledge, no charges, except those
reported in the disclosure statement, have been or will be paid
in connection with the adoption.
(3) { - No person shall - } { + A person may not + }
charge, accept or pay or offer to charge, accept or pay a fee for
locating a minor child for adoption or for locating another
person to adopt a minor child, except that Oregon licensed
adoption agencies licensed under ORS chapter 418 may charge
reasonable fees for services provided by them.
(4)(a) It is unlawful for any person to advertise:
(A) A child offered or wanted for adoption; or
(B) That the person is able to place, locate, dispose of or
receive a child for adoption.
(b) The provisions of paragraph (a) of this subsection do not
apply to:
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(A) The department or a licensed Oregon adoption agency or an
agent, employee or person with whom the department or adoption
agency has a contract authorizing such actions; or
(B) A person who has completed a home study as required by ORS
109.309 (5)(a)(C) and has received a favorable recommendation
regarding the fitness of the person to be an adoptive parent or
the person's attorney or uncompensated agent. A written
declaration by the person who prepared the home study is
sufficient verification of compliance with this subparagraph. The
person's attorney must be licensed to practice in Oregon.
(c) Nothing in this subsection prohibits an attorney licensed
to practice in Oregon from advertising the attorney's
availability to provide services related to the adoption of
children.
(d) As used in this subsection, unless the context requires
otherwise, 'advertise' means to communicate by newspaper, radio,
television, handbills, placards or other print, broadcast or
electronic medium that originates within this state.
SECTION 146. ORS 109.322 is amended to read:
109.322. If either parent has been adjudged mentally ill or
mentally deficient and remains so at the time of the adoption
proceedings, or is imprisoned in a state or federal prison under
a sentence for a term of not less than three years and has
actually served three years, there shall be served upon such
parent, if the parent has not consented in writing to the
adoption, a citation in accordance with ORS 109.330 to show cause
why the adoption of the child should not be { - decreed - }
{ + ordered + }. In the case of a person adjudged mentally ill
or mentally deficient, the citation shall also be served upon the
guardian of the person or, if the parent has no guardian of the
person, the court shall appoint a guardian ad litem to appear for
the person in the adoption proceedings. Upon hearing being had,
if the court finds that the welfare of the child will be best
promoted through the adoption of the child, the consent of the
mentally ill, mentally deficient or imprisoned parent is not
required, and the court shall have authority to proceed
regardless of the objection of such parent. This section does not
apply where consent is given in loco parentis under ORS 109.316
or 109.318.
SECTION 147. ORS 109.324 is amended to read:
109.324. If either parent is believed to have willfully
deserted or neglected without just and sufficient cause to
provide proper care and maintenance for the child for one year
next preceding the filing of the petition for adoption and such
parent does not consent in writing to the adoption, there shall
be served upon such parent a citation in accordance with ORS
109.330 to show cause why the adoption of the child should not be
{ - decreed - } { + ordered + }. Upon hearing being had, if
the court finds that such parent has willfully deserted or
neglected without just and sufficient cause to provide proper
care and maintenance for the child for one year next preceding
the filing of the petition for adoption, the consent of such
parent at the discretion of the court is not required and, if the
court determines that such consent is not required, the court
shall have authority to proceed regardless of the objection of
such parent. In determining whether the parent has willfully
deserted or neglected without just and sufficient cause to
provide proper care and maintenance for the child, the court may
disregard incidental visitations, communications and
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contributions. This section does not apply where consent is given
in loco parentis under ORS 109.316 or 109.318.
SECTION 148. ORS 109.326 is amended to read:
109.326. (1) If the mother of a child was married at the time
of the conception or birth of the child, and it has been
determined pursuant to ORS 109.070 or judicially determined that
her husband at such time or times was not the father of the
child, the husband's authorization or waiver { - shall - }
{ + may + } not be required in adoption, juvenile court or other
proceedings concerning the custody of the child.
(2) If paternity of the child has not been determined, a
determination of nonpaternity may be made by any court having
adoption, divorce or juvenile court jurisdiction. The testimony
or affidavit of the mother or the husband or another person with
knowledge of the facts filed in the proceeding shall constitute
competent evidence before the court making the determination.
(3) Before making the determination of nonpaternity, citation
to show cause why such husband's parental rights should not be
terminated shall be served on him in the manner provided by ORS
109.330 if:
(a) There has been a determination by any court of competent
jurisdiction that the husband is the father of the child;
(b) The child resided with the husband at any time since the
child's birth; or
(c) The husband repeatedly has contributed or tried to
contribute to the support of the child.
(4) There shall be sufficient proof to enable the court to
grant the relief sought without notice to the husband provided
that the affidavit of the mother of the child, of the husband or
of another person with knowledge of the facts filed in the
proceeding states or the court finds from other competent
evidence:
(a) That the mother of the child was not cohabiting with her
husband at the time of conception of the child and that the
husband is not the father of the child;
(b) That the husband has not been judicially determined to be
the father;
(c) That the child has not resided with the husband; and
(d) That the husband has not contributed or tried to contribute
to the support of the child.
(5) Notwithstanding the provision of ORS 109.070 (1)(b), notice
to the husband pursuant to ORS 109.330 shall not be required and
the husband's consent, authorization or waiver shall not be
required in adoption proceedings concerning the child unless the
husband has met the requirements for notice in subsection (3)(a),
(b) or (c) of this section.
(6) A husband who was not cohabiting with the mother at the
time of the child's conception has the primary responsibility to
protect the husband's rights.
(7) Nothing in this section shall be used to set aside an act
of a permanent nature, including but not limited to adoption or
termination of parental rights, unless the father establishes
within one year after the entry of the final { - decree - }
{ + judgment + } or order fraud on the part of the petitioner
with respect to the matters specified in subsection (4)(a), (b),
(c) or (d) of this section.
SECTION 149. ORS 109.335 is amended to read:
109.335. Notwithstanding the provisions of ORS chapter 125 that
relate to the appointment of a guardian, when a petition is filed
pursuant to ORS 109.309 for leave to adopt a minor child and the
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required consent thereto has been filed, the court before which
the petition is pending may on its own motion enter an order
appointing the petitioner or some other suitable person guardian
of the minor child pending further order of the court or entry of
a { - decree - } { + judgment + } under ORS 109.350.
SECTION 150. ORS 109.342 is amended to read:
109.342. (1) { - After January 1, 1980, before any final
decree - } { + Before any judgment + } of adoption of a minor
is entered, the court shall be provided a medical history of the
child and of the biological parents as complete as possible under
the circumstances.
(2) When possible, the medical history shall include, but need
not be limited to:
(a) A medical history of the adoptee from birth up to the time
of adoption, including disease, disability, congenital or birth
defects, and records of medical examinations of the child, if
any;
(b) Physical characteristics of the biological parents,
including age at the time of the adoptee's birth, height, weight,
and color of eyes, hair and skin;
(c) A gynecologic and obstetric history of the biological
mother;
(d) A record of potentially inheritable genetic or physical
traits or tendencies of the biological parents or their families;
and
(e) Any other useful or unusual biological information that the
biological parents are willing to provide.
(3) The names of the biological parents shall not be included
in the medical history.
(4) The court shall give the history to the adoptive parents at
the time the { - decree - } { + judgment + } is entered and
shall give the history to the adoptee, upon request, after the
adoptee attains the age of majority.
(5) Subsection (1) of this section does not apply when a person
is adopted by a stepparent.
(6) The Department of Human Services shall prescribe a form for
the compilation of the medical history.
SECTION 151. ORS 109.346 is amended to read:
109.346. (1) Except as provided in subsection (5) of this
section, a birth parent consenting to an adoption shall receive
notice of the birth parent's right to payment for three
adoption-related counseling sessions prior to surrender or
relinquishment of the child for adoption and three sessions of
adoption-related counseling after surrender or relinquishment of
the child for adoption.
(2) Notice of the right to adoption-related counseling shall be
in writing and shall be provided to the consenting birth parent
by either the attorney for the birth parent, the agency
representative taking the birth parent's consent or the attorney
for the prospective adoptive parent. Before entry of a
{ - final decree - } { + judgment + } of adoption, the agency
or attorney providing the written notice shall submit
verification to the court that the notice was given to the
consenting birth parent.
(3) The prospective adoptive parent shall pay all uninsured
costs of the adoption-related counseling required by this
section, provided the counseling is received within one year of
the date of surrender or relinquishment of the child for
adoption.
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(4) Adoption-related counseling under this section, unless
otherwise agreed to by the prospective adoptive parent and the
consenting birth parent, shall be provided by:
(a) A social worker employed by an Oregon licensed adoption
agency other than the social worker assigned to the prospective
adoptive parent;
(b) A social worker, counselor or therapist who is working
under the supervision of a licensed clinical social worker or a
licensed professional counselor and who is knowledgeable about
birth parent, adoption and grief and loss issues; or
(c) A social worker, counselor or therapist who:
(A) Has a graduate degree in social work, counseling or
psychology; and
(B) Is knowledgeable about birth parent, adoption and grief and
loss issues.
(5) The requirements of this section do not apply to:
(a) An adoption in which a birth parent relinquishes parental
rights to the Department of Human Services;
(b) An adoption in which one parent retains parental rights;
(c) An adoption in which the child is born in a foreign country
and adopted under the laws of that country or readopted in
Oregon;
(d) An adoption in which the child is born in a foreign country
and subsequently adopted in Oregon and in which the identity or
whereabouts of the child's birth parents are unknown; or
(e) An adoption of an adult.
(6) Failure to provide the notice required by this section or
failure to pay the uninsured costs of adoption-related counseling
required by this section is not grounds for setting aside an
adoption { - decree - } { + judgment + } or for revocation of
a written consent to an adoption or a certificate of
irrevocability.
SECTION 152. ORS 109.350 is amended to read:
109.350. If, upon a petition for adoption duly presented and
consented to, the court is satisfied as to the identity and
relations of the persons, that the petitioner is of sufficient
ability to bring up the child and furnish suitable nurture and
education, having reference to the degree and condition of the
parents, that, if applicable, the requirements of the Indian
Child Welfare Act (25 U.S.C. 1901 et seq.) have been met, and
that it is fit and proper that such adoption be effected, a
{ - decree - } { + judgment + } shall be made setting forth
the facts, and ordering that from the date of the
{ - decree - } { + judgment + } the child, to all legal
intents and purposes, is the child of the petitioner. In an
adoption subject to the Indian Child Welfare Act (25 U.S.C. 1901
et seq.), the state court shall provide to the United States
Secretary of the Interior a copy of the { - decree - } { +
judgment + } together with the other information required by the
Indian Child Welfare Act (25 U.S.C. 1901 et seq.).
SECTION 153. ORS 109.353 is amended to read:
109.353. Before a { - final decree - } { + judgment + } of
adoption is entered, the agency or organization facilitating the
adoption, or the attorney for the adoptive parents in an
independent adoption, shall submit verification to the court that
the parents of the child and the petitioners have been advised of
the voluntary adoption registry established under ORS 109.450 and
have been given information on how to access those services. The
court may waive this requirement upon a finding of good cause.
SECTION 154. ORS 109.360 is amended to read:
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109.360. If in a petition for the adoption of a child a change
of the child's name is requested, the court, upon
{ - decreeing - } { + entering a judgment granting + } the
adoption, may also
{ - decree - } { + provide in the judgment for + }the change
of name without the notices required by ORS 33.420.
SECTION 155. ORS 109.381 is amended to read:
109.381. (1) A { - decree - } { + judgment + } of a court
of this state granting an adoption, and the proceedings in such
adoption matter, shall in all respects be entitled to the same
presumptions and be as conclusive as if rendered by a court of
record acting in all respects as a court of general jurisdiction
and not by a court of special or inferior jurisdiction, and
jurisdiction over the persons and the cause shall be presumed to
exist.
(2) Except for such right of appeal as may be provided by law,
{ - decrees - } { + judgments + } of adoption shall be binding
and conclusive upon all parties to the proceeding. No party nor
anyone claiming by, through or under a party to an adoption
proceeding, may for any reason, either by collateral or direct
proceedings, question the validity of a { - decree - } { +
judgment + } of adoption entered by a court of competent
jurisdiction of this or any other state.
(3) After the expiration of one year from the entry of a
{ - decree - } { + judgment + } of adoption in this state the
validity of the adoption shall be binding on all persons, and it
shall be conclusively presumed that the child's natural parents
and all other persons who might claim to have any right to, or
over the child, have abandoned the child and consented to the
entry of such
{ - decree - } { + judgment + } of adoption, and that the
child became the lawful child of the adoptive parents or parent
at the time when the { - decree - } { + judgment + } of
adoption was rendered, all irrespective of jurisdictional or
other defects in the adoption proceeding; after the expiration of
such one-year period no one may question the validity of the
adoption for any reason, either through collateral or direct
proceedings, and all persons shall be bound thereby; provided,
however, the provisions of this subsection shall not affect such
right of appeal from a { - decree - } { + judgment + } of
adoption as may be provided by law.
(4) The provisions of this section shall apply to all adoption
proceedings instituted in this state after August 5, 1959. This
section shall also apply, after the expiration of one year from
August 5, 1959, to all adoption proceedings instituted in this
state before August 5, 1959.
SECTION 156. ORS 109.400 is amended to read:
109.400. (1) When a petition for adoption is filed with a
court, the petitioner or the attorney thereof shall file with the
petition an adoption report form as provided in ORS 432.415.
(2) Notwithstanding ORS 7.211, if the court enters a
{ - decree - } { + judgment + } of adoption, the clerk of the
court shall review the personal particulars filled in on the
form, shall fill in the remaining blanks on the form, shall
certify the form and mail it to the State Registrar of the Center
for Health Statistics as the adoption report as required under
ORS 432.415.
SECTION 157. ORS 109.410 is amended to read:
109.410. (1) The clerk of the court having custody of the
adoption file shall issue upon request a certificate of adoption
Enrolled House Bill 2646 (HB 2646-B) Page 144
to the adopted person, the adoptive parents or parent, their
attorney of record, in the proceeding, or to any child-placing
agency which gave consent to the adoption. The certificate shall
be substantially in the following form:
_________________________________________________________________
CERTIFICATE OF ADOPTION
IN THE _____
COURT
OF THE STATE OF OREGON
FOR THE COUNTY OF
_______
In the Matter of the Adoption of:
__________________
File No._______
Name after Adoption
This is to certify that on the __ day of _____, 2__, a
{ - Decree - } { + Judgment + } of Adoption was granted by the
Honorable Judge ________ { - decreeing - } { + granting + }
the adoption of the above-named person by _______ ____ .
The adopted person, above named, was born in the City
of _______, County of _____, State of _____, on the _ day of ___,
2_.
Dated at _____, Oregon, this _ day of __, 2_.
(Title of the Clerk of the Court)
(SEAL) By __________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Deputy
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(2) The certificate of adoption may be issued by the judge who
granted the adoption, instead of by the clerk of the court.
(3) The certificate of adoption shall not state the former name
of the person adopted, unless the name was not changed by the
{ - decree - } { + judgment + }, and shall not state the name
of either biological parent of the person adopted. However, if
the adoption was by the adopted person's stepparent, the name of
the adopting stepparent's spouse may be set forth in the
certificate if requested.
(4)(a) For the issuance of one certificate of adoption for any
person who was adopted after October 3, 1979, a fee of not more
than $1 may be charged and collected by the clerk of the court.
(b) For additional certificates or for certificates of adoption
for persons adopted prior to October 3, 1979, a fee of not more
than $1 for each certificate may be charged and collected by the
clerk of the court.
Enrolled House Bill 2646 (HB 2646-B) Page 145
(5) No certificate of adoption shall be issued to any person
other than the persons described in subsection (1) of this
section without order of the court.
(6) For all purposes, the certificate of adoption shall
constitute legal proof of the facts set forth therein, shall have
the same force and effect and the same presumptions of validity
as the { - decree - } { + judgment + } of adoption, and shall
be entitled to full faith and credit.
SECTION 158. ORS 109.672 is amended to read:
109.672. (1) No person licensed, certified or registered to
practice a health care profession or health care facility shall
be liable for damages in any civil action arising out of the
failure of the person or facility to obtain the consent of a
parent to the giving of medical care or treatment to a minor
child of the parent if consent to the care has been given by the
other parent of the child.
(2) The immunity provided by subsection (1) of this section
shall apply regardless of whether:
(a) The parents are married, unmarried or separated at the time
of consent or treatment.
(b) The consenting parent is, or is not, a custodial parent of
the minor.
(c) The giving of consent by only one parent is, or is not, in
conformance with the terms of any agreement between the parents,
any custody order or any { - decree - } { + judgment + } of
dissolution or separation.
(3) The immunity created by subsection (1) of this section
shall not apply if the parental rights of the parent who gives
consent have been terminated pursuant to ORS 419B.500 to
419B.524.
(4) For the purposes of this section, 'health care facility'
means a facility as defined in ORS 442.015 or any other entity
providing medical service.
SECTION 159. ORS 109.704 is amended to read:
109.704. As used in ORS 109.701 to 109.834:
(1) 'Abandoned' means left without provision for reasonable and
necessary care or supervision.
(2) 'Child' means an individual who has not attained 18 years
of age.
(3) 'Child custody determination' means a judgment { - ,
decree - } or other order of a court providing for the legal
custody, physical custody, parenting time or visitation with
respect to a child. 'Child custody determination' includes a
permanent, temporary, initial and modification order. 'Child
custody determination' does not include an order relating to
child support or other monetary obligation of an individual.
(4) 'Child custody proceeding' means a proceeding in which
legal custody, physical custody, parenting time or visitation
with respect to a child is an issue. 'Child custody proceeding '
includes a proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of parental
rights and protection from domestic violence in which the issue
may appear. 'Child custody proceeding' does not include a
proceeding involving juvenile delinquency, contractual
emancipation or enforcement under ORS 109.774 to 109.827.
(5) 'Commencement' means the filing of the first pleading in a
proceeding.
(6) 'Court' means an entity authorized under the law of a state
to establish, enforce or modify a child custody determination.
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(7) 'Home state' means the state in which a child lived with a
parent or a person acting as a parent for at least six
consecutive months immediately before the commencement of a child
custody proceeding. In the case of a child less than six months
of age, 'home state' means the state in which the child lived
from birth with any of the persons mentioned. Any temporary
absence of any of the mentioned persons is part of the period.
(8) 'Initial determination' means the first child custody
determination concerning a particular child.
(9) 'Issuing court' means the court that makes a child custody
determination for which enforcement is sought under ORS 109.701
to 109.834.
(10) 'Issuing state' means the state in which a child custody
determination is made.
(11) 'Modification' means a child custody determination that
changes, replaces, supersedes or is otherwise made after a
previous determination concerning the same child, whether or not
it is made by the court that made the previous determination.
(12) 'Person' means an individual, corporation, public
corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, government or a
governmental subdivision, agency or instrumentality, or any other
legal or commercial entity.
(13) 'Person acting as a parent' means a person, other than a
parent, who:
(a) Has physical custody of the child or has had physical
custody for a period of six consecutive months, including any
temporary absence, within one year immediately before the
commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right
to legal custody under the law of this state.
(14) 'Physical custody' means the physical care and supervision
of a child.
(15) 'State' means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of
the United States.
(16) 'Tribe' means an Indian tribe or band, or Alaskan Native
village, that is recognized by federal law or formally
acknowledged by a state.
(17) 'Warrant' means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
SECTION 160. ORS 109.737 is amended to read:
109.737. (1) A court of this state may request the appropriate
court of another state to:
(a) Hold an evidentiary hearing;
(b) Order a person to produce or give evidence pursuant to
procedures of that state;
(c) Order that an evaluation be made with respect to the
custody of a child involved in a pending proceeding;
(d) Forward to the court of this state a certified copy of the
transcript of the record of the hearing, the evidence otherwise
presented and any evaluation prepared in compliance with the
request; and
(e) Order a party to a child custody proceeding or any person
having physical custody of the child to appear in the proceeding
with or without the child.
(2) Upon request of a court of another state, a court of this
state may hold a hearing or enter an order described in
subsection (1) of this section.
Enrolled House Bill 2646 (HB 2646-B) Page 147
(3) Travel and other necessary and reasonable expenses incurred
under subsections (1) and (2) of this section may be assessed
against the parties according to the law of this state.
(4) A court of this state shall preserve the pleadings, orders,
{ - decrees, - } { + judgments, + } records of hearings,
evaluations and other pertinent records with respect to a child
custody proceeding for the time required by the retention
schedule adopted under ORS 8.125 (11). The retention schedule
shall require retention at least until the child attains 18 years
of age. Upon appropriate request by a court or law enforcement
official of another state, the court shall forward a certified
copy of those records.
{ +
JUDGMENTS IN CRIMINAL ACTIONS + }
SECTION 161. ORS 135.280 is amended to read:
135.280. (1) Upon failure of a person to comply with any
condition of a release agreement or personal recognizance, the
court having jurisdiction may, in addition to any other action
provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security
release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized
to execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an
order declaring the entire security amount to be forfeited.
Notice of the order of forfeiture shall be given forthwith by
personal service, by mail or by such other means as are
reasonably calculated to bring to the attention of the defendant
and, if applicable, of the sureties the order of forfeiture. If,
within 30 days after the court declares the forfeiture, the
defendant does not appear or satisfy the court having
jurisdiction that appearance and surrender by the defendant was,
or still is, impossible and without fault of the defendant, the
court shall enter { - a money judgment as provided by ORS
137.180 - } { + judgment + } for the state, or appropriate
political subdivision thereof, against the defendant and, if
applicable, the sureties for the entire security amount set under
ORS 135.265 and the costs of the proceedings. At any time before
or after entry of the judgment, the defendant or the sureties may
apply to the court for a remission of the forfeiture or to modify
or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set
aside the judgment as in other criminal cases, except the portion
of the security amount that the court ordered to be applied to
child support under subsection (4) of this section, as the court
considers reasonable under the circumstances of the case. The
court shall adopt procedures to ensure that the amount deposited
under ORS 135.265 is available for a reasonable period of time
for disposition under subsection (4) of this section.
(4) After entry of a { - money - } judgment for the state,
the court, upon a motion filed under ORS 25.715, may order that a
portion of the security amount be applied to any unsatisfied
child support { - judgment - } { + award + } owed by the
defendant and to provide security for child support payments in
accordance with ORS 25.230. The portion of the security amount
Enrolled House Bill 2646 (HB 2646-B) Page 148
that may be applied to the child support { - judgment - } { +
award + }:
(a) Is limited to the amount deposited under ORS 135.265;
(b) May not exceed the percentage of the amount designated for
distribution to the General Fund had the deposit been transferred
to the Criminal Fine and Assessment Account as provided in
subsection (5) of this section; and
(c) Does not reduce the money { + award in the + } judgment
entered under subsection (3) of this section that is owed to the
state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a
release, the judgment may be enforced as a judgment in a civil
action. If entered in circuit court, the judgment shall be
{ - docketed in the criminal action as a money judgment in the
circuit court judgment docket - } { + entered in the register,
and the clerk of the court shall note in the register that the
judgment creates a judgment lien + }. The district attorney,
county counsel or city attorney may have execution issued on the
judgment and deliver same to the sheriff to be executed by levy
on the deposit or security amount made in accordance with ORS
135.265, or may collect the judgment as otherwise provided by
law. The proceeds of any execution or collection shall be used to
satisfy the judgment and costs and paid into the treasury of the
municipal corporation wherein the security was taken if the
offense was defined by an ordinance of a political subdivision of
this state, or paid into the treasury of the county wherein the
security was taken if the offense was defined by a statute of
this state and the judgment was entered by a justice court, or
paid over as directed by the State Court Administrator for
deposit in the Criminal Fine and Assessment Account created under
ORS 137.300, if the offense was defined by a statute of this
state and the judgment was entered by a circuit court. The
provisions of this section shall not apply to base fine amounts
deposited upon appearance under ORS 153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment
alone and without requiring further execution, forfeited to and
may be kept by the state or its appropriate political
subdivision. Except as provided in subsection (4) of this
section, the clerk shall reduce, by the value of the deposit so
forfeited, the debt remaining on the judgment and shall cause the
amount on deposit to be transferred to the revenue account of the
state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property
shall be sold in the same manner as in execution sales in civil
actions and the proceeds of such sale shall be used to satisfy
all court costs, prior encumbrances, if any, and from the balance
a sufficient amount to satisfy the judgment shall be paid into
the treasury of the municipal corporation wherein the security
was taken if the offense was defined by an ordinance of a
political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or deposited in the General Fund available
for general governmental expenses if the offense was defined by a
statute of this state and the judgment was entered by a circuit
court. The balance shall be returned to the owner. The real
property sold may be redeemed in the same manner as real estate
Enrolled House Bill 2646 (HB 2646-B) Page 149
may be redeemed after judicial or execution sales in civil
actions.
SECTION 162. ORS 137.071, as amended by section 88, chapter
962, Oregon Laws 2001, and section 2, chapter 300, Oregon Laws
2003 (Enrolled House Bill 2729), is amended to read:
137.071. { + (1) + } { - This section establishes
requirements for judgments in actions and proceedings resulting
from a person being accused and tried for the commission of an
offense. - } The judge { + in a criminal action + } shall
{ - assure - } { + ensure that + } the creation and filing of
a judgment { - that - } { + document + } complies with this
section
{ - in such action or proceedings - } . On appeal, the
appellate court may give leave as provided in ORS 19.270 for
entry of a judgment { + document + } that complies with this
section but may not reverse or set aside a judgment,
determination or disposition on the sole ground that the
{ + judgment + } document fails to comply with this section.
{ - No particular form of words is required, but every judgment
in a criminal action or proceeding must comply with all the
following: - }
{ - (1) It must be in writing, plainly titled as a judgment
and set forth in a separate document. - }
{ - (2) It must clearly identify the court and file number or
other identifier used by the court for that case. - }
{ - (3) It must clearly identify the defendant. - }
{ - (4) It must clearly identify all of the following: - }
{ - (a) The attorney for the state; - }
{ - (b) The attorney, if any, for the defendant; - }
{ + (2) A judgment document in a criminal action must comply
with section 4 of this 2003 Act. In addition, a judgment document
in a criminal action must: + }
{ - (c) - } { + + } { + (a) Indicate + } whether the
defendant was determined to be financially eligible for purposes
of appointed counsel in the
{ - case; - } { + action. + }
{ - (d) - } { + (b) Indicate + } whether the court
appointed counsel for the defendant in the { - case; and - }
{ + action. + }
{ - (e) - } { + (c) + } If there is no attorney for the
defendant, { + indicate + } whether the defendant knowingly
waived any right to an attorney after having been informed of
that right.
{ - (5) - } { + (d) + } { - It must - } Include the
identity of the recorder or reporter for the proceeding or action
who is to be served under ORS 138.081.
{ - (6) - } { + (e) + } { - It must - } Include any
information specifically required by statute or by court rule.
{ - (7) - } { + (f) + } { - It must - } Specify clearly
the court's determination for each charge in the information,
indictment or complaint.
{ - (8) - } { + (g) + } { - It must - } Specify clearly
the court's disposition, including all legal consequences the
court establishes or imposes. If the determination is one of
conviction, { - it - } { + the judgment document + } must
include any suspension of sentence, forfeiture, imprisonment,
cancellation of license, removal from office, monetary
obligation, probation, conditions of probation, discharge,
restitution, community service and all other sentences and legal
consequences imposed by the court. Nothing in this
Enrolled House Bill 2646 (HB 2646-B) Page 150
{ - subsection - } { + paragraph + } requires the judgment
{ + document + } to specify any consequences that may result
from the determination but are not established or imposed by the
court.
{ + (h) Include the identities of the attorney for the state
and the attorney, if any, for the defendant. + }
{ - (9) Any money judgment must comply with this subsection
and subsection (10) of this section. A judgment that does not
comply with this subsection and subsection (10) of this section
is subject to not being docketed in the judgment docket as
provided under ORS 137.180 until it is amended to become a money
judgment and to so comply. A money judgment must include all the
following: - }
{ - (a) The identity of the judgment creditor. - }
{ - (b) The identity of the judgment debtor. - }
{ - (c) If restitution or compensatory fine is ordered, the
name and address of the person to whom the court should disburse
payments, unless the victim requests that this information be
exempt from disclosure in the public record. - }
{ - (d) The amount of the money judgment. The following apply
to the amount of the money judgment: - }
{ - (A)(i) Except as otherwise provided in sub-subparagraph
(ii) of this subparagraph, this paragraph requires both the total
amount of the money judgment, excluding any amount that is
suspended, and a listing of amounts and identification for the
fines, assessments, costs, restitution and any other monetary
obligations imposed in the sentence as part of the money
judgment. - }
{ - (ii) When the court is unable to determine the full
amount of restitution at the time of sentencing, the court may
include the amount that can be determined or establish a maximum
amount based on a recommendation by the district attorney subject
to modification under ORS 137.107. - }
{ - (B) Except as provided in ORS 137.107, money required to
be paid as a condition of probation: - }
{ - (i) Is a money judgment that survives and remains payable
after revocation of probation if the amount is included in the
money judgment section. - }
{ - (ii) Is not a money judgment or docketable in the
judgment docket and does not survive revocation of probation if
not included in the money judgment section, even if the amount is
included in another part of the judgment, unless the money
judgment is amended under ORS 137.107. - }
{ - (e) If other than immediate payment is permitted, the
specific terms of payment imposed or allowed by the court. - }
{ - (f) A statement specifying whether all or any part of any
monetary obligation is suspended. This paragraph does not require
a response that no monetary obligation was suspended if that is
the case. In those instances where there is no statement that any
monetary obligation is suspended, it shall be deemed that no
monetary obligation or any part is suspended. - }
{ - (10) The requirements of subsection (9) of this section
must be presented in the following manner: - }
{ - (a) The information must be presented in a separate,
discrete section immediately above the judge's signature. - }
{ - (b) The separate section must be clearly labeled at its
beginning as a money judgment. - }
{ - (c) The information required under subsection (9) of this
section must be presented in the same order as set forth in that
subsection. - }
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{ - (d) The separate section must contain no other provisions
except what is specifically required by this subsection and
subsection (9) of this section and shall not include requirements
to pay money that are not part of the money judgment. - }
{ - (11) It must be signed by the judge rendering the
judgment and dated as of the date of signature. - }
{ + (3) A judgment document in a criminal action that
includes a money award, as defined in section 1 of this 2003 Act,
must comply with section 6 of this 2003 Act.
(4) The requirements of this section do not apply to a judgment
document if the action was commenced by the issuance of a uniform
citation adopted under ORS 1.525 and the court has used the space
on the citation for the entry of a judgment. The exemption
provided by this subsection does not apply if any indictment,
information or complaint other than a uniform citation is filed
in the action. + }
SECTION 163. ORS 137.107 is amended to read:
137.107. At any time after entry of a judgment upon conviction
of a crime, the court may amend that part of the judgment
relating to restitution if, in the original judgment, the court
included language imposing, recommending or requiring restitution
but failed to conform the judgment to the requirements of
{ - ORS 137.071 - } { + section 6 of this 2003 Act or any
other law governing the form of judgments in effect before the
effective date of this 2003 Act + }.
SECTION 164. ORS 137.452 is amended to read:
137.452. When a person is convicted of an offense and sentenced
to pay any monetary obligation, the following provisions apply to
obtaining a satisfaction of the money { + award portion of the
+ }judgment { - imposing the monetary obligation - } or a
release of a
{ - money - } judgment lien from a specific parcel of real
property when the money { + award portion of the + } judgment is
not satisfied:
(1) The Attorney General, by rule, may do any of the following:
(a) Authorize the Attorney General's office, a district
attorney's office, any state agency within the executive branch
of government or any specific individual or group within any of
these to:
(A) Issue satisfactions of { - money - } { + the money
award portions of + } judgments; or
(B) Release a { - money - } judgment lien from a specific
parcel of real property when either the { - money - } judgment
lien does not attach to any equity in the real property or the
amount of equity in the real property to which the judgment lien
attaches, less costs of sale or other reasonable expenses, is
paid upon the
{ - money - } judgment.
(b) Establish procedures and requirements that any person
described under paragraph (a) of this subsection must follow to
issue satisfactions or releases.
(2) Authorization of a person under subsection (1) of this
section is permissive and such person is not required to issue
satisfactions or releases if authorized. However, if a person is
authorized under subsection (1) of this section and does issue
satisfactions or releases, the person must comply with the
procedures and requirements established by the Attorney General
by rule.
(3) If the Attorney General establishes a program under
subsection (1) of this section, the Attorney General's office
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shall issue satisfactions and releases under the program unless
the Attorney General determines that there are sufficient other
agencies authorized under subsection (1) of this section who are
actually participating in the program to provide reasonable
access to satisfactions and releases on a statewide basis.
{ - (4)(a) Except as provided in paragraph (b) of this
subsection, when the entries in the register, the judgment docket
and the financial accounting records for the court show
conclusively that a monetary obligation imposed in a criminal
action has been paid in full, the clerk of the court may note
upon the judgment docket that the judgment has been paid in full.
Notation upon the judgment docket under this subsection
constitutes a satisfaction of the judgment. The clerk of the
court is not civilly liable for any act or omission in making the
notation on the judgment docket in the manner authorized by this
paragraph. - }
{ + (4)(a) Except as provided in paragraph (b) of this
subsection, when the entries in the register and the financial
accounting records for the court show conclusively that a
monetary obligation imposed in a criminal action has been paid in
full, the clerk of the court may note in the register that the
money award portion of the judgment has been paid in full.
Notation in the register under this paragraph constitutes a
satisfaction of the money award portion of the judgment. The
clerk of the court is not civilly liable for any act or omission
in making the notation in the register in the manner authorized
by this paragraph. + }
(b) When a monetary obligation imposed in a criminal action is
paid by a negotiable instrument, the clerk of the court shall
proceed as provided in paragraph (a) of this subsection only
after the expiration of 21 days from the date the negotiable
instrument is received by the court. The clerk may proceed as
provided in paragraph (a) of this subsection before the
expiration of the 21-day period if the judgment debtor or any
other interested person makes a request that the clerk proceed
and provides information that establishes to the satisfaction of
the clerk that the instrument has been honored.
(c) This subsection does not authorize the clerk of a court to
compromise, settle or partially satisfy a monetary obligation
imposed in a criminal action, or to release part of any property
subject to a judgment lien.
(5) Any satisfaction issued by a person authorized under this
section may be entered in the same manner and has the same effect
on the money { + award portion of a + } judgment as a
satisfaction issued for { + the money award portions of + } a
judgment from a civil action or proceeding.
(6) The release of judgment liens on specific parcels of real
property by the Attorney General or by a person authorized by the
Attorney General under subsection (1) of this section is
discretionary. The money { + award portion of the + } judgment
shall remain a lien against all real property not specifically
released.
SECTION 165. ORS 138.083 is amended to read:
138.083. (1) The sentencing court shall retain authority
irrespective of any notice of appeal after entry of judgment of
conviction to modify its judgment and sentence to correct any
arithmetic or clerical errors or to delete or modify any
erroneous term in the judgment. The court may correct the
judgment either on the motion of one of the parties or on the
court's own motion after written notice to all the parties. If a
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sentencing court enters an amended judgment under this section,
the court shall immediately forward a copy of the amended
judgment to the appellate court. Any modification of the appeal
necessitated by the amended judgment shall be made in the manner
specified by rules adopted by the appellate court.
(2) { - Notwithstanding ORS 137.071, - } A judgment that
orders payment of restitution but does not specify the amount of
restitution imposed is final for the purpose of appealing from
the judgment. Notwithstanding the filing of a notice of appeal,
the sentencing court retains authority to determine the amount of
restitution and to { - amend the - } { + enter a
supplemental + } judgment to specify the amount and terms of
restitution. Any modification of the appeal necessitated by the
{ - amended - } { + supplemental + } judgment may be made in
the manner specified by rules adopted by the appellate court.
{ +
ORCP 70 AND MONEY JUDGMENTS + }
SECTION 166. ORS 5.125 is amended to read:
5.125. In the county court there shall be charged and collected
in advance by the county clerk as clerk of the court, for the
benefit of the county, the following fees, and no more, for the
following purposes and services:
{ - (1) Making transcription from judgment docket in the
format provided in ORCP 70 A, $4. - }
{ - (2) Filing and docketing transcript of judgment in the
format provided in ORCP 70 A, $4. - }
{ + (1) Making transcription from the judgment docket, $4.
(2) Filing and entering transcript of judgment, $4. + }
(3) Filing and docketing copy of foreign judgment and affidavit
filed as provided in ORS 24.115 and 24.125, $25.
(4) Issuing writs of execution or writs of garnishment, $3 for
each writ.
(5) Preparing clerk's certificate of satisfaction of judgment,
$3.75.
(6) For any service not enumerated in this section, the fees
provided or established under ORS 205.320.
SECTION 167. ORS 20.077 is amended to read:
20.077. (1) In any action or suit in which one or more claims
are asserted for which an award of attorney fees is either
authorized or required, the prevailing party on each claim shall
be determined as provided in this section. The provisions of this
section apply to all proceedings in the action or suit, including
arbitration, trial and appeal.
(2) For the purposes of making an award of attorney fees on a
claim, the prevailing party is the party who receives a favorable
{ - final - } judgment, decree or arbitration award on the
claim. If more than one claim is made in an action or suit for
which an award of attorney fees is either authorized or required,
the court or arbitrator shall:
(a) Identify each party that prevails on a claim for which
attorney fees could be awarded;
(b) Decide whether to award attorney fees on claims for which
the court or arbitrator is authorized to award attorney fees, and
the amount of the award;
(c) Decide the amount of the award of attorney fees on claims
for which the court or arbitrator is required to award attorney
fees; and
(d) Enter a judgment that complies with the requirements of
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{ - ORCP 70 A - } { + sections 4 and 5 of this 2003 Act + }.
(3) Notwithstanding subsection (2) of this section, upon appeal
of a judgment { - or decree - } in an action or suit in which
one or more claims are asserted for which the prevailing party
may receive an award of attorney fees, the appellate court in its
discretion may designate as the prevailing party a party who
obtains a substantial modification of the judgment { - or
decree - } .
(4) This section does not create a claim to an award of
attorney fees in any action or suit in which the court or
arbitrator is not otherwise authorized or required to make an
award of attorney fees by contract or other law.
SECTION 168. ORS 24.125 is amended to read:
24.125. (1) At the time of the filing of the foreign judgment,
the judgment creditor or the creditor's lawyer shall make and
file with the clerk of the court an affidavit setting forth the
names and last-known post-office addresses of the judgment debtor
and the judgment creditor, together with a separate statement
containing the information required to be contained in a judgment
under { - ORCP 70 A(2)(a) - } { + section 5 of this 2003
Act + }.
(2) Promptly after filing the foreign judgment and the
affidavit, the judgment creditor must mail notice of the filing
of the foreign judgment to the judgment debtor. The notice shall
include the name and post-office address of the judgment creditor
and the judgment creditor's lawyer, if any, in this state. The
judgment creditor must file with the court proof of mailing the
notice.
(3) No execution or other process for enforcement of a foreign
judgment filed pursuant to ORS 24.105 to 24.125, 24.135 and
24.155 to 24.175, except a judgment, decree or order of a court
of the United States, shall issue until five days after the date
the judgment, affidavit and separate statement required in
subsection (1) of this section are filed.
SECTION 169. ORS 36.350 is amended to read:
36.350. (1) The award of the arbitrators, together with the
written agreement to submit, shall be delivered to the clerk of
the circuit court selected to render judgment on the award. After
charging and collecting a fee of $35 therefor, the clerk shall
enter the same of record in the office of the clerk. A copy of
the award, signed by the arbitrators, or a majority of them,
shall also be served upon or delivered to each of the parties
interested in the award, and proof of such service or delivery
shall be filed with the clerk. If no exceptions are filed against
the same within 20 days after such service, judgment shall be
entered as upon the verdict of a jury, and execution may issue
thereon, and the same proceedings may be had upon the award with
like effect as upon a verdict in a civil action.
(2) If the award of the arbitrators requires the payment of
money, including but not limited to payment of costs or attorney
fees, the award must be accompanied by a separate statement that
contains the information required by { - ORCP 70 A(2)(a) for
money - } { + section 5 of this 2003 Act for + } judgments { +
that include money awards + }.
SECTION 169a. { + If House Bill 2279 becomes law, section 169
of this 2003 Act (amending ORS 36.350) is repealed and section
19, chapter ___, Oregon Laws 2003 (Enrolled House Bill 2279), is
amended to read: + }
{ + Sec. 19. + } (1) An arbitrator shall make a record of an
award. The record must be signed or otherwise authenticated by
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any arbitrator who concurs with the award. If the award requires
the payment of money, including but not limited to payment of
costs or attorney fees, the award must be accompanied by a
separate statement that contains the information required by
{ - ORCP 70 A(2)(a) for money - } { + section 5 of this 2003
Act for + } judgments { + that include money awards + }. The
arbitrator or the arbitration organization shall give notice of
the award, including a copy of the award, to each party to the
arbitration proceeding.
(2) An award must be made within the time specified by the
agreement to arbitrate or, if not specified therein, within the
time ordered by the court. The court may extend or the parties to
the arbitration proceeding may agree in a record to extend the
time. The court or the parties may extend the time within or
after the time specified or ordered. A party waives any objection
that an award was not timely made unless the party gives notice
of the objection to the arbitrator before receiving notice of the
award.
SECTION 170. ORS 36.425 is amended to read:
36.425. (1) At the conclusion of arbitration under ORS 36.400
to 36.425 of a civil action, the arbitrator shall file the
decision and award with the clerk of the court that referred the
action to arbitration, together with proof of service of a copy
of the decision and award upon each party. If the decision and
award require the payment of money, including payment of costs or
attorney fees, the decision and award must { - contain all of
the information required in a money judgment under ORCP 70
A(2)(a) and - } be substantially in the form prescribed by
{ - ORCP 70 A(2)(b) - } { + section 5 of this 2003 Act + }.
(2)(a) Within 20 days after the filing of a decision and award
with the clerk of the court under subsection (1) of this section,
a party against whom relief is granted by the decision and award
or a party whose claim for relief was greater than the relief
granted to the party by the decision and award, but no other
party, may file with the clerk a written notice of appeal and
request for a trial de novo of the action in the court on all
issues of law and fact. A copy of the notice of appeal and
request for a trial de novo must be served on all other parties
to the proceeding. After the filing of the written notice a trial
de novo of the action shall be held. If the action is triable by
right to a jury and a jury is demanded by a party having the
right of trial by jury, the trial de novo shall include a jury.
(b) If a party files a written notice under paragraph (a) of
this subsection, a trial fee or jury trial fee, as applicable,
shall be collected as provided in ORS 21.270.
(c) A party filing a written notice under paragraph (a) of this
subsection shall deposit with the clerk of the court the sum of
$150. If the position under the arbitration decision and award of
the party filing the written notice is not improved as a result
of a judgment in the action on the trial de novo, the clerk shall
dispose of the sum deposited in the same manner as a fee
collected by the clerk. If the position of the party is improved
as a result of a judgment, the clerk shall return the sum
deposited to the party. If the court finds that the party filing
the written notice is then unable to pay all or any part of the
sum to be deposited, the court may waive in whole or in part,
defer in whole or in part, or both, the sum. If the sum or any
part thereof is so deferred and the position of the party is not
improved as a result of a judgment, the deferred amount shall be
paid by the party according to the terms of the deferral.
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{ - (3) If a written notice is not filed under subsection
(2)(a) of this section within the 20 days prescribed, the clerk
of the court shall enter the arbitration decision and award as a
final judgment of the court, which shall have the same force and
effect as a final judgment of the court in the civil action and
may not be appealed. - }
{ + (3) If a written notice is not filed under subsection
(2)(a) of this section within the 20 days prescribed, the court
shall cause to be prepared and entered a judgment based on the
arbitration decision and award. A judgment entered under this
subsection may not be appealed. + }
(4) Notwithstanding any other provision of law or the Oregon
Rules of Civil Procedure:
(a) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under the
provisions of ORS 36.405 (1)(a), the party is entitled to
attorney fees by law or contract, and the position of the party
is not improved after judgment on the trial de novo, the party
shall not be entitled to an award of attorney fees or costs and
disbursements incurred by the party before the filing of the
decision and award of the arbitrator, and shall be taxed the
reasonable attorney fees and costs and disbursements incurred by
the other parties to the action on the trial de novo after the
filing of the decision and award of the arbitrator.
(b) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under ORS
36.405 (1)(a), the party is not entitled to attorney fees by law
or contract, and the position of the party is not improved after
judgment on the trial de novo, pursuant to subsection (5) of this
section the party shall be taxed the reasonable attorney fees and
costs and disbursements of the other parties to the action on the
trial de novo incurred by the other parties after the filing of
the decision and award of the arbitrator.
(c) If a party requests a trial de novo under the provisions of
this section, the action is subject to arbitration under ORS
36.405 (1)(b), and the position of the party is not improved
after judgment on the trial de novo, the party shall not be
entitled to an award of attorney fees or costs and disbursements
and shall be taxed the costs and disbursements incurred by the
other parties after the filing of the decision and award of the
arbitrator.
(5) If a party is entitled to an award of attorney fees under
subsection (4) of this section, but is also entitled to an award
of attorney fees under contract or another provision of law, the
court shall award reasonable attorney fees pursuant to the
contract or other provision of law. If a party is entitled to an
award of attorney fees solely by reason of subsection (4) of this
section, the court shall award reasonable attorney fees not to
exceed the following amounts:
(a) Twenty percent of the judgment, if the defendant requests
the trial de novo but the position of the defendant is not
improved after the trial de novo; or
(b) Ten percent of the amount claimed in the complaint, if the
plaintiff requests the trial de novo but the position of the
plaintiff is not improved after the trial de novo.
(6) Within seven days after the filing of a decision and award
under subsection (1) of this section, a party may file with the
court and serve on the other parties to the arbitration written
exceptions directed solely to the award or denial of attorney
fees or costs. Exceptions under this subsection may be directed
Enrolled House Bill 2646 (HB 2646-B) Page 157
to the legal grounds for an award or denial of attorney fees or
costs, or to the amount of the award. Any party opposing the
exceptions must file a written response with the court and serve
a copy of the response on the party filing the exceptions.
Filing and service of the response must be made within seven days
after the service of the exceptions on the responding party. A
judge of the court shall decide the issue and enter a decision on
the award of attorney fees and costs. If the judge fails to enter
a decision on the award within 20 days after the filing of the
exceptions, the award of attorney fees and costs shall be
considered affirmed. The filing of exceptions under this
subsection does not constitute an appeal under subsection (2) of
this section and does not affect the finality of the award in any
way other than as specifically provided in this subsection.
(7) For the purpose of determining whether the position of a
party has improved after a trial de novo under the provisions of
this section, the court shall not consider any money
{ - judgment - } { + award + } or other relief granted on
claims asserted by amendments to the pleadings made after the
filing of the decision and award of the arbitrator.
SECTION 171. ORS 46.570 is amended to read:
46.570. (1) In the small claims department of circuit court
there shall be charged and collected in civil cases by the clerk
of the court the following fees for the following purposes and
services:
(a) Plaintiff filing a claim, $24 when the amount or value
claimed does not exceed $1,500, and $50 when the amount or value
claimed exceeds $1,500; and defendant demanding a hearing, $17
when the amount or value claimed by plaintiff does not exceed
$1,500, and $37 when the amount or value claimed by plaintiff
exceeds $1,500.
{ - (b) Transcript of judgment in the format provided in ORCP
70 A from small claims department, $6. - }
{ + (b) Transcription of judgment from small claims
department, $6. + }
(c) Transfer of cause to circuit court on counterclaim, $11.
(2) Except as otherwise provided in this section, fees provided
for in this section shall be collected in advance. A paper or
pleading shall be filed by the clerk only if the required fee is
paid or if a request for a fee waiver or deferral is granted by
the court.
SECTION 172. ORS 153.820 is amended to read:
153.820. (1) A court may use the procedure provided in this
section only in a county with a population of more than 500,000.
(2) The court may proceed to make a determination without a
hearing on a citation for a parking violation if:
(a) None of the registered owners of the vehicle appears within
the time allowed at the court specified in the citation;
(b) Notice of the citation and the provisions of this section
are mailed to the registered owner or owners of the vehicle at
the address or addresses reflected in the records of the
Department of Transportation; and
(c) No request for hearing or other appearance is filed with
the court within 60 days after the mailing date of the notice
required by paragraph (b) of this subsection.
(3) The court may proceed to make a determination without a
hearing on a citation for a parking violation if at least one of
the registered owners of the vehicle appears within the time
allowed at the court specified in the citation and requests a
hearing, but thereafter fails to appear at the time, date and
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court set for any subsequent hearing in the matter. If a
determination is made under the provisions of this subsection,
the court shall mail notice of any sentence and judgment to the
registered owner or owners of the vehicle at the address or
addresses reflected in the records of the Department of
Transportation.
(4) A determination under this section shall be on the citation
and on any evidence that the court may, in its discretion,
determine to be appropriate.
(5) Upon making a determination under this section, the court
may enter judgment and, if the determination is one of
conviction, may impose a sentence of a fine within the limits
established for the parking violation along with a money
{ - judgment - } { + award + } for costs, assessments and
other amounts authorized by law.
(6) A sentence to pay a fine under this section does not
prevent:
(a) Taking any other action against the person as permitted by
law for the person's failure to comply, including, but not
limited to, sentencing the person further as permitted by law
after the person is brought to hearing.
(b) Following any procedures established by law when the person
fails to appear.
(7) On motion and upon such terms as are just, the court may
relieve a person from a judgment entered under this section upon
a showing that the failure of the person to appear was due to
mistake, inadvertence, surprise or excusable neglect. The motion
must be made within a reasonable time, and in no event more than
one year after entry of judgment in the matter.
(8) { - No - } { + A + } judgment may be entered under this
section
{ - unless - } { + only if + } the citation issued to the
person contains a statement notifying the person that a
{ - money - } judgment may be entered against the person up to
the maximum amount of fines, assessments and other costs allowed
by law for the parking violation if the person fails to appear at
the time, date and court specified in the citation or fails to
appear at subsequently scheduled hearings in the matter.
(9) Notwithstanding any other provision of law, a judgment
entered under this section does not { - become a lien on real
property of the judgment debtor - } { + create a judgment
lien + } and cannot
{ - be made a lien on real property by docketing of the
judgment or - } { + become a judgment lien + } by any
{ - other - } means.
SECTION 173. ORCP 32 M is amended to read:
M Form of judgment. The judgment in an action ordered
maintained as a class action, whether or not favorable to the
class, shall specify or describe those found to be members of the
class or who, as a condition of exclusion, have agreed to be
bound by the judgment. If a { - money - } judgment { + that
includes a money award + } is entered in favor of a class { + ,
the judgment must, + } { - it shall - } when
possible { + , + } identify by name each member of the class and
the amount to be recovered thereby.
{ +
ELIMINATION OF JUDGMENT DOCKET + }
SECTION 174. ORS 7.010 is amended to read:
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7.010. (1) The records of the circuit { - and county - }
courts include a register { - , judgment docket - } and jury
register.
(2) The record of the Supreme Court and the Court of Appeals is
a register.
(3) All references in this chapter to the clerk or court
administrator relate to the office of the clerk or court
administrator of the appropriate trial or appellate court.
(4) Minimum record retention schedules and standards for all
records of the state courts and the administrative offices of the
state courts may be prescribed by the State Court Administrator
pursuant to ORS 8.125. The State Court Administrator shall ensure
that the minimum record retention schedules and standards
prescribed under ORS 8.125 conform with policies and standards
established by the State Archivist under ORS 192.105, 357.825 and
357.835 (1) for public records valued for legal, administrative
or research purposes.
SECTION 174a. { + The records of the county courts include a
register and a judgment docket. + }
SECTION 175. ORS 9.536 is amended to read:
9.536. (1) Upon the conclusion of a hearing, the disciplinary
board shall file with the State Court Administrator a written
decision in the matter. If the decision of the disciplinary board
finds the accused attorney has not committed the alleged
wrongdoing or determines that the accused attorney should be
disciplined by way of reprimand or suspension from the practice
of law up to a period of six months, the Oregon State Bar or the
accused, as the case may be, may seek review by the Supreme
Court. Such review shall be a matter of right upon the request
of either party. Otherwise, the decision of the disciplinary
board shall be final. The procedure for seeking discretionary
review and on review shall be as provided in the rules of
procedure.
(2) If the decision of the disciplinary board is to suspend the
accused attorney from the practice of law for a period of longer
than six months or to disbar the accused attorney, the matter
shall be reviewed by the Supreme Court. The procedure on review
shall be as provided in the rules of procedure.
(3) When a matter is before the Supreme Court for review, the
court shall consider the matter de novo and may adopt, modify or
reject the decision of the disciplinary board in whole or in part
and thereupon enter an appropriate order.
(4) The Supreme Court, or the disciplinary board in cases where
its decision has become final, may award judgment in any bar
proceeding for all or part of a party's actual and necessary
costs and disbursements incurred. The procedures for recovery of
such costs and disbursements shall be the same as in civil cases.
(5) The State Court Administrator shall enter any judgment for
costs and disbursements in the records of the Supreme Court and
shall forward a certified copy of the judgment to the clerk of
the circuit court of the county in which the member or applicant
resides or maintains an office for the practice of law or other
business. If a judgment for costs and disbursements is entered
against the bar, the State Court Administrator shall forward a
certified copy of the judgment to the clerk of the circuit court
of the county in which the bar maintains its principal place of
business. On receipt of a certified copy of the judgment, the
clerk of the circuit court shall file it and cause it to be
entered in the circuit court register { - and docketed in the
judgment docket - } . Such judgment shall thereafter have the
Enrolled House Bill 2646 (HB 2646-B) Page 160
same force and effect, may be enforced by execution in the same
manner, may be { - renewed - } { + extended + } in the same
manner and, upon payment, shall be satisfied in the same manner
as other judgments entered in circuit court.
SECTION 176. ORS 18.605 is amended to read:
18.605. (1) Garnishment may be used to acquire garnishable
property for application against the following debts:
(a) A judgment requiring the payment of money that has been
entered in the register of a { + circuit + } court or docketed
in the docket of a { + justice, county or municipal + } court.
(b) If the writ of garnishment is issued pursuant to
provisional process under ORCP 83 and 84, a claim of one party
against another party in a civil action.
(c) Support arrearage shown on the support records of the
Department of Justice pursuant to ORS 25.020 and 25.167, even
though such records may not constitute a full record of the
support arrearage owed.
(d) Monetary obligations imposed under agency orders or
warrants recorded pursuant to law in the County Clerk Lien
Record.
(2) For the purposes of ORS 18.600 to 18.850:
(a) A writ may be issued for a monetary obligation based on a
judgment other than a judgment for support after the judgment is
entered in the register of { - the - } { + a circuit + }
court or { - , if the court does not have a register, - } after
the judgment is docketed in the docket of { - the - } { + a
justice, county or municipal + } court.
(b) A writ may be issued for a monetary obligation based on a
judgment for support after the underlying judgment,
{ - decree, - } court order or administrative order that creates
the support obligation is entered in the register of the court or
after a request for administrative enforcement services is
received under ORS 25.083.
(c) A writ may be issued pursuant to provisional process under
ORCP 83 and 84 after the court order for provisional process is
entered in the { + docket or + } register of the court.
(d) A writ may be issued for a monetary obligation based on an
agency order or warrant after the order or warrant is recorded in
the County Clerk Lien Record.
SECTION 177. ORS 21.325 is amended to read:
21.325. In the circuit court there shall be charged and
collected in advance by the clerk of the court the following fees
for the following purposes and services:
{ - (1) Making transcription from judgment docket in the
format provided in ORCP 70 A, $6. - }
{ - (2) Filing and docketing transcript of judgment in the
format provided in ORCP 70 A, $6. - }
{ + (1) Making transcription of a judgment entered in the
register, $6.
(2) Filing and entering transcript of judgment, $6. + }
(3) Filing { - and docketing - } copy of foreign judgment
and affidavit filed as provided in ORS 24.115 and 24.125 or copy
of child custody determination of another state filed as provided
in ORS 109.787, $35.
(4) Issuing writs of execution or writs of garnishment, $4 for
each writ.
(5) Preparing { - clerk's certificate of satisfaction of
judgment - } { + a certified copy of a satisfaction document
under section 25 (5) of this 2003 Act + }, $5.
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(6) Issuing an order under { - ORS 23.710 - } { + section
31 of this 2003 Act + } requiring a judgment debtor to appear
when the order is issued by any court other than the court in
which the original judgment was entered, $4.
(7) Issuing notices of restitution as provided in ORS 105.151,
$3 for each notice.
(8) For any service the clerk may be required or authorized to
perform and for which no fee is provided by law, such fees as the
Chief Justice of the Supreme Court may establish or authorize,
except that a fee may not be charged for location or inspection
of court records.
SECTION 178. ORS 21.605 is amended to read:
21.605. (1)(a) The Chief Justice of the Supreme Court, the
Chief Judge of the Court of Appeals, a judge of a circuit or
county court, the judge of the Oregon Tax Court or a justice of
the peace may waive in whole or in part, defer in whole or in
part, or both, all fees and court costs payable by a party to a
particular civil action or proceeding in the court of the justice
or judge, upon application by the party, if the justice or judge
finds that the party is unable to pay all or any part of the fees
and costs. Waiver or deferral of an inmate's fees and court costs
is subject to ORS 30.642 to 30.650.
(b) No fee shall be required for filing an application under
paragraph (a) of this subsection.
(c) In the judgment or other final written disposition of the
action or proceeding the court shall note the dollar amount of
the fees and costs not waived and then unpaid, and that amount
shall be a judgment in favor of the public body to which the fees
and costs are owed. Failure of the court to perform the duty
imposed by this paragraph does not otherwise affect the validity
of the judgment or other final written disposition.
(d) The judgment or other final written disposition of the
action or proceeding may also contain an order for the payment of
the amount of the fees and costs not waived and then unpaid not
later than a date certain or on the happening of one or more
events. A default in payment by the person so ordered to pay
shall subject the person to a contempt proceeding.
(e) A judgment or other final written disposition rendered
under this subsection may be filed { - , - } { + and + }
entered { - and docketed - } as a judgment in any county in
this state.
(2) If fees and court costs payable by a party to a civil
action or proceeding have been waived or deferred under
subsection (1) of this section, that party shall not be required
to pay any fees or costs so waived or deferred except as provided
in subsection (1) of this section and ORS 30.642 to 30.650, and
any pleading, petition, application, request, motion, claim,
demand, exception or other paper or appearance presented by that
party for filing or acceptance in the action or proceeding shall
be filed or accepted without the payment of any such fees or
costs.
(3)(a) In a civil action or proceeding, the court to which an
appeal is taken may waive in whole or in part, defer in whole or
in part, or partially waive and partially defer the expense of
preparing a transcript on appeal, if:
(A) The party requesting the transcript is unable to pay the
expense of preparing the transcript; and
(B) The party requesting the transcript makes a prima facie
showing that the transcript is necessary to prosecute the appeal
and would reveal reversible error in the action or proceeding.
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(b) In any civil action or proceeding in which the court waives
or defers any part of the expense of preparing a transcript on
appeal, the court shall authorize preparation of only so much of
the transcript as is necessary to prosecute the appeal.
(c) To the extent that the court waives or defers any part of
the expense of preparing a transcript on appeal, the State Court
Administrator shall pay the expense out of funds appropriated for
that purpose.
(d) If the court defers payment of any part of the expense of
preparing a transcript, and any part of the deferred expense
remains unpaid at the conclusion of the appeal, the court may
enter judgment against the party for the unpaid amounts in the
manner provided by subsection (1) of this section.
(e) If costs on appeal are awarded to a party who has obtained
a waiver or deferral under this subsection, any portion of the
costs awarded for the expense of preparing the transcript on
appeal shall be ordered paid to the State Court Administrator to
the extent that the waived or deferred expense was paid by the
State Court Administrator.
(f) Waiver or deferral of an inmate's expenses under this
subsection is subject to ORS 30.642 to 30.650.
(4) In any case in which fees and court costs have been waived
or deferred under this section, a judgment or other final written
disposition shall be rendered as in other cases, but the state
shall not be liable for the payment of any fees or costs awarded
against a party whose fees or costs have been waived or deferred.
(5) In the exercise of the authority granted by ORS 1.002, the
Chief Justice of the Supreme Court may provide by rule standards
and practices for waiver or deferral of fees, court costs and
expense under this section.
SECTION 179. ORS 21.607 is amended to read:
21.607. (1) Notwithstanding ORS 82.010, judgments resulting
from the deferral of fees and court costs under the provisions of
ORS 21.605 bear no interest.
(2) If a judge of a circuit or county court defers payment of
any fees or court costs under the provisions of ORS 21.605, and
the amount of those deferred fees or court costs is subsequently
paid in full, the trial court administrator for the court shall
note { - upon the judgment docket - } { + in the register or
docket + } that the deferred fees and costs have been paid in
full. Notation { - on the judgment docket - } { + in the
register or docket + } that deferred fees and costs have been
paid in full constitutes a satisfaction of the judgment for those
fees and costs.
(3) If the Chief Justice of the Supreme Court, the Chief Judge
of the Court of Appeals or the judge of the Oregon Tax Court
defers payment of any fees or court costs under the provisions of
ORS 21.605, including deferral of the cost of preparing the
transcript on appeal, and the amount of those deferred fees or
court costs is subsequently paid in full, the State Court
Administrator shall note upon the register of the court that the
deferred fees and costs have been paid in full. Notation
{ - on - } { + in + } the register that deferred fees and
costs have been paid in full constitutes a satisfaction of the
judgment for those fees and costs.
(4) Upon notation { - on the judgment docket or - } { + in
the + } register { + or docket + } that deferred fees and costs
have been paid in full, a certified copy of the notation may be
filed with any circuit court or County Clerk Lien Record in which
the judgment was filed under the provisions of ORS 21.605. Upon
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filing of the certified copy, the trial court administrator for
the court, or the county clerk if the judgment was filed in the
County Clerk Lien Record, shall cause the certified copy to be
{ - docketed in the judgment docket - } { + entered in the
register or docket + } of the court or recorded in the County
Clerk Lien Record.
(5) Judgments resulting from the deferral of fees and court
costs under the provisions of ORS 21.605 may not be compromised,
settled or adjusted by a trial court administrator or the State
Court Administrator.
SECTION 180. ORS 24.115 is amended to read:
24.115. (1) A copy of any foreign judgment authenticated in
accordance with the Act of Congress or the statutes of this state
may be filed in the office of the clerk of any circuit court of
any county of this state. The clerk shall treat the foreign
judgment in the same manner as a judgment of the circuit court.
(2) A certified copy of any foreign judgment authenticated in
accordance with the Act of Congress or the statutes of this state
shall be recorded in the County Clerk Lien Record of any county
other than the county in which the judgment is originally
{ - docketed - } { + filed + }, in order to become a lien
upon the real property of the judgment debtor in that county as
provided in { - ORS 18.320 and 18.350 - } { + section 15 of
this 2003 Act + }.
(3) A judgment so filed has the same effect and is subject to
the same procedures, defenses and proceedings for reopening,
vacating or staying as a judgment of the circuit court in which
the foreign judgment is filed, and may be enforced or satisfied
in like manner.
SECTION 181. ORS 24.290 is amended to read:
24.290. (1) Except as provided in subsection (3) of this
section, a judgment or award on a foreign-money claim must be
stated in an amount of the money of the claim.
(2) A judgment or award on a foreign-money claim is payable in
that foreign money or, at the option of the debtor, in the amount
of United States dollars which will purchase that foreign money
on the conversion date at a bank-offered spot rate, except that
any payment made through a court pursuant to { - ORS 18.410 - }
{ + section 28 of this 2003 Act + } must be made in United
States dollars. When a payment is made to the court, the
judgment debtor shall simultaneously file with the court an
affidavit or certificate executed in good faith by its counsel or
a bank officer stating the rate of exchange used and how it was
obtained and setting forth the calculation and the amount of the
money of the claim that will be satisfied by the payment.
Affected court officials incur no liability, after a filing of
the affidavit or certificate, for acting as if the judgment were
in the amount of United States dollars stated in the affidavit or
certificate. { - The court clerk shall record every payment
that is made pursuant to ORS 18.410 in the appropriate court
records and shall pay the money over to the person entitled
thereto. - }
(3) Assessed costs, disbursements and attorney fees must be
entered in United States dollars.
(4) Each payment in United States dollars must be accepted and
credited on a judgment or award on a foreign-money claim in the
amount of the foreign money that could be purchased by the
dollars at a bank-offered spot rate of exchange at or near the
close of business on the conversion date for that payment.
Enrolled House Bill 2646 (HB 2646-B) Page 164
(5) A judgment or award made in an action or distribution
proceeding on both a defense, setoff, recoupment or counterclaim
and the adverse party's claim, must be netted by converting the
money of the smaller into the money of the larger, and by
subtracting the smaller from the larger, and specify the rates of
exchange used.
(6) A judgment or award substantially complies with subsection
(1) of this section when it is plainly titled as a judgment, it
complies with the requirements of { - ORCP 70 A(1) - } { +
section 4 of this 2003 Act + } and it includes all of the
following:
(a) The names of the judgment creditor, the judgment creditor's
attorney and the judgment debtor.
(b) The amount of the judgment in the foreign money of the
claim, the type of foreign money and the foreign state, as
defined by ORS 24.200 (1), utilizing the money that the claim is
denominated in.
(c) The interest owed to the date of the judgment, either as a
specific amount in the foreign money or as accrual information,
including the rate or rates of interest as determined by ORS
24.300, the balance or balances upon which the interest accrues,
the date or dates from which interest at each rate on each
balance runs, and whether interest is simple or compounded and,
if compounded, at what intervals.
(d) Post-judgment interest accrual information, including the
rate or rates of interest as determined by ORS 24.300, the
balance or balances upon which interest accrues, the date or
dates from which interest at each rate on each balance runs, and
whether interest is simple or compounded and, if compounded, at
what intervals.
(e) For judgments that accrued on a periodic basis, any accrued
arrearages, required further payments per period in the foreign
money and accrual dates.
(f) A statement that the judgment debtor has the option to pay
the judgment or award, including the interest owed on the date of
judgment and the post-judgment interest, unless the parties have
agreed otherwise as according to ORS 24.270, in the amount of
United States dollars that will purchase that foreign money on
the conversion date at a bank-offered spot rate at or near the
close of business on the banking day before the day of payment.
(g) A statement that, if the judgment debtor pays the judgment
through a court { - pursuant to ORS 18.410 - } { + under
section 28 of this 2003 Act + }, { - then - } the payment must
be in United States dollars as provided in subsection (2) of this
section.
(h) The amount of assessed costs, disbursements and attorney
fees in United States dollars, if they are awarded, and any
specific amounts awarded. This paragraph does not require
inclusion of specific amounts where such will be determined later
under ORCP 68 C.
(i) The terms of any agreement made by the parties, before the
entry of the judgment, to vary the effect of ORS 24.260 to 24.335
{ - and ORCP 70 A - } .
(7) If a contract claim is of the type covered by ORS 24.280
(1) or (2), the judgment or award must be entered for the amount
of money stated to measure the obligation to be paid in the money
specified for payment or, at the option of the debtor, the number
of United States dollars which will purchase the computed amount
of the money of payment on the conversion date at a bank-offered
spot rate.
Enrolled House Bill 2646 (HB 2646-B) Page 165
(8) When a judgment is given on a foreign-money claim in
circuit court, the clerk shall enter the judgment in the register
{ - and shall docket the money judgment portion of the judgment
in the judgment docket - } { + and shall note that the judgment
creates a judgment lien + }. The judgment shall have the same
force and effect as any other judgment obtained in the circuit
court.
(9) A judgment or award may be discharged by payment.
(10) A party seeking enforcement of a judgment entered as
provided in this section shall file with each request or
application an affidavit or certificate executed in good faith by
its counsel or a bank officer, stating the rate of exchange used
and how it was obtained and setting forth the calculation and the
amount of United States dollars that would satisfy the judgment
on the date of the affidavit or certificate by applying said rate
of exchange. Affected court officials incur no liability, after a
filing of the affidavit or certificate, for acting as if the
judgment were in the amount of United States dollars stated in
the affidavit or certificate. The computation contained in the
affidavit or certificate shall remain in effect for 60 days
following the filing of the affidavit or certificate and may be
recomputed before the expiration of 60 days by the filing of
additional affidavits or certificates provided that recomputation
shall not affect any payment obtained before the filing of the
recomputation.
SECTION 182. ORS 24.305 is amended to read:
24.305. (1) If an action is brought to enforce a judgment of
another jurisdiction expressed in a foreign money and the
judgment is recognized in this state as enforceable, the
enforcing judgment must be entered as provided in ORS 24.290,
whether or not the foreign judgment confers an option to pay in
an equivalent amount of United States dollars.
(2) A foreign judgment may be entered in the register { - and
docketed in the judgment docket - } in accordance with any rule
or statute of this state providing a procedure for its
recognition and enforcement.
(3) A satisfaction or partial payment made upon the foreign
judgment, on proof thereof, shall operate to the same extent as a
satisfaction of the judgment in this state, except as to costs
authorized by ORS 24.140, notwithstanding the entry of judgment
in this state.
(4) A judgment entered on a foreign-money claim only in United
States dollars in another state must be enforced in this state in
United States dollars only.
SECTION 183. ORS 25.287 is amended to read:
25.287. (1)(a) The entity providing support enforcement
services under ORS 25.080 may initiate proceedings to modify a
support obligation to ensure that the support obligation is in
accordance with the formula established under ORS 25.270 to
25.287.
(b) Proceedings under this subsection may occur only after two
years have elapsed from the later of the following:
(A) The date the original support obligation took effect;
(B) The date any previous modification of the support
obligation took effect; or
(C) The date of any previous review and determination under
this subsection that resulted in no modification of the support
obligation.
(c) For purposes of paragraph (b) of this subsection, a support
obligation or modification takes effect on the first date on
Enrolled House Bill 2646 (HB 2646-B) Page 166
which the obligor is to pay the established or modified support
amount.
(d) The only issues at proceedings under this subsection are
whether two years have elapsed, as described in paragraph (b) of
this subsection, and whether the support obligation is in
substantial compliance with the formula established under ORS
25.270 to 25.287.
(e) Upon review, if the administrator determines that a support
obligation does not qualify for modification under this section,
a party may appeal the determination. A hearing on the appeal
shall be conducted by a hearing officer assigned from the Hearing
Officer Panel established under section 3, chapter 849, Oregon
Laws 1999. Appeal of the order of the hearing officer may be
taken to the circuit court of the county in which the support
obligation has been entered { - , docketed - } or registered
for a hearing de novo. The appeal to the court shall be by
petition for review filed within 60 days after { + entry of + }
the order of the hearing officer { - has been docketed - } .
(f) If the court, the administrator or the hearing officer
finds that more than two years have elapsed, as described in
paragraph (b) of this subsection, the court, the administrator or
the hearing officer shall modify the support order to bring the
support obligation into substantial compliance with the formula
established under ORS 25.270 to 25.287, regardless of whether
there has been a substantial change in circumstances since the
support obligation was last established, modified or reviewed.
Proceedings by the administrator or hearing officer under this
subsection shall be conducted according to the provisions of ORS
416.425 and 416.427.
(g) The provisions of this subsection apply to any support
obligation established by a support order under ORS chapter 24,
107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.
(2) The administrator, court or hearing officer may use the
provisions of subsection (1) of this section when a support order
was entered in another state and registered in Oregon, the
provisions of ORS chapter 110 apply and more than two years have
elapsed as provided in subsection (1)(b) of this section.
(3) Notwithstanding the provisions of this section, proceedings
may be initiated at any time to modify a support obligation based
upon a substantial change of circumstances under any other
provision of law.
(4) The obligee is a party to any action to modify a support
obligation under this section.
SECTION 184. ORS 25.287, as amended by section 8, chapter 455,
Oregon Laws 2001, is amended to read:
25.287. (1)(a) The entity providing support enforcement
services under ORS 25.080 may initiate proceedings to modify a
support obligation to ensure that the support obligation is in
accordance with the formula established under ORS 25.270 to
25.287.
(b) Proceedings under this subsection may occur only after two
years have elapsed from the later of the following:
(A) The date the original support obligation took effect;
(B) The date any previous modification of the support
obligation took effect; or
(C) The date of any previous review and determination under
this subsection that resulted in no modification of the support
obligation.
(c) For purposes of paragraph (b) of this subsection, a support
obligation or modification takes effect on the first date on
Enrolled House Bill 2646 (HB 2646-B) Page 167
which the obligor is to pay the established or modified support
amount.
(d) The only issues at proceedings under this subsection are
whether two years have elapsed, as described in paragraph (b) of
this subsection, and whether the support obligation is in
substantial compliance with the formula established under ORS
25.270 to 25.287.
(e) Upon review, if the administrator determines that a support
obligation does not qualify for modification under this section,
a party may appeal the determination. A hearing on the appeal
shall be conducted by a hearing officer appointed by the
Employment Department. Appeal of the order of the hearing officer
may be taken to the circuit court of the county in which the
support obligation has been entered { - , docketed - } or
registered for a hearing de novo. The appeal to the court shall
be by petition for review filed within 60 days after { + entry
of + } the order of the hearing officer { - has been
docketed - } .
(f) If the court, the administrator or the hearing officer
finds that more than two years have elapsed, as described in
paragraph (b) of this subsection, the court, the administrator or
the hearing officer shall modify the support order to bring the
support obligation into substantial compliance with the formula
established under ORS 25.270 to 25.287, regardless of whether
there has been a substantial change in circumstances since the
support obligation was last established, modified or reviewed.
Proceedings by the administrator or hearing officer under this
subsection shall be conducted according to the provisions of ORS
416.425 and 416.427.
(g) The provisions of this subsection apply to any support
obligation established by a support order under ORS chapter 24,
107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.
(2) The administrator, court or hearing officer may use the
provisions of subsection (1) of this section when a support order
was entered in another state and registered in Oregon, the
provisions of ORS chapter 110 apply and more than two years have
elapsed as provided in subsection (1)(b) of this section.
(3) Notwithstanding the provisions of this section, proceedings
may be initiated at any time to modify a support obligation based
upon a substantial change of circumstances under any other
provision of law.
(4) The obligee is a party to any action to modify a support
obligation under this section.
SECTION 185. ORS 30.390 is amended to read:
30.390. If judgment is given for the recovery of money or
damages against a public corporation mentioned in ORS 30.310, no
execution shall issue thereon for the collection of such money or
damages, but the judgment shall be satisfied as follows:
(1) The party in whose favor the judgment is given may, at any
time thereafter, when an execution might issue on a like judgment
against a private person, present a certified
{ - transcript - } { + copy + } of the { - docket
thereof - } { + judgment document + }, to the officer of the
public corporation who is authorized to draw orders on the
treasurer thereof.
(2) On the presentation of the { - transcript - } { +
copy + }, the officer shall draw an order on the treasurer for
the amount of the judgment, in favor of the party for whom the
judgment was given. Thereafter, the order shall be presented for
Enrolled House Bill 2646 (HB 2646-B) Page 168
payment, and paid, with like effect and in like manner as other
orders upon the treasurer of the public corporation.
(3) The certified { - transcript - } { + copy + } provided
for in subsection (1) of this section shall not be furnished by
the clerk, unless at the time an execution might issue on the
judgment if the same was against a private person, nor until
satisfaction of the judgment in respect to such money or damages
is acknowledged as in ordinary cases. The clerk shall
{ - include in the transcript - } { + provide with the
copy + } a memorandum of such acknowledgment of satisfaction and
the entry thereof. Unless the
{ - transcript contains such a - } memorandum { + is
provided + }, no order upon the treasurer shall issue thereon.
SECTION 186. ORS 59.265 is amended to read:
59.265. (1) When the Director of the Department of Consumer and
Business Services ascertains that the assets or capital of any
broker-dealer not otherwise registered under Section 15 of the
Securities Exchange Act of 1934, as amended, or state investment
adviser that has its principal place of business in this state
are impaired, or that such person's affairs are in an unsound
condition, the director may take possession of all the property,
business and assets of such person located in this state and
retain possession of them pending the further proceedings
specified in this section. The director shall inventory the
assets and liabilities of such person. The director shall file
one copy of the inventory in the office of the director and one
copy in the office of the clerk of the circuit court of the
county in which the principal place of business of such person is
located, and shall mail one copy to each shareholder or partner
of such person at the last-known address of the shareholder or
partner. The clerk of the court shall file the inventory as a
pending proceeding and give it a { - docket - } { + case + }
number.
(2) If any person refuses to permit the director to take such
possession, the director may apply to the circuit court of the
county in which the principal place of business of such person is
located for an order appointing a receiver, who may be the
director, to take such possession.
(3) If the deficiency in assets or capital has not been made
good or the unsound condition remedied within 60 days from the
date when the director or receiver took possession, the property,
business and assets of such person located in this state shall be
liquidated. If a receiver has not been appointed, the director
shall apply for such appointment by the court in which the
inventory was filed. The liquidation shall proceed as provided by
law for liquidation of a private corporation in receivership.
(4) The expenses of the receiver and compensation of counsel,
as well as all expenditures required in the liquidation
proceedings, shall be fixed by the director, subject to the
approval of the court, and, upon certification by the director,
shall be paid out of the funds in the hands of the director as
such receiver.
SECTION 187. ORS 59.895 is amended to read:
59.895. (1) When the Director of the Department of Consumer and
Business Services ascertains that the assets or capital of any
mortgage banker or mortgage broker is impaired, or that the
mortgage banker's or mortgage broker's affairs are in an unsound
condition, the director may take possession of all the property,
business and assets of the mortgage banker or mortgage broker
located in this state and retain possession of them pending the
Enrolled House Bill 2646 (HB 2646-B) Page 169
further proceedings specified in this section. The director shall
inventory the assets and liabilities of the mortgage banker or
mortgage broker. The director shall file one copy of the
inventory in the office of the director and one copy in the
office of the clerk of the circuit court of the county in which
the principal place of business of the mortgage banker or
mortgage broker is located, and shall mail one copy to each
shareholder or partner of the mortgage banker or mortgage broker
at the last-known address of the shareholder or partner. The
clerk of the court shall file the inventory as a pending
proceeding and give it a { - docket - } { + case + } number.
(2) If any mortgage banker or mortgage broker refuses to permit
the director to take possession under this section, the director
may apply to the circuit court of the county in which the
principal place of business of the mortgage banker or mortgage
broker is located for an order appointing a receiver, who may be
the director, to take possession.
(3) If the deficiency in assets or capital has not been made
good or the unsound condition remedied within 60 days from the
date when the director or receiver took possession, the property,
business and assets of the mortgage banker or mortgage broker
located in this state shall be liquidated. If a receiver has not
been appointed, the director shall apply for such appointment by
the court in which the inventory was filed. The liquidation shall
proceed as provided by law for liquidation of a private
corporation in receivership.
(4) The expenses of the receiver and compensation of counsel,
as well as all expenditures required in the liquidation
proceedings, shall be fixed by the director, subject to the
approval of the court, and, upon certification by the director,
shall be paid out of the funds in the hands of the director as
such receiver.
SECTION 188. ORS 87.450 is amended to read:
87.450. (1) When an attorney claims a lien under ORS 87.445, if
the judgment { - or decree - } is for a sum of money only, the
attorney must file a notice of claim of lien with the clerk of
the court that { - issues - } { + entered + } the judgment
{ - or decree - } within three years after the judgment
{ - or decree - } is { - given - } { + entered + }. The
clerk shall enter the notice in the { - records of the action
or suit and shall also make a note of the filing of the notice in
the judgment docket - } { + register + } of the court { + and
in the separate record maintained by the court administrator
under section 9 of this 2003 Act + }.
(2) When an attorney files a notice of claim of lien under
subsection (1) of this section, the attorney shall send forthwith
a copy of the notice to the client by registered or certified
mail sent to the client at the last-known address of the client.
(3) A lien under ORS 87.445 on a judgment { - or decree - }
for a sum of money only remains a lien on { - that - } { +
the + } judgment { - or decree for as long as the judgment or
decree remains valid under ORS 18.360 or 18.365 - } { + until
the judgment remedies for the judgment expire under sections 18
to 22 of this 2003 Act + }.
(4) For purposes of this section, a 'judgment { - or
decree - } for a sum of money only' does not include a
{ - decree - } { + judgment + } or order for the payment of
money for the support of any person under ORS 107.095, 107.105,
108.120, 109.155, 419B.400 or 419C.590.
SECTION 189. ORS 87.470 is amended to read:
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87.470. The notice of claim of lien required under ORS 87.450
to 87.460 shall be a statement in writing verified by the oath of
the attorney and must contain:
(1) A statement of the attorney's demand, including the amount
of the fee or compensation of the attorney;
(2) { - The citation to the book, volume and page of the
judgment docket wherein is entered the judgment or decree upon
which the attorney claims a lien - } { + The name of the case
in which the judgment was entered, the date on which the judgment
was entered in the register, + } and a description of the real or
personal property which is to be awarded, transferred or conveyed
to the client under the judgment { - or decree - } ;
(3) A statement that the amount claimed is a true and bona fide
existing debt as of the date of the filing of the notice of claim
of lien; and
(4) The date on which payment was due to the attorney for
professional services to the client.
SECTION 190. ORS 88.710 is amended to read:
88.710. As used in ORS 88.710 to 88.740:
(1) 'Director' means the Director of Veterans' Affairs.
(2) 'Lien' means any charge upon property for the payment or
discharge of a debt, tax or duty due the State of Oregon or any
agency of the state, including judgment liens, recorded { - or
docketed - } warrants or any notice or claim of amount due given
by the state, or an agency thereof, pursuant to law and carried
forward on the County Clerk Lien Record or { + the register of
the + } circuit court { - judgment docket - } of the county
wherein property is located to which a lien of the state
attaches.
SECTION 191. ORS 137.270 is amended to read:
137.270. No conviction of any person for crime works any
forfeiture of any property, except in cases where the same is
expressly provided by law; but in all cases of the commission or
attempt to commit a felony, the state has a lien, from the time
of such commission or attempt, upon all the property of the
defendant for the purpose of satisfying any judgment which may be
given against the defendant for any fine on account thereof and
for the costs and disbursements in the proceedings against the
defendant for such crime; provided, however, such lien shall not
attach to such property as against a purchaser or incumbrancer in
good faith, for value, whose interest in the property was
acquired before the { - docketing - } { + entry + } of the
judgment against the defendant.
SECTION 192. ORS 180.360 is amended to read:
180.360. Filing, recording or court fees { - shall - }
{ + may + } not be required from the Division of Child Support
of the Department of Justice by any circuit court clerk for the
filing of any cases, documents, stipulated orders or processes.
However, if the division is entitled to recover costs and
disbursements, any of those fees taxable as costs and
disbursements may be so taxed, and if recovered by the division,
shall be paid to the appropriate officer. A circuit court clerk
{ - shall - } { + may + } not refuse to file { - or
docket - } a stipulated order { + , or enter a stipulated
judgment, + } for the reason that the parties signing such order
have failed to pay any fee when such order is presented by the
Division of Child Support and is signed by a judge.
SECTION 193. ORS 183.485 is amended to read:
183.485. (1) The court having jurisdiction for judicial review
of contested cases shall direct its decision, including its
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judgment, to the agency issuing the order being reviewed and may
direct that its judgment be delivered to the circuit court for
any county designated by the prevailing party for entry in the
circuit court's { - judgment docket - } { + register + }.
(2) Upon receipt of the court's decision, including the
judgment, the clerk of the circuit court shall enter a judgment
{ - or decree - } in the register { - and docket it - }
{ + of the court + } pursuant to the direction of the court to
which the appeal is made.
SECTION 194. ORS 205.125 is amended to read:
205.125. (1) The County Clerk Lien Record maintained under ORS
205.130 shall contain the following information for each order or
warrant recorded:
(a) The name of any person subject to the order or warrant.
(b) The name of the officer and the agency that issued the
order or warrant or the name of the claimant in whose favor an
order of the Construction Contractors Board or State Landscape
Contractors Board has been given. The name of the agency or board
that issued the order or warrant must be clearly printed on the
order or warrant.
(c) The amount of any monetary obligation imposed by the order
or warrant, and the name of all persons against whom the
obligation is imposed.
(d) The date on which the order or warrant was received and
recorded.
(e) Full or partial satisfaction, if any, of any lien claim
created by the order or warrant.
(f) County Clerk Lien Record instruments filed under ORS
205.130 (3)(c)(A) shall be on official letterhead and include the
seals, if any, of the officers and agencies.
(g) Such other information as may be considered necessary by
the county clerk.
(2) From the date that an order or warrant is recorded in the
County Clerk Lien Record, the order or warrant shall have the
attributes and effect of a judgment that has been entered in the
register { - and docketed in the judgment docket - } of the
circuit court for that county, including but not limited to the
creation of a { + judgment + } lien { + for any monetary
obligation + }in favor of the officer or agency issuing the
order or warrant or in favor of the claimant in the proceedings
before the Construction Contractors Board or State Landscape
Contractors Board, renewal and enforcement by supplementary
proceedings, writs of execution, notices of garnishment and writs
of garnishment.
{ - (3) From the date that an order or warrant is recorded in
the County Clerk Lien Record, the order or warrant becomes a lien
upon any interest in real property of the person against whom the
order or warrant is issued in the county where the order or
warrant is recorded. - }
{ + (3) From the date that an order or warrant imposing a
monetary obligation is recorded in the County Clerk Lien Record,
the order or warrant becomes a lien upon the title to and
interest in property of the person against whom it is issued in
the same manner as a judgment that creates a judgment lien under
sections 1 to 44 of this 2003 Act. + }
(4) In addition to any other remedy provided by law, orders and
warrants recorded in the County Clerk Lien Record may be enforced
as provided in ORS 205.126.
SECTION 195. ORS 205.126 is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 172
205.126. (1) At any time after recording an order or warrant in
the County Clerk Lien Record, a claimant or an attorney for an
agency or claimant may file in the circuit court for the county
where the order or warrant is recorded, a copy of the original
order or warrant certified by the agency to be a true copy of
original, and an affidavit of the claimant or attorney verifying
that the order or warrant was recorded in the County Clerk Lien
Record for that county, the date that the order or warrant was
recorded and the date on which any notice of renewal was recorded
under subsection (2) of this section. Subject to any other
requirements that may apply to the enforcement remedy sought by
the agency or claimant, proceedings may thereafter be commenced
by the agency or claimant for the enforcement of the order or
warrant, in the same manner as provided for the enforcement of
judgments issued by a court. Enforcement proceedings may include:
(a) Writ of execution proceedings under { - ORS 23.030 to
23.105 and 23.410 to 23.600 - } { + sections 29 to 44 of this
2003 Act + }.
{ - (b) Supplementary proceedings under ORS 23.710 to
23.730. - }
{ + (b) Proceedings in support of execution under sections
31, 32 and 33 of this 2003 Act. + }
(c) Garnishment proceedings under ORS 18.600 to 18.850.
(2) At any time within 10 years after the recording of an order
or warrant, an agency or claimant, acting with or without the
assistance of an attorney, may renew an order or warrant by
recording a notice of renewal in the County Clerk Lien Record. A
notice of renewal recorded within the time specified by this
subsection has the attributes and effect of { - a renewal - }
{ + an extension + } of judgment { + remedies + } noted in the
register { - and judgment docket, as provided in ORS 18.360 - }
{ + under section 19 of this 2003 Act + }, from the date that
the notice is recorded. A notice of renewal recorded under this
section must state:
(a) The name of the agency that issued the warrant or order or
the name of the claimant in whose favor an order of the
Construction Contractors Board or State Landscape Contractors
Board has been given;
(b) The name of all persons against whom a monetary obligation
is imposed under the order or warrant; and
(c) The date of recording and the recording number, the book
and page number for the recording, or the volume and page number
for the recording.
(3) For the purposes of this section:
(a) 'Agency' means any state officer, board, commission,
corporation, institution, department or other state body that has
authority to record an order or warrant in the County Clerk Lien
Record.
(b) 'Claimant' means a person in favor of which a board order
has been recorded under the provisions of ORS 671.707 or 701.150.
SECTION 196. ORS 205.515 is amended to read:
205.515. (1) If an order or warrant issued by a state agency or
officer was docketed in the judgment docket of the circuit court
of any county before October 3, 1989, notice of satisfaction or
release of the lien of an order or warrant so docketed shall be
docketed in the same judgment docket in which the order or
warrant was docketed.
(2) If an order or warrant issued by a state agency or officer
was docketed in the judgment docket of a circuit court of any
county before October 3, 1989, the officer or agency may cause
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such an order or warrant to be transferred to and recorded in the
County Clerk Lien Record of the same county in which the order or
warrant was originally docketed as provided in subsection (3) of
this section. An order or warrant so transferred shall continue
the lien created by the original docketing of the order or
warrant.
(3) Upon request, the clerk of a circuit court shall supply to
an officer or agency a certified copy of any order or warrant
docketed in the judgment docket of a circuit court before October
3, 1989. That certified copy may then be recorded in the County
Clerk Lien Record of the county where the circuit court is
located in the same manner and with the same effect provided for
the recording of original orders and warrants. Upon recording of
the order or warrant, the agency or officer shall as soon as
possible thereafter cause to be returned to the clerk of the
circuit court that prepared the certified copy, the original of
that certified copy reflecting the recording of the copy in the
County Clerk Lien Record and the date of the recording. The clerk
shall then cause to be entered in the { - judgment docket - }
{ + register + } a notation reflecting the recording of the
order or warrant in the County Clerk Lien Record and the date of
the recording.
(4) Nothing in this section shall be construed to affect the
status of liens created by, or require the transfer from, any
judgment docket to any County Clerk Lien Record of any order or
warrant docketed in a judgment docket before October 3, 1989.
SECTION 197. ORS 267.385 is amended to read:
267.385. (1) To carry out the powers granted by ORS 267.010 to
267.390, a district may by ordinance impose an excise tax on
every employer equal to not more than six-tenths of one percent
of the wages paid with respect to the employment of individuals.
For the same purposes, a district may by ordinance impose a tax
on each individual equal to not more than six-tenths of one
percent of the individual's net earnings from self-employment.
(2) No employer shall make a deduction from the wages of an
employee to pay all or any portion of a tax imposed under this
section.
(3) The provisions of ORS 305.620 are applicable to collection,
enforcement, administration and distribution of a tax imposed
under this section.
(4) At any time an employer or individual fails to remit the
amount of taxes when due under an ordinance of the district board
imposing a tax under this section, the Department of Revenue may
enforce collection by the issuance of a distraint warrant for the
collection of the delinquent amount and all penalties, interest
and collection charges accrued thereon. Such warrant shall be
issued { - , docketed and proceeded upon - } { + and may be
enforced + } in the same manner and have the same force and
effect as prescribed with respect to warrants for the collection
of delinquent state income taxes.
(5) Any ordinance adopted under subsection (1) of this section
shall require an individual having net earnings from
self-employment from activity both within and without the
district taxable by the State of Oregon to allocate and apportion
such net earnings to the district in the manner required for
allocation and apportionment of income under ORS 314.280 and
314.605 to 314.675. Such ordinance shall give the individual the
option of apportioning income based on a single factor designated
by the ordinance.
Enrolled House Bill 2646 (HB 2646-B) Page 174
(6) Any ordinance adopted under subsection (1) of this section
with respect to net earnings from self-employment may impose a
tax for a taxable year measured by each individual's net earnings
from self-employment for the prior taxable year, whether such
prior taxable year begins before or after November 1, 1981, or
such ordinance.
(7) Any ordinance imposing a tax authorized by subsection (1)
of this section shall not apply to any business, trade,
occupation or profession upon which a tax is imposed under ORS
267.360.
SECTION 198. ORS 311.615 is amended to read:
311.615. (1) Notice of the warrants required by ORS 311.610 and
the issue thereof, except as provided in ORS 311.620, shall be
given by four consecutive weekly publications thereof in a
newspaper of general circulation in the county, to be designated
by the county court. All warrants served by publication may be
included in one general notice.
(2) The published notice shall contain:
(a) A general statement of the effect of the warrants when
filed and { - docketed - } { + recorded + }.
(b) The names of the respective owners of the several personal
properties and descriptions thereof as appearing in the latest
tax roll or in the list or return listing or reporting the
property pursuant to ORS 308.285 or 308.290.
(c) The year or years for which taxes are delinquent on each
property.
(d) The amount of delinquent taxes for each year.
(e) The interest accrued on each such amount to the date of
issuance of the warrant.
(3) The publication of the notice shall be sufficient service
on each person named therein or interested in any property
described therein. It shall not be necessary to mail a copy of
the notice to the persons named in the published notice or
interested in any property described therein. All persons named
in the notice or owning or claiming to own, or having or claiming
to have any interest in any property described therein, are
required to take notice of the proceeding and of all steps
thereunder.
SECTION 199. ORS 311.630 is amended to read:
311.630. Except as provided in ORS 311.610, the process of
issuing, serving, { - docketing - } { + recording + } and
executing warrants covering all delinquent taxes on personal
property, as provided in ORS 311.605 to 311.635, shall be
mandatory, irrespective of any other process, procedure or remedy
provided by law in respect to collection or payment of such
taxes.
SECTION 200. ORS 319.182 is amended to read:
319.182. (1) If a person fails to pay in full any tax, interest
or penalty due under ORS 319.010 to 319.430, the Department of
Transportation may issue a warrant under the department's
official seal directed to the sheriff of any county of the state
commanding the sheriff to levy upon and sell the real and
personal property of the person found within that county, for
payment of the amount due, with the added penalties or charges,
interest and the cost of executing the warrant, and to return the
warrant to the department and pay to the department the money
collected from the sale by the time specified in the warrant, not
less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy of the
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warrant. The clerk shall enter in the County Clerk Lien Record
the name of the person mentioned in the warrant, the amount of
the tax or portion of the tax and penalties or charges for which
the warrant is issued and the date when the copy is recorded. The
amount of the warrant shall become a lien upon the title to and
interest in property of the person against whom it is issued in
the same manner as a judgment { - duly docketed - } { + that
creates a judgment lien under sections 1 to 44 of this 2003
Act + }.
(3) The sheriff shall proceed upon the warrant in all respects,
with like effect and in the same manner prescribed by law in
respect to executions issued against property upon judgment of a
court of record, and shall be entitled to the same fees for
services in executing the warrant, to be added to and collected
as a part of the warrant liability.
(4) In the discretion of the Department of Transportation, a
warrant of like terms, force and effect to levy upon funds of the
person in possession of the Department of Revenue may be issued
and directed to any agent authorized by the Department of
Transportation to collect taxes payable under ORS 319.010 to
319.430, and in the execution thereof the agent shall have all of
the powers conferred by law upon sheriffs but is entitled to no
fee or compensation in excess of actual expenses paid in the
performance of such duty.
SECTION 201. ORS 319.742 is amended to read:
319.742. (1) If a person fails to pay in full any obligation
due under ORS 319.510 to 319.880, the Department of
Transportation may issue a warrant under the department's
official seal directed to the sheriff of any county of the state
commanding the sheriff to levy upon and sell the real and
personal property of the person found within that county, for
payment of the amount of the obligation and the cost of executing
the warrant, and to return the warrant to the department and pay
to the department the money collected from the sale by the time
specified in the warrant, not less than 60 days from the date of
the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy of the
warrant. The clerk shall enter in the County Clerk Lien Record
the name of the person mentioned in the warrant, the amount of
the obligation for which the warrant is issued and the date when
the copy is recorded. The amount of the warrant shall become a
lien upon the title to and interest in property of the person
against whom it is issued in the same manner as a judgment
{ - duly docketed - } { + that creates a judgment lien under
sections 1 to 44 of this 2003 Act + }.
(3) The sheriff shall proceed upon the warrant in all respects,
with like effect and in the same manner prescribed by law in
respect to executions issued against property upon judgment of a
court of record, and shall be entitled to the same fees for
services in executing the warrant, to be added to and collected
as a part of the warrant liability.
(4) In the discretion of the Department of Transportation, a
warrant of like terms, force and effect to levy upon funds of the
person in possession of the Department of Revenue may be issued
and directed to any agent authorized by the Department of
Transportation to collect taxes payable under ORS 319.510 to
319.880, and in the execution thereof the agent shall have all of
the powers conferred by law upon sheriffs but is entitled to no
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fee or compensation in excess of actual expenses paid in the
performance of such duty.
SECTION 202. ORS 320.080 is amended to read:
320.080. (1) If any tax or penalty imposed by this chapter is
not paid as required by this chapter within 30 days after the
date that the written notice and demand for payment required
under ORS 305.895 is mailed, the Department of Revenue shall
issue a warrant directed to the sheriff of any county of the
state commanding the sheriff to levy upon and sell the real and
personal property of the person or persons named in the warrant
and liable for the tax found within the county, for the payment
of the amount thereof with the added penalty and the cost of
executing the warrant, and to return the warrant to the
department and pay to it the money collected by virtue thereof by
a time to be therein specified not more than 30 days from the
date of the warrant. A copy of the warrant shall be mailed or
delivered to the taxpayer by the department at the taxpayer's
last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof.
Thereupon the clerk shall enter in the County Clerk Lien Record
the names of the persons mentioned in the warrant, and the amount
of the tax and penalty for which the warrant is issued and the
date when such copy is recorded. Thereupon the amount of the
warrant so recorded shall become a lien upon the title to any
interest in real property or personal property of the persons
against whom it is issued in the same manner as a judgment
{ - duly docketed - } { + that creates a judgment lien under
sections 1 to 44 of this 2003 Act + }. The sheriff shall
thereupon proceed upon the same in all respects, with like effect
and in the manner prescribed by law in respect to execution
issued against property upon judgment of a court of record, and
the sheriff is entitled to the same fees for services in
executing the warrant to be collected in the same manner. If a
warrant is returned not satisfied in full, the department shall
have the same remedies to enforce the claim for taxes as if the
people of the state had recovered judgment for the amount of the
tax.
SECTION 203. ORS 321.570 is amended to read:
321.570. (1) If any tax imposed by ORS 321.005 to 321.185,
321.257 to 321.390, 321.405 to 321.487 or 321.560 to 321.600, or
any portion of such tax, is not paid within 30 days after the
date that the written notice and demand for payment required
under ORS 305.895 is mailed, the Department of Revenue may issue
a warrant, directed to the sheriff of any county of the state,
commanding the sheriff to levy upon and sell the real and
personal property of the taxpayer owning the same, found within
that county, for the payment of the amount of the tax, with the
added penalties, interest and cost of executing the warrant, and
to return the warrant to the department and to pay to it the
money collected from the sale, within 60 days after receipt of
the warrant. A copy of the warrant shall be mailed or delivered
to the taxpayer by the department at the taxpayer's last-known
address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record a copy with the county clerk, and the clerk
shall immediately enter in the County Clerk Lien Record the name
of the taxpayer mentioned in the warrant, and the amount of the
tax or portion of the tax and penalties for which the warrant is
issued and the date when the copy is recorded. The amount of the
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warrant so recorded shall become a lien upon the title to and
interest in real property of the taxpayer against which it is
issued, in the same manner as a judgment { - duly docketed - }
{ + that creates a judgment lien under sections 1 to 44 of this
2003 Act + }. The sheriff immediately shall proceed upon the
warrant in all respects, with like effect, and in the same manner
prescribed by law in respect to executions issued against
property upon judgments of a court of record, and shall be
entitled to the same fees for services in executing the warrant,
to be added to and collected as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect this tax. In the execution of the warrant,
such agent has the powers conferred by law upon sheriffs, but is
entitled to no fee or compensation in excess of actual expenses
paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the state had a recorded
judgment against the taxpayer for the amount of the tax.
SECTION 204. ORS 323.390 is amended to read:
323.390. (1) If any tax imposed by ORS 323.005 to 323.482 or
any portion of such tax is not paid within 30 days after notice
of a deficiency determination is given pursuant to ORS 323.403 or
of a tax determined under ORS 323.385, and no provision is made
to secure the payment thereof by bond, deposit or otherwise,
pursuant to regulations promulgated by the Department of Revenue,
the department shall:
(a) Assess a collection charge of $5 if the sum of the tax,
penalty and interest then due exceeds $10.
(b) Issue a warrant directed to the sheriff of any county of
the state commanding the sheriff to levy upon and sell the real
and personal property of the taxpayer found within that county,
for the payment of the amount of the tax, with the added
penalties, interest, collection charge and the sheriff's cost of
executing the warrant, and to return such warrant to the
department and pay to it the money collected by virtue thereof by
a time to be therein specified, not less than 60 days from the
date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the taxpayer mentioned in the warrant, and the
amount of the tax or portion thereof and penalties and interest
for which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
taxpayer against whom it is issued in the same manner as a
judgment { - duly docketed - } { + that creates a judgment
lien under sections 1 to 44 of this 2003 Act + }. The sheriff
thereupon shall proceed upon the same in all respects, with like
effect and in the same manner prescribed by law in respect to
executions issued against property upon judgment of a court of
record, and shall be entitled to the same fees for services in
executing the warrant, to be added to and collected as a part of
the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect income taxes, and in the execution thereof
the agent shall have all the powers conferred by law upon
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sheriffs, but is entitled to no fee or compensation in excess of
actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax.
SECTION 205. ORS 323.610 is amended to read:
323.610. (1) If any tax imposed under the Tobacco Products Tax
Act or any portion of the tax is not paid within the time
provided by law and no provision is made to secure the payment of
the tax by bond, deposit or otherwise, pursuant to rules adopted
by the Department of Revenue, the department may issue a warrant
directed to the sheriff of any county of the state commanding the
sheriff to levy upon and sell the real and personal property of
the taxpayer found within the county, for the payment of the
amount of the tax, with the added penalties, interest and the
sheriff's cost of executing the warrant, and to return the
warrant to the department and pay to it the money collected from
the sale, within 60 days after the date of receipt of the
warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy of the
warrant, and the clerk shall immediately enter in the County
Clerk Lien Record the name of the taxpayer mentioned in the
warrant, the amount of the tax or portion of the tax and
penalties for which the warrant is issued and the date the copy
is recorded. The amount of the warrant so recorded shall become a
lien upon the title to and interest in real property of the
taxpayer against whom it is issued in the same manner as a
judgment { - duly docketed - } { + that creates a judgment
lien under sections 1 to 44 of this 2003 Act + }. The sheriff
immediately shall proceed upon the warrant in all respects, with
like effect and in the same manner prescribed by law in respect
to executions issued against property upon judgment of a court of
record, and shall be entitled to the same fees for services in
executing the warrant, to be added to and collected as a part of
the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect the taxes imposed by the Tobacco Products
Tax Act. In the execution of the warrant, the agent shall have
all the powers conferred by law upon sheriffs, but is entitled to
no fee or compensation in excess of actual expenses paid in the
performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax.
SECTION 206. ORS 324.190 is amended to read:
324.190. (1) If any tax imposed by this chapter, or any portion
of such tax, is not paid within 30 days after the date that the
written notice and demand for payment required under ORS 305.895
is mailed, the Department of Revenue shall issue a warrant,
directed to the sheriff of any county of the state, commanding
the sheriff to levy upon and sell the real and personal property
of the person owing the tax, found within that county, for the
payment in the amount thereof, with the added penalties, interest
and cost of executing the warrant, and to return the warrant to
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the department and to pay to it the money collected by virtue
thereof, within 60 days after receipt of the warrant. A copy of
the warrant shall be mailed or delivered to the taxpayer by the
department at the taxpayer's last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record a copy with the county clerk, and thereupon
the clerk shall enter in the County Clerk Lien Record the name of
the person mentioned in the warrant, and the amount of the tax or
portion thereof and penalties for which the warrant is issued and
the date when the copy is recorded. Thereupon the amount of the
warrant so recorded shall become a lien upon the title to and
interest in real property of the person against which it is
issued, in the same manner as a judgment { - duly docketed - }
{ + that creates a judgment lien under sections 1 to 44 of this
2003 Act + }. The sheriff thereupon shall proceed upon the
warrant in all respects, with like effect, and in the same manner
prescribed by law in respect to executions issued against
property upon judgments of a court of records, and shall be
entitled to the same fees for services in executing the warrant,
to be added to and collected as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
of the department authorized by it to collect this tax. In the
execution of the warrant, such agent has the powers conferred by
law upon sheriffs, but is entitled to no fee or compensation in
excess of actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the owner as if the state had a recorded judgment
against the owner for the amount of the tax.
SECTION 207. ORS 416.422, as amended by section 9, chapter 146,
Oregon Laws 2003 (Enrolled House Bill 2645), is amended to read:
416.422. (1) Past support may not be ordered for any period of
time prior to the later of:
(a) The date of the most recent application for service from
the child support program administered under Title IV-D of the
Social Security Act; or
(b) In the case of a mandatory referral based on the receipt of
public assistance, the date of the last referral to the child
support program administered under Title IV-D of the Social
Security Act.
(2) If the administrator has issued a notice and finding of
financial responsibility under ORS 416.415 that includes a
statement of past support but the administrator or hearing
officer has not issued an order, and a court proceeding that
involves the same obligor and child support for the same child is
pending or is commenced after the notice is issued, the
administrator may certify all matters under the notice to the
court for consolidation in the court proceeding. After the matter
is certified to the court, the court may, in the same manner as
the administrator, order a parent to pay an amount of past
support.
(3) If the administrator does not certify the matter to the
court under subsection (2) of this section and the court's
judgment { - , decree - } or order does not address past
support, the administrator or a hearing officer may thereafter
issue an order directing a parent to pay an amount of past
support.
SECTION 208. ORS 416.425 is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 180
416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligated parent, the obligee, the
party holding the support rights or the administrator may move
for the existing order to be modified under this section. The
motion shall be in writing in a form prescribed by the
administrator, shall set out the reasons for modification and
shall state the telephone number and address of the moving party.
The motion shall be served upon the obligated parent, the
obligee, the party holding the support rights and the
administrator, as appropriate. The obligor shall be served in
the same manner as provided for service of the notice and finding
of financial responsibility under ORS 416.415 (1). The obligee
shall be served in accordance with ORS 25.085. The parties
against whom the motion is made shall have 30 days to resolve the
matter by stipulated agreement or to serve the moving party by
regular mail with a written response setting forth any objections
to the motion and a request for hearing. The hearing shall be
conducted pursuant to ORS 416.427.
(2) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the hearings officer as provided in ORS 416.427, except the
default shall not be construed to be a contested case as defined
in ORS 183.310 to 183.550. Upon proof of service, the hearings
officer shall issue an order granting the relief sought.
(3) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
(4) A motion for modification made pursuant to this section
shall not stay the administrator from enforcing and collecting
upon the existing order unless so ordered by the court in which
the order is { - docketed - } { + entered + }.
(5) Except as otherwise provided by ORS 416.400 to 416.470, the
only support payments which may be modified are the monthly
future support payments.
(6) The party requesting modification shall have the burden of
showing a substantial change of circumstances or that a
modification is appropriate under the provisions of ORS 25.287.
(7) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
(8) The obligee is a party to all proceedings under this
section.
(9) An order entered under this section that modifies a support
order because of the incarceration of the obligor is effective
only during the period of the obligor's incarceration and for 60
days after the obligor's release from incarceration. The
previous support order is reinstated by operation of law on the
61st day after the obligor's release from incarceration. An order
that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
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SECTION 208a. { + If House Bill 2111 becomes law, section 208
of this 2003 Act (amending ORS 416.425) is repealed and ORS
416.425, as amended by section 4, chapter 419, Oregon Laws 2003
(Enrolled House Bill 2111), is amended to read: + }
416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligor, the obligee, the party
holding the support rights or the administrator may move for the
existing order to be modified under this section. The motion
shall be in writing in a form prescribed by the administrator,
shall set out the reasons for modification and shall state the
telephone number and address of the moving party. The motion
shall be served upon the obligor, the obligee, the party holding
the support rights and the administrator, as appropriate. The
obligor shall be served in the same manner as provided for
service of the notice and finding of financial responsibility
under ORS 416.415 (1). The obligee shall be served in accordance
with ORS 25.085. The parties against whom the motion is made
shall have 30 days to resolve the matter by stipulated agreement
or to serve the moving party by regular mail with a written
response setting forth any objections to the motion and a request
for hearing. The hearing shall be conducted under ORS 416.427.
(2) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the hearings officer as provided in ORS 416.427, except the
default shall not be construed to be a contested case as defined
in ORS 183.310 to 183.550. Upon proof of service, the hearings
officer shall issue an order granting the relief sought.
(3) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
(4) A motion for modification made under this section does not
stay the administrator from enforcing and collecting upon the
existing order unless so ordered by the court in which the order
is { - docketed - } { + entered + }.
(5) An administrative order filed in accordance with ORS
416.440 is a final judgment as to any installment or payment of
money that has accrued up to the time the nonmoving party is
served with a motion to set aside, alter or modify the judgment.
The administrator may not set aside, alter or modify any portion
of the judgment that provides for any payment of money for minor
children that has accrued before the motion is served. However:
(a) The administrator may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or { - decree - } { +
judgment + }, during which the obligor, with the knowledge and
consent of the obligee or pursuant to court order, has physical
custody of the child; and
(b) The administrator may allow a credit against child support
arrearages for any Social Security or veterans' benefits paid
retroactively to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of a parent's disability or retirement.
(6) The party requesting modification has the burden of showing
a substantial change of circumstances or that a modification is
appropriate under the provisions of ORS 25.287.
(7) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
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written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
(8) The obligee is a party to all proceedings under this
section.
(9) An order entered under this section that modifies a support
order because of the incarceration of the obligor is effective
only during the period of the obligor's incarceration and for 60
days after the obligor's release from incarceration. The
previous support order is reinstated by operation of law on the
61st day after the obligor's release from incarceration. An order
that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
SECTION 209. ORS 416.427 is amended to read:
416.427. (1) When a party requests a hearing pursuant to ORS
416.415, 416.425 (1) or 416.429, the contested case provisions of
ORS 183.310 to 183.550 apply except when the issue of paternity
is to be resolved pursuant to ORS 416.430.
(2) Except as provided in ORS 416.430, hearings shall be
conducted by a hearing officer assigned from the Hearing Officer
Panel established under section 3, chapter 849, Oregon Laws 1999.
(3) The hearing officer has the power to issue subpoenas for
witnesses necessary to develop a full record. The attorney of
record for the office may issue subpoenas. Witnesses appearing
pursuant to subpoena, other than parties or officers or employees
of the administrator, shall receive fees and mileage as
prescribed by law for witnesses in ORS 44.415 (2). Obedience to
the subpoena may be compelled in the same manner as set out in
ORS 183.440 (2).
(4) Upon issuance of an order, action by the administrator to
enforce and collect upon the order, including arrearages, may be
taken. Such action shall not be stayed or partially stayed
pending appeal or by any court unless there is substantial
evidence showing that the obligor would be irreparably harmed and
that the obligee would not be irreparably harmed.
(5) An order issued by the hearing officer or the administrator
is final. The order shall be in full force and effect while any
appeal is pending unless the order is stayed by a court. No stay
shall be granted unless there is substantial evidence showing the
obligor would be irreparably harmed and that the obligee would
not be irreparably harmed.
(6) Appeal of the order of the hearing officer or any default
or consent order entered by the administrator pursuant to ORS
416.400 to 416.470 may be taken to the circuit court of the
county in which the order has been { - docketed - } { +
entered + } pursuant to ORS 416.440 for a hearing de novo. The
appeal shall be by petition for review filed within 60 days after
the order has been { - docketed - } { + entered + } pursuant
to ORS 416.440. Unless otherwise specifically provided by law,
the appeal shall be conducted pursuant to the Oregon Rules of
Civil Procedure.
(7) The obligor, the obligee and the state are parties to any
proceedings, including appeals, under this section.
SECTION 210. ORS 416.427, as amended by section 79, chapter
849, Oregon Laws 1999, is amended to read:
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416.427. (1) When a party requests a hearing pursuant to ORS
416.415, 416.425 (1) or 416.429, the contested case provisions of
ORS 183.310 to 183.550 apply except when the issue of paternity
is to be resolved pursuant to ORS 416.430.
(2) Except as provided in ORS 416.430, hearings shall be
conducted by a qualified hearing officer appointed by the
Employment Department.
(3) The hearing officer has the power to issue subpoenas for
witnesses necessary to develop a full record. The attorney of
record for the office may issue subpoenas. Witnesses appearing
pursuant to subpoena, other than parties or officers or employees
of the administrator, shall receive fees and mileage as
prescribed by law for witnesses in ORS 44.415 (2). Obedience to
the subpoena may be compelled in the same manner as set out in
ORS 183.440 (2).
(4) Upon issuance of an order, action by the administrator to
enforce and collect upon the order, including arrearages, may be
taken. Such action shall not be stayed or partially stayed
pending appeal or by any court unless there is substantial
evidence showing that the obligor would be irreparably harmed and
that the obligee would not be irreparably harmed.
(5) An order issued by the hearing officer or the administrator
is final. The order shall be in full force and effect while any
appeal is pending unless the order is stayed by a court. No stay
shall be granted unless there is substantial evidence showing the
obligor would be irreparably harmed and that the obligee would
not be irreparably harmed.
(6) Appeal of the order of the hearing officer or any default
or consent order entered by the administrator pursuant to ORS
416.400 to 416.470 may be taken to the circuit court of the
county in which the order has been { - docketed - } { +
entered + } pursuant to ORS 416.440 for a hearing de novo. The
appeal shall be by petition for review filed within 60 days after
the order has been { - docketed - } { + entered + } pursuant
to ORS 416.440. Unless otherwise specifically provided by law,
the appeal shall be conducted pursuant to the Oregon Rules of
Civil Procedure.
(7) The obligor, the obligee and the state are parties to any
proceedings, including appeals, under this section.
SECTION 211. ORS 416.429 is amended to read:
416.429. (1) The administrator may issue a notice of intent to
establish and enforce arrearages for any support order that is
registered, filed or { - docketed - } { + entered + } in this
state. The notice must be served upon the obligor in the manner
prescribed for service of summons in a civil action or mailed to
the obligor at the obligor's last-known address by certified
mail, return receipt requested. The administrator shall mail the
notice to the obligee by regular mail.
(2) The notice shall include:
(a) A statement of the name of the caretaker relative or agency
and the name of the dependent child for whom support is to be
paid;
(b) A statement of the monthly support the obligor is required
to pay under the support order;
(c) A statement of the arrearages claimed to be owed under the
support order;
(d) A demand that the obligor make full payment to the
Department of Justice or the clerk of the court, whichever is
appropriate, within 14 days of the receipt or service of the
notice;
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(e) A statement that if full payment or an objection is not
received within 14 days, the administrator will enter an order
directing that the amount of the arrearages stated in the notice
be entered in the child support accounting record maintained by
the Department of Justice;
(f) A statement that if the obligor or the obligee objects to
the enforcement of the arrearages, then the objecting party must
send to the office issuing the notice, within 14 days of the date
of service, a written response that sets forth any objections and
requests a hearing;
(g) A statement that the only basis upon which an obligor or an
obligee may object to the enforcement of the arrearages is that
the amount of the arrearages specified in the notice is
incorrect;
(h) A reference to ORS 416.400 to 416.470;
(i) A statement that the obligor and the obligee are
responsible for notifying the office of any change of address or
employment;
(j) A statement that if the obligor or the obligee has any
questions, the obligor or obligee should telephone or visit the
appropriate office or consult an attorney; and
(k) Such other information as the administrator finds
appropriate.
(3) If a timely written response setting forth objections and
requesting a hearing is received by the appropriate office, a
hearing shall be held under ORS 416.427.
(4) If no timely written response and request for hearing is
received by the appropriate office, the administrator shall enter
an order directing that the amount of the arrearages stated in
the notice be entered in the child support accounting record
maintained by the Department of Justice.
(5) Action to administratively enforce and collect upon the
arrearages established under this section may be taken 14 days
after service of or receipt or refusal of the notice by the
obligor or obligee.
(6) Nothing in this section shall prevent the administrator
from using other available enforcement remedies at any time.
SECTION 212. ORS 416.440 is amended to read:
416.440. (1) The documents required to be filed for purposes of
subsection (2) of this section include all the following:
(a) A true copy of any order entered, filed or registered by
the administrator or hearings officer pursuant to ORS 416.400 to
416.470 or ORS chapter 110.
(b) A true copy of the return of service, if applicable.
(c) A separate statement containing the information required to
be contained in a judgment under { - ORCP 70 A(2)(a) - } { +
section 5 (2) of this 2003 Act + }.
(2) The documents described under subsection (1) of this
section shall be filed in the office of the clerk of the circuit
court in the county in which either the parent or the dependent
child resides or in the county where the court order was entered
if the administrative order is an order modifying a court order.
Upon receipt of the documents, the clerk shall { - docket - }
{ + enter + } the order in the { + register of the + } circuit
court { - judgment docket - } { + and shall note in the
register that the order creates a lien + }.
(3) Upon { - docketing - } { + entry in the register
+ }under subsection (2) of this section, the order shall have
all the force, effect and attributes of a { - docketed order or
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decree - } { + judgment + } of the circuit court, including but
not limited to:
{ - (a) Lien effect; - }
{ + (a) Creation of a judgment lien under sections 1 to 44 of
this 2003 Act; and + }
{ - (b) Ability to be renewed pursuant to ORS 18.360; and - }
{ - (c) Ability to be enforced by supplementary proceedings,
contempt of court proceedings, writs of execution and writs of
garnishment. - }
{ + (b) Ability to be enforced by contempt proceedings and
pursuant to sections 29 to 44 of this 2003 Act. + }
(4) Notwithstanding subsection (3) of this section, an
administrative order modifying a court order shall not become
effective until reviewed and approved by the court under ORS
416.425 (7).
(5) Notwithstanding subsections (2) and (3) of this section,
the { - docketing of - } { + entry in the register of + }an
order { - entered by - } { + of + } the administrator or
hearings officer does not preclude any subsequent proceeding or
remedy available under ORS 416.400 to 416.470.
(6) A court or administrative order of another state may be
filed, or if appropriate, registered, pursuant to this section
for the purposes of ORS chapter 110. Notwithstanding any other
provision of this chapter, an order of another state registered
pursuant to ORS 110.405, 110.408 and 110.411 may not be modified
unless the requirements of ORS 110.432 are met.
SECTION 213. ORS 416.443 is amended to read:
416.443. (1) No later than one year after an order establishing
paternity is { - docketed - } { + entered + } under ORS
416.440 and if no genetic parentage test has been completed, a
party may apply to the administrator to have the issue of
paternity reopened. Upon receipt of a timely application, the
administrator shall order:
(a) The mother and the male party to submit to parentage tests;
and
(b) The person having physical custody of the child to submit
the child to a parentage test.
(2) If a party refuses to comply with an order under subsection
(1) of this section, the issue of paternity shall be resolved
against that party by an appropriate order of the court upon the
motion of the administrator. Support paid before an order is
vacated under this section shall not be returned to the payer.
SECTION 214. ORS 419C.450 is amended to read:
419C.450. (1)(a) It is the policy of the State of Oregon to
encourage and promote the payment of restitution and other
obligations by youth offenders as well as by adult offenders. In
any case within the jurisdiction of the juvenile court pursuant
to ORS 419C.005 in which the youth offender caused another person
any physical, emotional or psychological injury or any loss of or
damage to property, the court shall consider restitution to the
victim to be of high priority. There shall be a rebuttable
presumption that the obligation to make such restitution is in
the best interest of the youth offender as well as of the victim
and society. For acts committed on or after December 5, 1996, the
court shall order the prompt payment of restitution whenever
possible.
(b) The court may order restitution, including but not limited
to counseling and treatment expenses, for emotional or
psychological injury under this section only:
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(A) When the act that brought the youth offender within the
jurisdiction of the court would constitute aggravated murder,
murder or a sex crime if committed by an adult; and
(B) For an injury suffered by the victim or a member of the
victim's family who observed the act.
(2) Restitution for injury inflicted upon a person by the youth
offender, for property taken, damaged or destroyed by the youth
offender and for a reward offered by the victim or an
organization authorized by the victim and paid for information
leading to the apprehension of the youth offender, may be
required as a condition of probation. Restitution does not limit
or impair the right of a victim to sue in a civil action for
damages suffered, nor shall the fact of consultation by the
victim be admissible in such civil action to prove consent or
agreement by the victim. However, the court shall credit any
restitution paid by the youth offender to a victim against any
judgment in favor of the victim in such civil action. Before
setting the amount of such restitution, the court shall notify
the person upon whom the injury was inflicted or the owner of the
property taken, damaged or destroyed and give such person an
opportunity to be heard on the issue of restitution.
(3) If the youth offender has been placed in custody of the
Oregon Youth Authority on probation or for placement at a youth
correction facility, the court may order that the youth offender
pay restitution, as provided in this section, and any assessment
under ORS 137.290. In determining whether or not to order
restitution or payment of an assessment under ORS 137.290 and, if
so, the conditions of payment, the court shall take into
consideration the availability to the youth offender of paid
employment during such time as the youth offender may be
committed to a youth correction facility.
(4) In determining whether or not to order restitution or an
assessment under ORS 137.290, the court shall take into account:
(a) The financial resources of the youth offender and the
burden that payment of restitution will impose, with due regard
to the other obligations of the youth offender;
(b) The present and future ability of the youth offender to pay
restitution on an installment basis or on other conditions to be
fixed by the court; and
(c) The rehabilitative effect on the youth offender of the
payment of restitution and the method of payment.
(5) Notwithstanding ORS 419C.501 and 419C.504, when the court
has ordered a youth offender to pay restitution, as provided in
this section, the judgment may be { - docketed and, if so,
shall have the same effect as a judgment in a civil action, as
provided in ORS 18.320, 18.350, 18.360 and 18.400 - } { +
entered in the register or docket of the court in the manner
provided by sections 1 to 44 of this 2003 Act and enforced in the
manner provided by sections 29 to 44 of this 2003 Act + }. The
judgment is in favor of the state and may be enforced only by the
state. Notwithstanding ORS 419A.255, a judgment for restitution
{ - docketed - } { + entered + } under this subsection is a
public record. { - The requirements of ORS 137.071 (9) apply to
a judgment under this subsection. - } { + Judgments entered
under this subsection are subject to section 6 of this 2003
Act. + }
SECTION 215. ORS 646.632 is amended to read:
646.632. (1) A prosecuting attorney who has probable cause to
believe that a person is engaging in, has engaged in, or is about
to engage in an unlawful trade practice may bring suit in the
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name of the State of Oregon in the appropriate court to restrain
such person from engaging in the alleged unlawful trade practice.
(2) Except as provided in subsections (5) and (6) of this
section, before filing a suit under subsection (1) of this
section, the prosecuting attorney shall in writing notify the
person charged of the alleged unlawful trade practice and the
relief to be sought. Such notice shall be served in the manner
set forth in ORS 646.622 for the service of investigative
demands. The person charged thereupon shall have 10 days within
which to execute and deliver to the prosecuting attorney an
assurance of voluntary compliance. Such assurance shall set forth
what actions, if any, the person charged intends to take with
respect to the alleged unlawful trade practice. The assurance of
voluntary compliance shall not be considered an admission of a
violation for any purpose. If the prosecuting attorney is
satisfied with the assurance of voluntary compliance, it may be
submitted to an appropriate court for approval and if approved
shall thereafter be filed with the clerk of the court. If an
approved assurance of voluntary compliance provides for the
payment of an amount of money, as restitution or otherwise, and
if the amount is not paid within 90 days of the date the court
approves the assurance, or, if the assurance of voluntary
compliance requires periodic payments and if any periodic payment
is not paid within 30 days of the date specified in the assurance
of voluntary compliance for any periodic payment, then the
prosecuting attorney may submit that portion of the assurance of
voluntary compliance which provides for the payment of money to
the court with a certificate stating the unpaid balance in a form
which fully complies with the requirements of { - ORCP 70 - }
{ + sections 4 and 5 of this 2003 Act + }. Upon submission of
an assurance of voluntary compliance under this subsection, the
court shall sign the assurance of voluntary compliance and it
shall be entered in the register { - and docketed in the
judgment docket - } { + of the court and the clerk of the court
shall note in the register that it creates a lien + }. The
assurance of voluntary compliance shall thereupon constitute a
judgment in favor of the State of Oregon and { - shall be due
and payable - } { + may be enforced as provided in sections 1
to 44 of this 2003 Act + }. { - Any money judgment docketed
pursuant to this section shall be enforceable as a judgment in a
civil action, as provided in ORS 18.320, 18.350, 18.360 and
18.400. - } The notice of the prosecuting attorney under this
subsection shall not be deemed a public record until the
expiration of 10 days from the service of the notice.
(3) The prosecuting attorney may reject as unsatisfactory any
assurance:
(a) Which does not contain a promise to make restitution in
specific amounts or through arbitration for persons who suffered
any ascertainable loss of money or property as a result of the
alleged unlawful trade practice; or
(b) Which does not contain any provision, including but not
limited to the keeping of records, which the prosecuting attorney
reasonably believes to be necessary to { - insure - }
{ + ensure + } the continued cessation of the alleged unlawful
trade practice, if such provision was included in a proposed
assurance attached to the notice served pursuant to this section.
(4) Violation of any of the terms of an assurance of voluntary
compliance which has been approved by and filed with the court
shall constitute a contempt of court.
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(5) The prosecuting attorney need not serve notice pursuant to
subsection (2) of this section before filing a suit if, within
two years of the filing of such suit, the person charged with the
alleged unfair trade practice submitted to any prosecuting
attorney an assurance of voluntary compliance which was accepted
by and filed with an appropriate court. The prosecuting attorney
shall in such case serve notice on the defendant in the manner
set forth in ORS 646.622 for the service of investigative
demands, on the 10th or earlier day previous to the filing of
suit.
(6) If the prosecuting attorney alleges that the prosecuting
attorney has reason to believe that the delay caused by complying
with the provisions of subsection (2) or (5) of this section
would cause immediate harm to the public health, safety or
welfare, the prosecuting attorney may immediately institute a
suit under subsection (1) of this section.
(7) A temporary restraining order may be granted without prior
notice to the person if the court finds there is a threat of
immediate harm to the public health, safety or welfare. Such a
temporary restraining order shall expire by its terms within such
time after entry, not to exceed 10 days, as the court fixes,
unless within the time so fixed the order, for good cause shown,
is extended for a like period or unless the person restrained
consents that it may be extended for a longer period.
(8) The court may award reasonable attorney fees to the
prevailing party in an action under this section. If the
defendant prevails in such suit and the court finds that the
defendant had in good faith submitted to the prosecuting attorney
a satisfactory assurance of voluntary compliance prior to the
institution of the suit or that the prosecuting attorney, in a
suit brought under subsections (5) and (6) of this section, did
not have reasonable grounds to proceed under those subsections,
the court shall award reasonable attorney fees at trial and on
appeal to the defendant.
SECTION 216. ORS 657.396 is amended to read:
657.396. (1) In any case in which the Director of the
Employment Department may bring a civil action for the collection
of amounts liable to be repaid under ORS 657.310 or interest on
those amounts, the director may instead:
(a) Assess a collection charge of $5 if the sum of the amount
liable to be repaid or interest then due exceeds $10.
(b) Issue a warrant under official seal directed to the sheriff
of any county of the state commanding the sheriff to levy upon
and sell the real and personal property of the individual found
within that county, for the payment of the amount liable to be
repaid with the added interest, collection charge and the
sheriff's cost of executing the warrant, and to return such
warrant to the director and pay to the director the money
collected by virtue thereof by a time to be therein specified,
but not less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the individual mentioned in the warrant, and
the amount liable to be repaid, interest and collection charge
for which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
individual against whom it is issued in the same manner as a
judgment { - duly docketed - } { + that creates a judgment
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lien under sections 1 to 44 of this 2003 Act + }. The sheriff
thereupon shall proceed upon the same in all respects, with like
effect and in the same manner prescribed by law in respect to
executions issued against property upon the judgment of a court
of record, and shall be entitled to the same fees for services in
executing the warrant, to be added to and collected as a part of
the warrant liability.
(3) In the discretion of the director { + , + } a warrant of
like terms, force and effect may be issued and directed to any
agent authorized by the director to collect amounts liable to be
repaid and in the execution thereof the agent shall have all the
powers conferred by law upon sheriffs, but is entitled to no fee
or compensation in excess of actual expenses paid in the
performance of such duty.
(4) If a warrant is returned not satisfied in full, the
director shall have the same remedies to enforce the claim for
amounts due and interest against the individual as if the
director had recovered judgment against the individual for the
amount liable to be repaid and interest.
(5) Interest upon the amounts liable to be repaid as set forth
in the warrant shall be paid and collected at the rate prescribed
in ORS 657.310.
SECTION 217. ORS 657.642 is amended to read:
657.642. (1) In any case in which the Director of the
Employment Department may bring a civil action for the collection
of taxes, interest and penalties under this chapter, the director
may instead:
(a) Assess a collection charge of $5 if the sum of the tax,
penalty and interest then due exceeds $10.
(b) Issue a warrant under official seal directed to the sheriff
of any county of the state commanding the sheriff to levy upon
and sell the real and personal property of the employer found
within that county, for the payment of the amount of the tax with
the added penalties, interest, collection charge and the
sheriff's cost of executing the warrant, and to return such
warrant to the director and pay to the director the money
collected by virtue thereof by a time to be therein specified,
not less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the employer mentioned in the warrant, and the
amount of the tax, interest, penalties and collection charge for
which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
employer against whom it is issued in the same manner as a
judgment { - duly docketed - } { + that creates a judgment
lien under sections 1 to 44 of this 2003 Act + }. The sheriff
thereupon shall proceed upon the same in all respects, with like
effect and in the same manner prescribed by law in respect to
executions issued against property upon the judgment of a court
of record, and shall be entitled to the same fees for services in
executing the warrant, to be added to and collected as a part of
the warrant liability.
(3) In the discretion of the director { + , + } a warrant of
like terms, force and effect may be issued and directed to any
agent authorized by the director to collect taxes and in the
execution thereof the agent shall have all the powers conferred
by law upon sheriffs, but is entitled to no fee or compensation
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in excess of actual expenses paid in the performance of such
duty.
(4) If a warrant is returned not satisfied in full, the
director shall have the same remedies to enforce the claim for
taxes, interest and penalties against the employer as if the
director had recovered judgment against the employer for the
amount of the taxes, interest and penalties.
(5) Interest upon the taxes due as set forth in the warrant
shall be paid and collected at the rate prescribed in ORS 657.515
(2).
SECTION 218. ORS 697.063 is amended to read:
697.063. (1) When the Director of the Department of Consumer
and Business Services revokes a registration, the director may
take possession of all business records and all bank accounts of
the registrant and retain possession of them pending the further
proceedings specified in this section. The director shall
inventory all the business records and all bank accounts of the
registrant. The director shall file one copy of the inventory in
the office of the director and one copy in the office of the
clerk of the circuit court of the county in which the principal
place of business of the registrant is located and shall mail one
copy to each shareholder or partner of the registrant at the
last-known address of the shareholder or partner. The clerk of
the court shall file the inventory as a pending proceeding and
give it a
{ - docket - } { + case + } number. The director by rule may
delegate the director's authority under this section relating to
the inventory of business records and bank accounts of a
registrant.
(2) If any person refuses to permit the director to take
possession of business records and bank accounts under subsection
(1) of this section, the director may apply to the circuit court
of the county in which the principal place of business of the
registrant is located for an order appointing a receiver, who may
be the director, to take possession.
(3) The business records and bank accounts of the registrant
shall be liquidated. If a receiver has not been appointed, the
director shall apply for appointment by the court in which the
inventory was filed. The liquidation shall proceed as provided by
law for liquidation of a private corporation in receivership.
(4) The expenses of the receiver and attorney fees, as well as
all expenditures required in the liquidation proceedings, shall
be fixed by the director, subject to the approval of the court,
and, upon certification by the director, shall be paid out of the
funds in the hands of the director as such receiver.
SECTION 219. ORS 731.258 is amended to read:
731.258. (1) The Attorney General upon request of the Director
of the Department of Consumer and Business Services may proceed
in the courts of this state or any reciprocal state to enforce an
order or decision in any court proceeding or in any
administrative proceeding before the director.
(2) As used in this section:
(a) 'Reciprocal state' means any state the laws of which
contain procedures substantially similar to those specified in
this section for the enforcement of decrees or orders in equity
issued by courts located in other states, against any insurer
incorporated or authorized to do business in such state.
(b) 'Foreign decree' means any decree or order in equity of a
court located in a reciprocal state, including a court of the
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United States located therein, against any insurer incorporated
or authorized to do business in this state.
(c) 'Qualified party' means a state regulatory agency acting in
its capacity to enforce the insurance laws of its state.
(3) The Director of the Department of Consumer and Business
Services of this state shall determine which states qualify as
reciprocal states and shall maintain at all times an up-to-date
list of such states.
(4) A copy of any foreign decree authenticated in accordance
with the statutes of this state may be filed in the office of the
clerk of any circuit court of this state. The clerk, upon
verifying with the director that the decree or order qualifies as
a foreign decree shall treat the foreign decree in the same
manner as a { - decree - } { + judgment + } of a circuit
court of this state. A foreign decree so filed has the same
effect and shall be deemed as a
{ - decree - } { + judgment + } of a circuit court of this
state, and is subject to the same procedures, defenses and
proceedings for reopening, vacating, or staying as a
{ - decree - } { + judgment + } of a circuit court of this
state and may be enforced or satisfied in like manner.
(5)(a) At the time of the filing of the foreign decree, the
Attorney General shall make and file with the clerk of the court
an affidavit setting forth the name and last-known post-office
address of the defendant.
(b) Promptly upon the filing of the foreign decree and the
affidavit, the clerk shall mail notice of the filing of the
foreign decree to the defendant at the address given and to the
director of this state and shall make a note of the mailing in
the
{ - docket - } { + register of the court + }. In addition,
the Attorney General may mail a notice of the filing of the
foreign decree to the defendant and to the director of this state
and may file proof of mailing with the clerk. Lack of mailing
notice of filing by the clerk shall not affect the enforcement
proceedings if proof of mailing by the Attorney General has been
filed.
(c) No execution or other process for enforcement of a foreign
decree filed under subsection (4) of this section shall issue
until 30 days after the date the decree is filed.
(6)(a) If the defendant shows the circuit court that an appeal
from the foreign decree is pending or will be taken, or that a
stay of execution has been granted, the court shall stay
enforcement of the foreign decree until the appeal is concluded,
the time for appeal expires, or the stay of execution expires or
is vacated, upon proof that the defendant has furnished the
security for the satisfaction of the decree required by the state
in which it was rendered.
(b) If the defendant shows the circuit court any ground upon
which enforcement of a { - decree - } { + judgment + } of any
circuit court of this state would be stayed, the court shall stay
enforcement of the foreign decree for an appropriate period, upon
requiring the same security for satisfaction of the decree which
is required in this state { + for a judgment + }.
SECTION 220. ORS 731.988 is amended to read:
731.988. (1) Any person who violates any provision of the
Insurance Code, any lawful rule or final order of the Director of
the Department of Consumer and Business Services or any
{ - final judgment or decree - } { + judgment + } made by any
court upon application of the director, shall forfeit and pay to
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the General Fund of the State Treasury a civil penalty in an
amount determined by the director of not more than $10,000 for
each offense. In the case of individual agents, adjusters or
insurance consultants, the civil penalty shall be not more than
$1,000 for each offense. Each violation shall be deemed a
separate offense.
(2) In addition to the civil penalty set forth in subsection
(1) of this section, any person who violates any provision of the
Insurance Code, any lawful rule or final order of the director or
any { - final judgment or decree - } { + judgment + } made by
any court upon application of the director, may be required to
forfeit and pay to the General Fund of the State Treasury a civil
penalty in an amount determined by the director but not to exceed
the amount by which such person profited in any transaction which
violates any such provision, rule, order { - , - } { + or + }
judgment { - or decree - } .
(3) In addition to the civil penalties set forth in subsections
(1) and (2) of this section, any insurer that is required to make
a report under ORS 742.400 and that fails to do so within the
specified time may be required to pay to the General Fund of the
State Treasury a civil penalty in an amount determined by the
director but not to exceed $10,000.
(4) A civil penalty imposed under this section may be recovered
either as provided in subsection (5) of this section or in an
action brought in the name of the State of Oregon in any court of
appropriate jurisdiction.
(5) Civil penalties under this section shall be imposed
{ + and enforced + } in the manner provided by ORS 183.090.
{ - If a civil penalty is not paid within 10 days after an order
assessing the penalty becomes final by operation of law or on
appeal, the order may be recorded with the county clerk in any
county of this state. The clerk shall record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record. The penalty provided in the order so
recorded shall become a lien upon any interest in property of the
person against whom the order is entered in the county where the
order is recorded. Execution may be issued from the circuit
court for the county in which the order is first recorded in the
same manner as execution upon a judgment entered in the register
and docketed in the judgment docket of that court. - }
(6) The provisions of this section are in addition to and not
in lieu of any other enforcement provisions contained in the
Insurance Code.
SECTION 221. ORS 734.440 is amended to read:
734.440. (1) On the return day of the order to show cause
specified in the assessment order issued under ORS 734.420, if
the member or subscriber does not appear and serve verified
objections upon the Director of the Department of Consumer and
Business Services, the court shall make an order adjudging that
such member or subscriber is liable for the amount of the
assessment against the member or subscriber, together with $10
costs, and that the director may have judgment against the member
or subscriber therefor.
(2) If on such return day the member or subscriber shall appear
and serve verified objections upon the director, there shall be a
full hearing before the court or a referee to hear and determine
the matter. The court, after such hearing, shall make an order
either negativing the liability of the member or subscriber to
pay the assessment or affirming liability to pay the whole or
some part thereof, together with $25 costs and the necessary
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disbursements incurred at such hearing, and directing that the
director, in the latter case, may have judgment therefor.
{ - (3) A judgment upon any such order shall have the same
force and effect, and may be entered and docketed, and may be
appealed from, as if it were a judgment in an original action
brought against a member or subscriber in the court in which the
delinquency proceeding is pending. - }
SECTION 222. ORS 825.504 is amended to read:
825.504. (1) If any tax, or fee in lieu of tax, reported due,
or any final assessment made by the Department of Transportation
under ORS 825.490, 825.494 and 825.496, including any penalties
or charges therein imposed, or any final penalty imposed under
ORS 825.950, 825.955 or 825.960, is not paid in full, the
department may issue a warrant under the department's official
seal directed to the sheriff of any county of the state
commanding the sheriff to levy upon and sell the real and
personal property of the taxpayer found within that county, for
payment of the amount thereof, with the added penalties or
charges, interest and the cost of executing the warrant, and to
return such warrant to the department and pay to the department
the money collected by virtue thereof by a time to be specified
therein, not less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the taxpayer mentioned in the warrant, and the
amount of the tax or portion thereof and penalties or charges for
which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
taxpayer against whom it is issued in the same manner as a
judgment { - duly docketed - } { + that creates a judgment
lien under sections 1 to 44 of this 2003 Act + }.
(3) The sheriff thereupon shall proceed upon the same in all
respects, with like effect and in the same manner prescribed by
law in respect to executions issued against property upon
judgment of a court of record, and shall be entitled to the same
fees for services in executing the warrant, to be added to and
collected as a part of the warrant liability.
(4) In the discretion of the Department of Transportation, a
warrant of like terms, force and effect to levy upon funds of the
taxpayer in possession of the Department of Revenue may be issued
and directed to any agent authorized by the Department of
Transportation to collect taxes payable under this chapter, and
in the execution thereof the agent shall have all of the powers
conferred by law upon sheriffs but is entitled to no fee or
compensation in excess of actual expenses paid in the performance
of such duty.
(5) The procedures authorized by this section may also be used
for collection of any fees and penalties imposed on persons
registering vehicles under ORS chapter 826.
SECTION 223. ORCP 63 E is amended to read:
E Duties of the clerk. The clerk shall, on the date an order
made pursuant to this rule is entered or on the date a motion is
deemed denied pursuant to section D of this rule, whichever is
earlier, mail a notice of the date of entry of the order or
denial of the motion to the attorney of record, if any, of each
party who is not in default for failure to appear. If a party who
is not in default for failure to appear does not have an attorney
of record, such notice shall be mailed to the party. The clerk
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also shall make a note in the { - docket - } { + register + }
of the mailing.
SECTION 224. ORCP 84 C is amended to read:
C Attachment by claim of lien.
C(1) Property subject to claim of lien. When attachment is
authorized, the plaintiff may attach the defendant's real
property by filing a claim of lien.
C(2) Form of claim; filing.
C(2)(a) Form. The claim of lien must be signed by the plaintiff
or plaintiff's attorney and must:
C(2)(a)(i) Identify the action by names of parties, court,
{ - docket - } { + case + } number, and judgment demanded;
C(2)(a)(ii) Describe the particular property attached in a
manner sufficient to identify it;
C(2)(a)(iii) Have a certified copy of the order authorizing the
claim of lien attached to the claim of lien.
C(2)(a)(iv) State that an attachment lien is claimed on the
property.
C(2)(b) Filing. A claim of attachment lien in real property
shall be filed with the clerk of the court that authorized the
claim and with the county clerk of the county in which the
property is located. The county clerk shall certify upon every
claim of lien so filed the time when it was received. Upon
receiving the claim of lien, the county clerk shall immediately
record it in the County Clerk Lien Record. When the claim of lien
is so recorded, the lien in favor of the plaintiff attaches to
the real property described in the claim of lien. Whenever such
lien is discharged, the county clerk shall enter upon the margin
of the page on which the claim of lien is recorded a minute of
the discharge.
{ +
JUDGMENT LIENS + }
SECTION 225. ORS 9.735 is amended to read:
9.735. The court shall { - award - } { + enter a judgment
awarding + } reasonable compensation and expenses to any attorney
who acts as custodian under ORS 9.705 to 9.755. { - The court's
order shall be in the form of a judgment for the amount of such
award - } { + The judgment shall be + } against the affected
attorney or the estate of the affected attorney. { - Said - }
{ + The + } judgment { - shall be - } { + is + } a lien
upon all nontrust funds, office furnishings, supplies, equipment,
library and other personal property used in the law practice of
the affected attorney retroactive to the date of filing of the
petition for jurisdiction under ORS 9.705 to 9.755.
{ - Said - } { + The + } judgment lien { - shall be - }
{ + is + } subordinate to nonpossessory liens and security
interest created prior to its taking effect, and may be
foreclosed as provided in ORS chapter 87.
SECTION 226. ORS 23.280 is amended to read:
23.280. (1) At any time after the date of execution of an
agreement to transfer the ownership of property in which a
homestead exemption exists pursuant to ORS 23.240, the homestead
owner or the owner's transferee may give notice of intent to
{ - effect - } discharge { + the property + } from the
judgment lien to { - any owner of the judgment docketed against
the homestead owner in the county in which the property is
situated - } { + a judgment creditor + }. Each notice shall be
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styled as a paper in the action in which the judgment was
recovered and shall:
(a) Identify the property and the judgment and state that the
judgment debtor is about to transfer, or has transferred, the
property and that the transfer is intended to discharge the
property from any lien { - lawfully arising out - } { +
effect + } of the judgment;
(b) State the fair market value of the property on the date of
the notice or of any applicable petition in bankruptcy, whichever
is applicable, and list the encumbrances against the property,
including the nature and date of each encumbrance, the name of
the encumbrancer and the amount presently secured by each
encumbrance;
(c) State that the property is claimed by the person giving the
notice to be wholly exempt from the lien of the judgment or, if
the value of the property exceeds the sum of the encumbrances
specified as required under paragraph (b) of this subsection that
are senior to the judgment lien and $25,000 or $33,000, whichever
amount of the homestead exemption is applicable under ORS 23.240
(1), that the amount of the excess or the amount due on the
judgment, whichever is less, will be deposited with the
{ - clerk of the - } court { + administrator for the court + }
in which the judgment { - is docketed - } { + was entered + }
for the use of the judgment holder; and
(d) Advise the holder of the judgment that the property may be
discharged from any lien arising from the judgment, without
further notice to the { - holder of the - } judgment { +
creditor + }, unless prior to a specified date, which in no case
may be earlier than 14 days after the date of mailing of the
notice, the judgment
{ - holder - } { + creditor + } files objections and a
request for a hearing on the matter as provided in ORS 23.290.
(2) Each notice described by subsection (1) of this section
shall be sent by certified mail to the { - present holder of
the - } judgment { + creditor + }, as shown by the
{ - judgment lien docket - } { + court records + }, at the
{ - holder's - } { + judgment creditor's + } present or
last-known address according to the best knowledge of the person
sending the notice. A copy of each notice, together with proof of
mailing, may be filed with the { - clerk of the court with
whom - } { + court administrator for the court in which + } the
judgment { - is docketed - } { + was entered + } and shall be
filed by the { - clerk - } { + court administrator + } with
the records and files of the action in which the judgment was
recovered.
SECTION 227. ORS 23.290 is amended to read:
23.290. (1) Any holder of an interest in a judgment described
in a notice sent pursuant to ORS 23.280 may file, with the
{ - clerk of the - } court { + administrator for the court + }
in which the judgment
{ - is docketed - } { + was entered + }, objections to the
notice and request for a hearing upon the application for an
order made pursuant to ORS 23.300 (4). The objections and a
request for hearing must be filed prior to the date specified in
the notice and must indicate the grounds for the objections and
include the address to which notice of any hearing upon request
for an order may be sent.
(2)(a) If the holder of a judgment admits the validity of the
homestead exemption and objects only that the value placed upon
the property in the notice is or was less than the fair market
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value of the property on the date of the notice or petition in
bankruptcy, whichever is applicable, the court shall try the
issue of fair market value without formal pleadings. Each party
may offer evidence of fair market value, but the holder of the
judgment has the burden of proving the fair market value.
(b) If the objection is made to other than the valuation of the
property, the court shall try the issues of fact and law in the
manner of a quiet title suit and may direct filing of formal
pleadings as it considers necessary for definition of issues.
(3) If the court finds that the fair market value of the
property specified in the notice reasonably approximates the fair
market value of the property on the date of the notice or
petition in bankruptcy, whichever is applicable, or, if other
issues are raised by the objections and are decided against the
holder of the judgment, the court shall make an order that the
property is not subject to the lien of the objecting judgment
holder. In all other cases, the application for an order shall be
dismissed and the lien upon the property shall not be affected by
the notice.
SECTION 228. ORS 23.300 is amended to read:
23.300. (1) If a deposit, as required by ORS 23.280 (1)(c), is
made by a transferee of any property, the transferee may credit
the amount of the deposit against the consideration owed by the
transferee for the transfer.
(2) The holder of any judgment described in ORS 23.280 (1) is
entitled to receive the full amount of any deposit made with
respect to the judgment upon delivery to the { - clerk of the
court of a certificate of annulment of the lien, prepared as
provided in ORS 18.400 (2) and specifying that the property
described in the notice is released from the judgment lien - }
{ + court administrator of a release of lien document in the
form provided by section 23 of this 2003 Act for the property
described in the notice + }. If the real property is located in a
county where a certified copy of the judgment or lien record
abstract has been recorded, the holder of the judgment, upon
receipt of the deposit, shall have a certified copy of the
{ - annulment - } { + release of lien document + } recorded in
the County Clerk Lien Record.
(3) If { - no certificate of annulment of the lien - } { +
a release of lien document for the property + } is { + not + }
delivered by the holder of the judgment to the { - clerk, - }
{ + court administrator + } as required by subsection (2) of
this section, the { - clerk - } { + court administrator + }
shall hold the deposit described in ORS 23.280 (1) and the
deposit shall be paid by the { - clerk - } { + court
administrator + } to the homestead claimant upon expiration of
the { + judgment remedies for the + } judgment
{ - and any subsequent renewal thereof as provided in ORS
18.360 and 18.365 - } { + as provided in sections 18 to 22 of
this 2003 Act + }.
(4) At any time after the date specified in a notice, as
provided by ORS 23.280 (1)(d), the homestead claimant for the
property described in the judgment may apply to the court in
which the judgment { - is docketed - } { + was entered + }
for an order that the property described in the notice is no
longer subject to the judgment lien. If no objections are filed
and no hearing is requested in accordance with ORS 23.290, the
judge shall issue an ex parte order that the property is no
longer subject to the judgment lien if the judge is satisfied
that the property has been, or is about to be, transferred and
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that the notice was prepared and mailed and a deposit was made as
required in ORS 23.280. The judge must, in addition, find that
the holder of the judgment actually received notice or, if the
whereabouts of the holder are unknown, that a reasonably diligent
effort has been made to find the holder. If objections and a
request for a hearing have been filed by the holder of the
judgment, the court shall set a hearing and notify the holder of
the judgment of the time and place of the hearing. The homestead
claimant may have a certified copy of the ex parte order recorded
in the County Clerk Lien Record.
SECTION 229. ORS 93.643 is amended to read:
93.643. (1) To give constructive notice of an interest in real
property, a person must have documentation of the interest
recorded in the indices maintained under ORS 205.130 in the
county where the property is located. Such recordation, and no
other record, constitutes constructive notice to any person of
the existence of the interest, except:
(a) Constructive notice may be given as provided in ORS 18.350,
311.405 and 446.515 to 446.547 and ORS chapters 87, 450, 451,
452, 453, 454, 455 and 456 and local government charters; or
(b) A city may give constructive notice of a governmental lien
by maintaining a record of the lien in an electronic medium that
is accessible on-line during the regular business hours of the
city.
(2) Notwithstanding subsection (1) of this section:
(a) A judgment lien { - shall be created against all - }
{ + attaches to + } real property of the judgment debtor as
provided in { - ORS 18.320 and 18.350 - } { + sections 1 to
44 of this 2003 Act + }.
(b) A lien shall be created against all real property of the
person named in an order or warrant as provided in ORS 205.125 if
the order or warrant is recorded in the County Clerk Lien Record.
(c) Constructive notice of either a local improvement district
estimated assessment or a system development charge installment
payment contract pursuant to ORS 223.290, created after September
9, 1995, is given only by one of the following methods:
(A) By recording the notice of estimated assessment or the
acceptance of the system development charge installment payment
contract in the indices maintained under ORS 205.130 in the
county in which the property is located. The recording shall
include a description of real property in the manner prescribed
in ORS 93.600. The city shall continue to maintain the bond lien
docket as prescribed in ORS 223.230. The bond lien docket shall
include a reference to the county recording by a document fee
number or book and page number.
(B) By recording the notice of estimated assessment or the
acceptance of the system development charge installment payment
contract through an on-line electronic medium. The electronic
lien record shall be the controlling lien record, to the
exclusion of any informational recording made by the city in
county indices. The city informational recording shall include a
clear statement of the purpose of the recording and a reference
to the location of the electronic lien record.
(3) A city that maintains records through an on-line electronic
medium shall comply with the following requirements:
(a) Each lien record shall consist of the effective date of the
recording, a reference to the location of source documents or
files, a description of real property in the manner prescribed in
ORS 93.600, a site address, if appropriate, a state property
identification number or county property tax identification
Enrolled House Bill 2646 (HB 2646-B) Page 198
number, a lien account number or other account identifier, the
amount of the estimated assessment or system development charge
installment payment contract, the final assessment in the case of
a local improvement assessment district and the current amount of
principal balance.
(b) Lien records shall be accessible through the on-line
electronic medium to any individual or organization by mutual
agreement with the city. Users of the on-line electronic medium
shall be authorized to access the lien records from equipment
maintained at sites of their choosing.
(4) Recording of the satisfaction of a local improvement
district assessment or system development charge installment
payment contract shall be made in the same location as the
original recording, either in the indices maintained under ORS
205.130 or in the lien docket maintained through an electronic
medium as provided in this section.
(5) A city that establishes an electronic lien record as
authorized by this section shall record in the County Clerk Lien
Record maintained under ORS 205.130 a statement that indicates
the date and time at which the electronic lien record takes
priority over the County Clerk Lien Record and that describes the
methods by which the electronic lien records of the city are made
accessible.
SECTION 230. ORS 314.423 is amended to read:
314.423. (1) After a warrant has been recorded under ORS
314.430, the lien imposed by ORS 314.417 shall be subordinate to:
(a) Any interest in real property to the same extent that a
judgment { - lien - } recorded { + in the County Clerk Lien
Record under section 15 of this 2003 Act + } at the same time the
warrant was recorded would be subordinate to the interest; and
(b) Any interest in personal property to the same extent that a
security agreement filed under the Uniform Commercial Code at the
same time the warrant was filed would be subordinate to the
interest.
(2) After a warrant has been recorded under ORS 314.430, the
lien imposed by ORS 314.417 shall not be valid as to a purchaser,
security interest holder or lienholder in a sale, security
agreement or lien arising out of the following types of property
or property transactions unless the purchaser, security interest
holder or lienholder had actual knowledge of the lien:
(a) Securities as defined in ORS 78.1020;
(b) Retail purchases in the ordinary course of business;
(c) Casual sales of personal property;
(d) Attorney's liens;
(e) Insurance contract loans; or
(f) Passbook loans.
{ +
FINAL JUDGMENTS + }
SECTION 231. ORS 3.315 is amended to read:
3.315. (1) Within 20 days after the close of all evidence
offered in a trial on reference conducted under ORS 3.311, unless
a later time is agreed upon by the parties, the reference judge
shall mail to each party a copy of the proposed written report of
the reference judge. The proposed report shall contain the
findings of fact and conclusions of law by the reference judge,
and the judgment thereon of the reference judge.
(2) Within 10 days after receipt of the copy of the proposed
report, any party may serve written objections and suggested
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modifications or corrections to the proposed report upon the
reference judge and the other parties. The reference judge
without delay shall consider the objections and suggestions and
prepare a final written report. If requested by any party, the
reference judge shall conduct a hearing on the proposed written
report and any objections or suggested modifications or
corrections thereto before preparing the final written report.
(3) Upon completion of the final written report, the reference
judge shall file with the clerk of the circuit court:
(a) Copies of all original papers in the action filed with the
reference judge;
(b) The exhibits offered and received or rejected in the trial
on reference;
(c) The transcript of the proceedings in the trial, if a trial
court reporter was used in the trial;
(d) The audio record of the proceedings in the trial, if a
trial court reporter was not used in the trial; and
(e) The final written report containing the findings of fact
and conclusions of law by the reference judge, and the judgment
thereon of the reference judge.
(4) In the interest of economy, the presiding judge for a
judicial district may allow the reference judge to file the final
written report under subsection (3) of this section without any
of the items listed in subsection (3)(a) to (d) of this section.
However, the presiding judge shall require the reference judge to
file the items listed in subsection (3)(a) to (d) of this section
if timely notice of appeal of the judgment is filed.
(5) At the time the reference judge files the final written
report under subsection (3) of this section, the reference judge
shall mail to each party a copy of the report.
(6) Upon receipt of the final written report by the clerk of
the court, the referral of the action shall terminate and the
presiding judge shall order the judgment contained in the report
entered as the judgment of the court in the action. Subsequent
motions and other related post-trial proceedings in the action
may be conducted and disposed of by the reference judge upon the
order of the presiding judge, in the sole discretion of the
presiding judge, or may otherwise be assigned by the presiding
judge.
(7) The judgment of the reference judge entered as provided in
subsection (6) of this section may be appealed in the same manner
as a { - final - } judgment of the circuit court in a civil
action.
SECTION 232. ORS 18.580 is amended to read:
18.580. (1) In a civil action, when a party is awarded damages
for bodily injury or death of a person which are to be paid by
another party to the action, and the party awarded damages or
person injured or deceased received benefits for the injury or
death other than from the party who is to pay the damages, the
court may deduct from the amount of damages awarded, before the
entry of { - final - } { + a + } judgment, the total amount
of those collateral benefits other than:
(a) Benefits which the party awarded damages, the person
injured or that person's estate is obligated to repay;
(b) Life insurance or other death benefits;
(c) Insurance benefits for which the person injured or deceased
or members of that person's family paid premiums; and
(d) Retirement, disability and pension plan benefits, and
federal social security benefits.
Enrolled House Bill 2646 (HB 2646-B) Page 200
(2) Evidence of the benefit described in subsection (1) of this
section and the cost of obtaining it is not admissible at trial,
but shall be received by the court by affidavit submitted after
the verdict by any party to the action.
SECTION 233. ORS 33.125 is amended to read:
33.125. (1) The imposition of a sanction for contempt shall be
by a judgment. The judgment shall be entered in the register as a
{ - final - } { + general + } judgment.
(2) A defendant may appeal from a judgment imposing a remedial
sanction in the same manner as from a judgment in an action at
law. An appeal from a judgment imposing a punitive sanction shall
be in the manner provided for appeals in ORS chapter 138. Appeals
from judgments imposing sanctions for contempt in municipal
courts and justice courts shall be in the manner provided by law
for appeals from those courts.
(3)(a) If a motion to initiate proceedings to impose remedial
sanctions is filed in a related proceeding under ORS 33.055 (3)
before entry of judgment in the related proceeding, and the court
determines that the defendant is in contempt, the court may
suspend imposition of sanctions and entry of judgment on the
contempt until entry of judgment in the related proceeding.
(b) If a motion to initiate proceedings to impose remedial
sanctions is filed in a related proceeding under ORS 33.055 (3)
before entry of judgment in the related proceeding, and the court
denies the motion or declines to impose sanctions, the court
shall enter judgment on that denial or determination only as part
of the judgment in the related proceeding.
(4) An appeal from a contempt judgment shall not stay any
action or proceeding to which the contempt is related.
SECTION 234. ORS 33.720 is amended to read:
33.720. (1) The determination authorized by ORS 33.710 shall be
in the nature of a proceeding in rem; and the practice and
procedure therein shall follow the practice and procedure of an
action not triable by right to a jury, as far as the same is
consistent with the determination sought to be obtained, except
as provided in this section.
(2) Jurisdiction of the municipal corporation shall be obtained
by the publication of notice directed to the municipal
corporation; and jurisdiction of the electors of the municipal
corporation shall be obtained by publication of notice directed
to all electors, freeholders, taxpayers and other interested
persons, without naming such electors, freeholders, taxpayers and
other interested persons individually. The notice shall be served
on all parties in interest by publication thereof for at least
once a week for three successive weeks in a newspaper of general
circulation published in the county where the proceeding is
pending, or if no such newspaper is published therein, then in a
contiguous county. Jurisdiction shall be complete within 10 days
after the date of completing publication of the notice as
provided in this section.
(3) Any person interested may at any time before the expiration
of the 10 days appear and contest the validity of such
proceeding, or of any of the acts or things therein enumerated.
Such proceeding shall be tried forthwith and judgment rendered as
expeditiously as possible declaring the matter so contested to be
either valid or invalid. Any order or judgment in the course of
such proceeding may be made and rendered by the judge in vacation
or otherwise; and for that purpose, the court shall be deemed at
all times to be in session and the act of the judge in making the
order or judgment shall be the act of the court.
Enrolled House Bill 2646 (HB 2646-B) Page 201
(4) Any party may appeal to the Court of Appeals from { - the
final - } { + a + } judgment rendered in such proceeding. The
court, in inquiring into the regularity, legality or correctness
of any proceeding of the municipal corporation or its governing
body shall disregard any error, irregularity or omission which
does not affect the substantial rights of the parties to the
special proceeding, and may approve the proceedings in part and
may disapprove and declare illegal or invalid in part other or
subsequent proceedings, or may approve or disapprove the
proceedings, or may approve the proceedings in part and
disapprove the remainder thereof.
(5) Costs of the proceeding may be allowed and apportioned
between the parties in the discretion of the court.
(6) Upon conclusion of a proceeding authorized by ORS 33.710
(2)(b), including any appeal of { - the - } { + a + }
judgment, { - a final - } { + the + } judgment entered in the
proceeding is binding upon the parties and all other persons.
Claim preclusion and issue preclusion apply to all matters
adjudicated in the proceeding. Except for an action to enforce a
{ - final - } judgment, the courts of this state do not have
jurisdiction over an action by or against the governing body or
municipal corporation named in the { - final - } judgment if
the purpose of the action is to seek judicial review or judicial
examination, directly or indirectly, of a matter adjudicated in
the proceeding.
SECTION 235. ORS 34.710 is amended to read:
34.710. Any party to a proceeding by habeas corpus, including
the state when the district attorney appears therein, may appeal
from the judgment of the court refusing to allow such writ or any
{ - final - } judgment therein, either in term time or
vacation, in like manner and with like effect as in an action. No
question once finally determined upon a proceeding by habeas
corpus shall be reexamined upon another proceeding of the same
kind.
SECTION 236. ORS 35.265 is amended to read:
35.265. (1) When a public condemner commences an action for the
condemnation of property and immediate possession of the property
is considered necessary by the public condemner, a fund shall be
created in the amount estimated to be the just compensation for
the property and placed in the hands of the treasurer of the
public condemner for deposit with the clerk of the court wherein
the action was commenced, for the use of the defendants in the
action.
(2) When the public condemner is a state agency and immediate
possession of property is considered necessary by the agency, the
agency shall certify to such facts and authorize an advancement
out of funds available to the agency of the amount estimated by
the agency to be just compensation for the property. Upon such
certification and authorization, a warrant shall be drawn in
favor of the clerk of the court in the amount authorized.
(3) Upon the deposit in court by the public condemner of the
estimated amount of just compensation as provided by subsections
(1) and (2) of this section, no interest shall be allowed thereon
in { - any final - } { + the + } judgment.
SECTION 237. ORS 105.140 is amended to read:
105.140. No continuance shall be granted to a defendant for a
longer period than two days unless:
(1) The defendant gives an undertaking to the adverse party
with good and sufficient security, to be approved by the court,
Enrolled House Bill 2646 (HB 2646-B) Page 202
conditioned for the payment of the rent that may accrue if
judgment is rendered against the defendant; or
(2) In an action for the recovery of the possession of a
dwelling unit to which ORS chapter 90 applies, the court orders a
defendant to pay rent into court as it becomes due from the
commencement of the action until { - final - } { + entry of a
general + } judgment in the action. If a defendant fails to pay
rent into court as ordered under this subsection, the action
shall be tried forthwith.
SECTION 238. ORS 105.580 is amended to read:
105.580. (1) Except as provided in subsection (3) of this
section, if the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the
{ - final - } { + general + } judgment in the case.
(2) The order of abatement may direct the effectual closing of
the premises, building or place against its use for any purpose,
and so keeping it closed for a period of one year, unless sooner
released. The court shall not include provisions for the closing
of the premises under the provisions of this subsection unless
that relief is specifically requested in the complaint.
(3) The court, if satisfied of an owner's good faith, shall
enter no order of abatement as to that owner if the court finds
that the owner:
(a) Had no knowledge of the existence of the nuisance or has
been making reasonable efforts to abate the nuisance;
(b) Has not been guilty of any contempt of court in the
proceedings; and
(c) Will make best efforts to immediately abate any nuisance
that may exist and prevent it from being a nuisance for a period
of one year thereafter.
(4) Except for an order of abatement entered based on the
manufacture of a controlled substance, if an order of abatement
has been entered and an owner subsequently meets the requirements
of this section, the order of abatement shall be canceled as to
that owner.
(5) If the court enters an order under this section on the
basis that the property was used for the manufacture of a
controlled substance, the court shall send a copy of the order to
the Director of Human Services. The director or the director's
designee shall declare the property to be an illegal drug
manufacturing site for purposes of ORS 453.855 to 453.912. An
order of the court under this section shall not be canceled until
the director or the director's designee determines the property
to be fit for use. Upon determining the property to be fit for
use, the director or designee shall notify the court, which shall
cancel the abatement order.
SECTION 239. ORS 105.755 is amended to read:
105.755. (1) As used in this section, 'public road' means a
road used by the general public, whether designated as a state
highway, county or district road or otherwise, but does not
include city streets under ORS 105.760.
(2) Whenever the Department of Transportation changes the grade
of any public road from a previously established or maintained
grade, the state shall be liable for and shall pay just and
reasonable compensation for any legal damage or injury to real
property abutting upon the public road affected by the grade
change; except that the state shall not be liable for any damage
or injury for any such change whenever the county has requested
the Department of Transportation to make such change.
Enrolled House Bill 2646 (HB 2646-B) Page 203
(3) Any person having any right, title or interest in any such
real property has a cause of action against the state to enforce
payment of the compensation. Any such action may be commenced and
maintained in the circuit court for the county in which the real
property is situated. Any party to any such action has the right
to appeal as in other civil actions from { - the final - }
{ + a + } judgment of any circuit court. Any person having or
claiming any right, title or interest in such real property may
join as party plaintiff or may intervene in any action involving
the real property in which the interest is claimed.
(4) The trial circuit court shall, in its { - final - } { +
general + } judgment, apportion such just compensation as it may
award among the various persons found by it to own or have some
right, title or interest in such real property. The awarded
compensation shall be apportioned according to the rules of law
governing the distribution of awards made when real property is
taken under the power of eminent domain.
(5) The liability of the state terminates wholly when it pays
into court the sums determined by the circuit court to be just
compensation. Any cause of action granted by this section is
barred unless such action is commenced within six months after
the change of grade is physically completed and accepted by the
Department of Transportation.
SECTION 240. ORS 105.760 is amended to read:
105.760. (1) If consent is given by the governing body of any
city to change any grade of any street as such grade has been
established or maintained by the consenting city and pursuant
thereto the Department of Transportation or a county changes the
grade, the state or the county, whichever makes such change of
grade, shall be liable for and shall pay just and reasonable
compensation for any damage or injury to any real property
abutting upon the road or street affected by the grade change.
(2) Any person having any right, title or interest in any such
real property has a cause of action against the state or against
the county to enforce payment of the compensation. Any such
action may be commenced and maintained in the circuit court for
the county in which the real property is situated. Any party to
any such action has the right to appeal as in any other civil
action from { - the final - } { + a + } judgment of any
circuit court. Any person having or claiming any right, title or
interest in such real property may join as party plaintiff or may
intervene in any action involving the real property in which the
interest is claimed.
(3) The trial circuit court shall, in its { - final - } { +
general + } judgment, apportion such just compensation as it may
award among the various persons found by it to own or have some
right, title or interest in such real property. The awarded
compensation shall be apportioned according to the rules of law
governing the distribution of awards made when real property is
taken under the power of eminent domain.
(4) The liability of the state or the liability of the county,
as the case may be, terminates wholly when it pays into court the
sums determined by the circuit court to be just compensation. Any
cause of action granted by this section is barred unless such
action is commenced within six months after the change of grade
is physically completed and accepted by the Department of
Transportation or the county.
SECTION 241. ORS 105.860 is amended to read:
105.860. Any person having any right, title or interest in any
such abutting real property has a cause of action against the
Enrolled House Bill 2646 (HB 2646-B) Page 204
city to enforce payment of the compensation. Any such action may
be commenced and maintained in the circuit court for the county
in which the real property is situated. Any party to any such
action has the right to appeal from the { - final - } judgment
of the circuit court as in other actions. A person having or
claiming any right, title or interest in such real property may
join as party plaintiff and may intervene in any action involving
the real property in which the interest is claimed.
SECTION 242. ORS 105.865 is amended to read:
105.865. (1) The circuit court shall, in its { - final - }
{ + general + } judgment, apportion such just compensation as
it may award among the various persons found by it to own or have
some right, title or interest in such real property. The awarded
compensation shall be apportioned according to the rules of law
governing the distribution of awards made when real property is
taken under the power of eminent domain.
(2) The liability of the city terminates wholly when it pays
into court the sums determined by the circuit court to be just
compensation.
SECTION 243. ORS 107.065 is amended to read:
107.065. (1) Except as provided in ORS 107.095 and in
subsection (2) of this section, no trial or hearing on the merits
in a suit for the dissolution of a marriage shall be had until
after the expiration of 90 days from the date of:
(a) The service of the summons and petition upon the
respondent; or
(b) The first publication of summons.
(2)(a) Upon written motion, the court may in its discretion
grant a judgment dissolving the marriage prior to the expiration
of the waiting period. The written motion must be supported by an
affidavit setting forth grounds of emergency or necessity and
facts that satisfy the court that immediate action is warranted
to protect the rights or interest of any party or person who
might be affected by a { - final - } judgment in the
proceedings.
(b) An affidavit stating that a stipulated judgment has been
signed by the parties is adequate grounds of necessity for
immediate action under this subsection.
(c) If the court grants a judgment before the expiration of the
waiting period, the court shall find and recite in the judgment
the grounds of emergency or necessity and the facts with respect
thereto.
SECTION 244. ORS 109.100 is amended to read:
109.100. (1) Any minor child or state agency on behalf of that
minor child may, in accordance with ORCP 27 A, apply to the
circuit court in the county in which the child resides, or in
which the natural or adoptive father or mother of the child may
be found, for an order upon such child's father or mother, or
both, to provide for the child's support. The minor child or
state agency may apply for the order by filing in such county a
petition setting forth the facts and circumstances relied upon
for such order. If satisfied that a just cause exists, the court
shall direct that the father or mother appear at a time set by
the court to show cause why an order of support should not be
entered in the matter. If it appears to the satisfaction of the
court that such child is without funds to employ counsel, the
court may make an order directing the district attorney to
prepare such petition and order to show cause.
(2) The { - order is a final - } judgment { + of a court
under subsection (1) of this section is final + } as to any
Enrolled House Bill 2646 (HB 2646-B) Page 205
installment or payment of money which has accrued up to the time
either party makes a motion to set aside, alter or modify the
{ - order - } { + judgment + }, and the court does not have
the power to set aside, alter or modify { - such order - }
{ + the judgment + }, or any portion thereof, which provides
for any payment of money which has accrued prior to the filing of
such motion.
(3) The provisions of ORS 108.110 (3), 108.120 and 108.130
shall apply to proceedings under subsection (1) of this section.
(4) In any proceeding under this section, both the child's
physical and legal custodians are parties to the action.
SECTION 245. ORS 138.640 is amended to read:
138.640. { - After deciding the issues raised in the
proceeding, the court shall deny the petition or enter an order
granting the appropriate relief. The court may also make orders
as provided in ORS 138.520. The order making final disposition of
the petition shall state clearly the grounds upon which the cause
was determined, and whether a state or federal question, or both,
was presented and decided. This order shall constitute a final
judgment for purposes of appellate review and for purposes of res
judicata. - } { + After deciding the issues raised in the
proceeding, the court shall enter a judgment denying the petition
or granting the appropriate relief. The judgment may include
orders as provided in ORS 138.520. The judgment must clearly
state the grounds on which the cause was determined, and whether
a state or federal question was presented and decided. + }
SECTION 246. ORS 138.650 is amended to read:
138.650. Either the petitioner or the defendant may appeal to
the Court of Appeals within 30 days after the entry of
{ - final - } { + a + } judgment on a petition pursuant to ORS
138.510 to 138.680. The manner of taking the appeal and the scope
of review by the Court of Appeals and the Supreme Court shall be
the same as that provided by law for appeals in criminal actions,
except that:
(1) The trial court may provide that the transcript contain
only such evidence as may be material to the decision of the
appeal; and
(2) With respect to ORS 138.081 (1), if petitioner appeals,
petitioner shall cause the notice of appeal to be served on the
attorney for defendant, and, if defendant appeals, defendant
shall cause the notice of appeal to be served on the attorney for
petitioner or, if petitioner has no attorney of record, on
petitioner.
SECTION 247. ORS 161.665 is amended to read:
161.665. (1) Except as provided in ORS 151.505, the court, only
in the case of a defendant for whom it enters a judgment of
conviction, may include in its sentence thereunder a provision
that the convicted defendant shall pay as costs expenses
specially incurred by the state in prosecuting the defendant.
Costs include a reasonable attorney fee for counsel appointed
pursuant to ORS 135.045 or 135.050 and a reasonable amount for
expenses approved under ORS 135.055. A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate
authorized by the State Court Administrator under ORS 151.430.
Costs shall not include expenses inherent in providing a
constitutionally guaranteed jury trial or expenditures in
connection with the maintenance and operation of government
agencies that must be made by the public irrespective of specific
violations of law.
Enrolled House Bill 2646 (HB 2646-B) Page 206
(2) Except as provided in ORS 151.505, the court, after the
conclusion of an appeal of its initial judgment of conviction,
may include in its { - final - } { + general + }
judgment { + , + } or { - modify the - } { + enter a
supplemental + } judgment { + that includes, + } { - to
include - } a requirement that a convicted defendant pay as
costs a reasonable attorney fee for counsel appointed pursuant to
ORS 138.500, including counsel who is appointed under ORS 151.216
or counsel who is under contract to provide services for the
appeal pursuant to ORS 151.460, and other costs and expenses
allowed by the appellate court under ORS 138.500 (4). A
reasonable attorney fee is presumed to be a reasonable number of
hours at the hourly rate authorized by the State Court
Administrator under ORS 151.430.
(3) The court shall not sentence a defendant to pay costs under
this section unless the defendant is or may be able to pay them.
In determining the amount and method of payment of costs, the
court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will
impose.
(4) A defendant who has been sentenced to pay costs under this
section and who is not in contumacious default in the payment
thereof may at any time petition the court which sentenced the
defendant for remission of the payment of costs or of any unpaid
portion thereof. If it appears to the satisfaction of the court
that payment of the amount due will impose manifest hardship on
the defendant or the immediate family of the defendant, the court
may remit all or part of the amount due in costs, or modify the
method of payment under ORS 161.675.
(5) All moneys collected or paid under this section shall be
paid into the General Fund and credited to the Criminal Fine and
Assessment Account.
SECTION 248. ORS 161.665, as amended by section 41, chapter
962, Oregon Laws 2001, is amended to read:
161.665. (1) Except as provided in ORS 151.505, the court, only
in the case of a defendant for whom it enters a judgment of
conviction, may include in its sentence thereunder a provision
that the convicted defendant shall pay as costs expenses
specially incurred by the state in prosecuting the defendant.
Costs include a reasonable attorney fee for counsel appointed
pursuant to ORS 135.045 or 135.050 and a reasonable amount for
expenses approved under ORS 135.055. A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate
authorized by the Public Defense Services Commission under ORS
151.216. Costs do not include expenses inherent in providing a
constitutionally guaranteed jury trial or expenditures in
connection with the maintenance and operation of government
agencies that must be made by the public irrespective of specific
violations of law.
(2) Except as provided in ORS 151.505, the court, after the
conclusion of an appeal of its initial judgment of conviction,
may include in its { - final - } { + general + }
judgment { + , + } or { - modify the - } { + enter a
supplemental + } judgment { + that includes, + } { - to
include - } a requirement that a convicted defendant pay as
costs a reasonable attorney fee for counsel appointed pursuant to
ORS 138.500, including counsel who is appointed under ORS 151.216
or counsel who is under contract to provide services for the
proceeding under ORS 151.219, and other costs and expenses
allowed by the public defense services executive director under
Enrolled House Bill 2646 (HB 2646-B) Page 207
ORS 138.500 (4). A reasonable attorney fee is presumed to be a
reasonable number of hours at the hourly rate authorized by the
commission under ORS 151.216.
(3) For purposes of subsections (1) and (2) of this section,
compensation of counsel shall be determined by reference to a
schedule of compensation established by the commission under ORS
151.216.
(4) The court shall not sentence a defendant to pay costs under
this section unless the defendant is or may be able to pay them.
In determining the amount and method of payment of costs, the
court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will
impose.
(5) A defendant who has been sentenced to pay costs under this
section and who is not in contumacious default in the payment
thereof may at any time petition the court which sentenced the
defendant for remission of the payment of costs or of any unpaid
portion thereof. If it appears to the satisfaction of the court
that payment of the amount due will impose manifest hardship on
the defendant or the immediate family of the defendant, the court
may remit all or part of the amount due in costs, or modify the
method of payment under ORS 161.675.
(6) All moneys collected or paid under this section shall be
paid into the General Fund and credited to the Criminal Fine and
Assessment Account.
SECTION 249. ORS 161.715 is amended to read:
161.715. (1) Any court empowered to suspend imposition or
execution of sentence or to sentence a defendant to probation may
discharge the defendant if:
(a) The conviction is for an offense other than murder, treason
or a Class A or B felony; and
(b) The court is of the opinion that no proper purpose would be
served by imposing any condition upon the defendant's release.
(2) If a sentence of discharge is imposed for a felony, the
court shall set forth in the record the reasons for its action.
(3) If the court imposes a sentence of discharge, the defendant
shall be released with respect to the conviction for which the
sentence is imposed without imprisonment, fine, probationary
supervision or conditions.
(4) If a defendant pleads not guilty and is tried and found
guilty, a sentence of discharge is a { - final - } judgment on
a conviction for all purposes, including an appeal by the
defendant.
(5) If a defendant pleads guilty, a sentence of discharge is
not appealable, but for all other purposes is a { - final - }
judgment on a conviction.
SECTION 250. ORS 305.589 is amended to read:
305.589. (1) A local government unit or an association of local
government units acting for the common benefit of and on behalf
of consenting members may petition the regular division of the
Oregon Tax Court for a judicial declaration of the court
concerning the effect of section 11b, Article XI of the Oregon
Constitution on any tax, fee, charge or assessment imposed or to
be imposed by, or bonded indebtedness incurred or to be incurred
by, that local government unit or by any of the consenting
members of the association of local government units.
(2) Notice of the commencement of a proceeding under this
section shall be given by the petitioner or petitioners by
publication of notice directed to all electors, taxpayers and
other interested persons, without naming such electors, taxpayers
Enrolled House Bill 2646 (HB 2646-B) Page 208
or other interested persons individually. The notice shall be
published at least once a week for three successive weeks in a
newspaper of general circulation within the boundaries of the
local government unit and each of the consenting members of the
association of local government units, if any, or if no such
newspaper is published therein, then in a contiguous county.
(3) The petitioner or petitioners may elect to give further
notice to affected electors, taxpayers and other interested
persons, or the court may order such further notice as the court
considers practicable.
(4) The action authorized by this section shall be a special
proceeding in the nature of an ex parte proceeding in the absence
of the intervention of a respondent in opposition to the
petition.
(5) Jurisdiction of the local government unit and of consenting
members of an association of local government units shall be
obtained by filing of the petition. Jurisdiction over the
electors, taxpayers and other interested persons shall be
complete 10 days after the date of completing publication of the
notice provided for in subsection (2) of this section, or giving
of any further notice as provided for in subsection (3) of this
section. Jurisdiction of any other party shall be obtained by
appearance of any interested person who seeks and is granted
leave to intervene in the proceeding.
(6) Any elector, taxpayer or interested person or local
government unit that may be affected by the tax, fee, charge or
assessment that is the subject of the petition may intervene as a
petitioner or respondent by filing the appropriate appearance.
(7) Any party to a proceeding commenced under this section,
including a consenting member of an association of local
government units that was a party to the proceeding, may appeal
from the { - final - } { + + }judgment rendered by the tax
court to the Oregon Supreme Court in the manner provided for
appeals from other decisions of the tax court under ORS 305.445.
(8) If, in a proceeding commenced under this section, the court
finds that a tax, fee, charge or assessment is subject to the
limits of section 11b, Article XI of the Oregon Constitution, the
court may order such relief as it considers appropriate, but such
relief shall be prospective only.
(9) Costs of the proceeding may be allowed and apportioned
between the parties in the discretion of the court.
(10) As used in this section:
(a) 'Local government unit' means any unit of local government,
including a city, county, incorporated town or village, school
district, any other special district, or any other municipal or
quasi-municipal corporation, intergovernmental authority created
pursuant to ORS 190.010, a district as defined in ORS 198.010,
198.180, 198.210 and 198.330 or an urban renewal agency
established under ORS 457.035.
(b) 'Consenting member' means a member of an association of
local government units who affirmatively consents, through filing
of a consenting certificate with the tax court, to the
commencement of a proceeding under this section.
(c) 'Association of local government units' means an
association, or any other lawful organization, composed of member
local government units organized for the mutual benefit of such
local government units.
SECTION 251. ORS 373.060 is amended to read:
373.060. (1) If by the closing of any street as provided in ORS
373.050, real property abutting on the intersected street between
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the point of intersection and the next street, but in no event
beyond a point 300 feet from the point of intersection, is
damaged, any person having any right, title or interest in any
such real property has a cause of action against the state to
enforce payment of such compensation or damages.
(2) Any such action may be commenced and prosecuted in the
circuit court for the county in which such real property is
situated. Any party to any such action has the right to appeal
from the { - final - } judgment of any circuit court to the
Court of Appeals. Any person having or claiming any right, title
or interest in such real property may join as party plaintiff or
may intervene in any action involving real property in which the
person claims an interest.
(3) The trial circuit court shall, in its { - final - }
{ + general + } judgment, apportion such compensation as it may
award among the various persons found by it to own or have some
right, title or interest in such real property. The awarded
compensation shall be apportioned according to the rules of law
governing the distribution of awards made when real property is
taken under the power of eminent domain.
(4) The liability of the state and of the municipality
terminates wholly when the compensation thus determined is paid
into court. Any cause of action granted by this section is barred
unless it is commenced within six months after the street is
closed and entrance from the street to the state highway or
intersecting street is physically barred.
SECTION 252. ORS 419B.402 is amended to read:
419B.402. Any order for support entered pursuant to ORS
419B.400 { - is a final - } { + shall be entered as a + }
judgment { - as to any installment or payment of money which
has accrued up to the time either party makes a motion to set
aside, alter or modify the order, - } and the court does not
have the power to set aside, alter or modify { - such order - }
{ + the judgment + }, or any portion thereof, which provides
for any payment of money, either for minor children or the
support of a party, which has accrued prior to the filing of
{ - such - } { + a + } motion { + to set aside, alter or
modify the judgment + }.
SECTION 253. ORS 419C.592 is amended to read:
419C.592. Any order for support entered pursuant to ORS
419C.590 is a { - final - } judgment { + and is final + } as
to any installment or payment of money which has accrued up to
the time either party makes a motion to set aside, alter or
modify the order, and the court does not have the power to set
aside, alter or modify such order, or any portion thereof, which
provides for any payment of money, either for minor children or
the support of a party, which has accrued prior to the filing of
such motion.
SECTION 254. Section 35, chapter 780, Oregon Laws 2001, is
amended to read:
{ + Sec. 35. + } (1) If it has been determined in an action
brought under the provisions of ORS 475A.075 that the plaintiff
has prevailed as to some or all of the defendant property, the
plaintiff shall serve on the claimant a proposed judgment of
forfeiture and a statement of costs as defined in ORS 475A.120
(1)(a) and 475A.125 (1)(a) (1999 Edition).
(2) A claimant who has filed a claim to seized property,
appeared in the action, and part or all of whose interest in the
claimed property is forfeited under the terms of the proposed
judgment may file a motion for a mitigation hearing:
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(a) A motion under this section must list all evidence not
previously received that is relevant to the determination to be
made by the court under ORS 475A.100. Every argument that the
claimant wishes to raise in mitigation must be set out in
specific detail in the motion.
(b) Before filing a motion for mitigation, the claimant and the
plaintiff must make a good faith effort to confer with one
another concerning any issues in dispute. The claimant must file
a certificate of compliance with the requirements of this
paragraph before the time set for hearing on the motion. The
certificate is sufficient if the certificate states that the
parties conferred or the certificate contains facts showing good
cause for not conferring.
(c) A motion under this section may only be filed after the
service of a proposed judgment on the claimants. If a motion for
a mitigation hearing is not filed with the court within 14 days
after the date the plaintiff serves the proposed judgment on the
claimant, the court shall enter judgment.
(3) If a motion for a mitigation hearing is filed, the court
shall determine whether any portion of the proposed judgment is
excessive in the manner provided by ORS 475A.100.
(4) A hearing under the provisions of this section is subject
to the Oregon Rules of Evidence.
(5) The court may make such orders, as may be necessary to
insure that the forfeiture is not excessive, including but not
limited to the following orders:
(a) An order directing that the defendant property, or part of
it, be sold and the proceeds of sale distributed between the
litigants.
(b) An order directing that the claimant make available to the
court other assets, not named as defendants in the forfeiture
action, for the purpose of fashioning a { - final - } judgment
that is not excessive.
(6) The court shall make written findings of fact and shall
enter written conclusions of law in proceedings under the
provisions of this section.
SECTION 255. Section 37, chapter 780, Oregon Laws 2001, is
amended to read:
{ + Sec. 37. + } (1) In any appeal from a judgment of
forfeiture, review of any mitigation ordered by the trial court
shall be limited to the following:
(a) Whether the findings of fact are supported by the evidence
in the record.
(b) Whether the ultimate conclusion modifying or declining to
modify the judgment submitted by the plaintiff was an abuse of
discretion by the trial court.
(c) Whether the { - final - } judgment complies with
applicable constitutional limitations.
(2) An appellate court may reverse, affirm, modify or remand
the provisions of a judgment of forfeiture relating to
mitigation. But the appellate court may not consider arguments
for mitigation of a judgment of forfeiture unless those arguments
were timely raised by the motion provided for in ORS 475A.090
(1999 Edition).
SECTION 256. ORS 545.579 is amended to read:
545.579. (1) The appellant and all persons appearing shall make
a statement in writing of the grounds of appeal, and no further
pleadings shall be necessary. The cause shall be tried in one
action by the circuit court as an action not triable by right to
a jury.
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(2) Upon the entry of { - final - } { + a + }
judgment { + , + } any person aggrieved by the judgment may
appeal to the Court of Appeals in the manner provided for other
cases in equity. Notice of appeal shall be served on those
appearing in the circuit court or their attorneys. The cause
shall be tried de novo by the Court of Appeals as expeditiously
as possible after the appeal is perfected. Upon the effective
date of decision of the Court of Appeals, the circuit court shall
enter such judgment as is directed by the Court of Appeals.
(3) If the resolution of the board of directors is affirmed it
shall be considered an assessment against all the lands described
in the resolution for the amount of the assessment and payable at
the times specified in the resolution, as well as a final
determination of the total benefits accruing from the existing or
proposed improvements to the parcels of land described in the
resolution. If the resolution is modified in any respect, the
court shall specify the proper resolution to be entered, which
shall be entered accordingly. If no appeal is taken from the
resolution, it shall become final.
SECTION 257. ORS 548.110 is amended to read:
548.110. (1) The proceedings { + under ORS 548.105 + } shall
be in the nature of a proceeding in rem. The practice and
procedure therein shall follow the practice and procedure of an
action not triable by right to a jury, so far as they are
consistent with the determination sought to be obtained, except
as otherwise provided in ORS 548.105 to 548.115. The jurisdiction
of the irrigation district or drainage district and of all the
freeholders, assessment payers and legal voters therein shall be
obtained by publication of notice directed to the district, and
to 'all freeholders, legal voters and assessment payers within
the district,' without naming them individually. The notice shall
be served on all parties in interest by publication for at least
once a week for three successive weeks in some newspaper of
general circulation published in the county where the proceeding
is pending. Jurisdiction shall be complete within 10 days after
full publication.
(2) Any person interested may at any time before the expiration
of the 10 days appear and contest the validity of the proceeding,
or of any of the acts or things therein enumerated. The
proceedings shall be speedily tried and judgment rendered
declaring the matter so contested to be either valid or invalid.
Any order or judgment in the course of the proceeding may be made
and rendered by the judge of the court in vacation. For the
purpose of any such order or judgment { + , + } the court shall
be deemed at all times to be in session, and the act of the judge
in making such order or judgment shall be the act of the court.
(3) Any party may appeal to the Court of Appeals at any time
within 30 days after rendition of the { - final - } judgment.
The appeal must be heard and determined within three months from
the time of taking the appeal.
(4) The court, in inquiring into the regularity, legality or
correctness of any of the proceedings, must disregard any error,
irregularity or omission which does not affect the substantial
rights of the parties to the court proceedings, and may approve
the proceedings in part and disapprove and declare invalid other
or subsequent proceedings in part. The costs of the court
proceedings may be allowed and apportioned between the parties in
the discretion of the court.
SECTION 258. ORS 744.013 is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 212
744.013. (1) If the Director of the Department of Consumer and
Business Services finds with respect to an adjuster or insurance
consultant or an applicant for an adjuster or insurance
consultant license that one or more of the grounds set forth in
subsection (2) of this section exist, the director may take the
following disciplinary actions:
(a) The director may refuse to renew or may suspend or revoke a
license issued under ORS 744.002 or the authority under a license
to engage in any category of insurance business or any class of
insurance.
(b) The director may refuse to issue a license under ORS
744.002 or refuse to grant authority under a license to engage in
any category of insurance business or any class of insurance.
(2) The director may take any disciplinary action under
subsection (1) of this section on one or more of the following
grounds:
(a) Incompetence or untrustworthiness of the applicant or
adjuster or insurance consultant.
(b) Falsification by the applicant or adjuster or insurance
consultant of the application for the license or an amendment
thereto, or engagement in any dishonest act in relation to the
application or examination therefor.
(c) Violation of or noncompliance with any applicable provision
of the Insurance Code or any rule or order of the director.
(d) Misappropriation or conversion to the adjuster's or
insurance consultant's own use, or illegal withholding, of money
or property belonging to policyholders, insurers, beneficiaries
or others, and received by the adjuster or insurance consultant
in the conduct of business under the license.
(e) Conviction { - , by final judgment, - } in any
jurisdiction, of an offense which if committed in this state,
constitutes a felony, a misdemeanor involving dishonesty or
breach of trust, or an offense punishable by death or
imprisonment under the laws of the United States. The record of
the conviction shall be conclusive evidence of the conviction.
(f) Material misrepresentation of the terms of any insurance
policy or proposed insurance policy.
(g) Use of a fraudulent or dishonest practice by the adjuster
or insurance consultant in the conduct of business under the
license, or demonstration therein that the adjuster or insurance
consultant is incompetent, untrustworthy or a source of injury
and loss to the public or others.
(h) Error by the director in issuing or renewing a license.
(i) Failure to pay a civil penalty assessed by the director
that has become final by operation of law or upon appeal.
(j) Failure to pay any fee or charge to the director.
(k) Use of the license principally to effect insurance on
property or against liability of the applicant or adjuster or
insurance consultant, or to evade the provisions of ORS chapter
746.
(L) Cancellation, revocation, suspension or refusal to renew by
any state of a license or other evidence of authority to act as
an agent, adjuster or insurance consultant. The record of the
cancellation, revocation, suspension or refusal to renew shall be
conclusive evidence of the action taken.
(m) Cancellation, revocation, suspension or refusal to renew by
any state or federal agency of the authority to practice law or
to practice under any other regulatory authority if the
cancellation, revocation, suspension or refusal to renew was
related to the business of an agent, adjuster or insurance
Enrolled House Bill 2646 (HB 2646-B) Page 213
consultant or if dishonesty, fraud or deception was involved. The
record of the cancellation, revocation, suspension or refusal to
renew shall be conclusive evidence of the action taken.
(n) Failure to comply with continuing education requirements
applicable to the license or any category of insurance authorized
under the license, unless the director has waived the
requirements.
(o) Dishonesty, fraud or misrepresentation not related to the
business of an agent, adjuster or insurance consultant.
(3) The director may refuse to issue or renew or may revoke or
suspend the license of a firm or corporation or may take any such
action with respect to any authority applied for by or granted to
the firm or corporation to engage under the license in any
category of insurance business or class of insurance if the
director finds that any ground set forth in subsection (2) of
this section exists:
(a) With respect to any individual adjuster or insurance
consultant employed by or under contract with the firm or
corporation.
(b) With respect to a director or officer of the firm or
corporation.
(c) With respect to any person who directly or indirectly has
the power to direct or cause to be directed the management,
control or activities of the adjuster or insurance consultant.
SECTION 259. ORCP 32 F is amended to read:
F Notice and exclusion.
F(1) When ordering that an action be maintained as a class
action under this rule, the court shall direct that notice be
given to some or all members of the class under subsection E(2)
of this rule, shall determine when and how this notice should be
given and shall determine whether, when, how, and under what
conditions putative members may elect to be excluded from the
class. The matters pertinent to these determinations ordinarily
include: (a) the nature of the controversy and the relief sought;
(b) the extent and nature of any member's injury or liability;
(c) the interest of the party opposing the class in securing a
final resolution of the matters in controversy; (d) the
inefficiency or impracticality of separately maintained actions
to resolve the controversy; (e) the cost of notifying the members
of the class; and (f) the possible prejudice to members to whom
notice is not directed. When appropriate, exclusion may be
conditioned on a prohibition against institution or maintenance
of a separate action on some or all of the matters in controversy
in the class action or a prohibition against use in a separately
maintained action of any judgment rendered in favor of the class
from which exclusion is sought.
F(2) Prior to the entry of a { - final - } { + + }judgment
against a defendant the court shall request members of the class
who may be entitled to individual monetary recovery to submit a
statement in a form prescribed by the court requesting
affirmative relief which may also, where appropriate, require
information regarding the nature of the loss, injury, claim,
transactional relationship, or damage. The statement shall be
designed to meet the ends of justice. In determining the form of
the statement, the court shall consider the nature of the acts of
the defendant, the amount of knowledge a class member would have
about the extent of such member's damages, the nature of the
class including the probable degree of sophistication of its
members, and the availability of relevant information from
sources other than the individual class members. The amount of
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damages assessed against the defendant shall not exceed the total
amount of damages determined to be allowable by the court for
each individual class member who has filed a statement required
by the court, assessable court costs, and an award of attorney
fees, if any, as determined by the court.
F(3) Failure of a class member to file a statement required by
the court will be grounds for entry of judgment dismissing such
class member's claim for individual monetary recovery without
prejudice to the right to maintain an individual, but not a
class, action for such claim.
F(4) Plaintiffs shall bear costs of any notice ordered prior to
a determination of liability. The court may, however, order that
defendant bear all or a specified part of the costs of any notice
included with a regular mailing by defendant to its current
customers or employees. The court may hold a hearing to determine
how the costs of such notice shall be apportioned.
F(5) No duty of compliance with due process notice requirements
is imposed on a defendant by reason of the defendant including
notice with a regular mailing by the defendant to current
customers or employes of the defendant under this section.
F(6) As used in this section, 'customer' includes a person,
including but not limited to a student, who has purchased
services or goods from a defendant.
SECTION 260. ORCP 47 H is amended to read:
H Multiple parties or claims; { - final - }
{ + limited + } judgment. { - In any action involving multiple
parties or multiple claims, a summary judgment which is not
entered in compliance with Rule 67 B shall not constitute a final
judgment. - } { + If the court grants summary judgment for less
than all parties and claims in an action, a limited judgment may
be entered if the court makes the determination required by Rule
67 B. + }
SECTION 261. ORCP 67 G is amended to read:
G Judgment on portion of claim exceeding counterclaim. The
court may direct entry of a { - final - } { + limited + }
judgment as to that portion of any claim which exceeds a
counterclaim asserted by the party or parties against whom the
judgment is entered, if such party or parties have admitted the
claim and asserted a counterclaim amounting to less than the
claim.
SECTION 262. ORCP 68 C, as amended by the Council on Court
Procedures on December 14, 2002, is amended to read:
C Award of and entry of judgment for attorney fees and costs
and disbursements.
C(1) Application of this section to award of attorney fees.
Notwithstanding Rule 1 A and the procedure provided in any rule
or statute permitting recovery of attorney fees in a particular
case, this section governs the pleading, proof, and award of
attorney fees in all cases, regardless of the source of the right
to recovery of such fees, except where:
C(1)(a) Such items are claimed as damages arising prior to the
action; or
C(1)(b) Such items are granted by order, rather than entered as
part of a judgment.
C(2)(a) Alleging right to attorney fees. A party seeking
attorney fees shall allege the facts, statute, or rule which
provides a basis for the award of such fees in a pleading filed
by that party. Attorney fees may be sought before the substantive
right to recover such fees accrues. No attorney fees shall be
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awarded unless a right to recover such fee is alleged as provided
in this subsection.
C(2)(b) If a party does not file a pleading and seeks judgment
or dismissal by motion, a right to attorney fees shall be alleged
in such motion, in similar form to the allegations required in a
pleading.
C(2)(c) A party shall not be required to allege a right to a
specific amount of attorney fees. An allegation that a party is
entitled to 'reasonable attorney fees' is sufficient.
C(2)(d) Any allegation of a right to attorney fees in a
pleading or motion shall be deemed denied and no responsive
pleading shall be necessary. The opposing party may make a motion
to strike the allegation or to make the allegation more definite
and certain. Any objections to the form or specificity of
allegation of the facts, statute, or rule which provides a basis
for the award of fees shall be waived if not alleged prior to
trial or hearing.
C(3) Proof. The items of attorney fees and costs and
disbursements shall be submitted in the manner provided by
subsection (4) of this section, without proof being offered
during the trial.
C(4) Procedure for seeking attorney fees or costs and
disbursements. The procedure for seeking attorney fees or costs
and disbursements shall be as follows:
C(4)(a) Filing and serving statement of attorney fees and costs
and disbursements. A party seeking attorney fees or costs and
disbursements shall, not later than 14 days after entry of
judgment pursuant to Rule 67:
C(4)(a)(i) File with the court a signed and detailed statement
of the amount of attorney fees or costs and disbursements,
together with proof of service, if any, in accordance with Rule 9
C; and
C(4)(a)(ii) Serve, in accordance with Rule 9 B, a copy of the
statement on all parties who are not in default for failure to
appear.
C(4)(b) Objections. A party may object to a statement seeking
attorney fees or costs and disbursements or any part thereof by
written objections to the statement. The objections shall be
served within 14 days after service on the objecting party of a
copy of the statement. The objections shall be specific and may
be founded in law or in fact and shall be deemed controverted
without further pleading. Statements and objections may be
amended in accordance with Rule 23.
C(4)(c) Hearing on objections.
C(4)(c)(i) If objections are filed in accordance with paragraph
C(4)(b) of this rule, the court, without a jury, shall hear and
determine all issues of law and fact raised by the statement of
attorney fees or costs and disbursements and by the objections.
The parties shall be given a reasonable opportunity to present
evidence and affidavits relevant to any factual issue, including
any factors that ORS 20.075 or any other statute or rule requires
or permits the court to consider in awarding or denying attorney
fees or costs and disbursements.
C(4)(c)(ii) The court shall deny or award in whole or in part
the amounts sought as attorney fees or costs and disbursements.
C(4)(d) No timely objections. If objections are not timely
filed the court may award attorney fees or costs and
disbursements sought in the statement.
C(4)(e) Findings and conclusions. On the request of a party,
the court shall make special findings of fact and state its
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conclusions of law on the record regarding the issues material to
the award or denial of attorney fees. A party shall make a
request pursuant to this paragraph by including a request for
findings and conclusions in the title of the statement of
attorney fees or costs and disbursements or objections filed
pursuant to paragraph (a) or (b) of this subsection. In the
absence of a request under this paragraph, the court may make
either general or special findings of fact and may state its
conclusions of law regarding attorney fees.
C(5) Judgment concerning attorney fees or costs and
disbursements.
C(5)(a) As part of judgment. When all issues regarding attorney
fees or costs and disbursements have been determined before a
judgment pursuant to Rule 67 is entered, the court shall include
any award or denial of attorney fees or costs and disbursements
in that judgment.
C(5)(b) By supplemental judgment; notice. When any issue
regarding attorney fees or costs and disbursements has not been
determined before a judgment pursuant to Rule 67 is entered, any
award or denial of attorney fees or costs and disbursements shall
be made by a separate supplemental judgment. The supplemental
judgment shall be filed and entered and notice shall be given to
the parties in the same manner as provided in Rule 70 B(1).
C(6) Avoidance of multiple collection of attorney fees and
costs and disbursements.
C(6)(a) Separate judgments for separate claims. { - Where
separate final judgments are granted in one action for separate
claims, pursuant to Rule 67 B - } { + If more than one judgment
is entered in an action + }, the court shall take such steps as
necessary to avoid the multiple taxation of the same attorney
fees and costs and disbursements in { - more than one such
judgment - } { + those judgments + }.
C(6)(b) Separate judgments for the same claim. { - When there
are separate judgments entered for one - } { + If more than one
judgment is entered for the same + } claim (where separate
actions are brought for the same claim against several parties
who might have been joined as parties in the same action, or
where pursuant to Rule 67 B separate { - final - }
{ + limited + } judgments are entered against several parties
for the same claim), attorney fees and costs and disbursements
may be entered in each { - such - } judgment as provided in
this rule, but satisfaction of one { - such judgment shall
bar - } { + judgment bars + } recovery of attorney fees or costs
and disbursements included in all other judgments.
SECTION 263. ORCP 72 D is amended to read:
D Stay of judgment as to multiple claims or multiple parties.
{ - When a court has ordered a final judgment under the
conditions stated in Rule 67 B - } { + If a court enters a
limited judgment under the provisions of Rule 67 B + }, the court
may stay enforcement of
{ - that - } { + the + } judgment { - or judgments - } and
may prescribe such conditions as are necessary to secure the
benefit thereof to the party in whose favor the judgment is
entered.
SECTION 264. ORCP 81 A is amended to read:
A Definitions. As used in Rules 81 through 85, unless the
context otherwise requires:
A(1) Attachment. 'Attachment' is the procedure by which an
unsecured plaintiff obtains a judicial lien on defendant's
property prior to judgment.
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A(2) Bank. 'Bank' includes commercial and savings banks, trust
companies, savings and loan associations, and credit unions.
A(3) Clerk. 'Clerk' means clerk of the court or any person
performing the duties of that office.
A(4) Consumer goods. 'Consumer goods' means consumer goods as
defined in ORS 79.0102.
A(5) Consumer transaction. 'Consumer transaction' means a
transaction in which the defendant becomes obligated to pay for
goods sold or leased, services rendered, or monies loaned,
primarily for purposes of the defendant's personal, family, or
household use.
A(6) Issuing officer. 'Issuing officer' means any person who on
behalf of the court is authorized to issue provisional process.
A(7) Levy. 'Levy' means to create a lien upon property prior to
judgment by any of the procedures provided by Rules 81 through 85
that create a lien.
A(8) Plaintiff and defendant. 'Plaintiff' includes any party
asserting a claim for relief whether by way of claim, third party
claim, cross-claim, or counterclaim, and 'defendant ' includes
any person against whom such claim is asserted.
A(9) Provisional process. 'Provisional process' means
attachment under Rule 84, claim and delivery under Rule 85,
temporary restraining orders under Rule 83, preliminary
injunctions under Rule 83, or any other legal or equitable
judicial process or remedy which before { - final - } { +
entry of a + } judgment enables a plaintiff, or the court on
behalf of the plaintiff, to take possession or control of, or to
restrain use or disposition of, or fix a lien on property in
which the defendant claims an interest, except an order
appointing a provisional receiver under Rule 80 or granting a
temporary restraining order or preliminary injunction under Rule
79.
A(10) Security interest. 'Security interest' means a lien
created by agreement, as opposed to a judicial or statutory lien.
A(11) Sheriff. 'Sheriff' includes a constable of a justice
court.
A(12) Writ. A 'writ' is an order by a court to a sheriff or
other official to aid a creditor in attachment.
SECTION 265. ORCP 84 A is amended to read:
A Actions in which attachment allowed.
A(1) Order for provisional process. Before a writ of attachment
may be issued or any property attached by any means provided by
this rule, the plaintiff must obtain, and have recorded in the
County Clerk Lien Record, an order under Rule 83 that provisional
process may issue.
A(2) Actions in which attachment allowed. The plaintiff, at the
time of issuing the summons or any time afterwards, may have the
property of the defendant attached, as security for the
satisfaction of any judgment that may be recovered, in the
following cases:
A(2)(a) An action upon a contract, expressed or implied, for
the direct payment of money, when the contract is not secured by
mortgage, lien, or pledge, or when it is so secured but such
security has been rendered nugatory by act of the defendant.
A(2)(b) An action against a defendant not residing in this
state to recover a sum of money as damages for breach of any
contract, expressed or implied, other than a contract of
marriage.
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A(2)(c) An action against a defendant not residing in this
state to recover a sum of money as damages for injury to property
in this state.
A(3) Exception for financial institution. Notwithstanding
subsection (2) of this section, no attachment shall be issued
against any financial institution, as that term is defined in ORS
706.008, or against the property of a financial
institution { + . + }
{ - before final judgment as security for the satisfaction of
any judgment that may be recovered against such financial
institution. - }
SECTION 266. ORCP 84 B is amended to read:
B Property that may be attached. Only the following kinds of
property are subject to lien or levy before { - final - }
judgment:
B(1) In actions in circuit court, real property;
B(2) Tangible personal property, including negotiable
instruments and securities as defined in ORS 78.1020 except a
certificate of an account or obligation or interest therein of a
savings and loan institution;
B(3) Debts; and
B(4) The interest of a distributee of a decedent's estate.
{ +
THE DEMISE OF DECREES + }
SECTION 267. ORS 1.010 is amended to read:
1.010. Every court of justice has power:
(1) To preserve and enforce order in its immediate presence.
(2) To enforce order in the proceedings before it, or before a
person or body empowered to conduct a judicial investigation
under its authority.
(3) To provide for the orderly conduct of proceedings before it
or its officers.
(4) To compel obedience to its judgments, { - decrees, - }
orders and process, and to the orders of a judge out of court, in
an action, suit or proceeding pending therein.
(5) To control, in furtherance of justice, the conduct of its
ministerial officers, and of all other persons in any manner
connected with a judicial proceeding before it, in every matter
appertaining thereto.
(6) To compel the attendance of persons to testify in an
action, suit or proceeding pending therein, in the cases and
manner provided by statute.
(7) To administer oaths in an action, suit or proceeding
pending therein, and in all other cases where it may be necessary
in the exercise of its powers or the performance of its duties.
SECTION 268. ORS 1.655 is amended to read:
1.655. (1) It is the duty of a judge pro tempore appointed as
provided in ORS 1.635 to hear, decide and dispose of all cases
and matters submitted to the judge pro tempore as promptly as the
nature of the questions involved will permit. The powers,
jurisdiction and judicial authority of the judge pro tempore in
respect to any case or matter tried or heard by the judge pro
tempore while serving under the appointment shall continue beyond
the expiration of the appointment so far as may be necessary to:
(a) Decide and dispose of any case or matter on trial or held
under advisement.
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(b) Hear and decide any motion for a new trial or for a
judgment notwithstanding a verdict, or objections to any cost
bill, that may be filed in the case.
(c) Settle a transcript for appeal and grant extensions of time
therefor.
(2) The Supreme Court at any time by order may:
(a) Extend the term of appointment of a judge pro tempore
appointed as provided in ORS 1.635.
(b) Terminate the term of appointment of a judge pro tempore
appointed as provided in ORS 1.635 as of a date specified in the
order; but termination does not affect the validity of any
judgment, { - decree, - } order or other action of the judge
pro tempore prior to the effective date of the termination.
(3) A judge pro tempore of a circuit court appointed as
provided in ORS 1.635 is not eligible to appear as attorney in
that court in any case tried by a jury at the same term of court
during which the judge pro tempore served as judge pro tempore.
SECTION 269. ORS 3.070 is amended to read:
3.070. Any judge of a circuit court in any judicial district
may, in chambers, grant and sign defaults, judgments,
{ - decrees, - } interlocutory orders and provisional remedies,
make findings and decide motions, demurrers and other like
matters relating to any judicial business coming before the judge
from any judicial district in which the judge has presided in
such matters. The judge may hear, in chambers, contested motions,
demurrers and other similar matters pending within the judicial
district, at any location in the district designated under ORS
1.085. Upon stipulation of counsel, the judge may try and
determine any issue in equity or in law where a jury has been
waived and hear and decide motions, demurrers and other like
matters, in chambers, at any location in the state where the
judge may happen to be, relating to any judicial business coming
before the judge from any judicial district in which the judge
has presided in such matters. The judge may exercise these
powers as fully and effectively as though the motions, demurrers,
matters or issues were granted, ordered, decided, heard and
determined in open court in the county where they may be pending.
If signed other than in open court, all such orders, findings
{ - , - } { + and + } judgments { - and decrees - } issued,
granted or rendered, other than orders not required to be filed
and entered with the clerk before becoming effective, shall be
transmitted by the judge to the clerk of the court within the
county where the matters are pending. They shall be filed and
entered upon receipt thereof and shall become effective from the
date of entry in the register.
SECTION 270. ORS 3.260 is amended to read:
3.260. (1) { - On and after July 1, 1968, - } The circuit
courts and the judges thereof shall exercise all juvenile court
jurisdiction, authority, powers, functions and duties.
(2) Pursuant to ORS 3.275, in addition to any other
jurisdiction vested in it by law, the circuit court shall
exercise exclusive and original judicial jurisdiction, authority,
powers, functions, and duties in the judicial district in any or
all of the following matters that on the date specified in the
order entered under ORS 3.275 are not within the jurisdiction of
the circuit court:
(a) Adoption.
(b) Change of name under ORS 33.410.
(c) Filiation.
(d) Commitment of the mentally ill or mentally deficient.
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(e) Any suit or civil proceeding involving custody or other
disposition of a child or the support thereof or the support of a
spouse, including enforcement of the Uniform Reciprocal
Enforcement of Support Act and enforcement of out-of-state or
foreign { + judgments and + } decrees on domestic relations.
(f) Waivers of the three-day waiting period before a marriage
license becomes effective under ORS 106.077.
(g) Issuance of delayed birth certificate.
SECTION 271. ORS 3.425 is amended to read:
3.425. (1) The family court department or, if there is no
family court department, the presiding judge or designee of each
circuit court may establish an education program designed to
inform parents about the impact of family restructuring on
children when the parent is a named party in any of the following
proceedings:
(a) An annulment or dissolution of marriage action.
(b) A legal separation action.
(c) A petition to establish custody or parenting time.
(d) { - Post-decree - } { + Post-judgment + } litigation
involving custody or parenting time.
(2) An education program established under subsection (1) of
this section must include, but need not be limited to,
information about:
(a) The emotional impact of a dissolution of marriage or a
separation on children at different developmental stages.
(b) Parenting during and after a dissolution of marriage or a
separation.
(c) Custody, parenting time and shared parenting plans.
(d) The effect on children of parental conduct including, but
not limited to, long distance parenting.
(e) Mediation and conflict resolution.
(3) The family court department or, if there is no family court
department, the presiding judge or designee of each circuit court
may establish an education program designed to provide
information about dissolution law and legal procedures, mediation
and other dispute resolution alternatives to persons seeking to
annul or dissolve a marriage or to separate from each other. The
program must include, but need not be limited to, information
about:
(a) Shared parenting plans.
(b) Division of marital property.
(c) Spousal and child support.
(d) Court procedures and time requirements.
(e) Litigation, mediation and conflict resolution.
(f) The role of attorneys in mediation.
(4) The court may order the parties in any action listed in
subsection (1) of this section to participate in education
programs described in this section unless:
(a) Subject to the approval of the court, the parties agree not
to participate;
(b) On motion of either party or on its own motion, the court
determines that participation is unnecessary; or
(c) With prior approval of the court, the parties select and
participate in comparable education programs.
(5) The court may not require both parties to attend an
education program established under this section at the same
time.
(6)(a) The family court department or, if there is no family
court department, the presiding judge or designee of each circuit
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court shall designate the program providers for the education
programs.
(b) A program provider may charge a person a reasonable fee to
attend education programs. A program provider may not exclude a
person from attending education programs due to an inability to
pay the fee if the court has indicated that the person is
indigent or otherwise unable to pay the fee.
(c) A program provider shall issue a certificate of completion
to a participant when the participant has satisfactorily
completed the education programs. A certificate of completion
must be filed with the court prior to the entry of the
{ - final - } judgment in the action.
SECTION 272. ORS 5.090 is amended to read:
5.090. (1) When the county judge is incapacitated, or absent
from the county, or whenever there is a vacancy in the office of
county judge, any circuit judge for or assigned to the county may
perform the judicial functions of the county judge, hear
proceedings, and enter any judgment { - , - } { + or + } order
{ - or decree - } necessary to carry into effect the judicial
jurisdiction of the county court in all matters with the same
force and effect as if done by the county judge when present in
the county.
(2) A county judge that exercises judicial functions may
exercise judicial powers and functions in another county court as
a pro tem county judge:
(a) In the event of a vacancy in the office of county judge in
another county, until the vacancy is filled as provided by law;
or
(b) In the event of the absence, incapacity or disqualification
of a county judge in another county, during the period of the
absence, incapacity or disqualification.
SECTION 273. ORS 5.120 is amended to read:
5.120. (1) A party to a judicial proceeding in a county court
may appeal from a { - decree - } { + judgment + } or other
final determinative order given therein. The appeal shall be
taken at the time and in the manner prescribed by law for the
taking of an appeal from a
{ - decree - } { + judgment + } or other appealable order of
the justice court. The appeal shall lie to the circuit court for
the county in which the county court is located and be
prosecuted, heard and determined in the manner prescribed by law
for the prosecution, hearing and determination of appeals from
the justice court.
(2) An appeal shall lie to the Court of Appeals from the whole
or a specified part of the { - decree - } { + judgment + } or
other final determinative order of the circuit court given upon
such appeal to it, in like manner and with like effect as though
it were from a
{ - decree - } { + judgment + } or other appealable
determinative order of such circuit court given in a suit in
equity therein.
SECTION 274. ORS 7.140 is amended to read:
7.140. If the record of any judgment { - , decree - } or
other proceeding of any judicial court of this state, or any part
of the record of any judicial proceeding, is lost or destroyed,
any party or person interested may, on application, by petition
in writing under oath to the court and on showing to its
satisfaction that the record has been lost or destroyed without
fault or neglect of the applicant, obtain an order from the court
authorizing the defect to be supplied by a certified copy of the
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original record when it can be obtained. The certified copy shall
have the same effect as the original record.
SECTION 275. ORS 7.160 is amended to read:
7.160. In case of the destruction of the records or any part
thereof of any court having probate jurisdiction, the judge of
the court may proceed, upon the motion of the judge or upon
application in writing of any party in interest, to restore the
records, papers and proceedings of the court relating to the
estate of a deceased person, including recorded wills and wills
probated or filed for probate in the court. For this purpose the
judge may cause citations to be issued to any parties designated
by the judge, and the judge may compel the attendance in court of
witnesses whose testimony may be necessary to the establishment
of the record or part thereof. The judge may also compel the
production of written or documentary evidence which the judge
deems necessary in determining the true import and effect of the
original record, will, paper or other document belonging to the
files of the court. The judge may also make orders and
{ - decrees - } { + judgments + } establishing the original
record, will, paper, document or proceeding, or its substance, as
to the judge shall seem just and proper. The judge may make all
rules and regulations governing the proceedings for the
restoration as in the judgment of the judge will best secure the
rights and protect the interest of all parties concerned.
SECTION 276. ORS 7.211 is amended to read:
7.211. (1) The clerk or court administrator of any court having
jurisdiction over adoption cases shall keep separate records in
all cases of adoption filed in such court. The records shall not
be subject to the inspection of any person, except upon order of
the court. Adoption proceedings shall not be entered upon the
general records of the court, nor shall the clerk or court
administrator disclose to any person, without the court order,
any information appearing in the adoption records. The clerk,
court administrator or any other person having custody of any
records or files in such cases shall not disclose them to any
person without the court order. Nothing contained in this section
shall prevent the clerk or court administrator from certifying
copies of a
{ - decree - } { + judgment + } of adoption to the
petitioners in such proceeding or their attorney. At the time of
the entry of any
{ - final decree - } { + judgment + } of adoption, the clerk,
court administrator or other person having custody of the records
or files in such cases shall cause all records, papers and files
relating to the adoption to be sealed in the record of the case
and such sealed records, papers and files shall not be unsealed,
opened or subject to the inspection of any person except upon
order of a court of competent jurisdiction.
(2) The provisions of subsection (1) of this section do not
apply to the disclosure of information under ORS 109.425 to
109.507.
SECTION 277. ORS 9.330 is amended to read:
9.330. An attorney has authority to bind the attorney's client
in any of the proceedings in an action, suit or proceeding, by
the attorney and client agreement, filed with the clerk or
entered in the appropriate record of the court. The attorney also
has authority to receive money or property claimed by the client
in an action, suit or proceeding, during the pendency thereof, or
within three years after judgment { - or decree - } , and upon
the payment or delivery thereof to discharge the claim or
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acknowledge satisfaction of the judgment { - or decree - } .
This section does not prevent a party from employing a new
attorney to issue execution upon a judgment { - or decree, - }
or to take other proceedings prescribed by law for its
enforcement, and when the party does so, the authority of the
former attorney ceases.
SECTION 278. ORS 9.380 is amended to read:
9.380. The attorney in an action, suit or proceeding may be
changed, or the relationship of attorney and client terminated,
as follows:
(1) Before judgment { - , decree - } or final determination,
upon the consent of the attorney filed with the clerk or entered
in the appropriate record of the court; or
(2) At any time, upon the order of the court or judge thereof,
based on the application of the client or the attorney, for good
and sufficient cause.
SECTION 279. ORS 9.655 is amended to read:
9.655. (1) Upon the filing of a claim, verified under oath, by
a client claiming a pecuniary loss under ORS 9.625, the board or
its designated representative shall determine if the person named
in the claim as the attorney whose dishonest conduct caused the
loss maintained an office in the State of Oregon at the time of
the transaction out of which the claim arose and:
(a) Has been found guilty of a crime arising out of the claimed
dishonest conduct which caused the loss;
(b) In the case of a claim of loss of $5,000 or less, has been
disbarred, suspended or reprimanded in disciplinary proceedings
or has resigned from the bar due to circumstances arising out of
the claimed dishonest conduct which caused the loss; or
(c) Has been the object of a judgment { - or decree - }
entered in any proceeding arising out of the claimed dishonest
conduct which caused the loss and, if the object of a judgment
for money entered in favor of the claimant, has failed to pay the
judgment, and execution issued on the judgment has been returned
uncollected or that issuance of execution would be a useless act.
(2) After complying with subsection (1) of this section, if the
board or representative requires additional information to
determine the claim, the board or the representative may compel
by subpoena the person named in the claim as the attorney whose
dishonest conduct caused the loss, or any other person having
knowledge of the matter, to appear for the purpose of giving
testimony, and may compel by subpoena the production of records
and documents pertinent to the claim. The subpoena shall have the
same force and effect as in a civil action in the circuit court,
and may be enforced by order of the circuit court for the county
in which the person was served.
SECTION 279a. ORS 12.085, as amended by section 1, chapter 85,
Oregon Laws 2003 (Enrolled House Bill 2274), 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 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 - } { + judgment + } of final distribution for the
estate.
SECTION 280. ORS 19.005 is amended to read:
19.005. As used in this chapter:
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(1) 'Exhibits' means exhibits offered and received or rejected
in the trial court.
(2) 'Judgment' means { + a + } judgment { - , decree - } or
appealable order, as provided in ORS 19.205.
(3) 'Notice of appeal' includes a notice of cross-appeal.
(4) 'Record' or 'record of the case' means the trial court file
and any transcript, narrative statement and exhibits.
(5) 'Supersedeas undertaking' means an undertaking on appeal
that secures performance of a judgment being appealed and
operates to stay enforcement of the judgment pending appeal.
(6) 'Transcript' means the transcript of the court reporter's
report as provided in ORS 8.340, 8.350 and 8.360 and any
transcript of an audio record prepared under ORS 19.370.
(7) 'Trial court file' means all the original papers filed in
the trial court whether before or after judgment, including but
not limited to the summons and proof of service thereof,
pleadings, motions, affidavits, depositions, stipulations,
orders, jury instructions, the judgment, the notice of appeal and
the undertaking on appeal.
(8) 'Undertaking for costs' means an undertaking on appeal that
secures payment of costs and disbursements that may be awarded
against an appellant on appeal, and any amounts that may be
awarded to the respondent under the provisions of ORS 19.445.
(9) 'Undertaking on appeal' means a promise secured by sureties
or by money, bond or any other security described in ORS 22.020.
'Undertaking on appeal' includes undertakings for costs and
supersedeas undertakings.
SECTION 281. ORS 19.345 is amended to read:
19.345. If the judgment { - or decree - } has been given in
an action or suit upon a contract, notwithstanding an appeal and
supersedeas undertaking, the respondent may proceed to enforce
such judgment { - or decree - } , if within 10 days from the
time the appeal is perfected the respondent files with the trial
court administrator an undertaking to the effect that if the
judgment
{ - or decree - } is reversed or modified the respondent will
make such restitution as the appellate court may direct. Such
undertaking may be excepted to by the appellant in like manner
and with like effect as the undertaking of an appellant, and the
sureties therein shall have the same qualifications.
SECTION 282. ORS 19.355 is amended to read:
19.355. (1) The provisions of this chapter relating to stays on
appeal apply to a domestic relations judgment.
(2) If an appellant seeks a stay of only specific provisions of
a domestic relations judgment, the motion seeking the stay must
identify those provisions of the judgment that are to be stayed.
If the court allows a stay of only certain provisions of the
judgment, the order of the court must specifically indicate those
provisions. If a supersedeas undertaking is filed with the court
for the purpose of staying specific provisions of the judgment,
the undertaking must indicate the specific provisions of the
judgment covered by the undertaking. A stay of any specific
provision of a domestic relations judgment may be granted only
if:
(a) The specific provision is subject to stay under the
provisions of this chapter; and
(b) All requirements of this chapter for a stay of the
provision are satisfied.
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(3) For the purposes of this section, 'domestic relations
judgment' means a judgment { - or decree - } entered in
proceedings under ORS chapter 107, 108 or 109.
SECTION 283. ORS 19.425 is amended to read:
19.425. Upon an appeal, the appellate court may review any
intermediate order involving the merits or necessarily affecting
the judgment { - or decree - } appealed from; and when it
reverses or modifies such judgment { - or decree - } , may
direct complete restitution of all property and rights lost
thereby.
SECTION 284. ORS 19.445 is amended to read:
19.445. Whenever a judgment { - or decree - } is affirmed on
appeal, and it is for recovery of money, or personal property or
the value thereof, the judgment { - or decree - } shall be
given for 10 percent of the amount thereof, for damages for the
delay, unless it appears evident to the appellate court that
there was probable cause for taking the appeal.
SECTION 285. ORS 20.160 is amended to read:
20.160. The attorney of a plaintiff who resides out of the
state or is a foreign corporation, against whom costs are
adjudged in favor of a defendant, is liable to the defendant
therefor; and if the attorney neglects to pay the same, upon the
information of the defendant shall be punished as for a contempt.
The attorney may relieve or discharge the attorney from such
liability by filing, at the commencement of the action or suit,
or at any time thereafter before judgment { + , + } { - or
decree - } an undertaking executed by one or more sufficient
sureties, or an irrevocable letter of credit issued by an insured
institution, as defined in ORS 706.008, in either case providing
for the payment to the defendant of the costs and disbursements
that may be adjudged to the attorney.
SECTION 286. ORS 21.020 is amended to read:
21.020. For making and certifying to a copy of any opinion,
pleading, judgment, { - decree, - } paper or record of the
office of the State Court Administrator for private parties, and
not in the course of the regular court proceedings, the State
Court Administrator shall collect the sum of 25 cents for each
page. For affixing the seal of the court where not in the course
of the regular court proceedings the State Court Administrator
shall collect $1.
SECTION 287. ORS 21.111 is amended to read:
21.111. (1) In the proceedings specified in subsection (2) of
this section, the clerk of the circuit court shall collect the
sum of $90 as a flat and uniform filing fee from the petitioner
at the time the petition is filed, and shall collect the sum of
$46 as a flat and uniform filing fee from the respondent upon the
respondent making an appearance.
(2) The filing fee established by subsection (1) of this
section shall be collected by the clerk in the following
proceedings:
(a) Proceedings for dissolution of marriage, annulment of
marriage or separation.
(b) Filiation proceedings under ORS 109.124 to 109.230.
(c) Proceedings to determine custody or support of a child
under ORS 109.103.
(3) In addition to all other fees collected, the clerk of the
circuit court shall collect from the moving party a fee of $45 at
the time of the filing of a motion for the modification of a
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{ - decree - } { + judgment + } of marital annulment,
dissolution or separation, if the motion is filed more than one
year after the entry of the
{ - decree - } { + judgment + } in the register of the court.
No fee shall be charged to the responding party at the time a
response is filed to the motion.
(4) A paper or pleading shall be filed by the clerk only if the
fee required under this section is paid or if a request for a fee
waiver or deferral is granted by the court. No part of any such
filing fee shall be refunded to any party. The uniform fee shall
cover all services to be performed by the court or clerk in any
of the proceedings, except where additional fees are specially
authorized by law.
(5) Any petitioner or respondent that files a petition or
appearance that is subject to the filing fees established under
subsection (1) of this section must include in the caption of the
pleading the following words: 'Domestic relations case subject to
fee under ORS 21.111. '
(6) The fees described in this section shall not be charged to
a district attorney or to the Division of Child Support of the
Department of Justice for the filing of any case, motion,
document, stipulated order, process or other document relating to
the provision of support enforcement services as described in ORS
25.080. { +
SECTION 288. ORS 21.660 is amended to read:
21.660. Except as provided in ORS 20.140, and except the fees
for which advance payment or a deposit is otherwise required by
law, every officer, witness, or other person required to do or
perform any act or service for any party to any action, suit or
proceeding in a court of justice in this state shall be entitled
to demand and receive from such party the compensation which the
law allows therefor in advance; but a party may at the option of
the party pay the fees of the officers of the court in advance,
or give such officers an undertaking with sufficient sureties
therefor. The fees secured to the officers, or any of them, by
any party to the judgment { - or decree - } , may be collected
by an execution against the property of such party and that of
the sureties of the party in the undertaking therefor. Such
officers' execution may issue in the name of the clerk as
plaintiff in the writ, and for the benefit of all officers to
whom fees are so due and secured, whenever an execution might
issue to enforce the judgment { - or decree - } at the
instance of the prevailing party.
SECTION 289. ORS 23.242 is amended to read:
23.242. (1) It is the policy of this state:
(a) To afford protection to the debtor and the debtor's family
homestead through the homestead exemption;
(b) To maintain dependent children from the financial resources
of both parents of those children;
(c) That the homestead exemption should not be permitted to
serve as a shield for a debtor's evasion of child support
obligations;
(d) That the burden for that support should not be shifted in
all cases to the present family of the debtor through the sale of
the family residence; and
(e) That to accommodate these policies, the court should have
the discretion to decline to allow all or part of a claimed
homestead exemption in cases involving child support as provided
in this section.
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(2) Notwithstanding ORS 23.240 to 23.300, a court in its
discretion may decline to allow a homestead exemption in whole or
part in any proceeding under ORS 23.445 if the proceeding is
based on a judgment for child support that arises out of an order
or
{ - decree - } judgment + } under ORS 24.115, 107.095,
107.105, 107.135, 108.120, 109.100, 109.103, 109.155, 109.165,
416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110 or
125.
(3) In exercising the discretion granted under subsection (1)
of this section, the court shall consider:
(a) The financial resources of both parties;
(b) The number of dependents of each of the parties;
(c) The ages, health and conditions of parties and their
dependents;
(d) The child support payment history of the judgment debtor on
the judgment which is the subject of the petition; and
(e) Other collection attempts by the judgment creditor on the
judgment which is the subject of the petition.
(4) This section shall not apply to any proceeding under ORS
23.445 brought by or on the behalf of the state or any agency of
the state.
SECTION 290. ORS 23.445 is amended to read:
23.445. (1) As used in this section and ORS 23.450 and 23.515:
(a) 'Mobile home' does not include a mobile home that is held
as inventory for sale or lease in the ordinary course of
business.
(b) 'Residential real property' means a single family dwelling
or condominium unit.
(2) The sheriff may not sell the residential real property or
the mobile home of a natural person on execution without an order
of the court authorizing the sale.
(3) The holder of a judgment desiring to have the residential
real property or the mobile home of a natural person sold on
execution may petition the court for an order authorizing the
sheriff to sell. The petition must:
(a) Identify the judgment under which the property is to be
sold and the amount due thereon;
(b) Indicate if the judgment arises out of an order or
{ - decree - } { + judgment + } for child support as
described in ORS 23.242;
(c) Identify the residential real property or mobile home to be
sold;
(d) Allege whether the property is a homestead or not; and
(e) If the property is a homestead, allege facts showing that
it may nevertheless be sold on execution.
(4) The petition shall be accompanied by an affidavit
disclosing the basis of the allegations contained in the
petition. If the sheriff is to serve the papers under subsection
(6) of this section, the petition and affidavit shall be
accompanied by a deposit sufficient to pay the fees of the
sheriff for that service.
(5) Promptly upon the filing of a petition and affidavit as
provided in subsections (3) and (4) of this section, the court
shall schedule a hearing on the petition, allowing adequate time
for notice to the judgment debtor at least 10 days prior to the
hearing.
(6) At least 10 days prior to the hearing on the petition, the
petitioner shall cause to be served upon the judgment debtor, in
the manner provided by ORCP 7 for service of summons, a true copy
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of the petition and affidavit and of a notice of the time and
place of the hearing in substantially the following form:
_________________________________________________________________
NOTICE OF HEARING ON SHERIFF'S
SALE OF YOUR PROPERTY
This is to notify you that ___ has asked the court to order the
sheriff to sell your property located at __ to satisfy a
{ - court - } judgment against ___.
Before deciding whether to order the sale, the court will hold
a hearing on ___, 2__, at ____ a.m./p.m., in Room ___, ____.
The law provides that your property is your homestead if you,
or your spouse, dependent parent or dependent child, actually
live in it as your home. If you are temporarily absent from the
property but intend to move back in, it is still your homestead.
The law provides that if the property is your homestead, then
$___ of its value ($___ for a mobile home if you do not own the
property it is on) may not be taken to satisfy a judgment against
you. In addition, a homestead usually may not be sold to satisfy
a judgment for $3,000 or less.
The law provides that your property may be sold despite the
fact that it is your homestead and all of its value taken to
satisfy a judgment against you if the judgment is for child
support.
IF YOU WISH TO PROTECT THIS PROPERTY FROM A SHERIFF'S SALE, YOU
SHOULD COME TO THE COURT HEARING.
IF YOU HAVE ANY QUESTIONS, YOU SHOULD SEE A LAWYER AT ONCE.
If you do not own this property, please give this notice and
the papers served with it to the owner.
_________________________________________________________________
(7) Whether the judgment debtor appears at the hearing on the
petition or not, the court shall try the issues without formal
pleadings and shall inquire as to the facts alleged in the
petition. The judgment creditor shall have the burden of proof on
all issues.
(8) Except as provided in ORS 23.164 (9) and 23.240 (7), the
court may not authorize the sheriff to sell the property if the
court finds:
(a) That the property is the homestead of the judgment debtor;
(b) That the judgment is subject to the homestead exemption;
and
(c) That the amount of the judgment was $3,000 or less at the
time of entry of the judgment.
(9) If the court authorizes the sheriff to sell the property,
the order of the court shall state whether the homestead
exemption applies to the property, and if so, the amount of the
exemption.
(10) This section does not apply to a writ of execution to
enforce a judgment that directs the sale of the particular
property or to a writ of execution to enforce a judgment arising
out of the foreclosure of:
(a) A construction lien for work, labor or material done or
furnished exclusively for the improvement of the property;
(b) A lawfully executed purchase money lien; or
(c) A lawfully executed mortgage or trust deed.
(11) This section does not apply to the sale on execution of a
judgment of restitution under ORS 105.161 of a mobile home
removed from premises by the sheriff pursuant to the execution.
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(12) If the petitioner prevails at the hearing, the court shall
award the petitioner the costs of service of the papers under
subsection (6) of this section.
SECTION 291. ORS 23.530 is amended to read:
23.530. Property sold subject to redemption, as provided in ORS
23.520, or any part thereof separately sold, may be redeemed by
the following persons:
(1) The mortgagor or judgment debtor whose right and title were
sold, or the heir, devisee or grantee of the mortgagor or
judgment debtor, who has acquired, by inheritance, devise, deed,
sale, or by virtue of any execution or by any other means, the
legal title to the whole or any part of the property separately
sold; provided, that in the event redemption is made by anyone
acquiring the legal title after attachment, or after a judgment
becomes a lien on the property, such person shall acquire no
greater or better right thereby to the property so redeemed than
the holder of the legal title at the time of such attachment or
judgment.
(2) A creditor having a lien by judgment { - , decree - } or
mortgage on any portion of the property, or any portion of any
part thereof separately sold, subsequent in time to that on which
the property was sold. Such creditors, after having redeemed the
property, are to be termed redemptioners.
SECTION 292. ORS 25.020 is amended to read:
25.020. (1) Support payments for or on behalf of any person,
ordered, registered or filed pursuant to ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C, unless otherwise authorized by
ORS 25.030, shall be made to the Department of Justice, as the
state disbursement unit:
(a) During periods for which support is assigned pursuant to
ORS 418.032, 418.042, 419B.406 or 419C.597;
(b) As provided by rules adopted pursuant to ORS 409.021 or
under ORS 180.340, when public assistance as defined by ORS
411.010 is provided to a person who receives or has a right to
receive support payments on the person's own behalf or on behalf
of another person;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(d) For any period during which support enforcement services
are provided pursuant to the child support enforcement program
created by Title IV-D of the Social Security Act or pursuant to
ORS 25.080;
(e) When ordered by the court pursuant to ORS 419B.400;
(f) When a support order that is entered or modified on or
after January 1, 1994, includes a provision requiring the obligor
to pay support by income withholding; or
(g) When ordered by the court under any other applicable
provision of law.
(2) The Department of Justice shall disburse payments, after
lawful deduction of fees and in accordance with applicable
statutes and rules, to those persons and entities that are
lawfully entitled to receive such payments.
(3)(a) When the administrator is providing support enforcement
services under ORS 25.080, the obligee may enter into an
agreement with a collection agency, as defined in ORS 697.005,
for assistance in collecting child support payments.
(b) The department:
(A) Except as otherwise provided in this paragraph, shall
disburse support payments, to which the obligee is legally
Enrolled House Bill 2646 (HB 2646-B) Page 230
entitled, to the collection agency according to the terms of the
agreement between the obligee and the collection agency;
(B) May not disburse moneys to the collection agency before the
obligee submits the form referred to in paragraph (c)(A) of this
subsection to the department and the department adjusts its
support payment records;
(C) May not disburse moneys to the collection agency after 180
days following the date the department adjusts its support
payment records as described in subparagraph (B) of this
paragraph;
(D) May not disburse moneys to the collection agency if the
collection agency violates any provision of this subsection;
(E) Shall credit the obligor's account for the full amount of
each support payment received by the department and disbursed to
the collection agency;
(F) Shall develop the form referred to in paragraph (c)(A) of
this subsection, which shall include a notice to the obligee
printed in type size equal to at least 12-point type that the
obligee may be eligible for support enforcement services from the
department or the district attorney without paying the interest
or fee that is typically charged by a collection agency; and
(G) May use information disclosed by the collection agency to
provide support enforcement services under ORS 25.080.
(c) The obligee shall:
(A) Provide to the department, on a form approved by the
department, information about the agreement with the collection
agency; and
(B) Promptly notify the department when the agreement is
terminated.
(d) The collection agency:
(A) May provide investigative and location services to the
obligee and disclose relevant information from those services to
the department for purposes of providing support enforcement
services under ORS 25.080;
(B) May not charge interest or a fee for its services exceeding
20 percent of each support payment received; and
(C) May not initiate, without written authorization from the
department, any enforcement action relating to support payments
on which support enforcement services are provided by the
department under ORS 25.080.
(4) The Department of Justice may immediately transmit payments
received from any obligor who has not previously tendered any
payment by a check or instrument which was not paid or was
dishonored, to the obligee, without waiting for payment or
clearance of the check or instrument received.
(5) The Department of Justice shall notify each obligor and
obligee by mail when support payments shall be made to the
Department of Justice and when the obligation to make payments in
this manner shall cease.
(6)(a) The administrator shall provide information about a
child support account directly to a party to the support order
regardless of whether the party is represented by an attorney. As
used in this subsection, 'information about a child support
account' means the:
(A) Date of issuance of the support order.
(B) Amount of the support order.
(C) Dates and amounts of payments.
(D) Dates and amounts of disbursements.
(E) Payee of any disbursements.
(F) Amount of any arrearage.
Enrolled House Bill 2646 (HB 2646-B) Page 231
(G) Source of any collection.
(b) Nothing in this subsection limits the information the
administrator may provide by law to a party who is not
represented by an attorney.
(7) Any pleading for the entry or modification of a support
order must contain a statement that payment of support under a
new or modified order will be by income withholding unless an
exception to payment by income withholding is granted under ORS
25.396.
(8)(a) Except as provided in paragraph (d) of this subsection,
a { - decree - } { + judgment + } or order establishing
paternity or including a provision concerning support shall
contain the residence, mailing or contact address, Social
Security number, telephone number and driver license number of
each party and the name, address and telephone number of all
employers of each party.
(b) The { - decree - } { + judgment + } or order shall also
include notice that the obligor and obligee:
(A) Must inform the court and the administrator in writing of
any change in the information required by this subsection within
10 days after such change; and
(B) May request that the administrator review the amount of
support ordered after two years or at any time upon a substantial
change of circumstances.
(c) The administrator may require of the parties any additional
information that is necessary for the provision of support
enforcement services under ORS 25.080.
(d)(A) Upon a finding, that may be made ex parte, that the
health, safety or liberty of a party or child would unreasonably
be put at risk by the disclosure of information specified in this
subsection or by the disclosure of other information concerning a
child or party to a paternity or support proceeding or if an
existing order so requires, a court or administrator or hearing
officer, when the proceeding is administrative, shall order that
the information not be contained in any document provided to
another party or otherwise disclosed to a party other than the
state.
(B) The Department of Human Services shall adopt rules
providing for similar confidentiality for information described
in subparagraph (A) of this paragraph that is maintained by an
entity providing support enforcement services under ORS 25.080.
(9)(a) Except as otherwise provided in paragraph (b) of this
subsection, in any subsequent child support enforcement action,
the court or administrator, upon a showing of diligent effort
made to locate the obligor or obligee, may deem due process
requirements to be met by mailing notice to the last-known
residential, mailing or employer address or contact address as
provided in ORS 25.085.
(b) Service of an order directing an obligor to appear in a
contempt proceeding is subject to ORS 33.015 to 33.155.
(10) Subject to ORS 25.030, this section, to the extent it
imposes any duty or function upon the Department of Justice,
shall be deemed to supersede any provisions of ORS chapters 107,
108, 109, 110, 416, 419A, 419B and 419C that would otherwise
impose the same duties or functions upon the county clerk or the
Department of Human Services.
(11) Except as provided for in subsections (12), (13) and (14)
of this section, credit shall not be given for payments not made
to the Department of Justice as required pursuant to subsection
(1) of this section.
Enrolled House Bill 2646 (HB 2646-B) Page 232
(12) The Department of Justice shall give credit for payments
not made to the Department of Justice when:
(a) Payments are not assigned to this or another state and the
obligee and obligor agree in writing that specific payments were
made and should be credited;
(b) Payments are assigned to the State of Oregon, the obligor
and obligee make sworn written statements that specific payments
were made, canceled checks or other substantial evidence is
presented to corroborate their statements and the obligee has
been given prior written notice of any potential criminal or
civil liability that may attach to an admission of the receipt of
assigned support;
(c) Payments are assigned to another state and that state
verifies that payments not paid to the Department of Justice were
received by the other state; or
(d) As provided by rule adopted pursuant to ORS 409.021 or
under ORS 180.340.
(13) An obligor may apply to the Department of Justice for
credit for payments made other than to the Department of Justice.
If the obligee or other state does not provide the agreement,
sworn statement or verification required by subsection (12) of
this section, credit may be given pursuant to order of a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999, after notice and
opportunity to object and be heard are given to both obligor and
obligee. Notice shall be served upon the obligee as provided by
ORS 25.085. Notice to the obligor may be by regular mail at the
address provided in the application for credit. A hearing
conducted under this subsection is a contested case hearing and
ORS 183.413 to 183.470 apply. Any party may seek a hearing de
novo in the circuit court.
(14) Nothing in this section precludes the Department of
Justice from giving credit for payments not made to the
Department of Justice when there has been a judicially determined
credit or satisfaction or when there has been a satisfaction of
support executed by the person to whom support is owed.
(15) The Department of Human Services shall adopt rules that:
(a) Direct how support payments that are made through the
Department of Justice are to be applied and distributed; and
(b) Are consistent with federal regulations.
SECTION 293. ORS 25.020, as amended by section 3, chapter 455,
Oregon Laws 2001, is amended to read:
25.020. (1) Support payments for or on behalf of any person,
ordered, registered or filed pursuant to ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C, unless otherwise authorized by
ORS 25.030, shall be made to the Department of Justice, as the
state disbursement unit:
(a) During periods for which support is assigned pursuant to
ORS 418.032, 418.042, 419B.406 or 419C.597;
(b) As provided by rules adopted pursuant to ORS 409.021 or
under ORS 180.340, when public assistance as defined by ORS
411.010 is provided to a person who receives or has a right to
receive support payments on the person's own behalf or on behalf
of another person;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(d) For any period during which support enforcement services
are provided pursuant to the child support enforcement program
created by Title IV-D of the Social Security Act or pursuant to
ORS 25.080;
Enrolled House Bill 2646 (HB 2646-B) Page 233
(e) When ordered by the court pursuant to ORS 419B.400;
(f) When a support order that is entered or modified on or
after January 1, 1994, includes a provision requiring the obligor
to pay support by income withholding; or
(g) When ordered by the court under any other applicable
provision of law.
(2) The Department of Justice shall disburse payments, after
lawful deduction of fees and in accordance with applicable
statutes and rules, to those persons and entities that are
lawfully entitled to receive such payments.
(3)(a) When the administrator is providing support enforcement
services under ORS 25.080, the obligee may enter into an
agreement with a collection agency, as defined in ORS 697.005,
for assistance in collecting child support payments.
(b) The department:
(A) Except as otherwise provided in this paragraph, shall
disburse support payments, to which the obligee is legally
entitled, to the collection agency according to the terms of the
agreement between the obligee and the collection agency;
(B) May not disburse moneys to the collection agency before the
obligee submits the form referred to in paragraph (c)(A) of this
subsection to the department and the department adjusts its
support payment records;
(C) May not disburse moneys to the collection agency after 180
days following the date the department adjusts its support
payment records as described in subparagraph (B) of this
paragraph;
(D) May not disburse moneys to the collection agency if the
collection agency violates any provision of this subsection;
(E) Shall credit the obligor's account for the full amount of
each support payment received by the department and disbursed to
the collection agency;
(F) Shall develop the form referred to in paragraph (c)(A) of
this subsection, which shall include a notice to the obligee
printed in type size equal to at least 12-point type that the
obligee may be eligible for support enforcement services from the
department or the district attorney without paying the interest
or fee that is typically charged by a collection agency; and
(G) May use information disclosed by the collection agency to
provide support enforcement services under ORS 25.080.
(c) The obligee shall:
(A) Provide to the department, on a form approved by the
department, information about the agreement with the collection
agency; and
(B) Promptly notify the department when the agreement is
terminated.
(d) The collection agency:
(A) May provide investigative and location services to the
obligee and disclose relevant information from those services to
the department for purposes of providing support enforcement
services under ORS 25.080;
(B) May not charge interest or a fee for its services exceeding
20 percent of each support payment received; and
(C) May not initiate, without written authorization from the
department, any enforcement action relating to support payments
on which support enforcement services are provided by the
department under ORS 25.080.
(4) The Department of Justice may immediately transmit payments
received from any obligor who has not previously tendered any
payment by a check or instrument which was not paid or was
Enrolled House Bill 2646 (HB 2646-B) Page 234
dishonored, to the obligee, without waiting for payment or
clearance of the check or instrument received.
(5) The Department of Justice shall notify each obligor and
obligee by mail when support payments shall be made to the
Department of Justice and when the obligation to make payments in
this manner shall cease.
(6)(a) The administrator shall provide information about a
child support account directly to a party to the support order
regardless of whether the party is represented by an attorney. As
used in this subsection, 'information about a child support
account' means the:
(A) Date of issuance of the support order.
(B) Amount of the support order.
(C) Dates and amounts of payments.
(D) Dates and amounts of disbursements.
(E) Payee of any disbursements.
(F) Amount of any arrearage.
(G) Source of any collection.
(b) Nothing in this subsection limits the information the
administrator may provide by law to a party who is not
represented by an attorney.
(7) Any pleading for the entry or modification of a support
order must contain a statement that payment of support under a
new or modified order will be by income withholding unless an
exception to payment by income withholding is granted under ORS
25.396.
(8)(a) Except as provided in paragraph (d) of this subsection,
a { - decree - } { + judgment + } or order establishing
paternity or including a provision concerning support shall
contain the residence, mailing or contact address, Social
Security number, telephone number and driver license number of
each party and the name, address and telephone number of all
employers of each party.
(b) The { - decree - } { + judgment + } or order shall also
include notice that the obligor and obligee:
(A) Must inform the court and the administrator in writing of
any change in the information required by this subsection within
10 days after such change; and
(B) May request that the administrator review the amount of
support ordered after two years or at any time upon a substantial
change of circumstances.
(c) The administrator may require of the parties any additional
information that is necessary for the provision of support
enforcement services under ORS 25.080.
(d)(A) Upon a finding, that may be made ex parte, that the
health, safety or liberty of a party or child would unreasonably
be put at risk by the disclosure of information specified in this
subsection or by the disclosure of other information concerning a
child or party to a paternity or support proceeding or if an
existing order so requires, a court or administrator or hearing
officer, when the proceeding is administrative, shall order that
the information not be contained in any document provided to
another party or otherwise disclosed to a party other than the
state.
(B) The Department of Human Services shall adopt rules
providing for similar confidentiality for information described
in subparagraph (A) of this paragraph that is maintained by an
entity providing support enforcement services under ORS 25.080.
(9)(a) Except as otherwise provided in paragraph (b) of this
subsection, in any subsequent child support enforcement action,
Enrolled House Bill 2646 (HB 2646-B) Page 235
the court or administrator, upon a showing of diligent effort
made to locate the obligor or obligee, may deem due process
requirements to be met by mailing notice to the last-known
residential, mailing or employer address or contact address as
provided in ORS 25.085.
(b) Service of an order directing an obligor to appear in a
contempt proceeding is subject to ORS 33.015 to 33.155.
(10) Subject to ORS 25.030, this section, to the extent it
imposes any duty or function upon the Department of Justice,
shall be deemed to supersede any provisions of ORS chapters 107,
108, 109, 110, 416, 419A, 419B and 419C that would otherwise
impose the same duties or functions upon the county clerk or the
Department of Human Services.
(11) Except as provided for in subsections (12), (13) and (14)
of this section, credit shall not be given for payments not made
to the Department of Justice as required pursuant to subsection
(1) of this section.
(12) The Department of Justice shall give credit for payments
not made to the Department of Justice when:
(a) Payments are not assigned to this or another state and the
obligee and obligor agree in writing that specific payments were
made and should be credited;
(b) Payments are assigned to the State of Oregon, the obligor
and obligee make sworn written statements that specific payments
were made, canceled checks or other substantial evidence is
presented to corroborate their statements and the obligee has
been given prior written notice of any potential criminal or
civil liability that may attach to an admission of the receipt of
assigned support;
(c) Payments are assigned to another state and that state
verifies that payments not paid to the Department of Justice were
received by the other state; or
(d) As provided by rule adopted pursuant to ORS 409.021 or
under ORS 180.340.
(13) An obligor may apply to the Department of Justice for
credit for payments made other than to the Department of Justice.
If the obligee or other state does not provide the agreement,
sworn statement or verification required by subsection (12) of
this section, credit may be given pursuant to order of a hearing
officer of the Department of Human Services after notice and
opportunity to object and be heard are given to both obligor and
obligee. Notice shall be served upon the obligee as provided by
ORS 25.085. Notice to the obligor may be by regular mail at the
address provided in the application for credit. A hearing
conducted under this subsection is a contested case hearing and
ORS 183.413 to 183.470 apply. Any party may seek a hearing de
novo in the circuit court.
(14) Nothing in this section precludes the Department of
Justice from giving credit for payments not made to the
Department of Justice when there has been a judicially determined
credit or satisfaction or when there has been a satisfaction of
support executed by the person to whom support is owed.
(15) The Department of Human Services shall adopt rules that:
(a) Direct how support payments that are made through the
Department of Justice are to be applied and distributed; and
(b) Are consistent with federal regulations.
SECTION 293a. { + If House Bill 3015 becomes law, section 293
of this 2003 Act (amending ORS 25.020) is repealed and ORS
25.020, as amended by section 3, chapter 455, Oregon Laws 2001,
Enrolled House Bill 2646 (HB 2646-B) Page 236
and section 7, chapter 380, Oregon Laws 2003 (Enrolled House Bill
3015), is amended to read: + }
25.020. (1) Support payments for or on behalf of any person,
ordered, registered or filed pursuant to ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C, unless otherwise authorized by
ORS 25.030, shall be made to the Department of Justice, as the
state disbursement unit:
(a) During periods for which support is assigned pursuant to
ORS 418.032, 418.042, 419B.406 or 419C.597;
(b) As provided by rules adopted pursuant to ORS 409.021 or
under ORS 180.340, when public assistance as defined by ORS
411.010 is provided to a person who receives or has a right to
receive support payments on the person's own behalf or on behalf
of another person;
(c) After the assignment of support terminates for as long as
amounts assigned remain owing;
(d) For any period during which support enforcement services
are provided pursuant to the child support enforcement program
created by Title IV-D of the Social Security Act or pursuant to
ORS 25.080;
(e) When ordered by the court pursuant to ORS 419B.400;
(f) When a support order that is entered or modified on or
after January 1, 1994, includes a provision requiring the obligor
to pay support by income withholding; or
(g) When ordered by the court under any other applicable
provision of law.
(2) The Department of Justice shall disburse payments, after
lawful deduction of fees and in accordance with applicable
statutes and rules, to those persons and entities that are
lawfully entitled to receive such payments.
(3)(a) When the administrator is providing support enforcement
services under ORS 25.080, the obligee may enter into an
agreement with a collection agency, as defined in ORS 697.005,
for assistance in collecting child support payments.
(b) The department:
(A) Except as otherwise provided in this paragraph, shall
disburse support payments, to which the obligee is legally
entitled, to the collection agency according to the terms of the
agreement between the obligee and the collection agency;
(B) May not disburse moneys to the collection agency before the
obligee submits the form referred to in paragraph (c)(A) of this
subsection to the department and the department adjusts its
support payment records;
(C) May not disburse moneys to the collection agency after 180
days following the date the department adjusts its support
payment records as described in subparagraph (B) of this
paragraph;
(D) May not disburse moneys to the collection agency if the
collection agency violates any provision of this subsection;
(E) Shall credit the obligor's account for the full amount of
each support payment received by the department and disbursed to
the collection agency;
(F) Shall develop the form referred to in paragraph (c)(A) of
this subsection, which shall include a notice to the obligee
printed in type size equal to at least 12-point type that the
obligee may be eligible for support enforcement services from the
department or the district attorney without paying the interest
or fee that is typically charged by a collection agency; and
(G) May use information disclosed by the collection agency to
provide support enforcement services under ORS 25.080.
Enrolled House Bill 2646 (HB 2646-B) Page 237
(c) The obligee shall:
(A) Provide to the department, on a form approved by the
department, information about the agreement with the collection
agency; and
(B) Promptly notify the department when the agreement is
terminated.
(d) The collection agency:
(A) May provide investigative and location services to the
obligee and disclose relevant information from those services to
the department for purposes of providing support enforcement
services under ORS 25.080;
(B) May not charge interest or a fee for its services exceeding
20 percent of each support payment received; and
(C) May not initiate, without written authorization from the
department, any enforcement action relating to support payments
on which support enforcement services are provided by the
department under ORS 25.080.
(4) The Department of Justice may immediately transmit payments
received from any obligor who has not previously tendered any
payment by a check or instrument which was not paid or was
dishonored, to the obligee, without waiting for payment or
clearance of the check or instrument received.
(5) The Department of Justice shall notify each obligor and
obligee by mail when support payments shall be made to the
Department of Justice and when the obligation to make payments in
this manner shall cease.
(6)(a) The administrator shall provide information about a
child support account directly to a party to the support order
regardless of whether the party is represented by an attorney. As
used in this subsection, 'information about a child support
account' means the:
(A) Date of issuance of the support order.
(B) Amount of the support order.
(C) Dates and amounts of payments.
(D) Dates and amounts of disbursements.
(E) Payee of any disbursements.
(F) Amount of any arrearage.
(G) Source of any collection.
(b) Nothing in this subsection limits the information the
administrator may provide by law to a party who is not
represented by an attorney.
(7) Any pleading for the entry or modification of a support
order must contain a statement that payment of support under a
new or modified order will be by income withholding unless an
exception to payment by income withholding is granted under ORS
25.396.
(8)(a) Except as provided in paragraph (d) of this subsection,
a { - decree - } { + judgment + } or order establishing
paternity or including a provision concerning support shall
contain the residence, mailing or contact address, Social
Security number, telephone number and driver license number of
each party and the name, address and telephone number of all
employers of each party. Such a { - decree - } { +
judgment + } or order issued in a proceeding under ORS 107.085 or
107.485 shall contain the Social Security number of each party in
the manner established under section 1 { + , chapter 380, Oregon
Laws 2003 (Enrolled House Bill 3015) + } { - of this 2003
Act - } .
(b) The { - decree - } { + judgment + } or order shall also
include notice that the obligor and obligee:
Enrolled House Bill 2646 (HB 2646-B) Page 238
(A) Must inform the court and the administrator in writing of
any change in the information required by this subsection within
10 days after such change; and
(B) May request that the administrator review the amount of
support ordered after two years or at any time upon a substantial
change of circumstances.
(c) The administrator may require of the parties any additional
information that is necessary for the provision of support
enforcement services under ORS 25.080.
(d)(A) Upon a finding, that may be made ex parte, that the
health, safety or liberty of a party or child would unreasonably
be put at risk by the disclosure of information specified in this
subsection or by the disclosure of other information concerning a
child or party to a paternity or support proceeding or if an
existing order so requires, a court or administrator or hearing
officer, when the proceeding is administrative, shall order that
the information not be contained in any document provided to
another party or otherwise disclosed to a party other than the
state.
(B) The Department of Human Services shall adopt rules
providing for similar confidentiality for information described
in subparagraph (A) of this paragraph that is maintained by an
entity providing support enforcement services under ORS 25.080.
(9)(a) Except as otherwise provided in paragraph (b) of this
subsection, in any subsequent child support enforcement action,
the court or administrator, upon a showing of diligent effort
made to locate the obligor or obligee, may deem due process
requirements to be met by mailing notice to the last-known
residential, mailing or employer address or contact address as
provided in ORS 25.085.
(b) Service of an order directing an obligor to appear in a
contempt proceeding is subject to ORS 33.015 to 33.155.
(10) Subject to ORS 25.030, this section, to the extent it
imposes any duty or function upon the Department of Justice,
shall be deemed to supersede any provisions of ORS chapters 107,
108, 109, 110, 416, 419A, 419B and 419C that would otherwise
impose the same duties or functions upon the county clerk or the
Department of Human Services.
(11) Except as provided for in subsections (12), (13) and (14)
of this section, credit shall not be given for payments not made
to the Department of Justice as required pursuant to subsection
(1) of this section.
(12) The Department of Justice shall give credit for payments
not made to the Department of Justice when:
(a) Payments are not assigned to this or another state and the
obligee and obligor agree in writing that specific payments were
made and should be credited;
(b) Payments are assigned to the State of Oregon, the obligor
and obligee make sworn written statements that specific payments
were made, canceled checks or other substantial evidence is
presented to corroborate their statements and the obligee has
been given prior written notice of any potential criminal or
civil liability that may attach to an admission of the receipt of
assigned support;
(c) Payments are assigned to another state and that state
verifies that payments not paid to the Department of Justice were
received by the other state; or
(d) As provided by rule adopted pursuant to ORS 409.021 or
under ORS 180.340.
Enrolled House Bill 2646 (HB 2646-B) Page 239
(13) An obligor may apply to the Department of Justice for
credit for payments made other than to the Department of Justice.
If the obligee or other state does not provide the agreement,
sworn statement or verification required by subsection (12) of
this section, credit may be given pursuant to order of a hearing
officer of the Department of Human Services after notice and
opportunity to object and be heard are given to both obligor and
obligee. Notice shall be served upon the obligee as provided by
ORS 25.085. Notice to the obligor may be by regular mail at the
address provided in the application for credit. A hearing
conducted under this subsection is a contested case hearing and
ORS 183.413 to 183.470 apply. Any party may seek a hearing de
novo in the circuit court.
(14) Nothing in this section precludes the Department of
Justice from giving credit for payments not made to the
Department of Justice when there has been a judicially determined
credit or satisfaction or when there has been a satisfaction of
support executed by the person to whom support is owed.
(15) The Department of Human Services shall adopt rules that:
(a) Direct how support payments that are made through the
Department of Justice are to be applied and distributed; and
(b) Are consistent with federal regulations.
SECTION 294. ORS 25.070 is amended to read:
25.070. Any { - decree, - } judgment or order entered in a
proceeding for the enforcement of any delinquent support
obligation, including an order entered under ORS 25.378, shall
include, on the motion of the Division of Child Support of the
Department of Justice or the district attorney, if either has
appeared in the case, an order for payment of any support
enforcement fees required by law in addition to any other costs
chargeable to the obligor, and in addition to the support
obligation. The Department of Justice shall deduct the amount of
any previously imposed support enforcement fees from any payment
subsequently made by the obligor but the amount of the deduction
shall not exceed 25 percent of any payment. The support
enforcement fee, when collected, shall be paid to the Division of
Child Support of the Department of Justice or the district
attorney, whichever appeared in the case.
SECTION 295. ORS 25.080 is amended to read:
25.080. (1) This subsection describes the entity primarily
responsible for providing support enforcement services described
in subsection (4) of this section for any order or
{ - decree - } { + judgment + } that is or could be entered
under ORS chapter 107, 108, 109, 110 or 416 or ORS 419B.400 or
419C.590. The entity shall provide the support enforcement
services described in subsection (4) of this section on behalf of
the State of Oregon and no other party or either parent. The
following entity is primarily responsible:
(a) The Division of Child Support of the Department of Justice:
(A) If support rights are, or were within the past five months,
assigned to the Department of Human Services, the Oregon Youth
Authority or a public assistance agency of another state; or
(B) In any case where arrearage under a support order is
assigned or owed to or the right to recover back support or state
debt is held by a government agency.
(b) Except as provided in subsection (5) of this section, the
district attorney in cases other than those described in
paragraph (a) of this subsection if the obligee, obligor,
beneficiary or person having physical custody of a minor child
Enrolled House Bill 2646 (HB 2646-B) Page 240
regarding any support order that has been imposed or could be
imposed requests support enforcement services.
(2) The Department of Human Services shall establish rules
addressing the provision of support enforcement services when the
purposes of the state in providing those services may be
contradictory in individual cases.
(3) Notwithstanding the division of responsibility for
providing support enforcement services between the Division of
Child Support of the Department of Justice and the district
attorney as described in subsection (1) of this section,
provision of support enforcement services shall not be challenged
on the basis that the entity providing the services in a
particular case is not the entity responsible for the case under
subsection (1) of this section.
(4) When responsible for providing support enforcement services
and there is sufficient evidence available to support the action
to be taken, the entity described in subsection (1) of this
section:
(a) Shall establish and enforce any child support obligation;
(b) Shall establish paternity;
(c) Shall enforce spousal support when the obligee is living
with the obligor's child for whom support enforcement services
are being provided and those services are funded in part by
federal moneys;
(d) May enforce any other order or { - decree - } { +
judgment + } for spousal support;
(e) Shall, on behalf of the state, initiate and respond to
child support modification proceedings based upon a substantial
change of circumstances;
(f) Shall, on behalf of the state, initiate and respond to
child support modification proceedings based upon a modification
conducted under ORS 25.287 concerning existing child support
orders;
(g) Shall establish and enforce obligations to provide medical
insurance coverage for dependent children;
(h) Shall { - insure - } { + ensure + } compliance with the
provisions of 42 U.S.C. 651 to 669 and 45 C.F.R. Chapter III as
authorized by state law;
(i) Shall carry out the policy of the State of Oregon regarding
child support obligations as expressed in ORS 416.405; and
(j) Shall { - insure - } { + ensure + } that child support
orders are in compliance with the formula established by this
chapter.
(5) The district attorney of any county, the Department of
Human Services and the Division of Child Support of the
Department of Justice may provide by agreement for assumption by
the Division of Child Support of the functions of the district
attorney under subsection (1) of this section or for
redistribution between the district attorney and the Division of
Child Support of all or any portion of the duties,
responsibilities and functions set forth in subsections (1) and
(4) of this section.
(6) All county governing bodies and all district attorneys
shall enter into child support cooperative agreements with the
Department of Human Services. The following apply to this
subsection:
(a) The agreements shall contain appropriate terms and
conditions sufficient for the state to comply with all child
support enforcement service requirements under federal law; and
Enrolled House Bill 2646 (HB 2646-B) Page 241
(b) If this state loses any federal funds due to the failure of
a county governing body or district attorney to either enter into
an agreement under this subsection or to provide sufficient
support enforcement service, the county shall be liable to the
department for, and the liability shall be limited to, the amount
of money the state determines it lost because of the failure. The
state shall offset the loss from any moneys the state is holding
for or owes the county or from any moneys the state would pay to
the county for any purpose.
(7) The district attorney or the Division of Child Support,
whichever is appropriate, shall provide the services specified in
subsections (1) and (4) of this section to any person requesting
them, but may in their discretion, upon a determination and
notice to the person requesting the service that prospect of
successful recovery from the obligor of a portion of the
delinquency or future payments is remote, require payment to the
district attorney or the Division of Child Support of an
application fee, in accordance with an application fee schedule
established by rule by the Department of Human Services. If
service performed results in the district attorney or the
Division of Child Support recovering any support enforcement
fees, such fees shall be paid to the applicant in an amount equal
to the amount of the application fee.
(8) An obligee may request the Division of Child Support of the
Department of Justice or a district attorney to cease all
collection efforts if it is anticipated that physical or
emotional harm will be caused to the parent or caretaker relative
or the child for whom support was to have been paid. The
Department of Human Services, by rule, shall set out the
circumstances under which such requests shall be honored.
SECTION 296. ORS 25.100 is amended to read:
25.100. (1) With respect to any order or { - decree - } { +
judgment + } entered { - or docketed - } pursuant to ORS
107.095, 107.105, 108.120, 109.155, 416.400 to 416.470, 419B.400
or 419C.590 or ORS chapter 110, if a party seeking modification
or enforcement of an order or
{ - decree - } { + judgment + } for the payment of money
files a certificate to the effect that a party is presently in
another county of this state, the court may, upon motion of the
party, order that certified copies of the files, records and
prepared transcripts of testimony in the original proceeding be
transmitted to the clerk of the circuit court of any county in
this state in which the obligee or obligor resides, or in which
property of the obligor is located.
(2) Any files, records and prepared transcripts of testimony
maintained in the county to which certified copies have been
transmitted as provided in subsection (1) of this section shall
be auxiliary to those maintained in the county of origin, whose
files, records and prepared transcripts shall remain the official
record.
(3) The original of any order entered in the auxiliary county
under ORS 25.110 shall be entered in the files and records of the
auxiliary county and certified copies thereof shall be forwarded
to the county of origin for filing. The party submitting the
original order for signature shall submit an extra copy for
forwarding by the clerk and shall indicate on that copy where it
is to be forwarded.
(4) Notwithstanding any file number assigned in the auxiliary
county for purposes of identification, the file number assigned
in the county of origin shall be the reference number for all
Enrolled House Bill 2646 (HB 2646-B) Page 242
purposes including support payment records in the Department of
Justice.
SECTION 297. ORS 25.110 is amended to read:
25.110. (1) Upon receipt of such certified copies referred to
in ORS 25.100, the circuit court of the county to which such
certified copies have been transmitted shall have jurisdiction to
compel compliance with such order or { - decree - } { +
judgment + } the same as if it were the court which made and
entered the original order or
{ - decree - } { + judgment + } for the payment of support.
The only court having jurisdiction to modify any provision of the
original order or { - decree - } { + judgment + } is the
court having original jurisdiction of the cause in which such
order or { - decree - } { + judgment + } was entered or the
circuit court of the county in which either party resides if that
court has received the certified copies referred to in ORS
25.100.
(2) The provisions of ORS 25.100 (2) to (4) shall apply to this
section.
SECTION 298. ORS 25.167, as amended by section 7, chapter 146,
Oregon Laws 2003 (Enrolled House Bill 2645), is amended to read:
25.167. This section establishes procedures for determining the
amount of arrearage and for making a record of arrearage of
support payments. All of the following apply to this section:
(1) A record of support payment arrearage may be established
by:
(a) Court order;
(b) A governing child support judgment issued under section 3
or 5 { + , chapter 146, Oregon Laws 2003 (Enrolled House Bill
2645) + } { - of this 2003 Act - } ;
(c) Administrative order issued under ORS 416.427 or 416.429;
(d) Stipulation of the parties; or
(e) The procedures under subsection (2) of this section
whenever an existing child or spousal support case enters the
Department of Justice records system without a current payment
record maintained by any court clerk.
(2) When allowed under subsection (1) of this section,
arrearage amounts may be established under this subsection. All
of the following apply to this subsection:
(a) The obligee or obligor may execute a certificate in a form
acceptable to the Department of Justice that states the total
amount owed or the payment history in as much detail as is
necessary to demonstrate the periods and amounts of any
arrearage.
(b) The person making the certificate shall file the original
certificate with the court in which the { - decree or - }
support judgment was entered. When a governing child support
judgment has been issued, the person making the certificate shall
file the original certificate with the court that issued the
governing child support judgment.
(c) The person making the certificate shall serve a true copy
of the certificate upon the other party together with a notice
that the certificate will be the basis of a permanent record
unless the other party files objections.
(d) For objections to be valid under paragraph (c) of this
subsection, the other party must file the objection with the
court within 14 days from the date of service of the certificate
and must mail or serve true copies of the objections on both the
party who filed the certificate and either:
(A) The district attorney; or
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(B) If support rights are or have been assigned to the State of
Oregon at any time within the last five months or if arrears
under the support judgment are so assigned, the Division of Child
Support of the Department of Justice.
(e) If objections are filed within the time allowed, the party
filing the certificate must file a supplemental certificate that
is in a form acceptable to the department and that provides any
information concerning the payment history that the department
determines necessary.
(f) If objections are filed within the time allowed, the
district attorney or the Division of Child Support shall cause
the case to be set for a court hearing. At the hearing, the court
shall consider the correctness of the certificate but may not
consider objections to the merits of the support judgment
{ - or decree - } . The parties may settle the case by written
agreement anytime before the court hearing. Notice of the court
hearing shall be served upon the party filing the objections as
authorized in ORCP 9 B.
(g) If no objections are filed under this subsection within the
time allowed, the amount of arrearage stated in the certificate
is the amount owed for purposes of any subsequent action. The
district attorney or the Division of Child Support shall file
with the court a certificate stating the arrearage established
under this paragraph.
(3) When a request for accounting and distribution services is
made under ORS 25.164, an agency or court may not take or allow
any ex parte enforcement action on amounts owed as arrearage from
before the time that the Department of Justice commences support
accounting and distribution until the amount is established under
this section. This subsection does not prohibit or limit any
enforcement action on support payments that become due subsequent
to the department's commencement of support accounting and
distribution under ORS 25.164.
(4) In any determination under this section, a canceled check,
payable to the obligee, indorsed by the obligee or deposited to
an account of the obligee, drawn on the account of the obligor
and marked as child support shall be prima facie evidence that
child support was paid to the obligee in the amount shown on the
face of the check. It is immaterial that the check was signed by
a person other than the obligor, provided that the person who
signed the check was an authorized signatory of checks drawn on
the account.
SECTION 298a. Section 2, chapter 146, Oregon Laws 2003
(Enrolled House Bill 2645), is amended to read:
{ + Sec. 2. + } (1) As used in this section, 'child support
judgment' means the terms of a judgment { - , decree - } or
order of a court, or an order that has been filed under ORS
416.440, that provide for past or current monetary support or for
health insurance under ORS 25.255 for the benefit of a child.
'Child support judgment' does not include any term of a judgment
{ - , decree - } or order that deals with matters other than
monetary support or health insurance under ORS 25.255 for the
benefit of a child.
(2)(a) A child support judgment originating under ORS 416.440
has all the force, effect and attributes of a circuit court
judgment. The judgment lien created by a child support judgment
originating under ORS 416.440 applies to all arrearages owed
under the underlying order from the date the administrator or
hearing officer entered, filed or registered the underlying order
under ORS 416.400 to 416.470 or ORS chapter 110.
Enrolled House Bill 2646 (HB 2646-B) Page 244
(b) Until the underlying order is filed under ORS 416.440, the
order may not be enforced against and has no lien effect on real
property.
(c) No action to enforce a child support judgment originating
under ORS 416.440 may be taken while the child support judgment
is stayed under ORS 416.427, except as permitted in the order
granting the stay.
(3) In any judicial or administrative proceeding in which child
support may be awarded under this chapter or ORS chapter 107,
108, 109, 110 or 416 or ORS 125.025, 419B.400 or 419C.590, if a
child support judgment already exists with regard to the same
obligor and child:
(a) A court may only enforce the existing child support
judgment, modify the existing child support judgment as
specifically authorized by law or set aside the existing child
support judgment under subsection (6) of this section or under
the provisions of ORCP 71. If the court sets aside the existing
child support judgment, the court may issue a new child support
judgment.
(b) The administrator or hearing officer may only enforce the
existing child support judgment, modify the existing child
support judgment as specifically authorized by law or, with
regard to an existing child support judgment originating under
ORS 416.400, move to set aside the existing child support
judgment under subsection (6) of this section or for the reasons
set out in ORCP 71.
(4) If the administrator or hearing officer finds that there
exist two or more child support judgments involving the same
obligor and child and the same period of time, the administrator
or hearing officer shall apply the provisions of section 5 { + ,
chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645) + }
{ - of this 2003 Act - } .
(5)(a) If the court finds that there exist two or more child
support judgments involving the same obligor and child and the
same period of time, and each judgment was issued in this state,
the court shall apply the provisions of section 3 { + , chapter
146, Oregon Laws 2003 (Enrolled House Bill 2645), + } { - of
this 2003 Act - } to determine the controlling terms of the
child support judgments and to issue a governing child support
judgment as defined in section 3 { + , chapter 146, Oregon Laws
2003 (Enrolled House Bill 2645) + } { - of this 2003 Act - } .
(b) If the court finds that there exist two or more child
support judgments involving the same obligor and child and the
same period of time, and one or more of the judgments was issued
by a tribunal of another state, the court shall apply the
provisions of ORS chapter 110 to determine which judgment is the
controlling child support order.
(6) Subject to the provisions of subsection (3) of this
section, a court may modify or set aside a child support judgment
issued in this state when:
(a) The child support judgment was issued without prior notice
to the issuing court, administrator or hearing officer that:
(A) There was pending in this state or any other jurisdiction
any type of support proceeding involving the child; or
(B) There existed in this state or any other jurisdiction
another child support judgment involving the child; or
(b) The child support judgment was issued after another child
support judgment, and the later judgment did not enforce, modify
or set aside the earlier judgment in accordance with this
section.
Enrolled House Bill 2646 (HB 2646-B) Page 245
(7) When modifying a child support judgment, the court,
administrator or hearing officer shall specify in the
modification judgment the effects of the modification on the
child support judgment being modified.
SECTION 299. ORS 25.245 is amended to read:
25.245. (1) Notwithstanding any other provision of Oregon law,
a parent who is eligible for and receiving cash payments under
Title IV-A of the Social Security Act, the general assistance
program as provided in ORS chapter 411 or a general assistance
program of another state or tribe, the Oregon Supplemental Income
Program or the federal Supplemental Security Income Program shall
be rebuttably presumed unable to pay child support and a child
support obligation does not accrue unless the presumption is
rebutted.
(2) Each month, the Department of Human Services shall identify
those persons receiving cash payments under the programs listed
in subsection (1) of this section that are administered by the
State of Oregon and provide that information to the
administrator. If benefits are received from programs listed in
subsection (1) of this section that are administered by other
states, tribes or federal agencies, the obligor shall provide the
administrator with written documentation of the benefits. The
Department of Human Services shall adopt rules to implement this
subsection.
(3) The administrator shall refer to the information provided
in subsection (2) of this section prior to establishing any child
support obligation. Within 30 days following identification of
persons under subsection (2) of this section, the entity
responsible for support enforcement services under ORS 25.080
shall provide notice of the presumption to the obligee and
obligor and shall inform all parties to the support order that,
unless a party objects as provided in subsection (4) of this
section, child support shall cease accruing beginning with the
support payment due on or after the date the obligor first begins
receiving the cash payments and continuing through the support
payment due in the last month in which the obligor received the
cash payments. The entity responsible for support enforcement
services shall serve the notice on the obligee in the manner
provided for the service of summons in a civil action or by
certified mail, return receipt requested, and shall serve the
notice on the obligor by first class mail to the obligor's
last-known address. The notice shall specify the month in which
cash payments are first made and shall contain a statement that
the administrator represents the state and that low cost legal
counsel may be available.
(4) A party may object to the presumption by sending an
objection to the entity responsible for support enforcement
services under ORS 25.080 within 20 days after the date of
service of the notice. The objection must describe the resources
of the obligor or other evidence that might rebut the presumption
of inability to pay child support. The entity receiving the
objection shall cause the case to be set for a hearing before a
court or a hearing officer. The court or hearing officer may
consider only whether the presumption has been rebutted.
(5) If no objection is made, or if the court or hearing officer
finds that the presumption has not been rebutted, the Department
of Justice shall discontinue billing the obligor for the period
of time described in subsection (3) of this section and no
arrearage shall accrue for the period during which the obligor is
not billed. In addition, the entity providing support enforcement
Enrolled House Bill 2646 (HB 2646-B) Page 246
services shall file with the circuit court in which the support
order or { - decree - } { + judgment + } has been entered
{ - or docketed - } a copy of the notice described in
subsection (3) of this section or, if an objection is made and
the presumption is not rebutted, a copy of the hearing officer's
order.
(6)(a) Within 30 days after the date the obligor ceases
receiving cash payments under a program listed in subsection (1)
of this section, the Department of Justice shall provide notice
to all parties to the support order:
(A) Specifying the last month in which a cash payment was made;
(B) Stating that the payment of those benefits has terminated
and that by operation of law billing and accrual of support
resumes; and
(C) Informing the parties of their rights to request a review
and modification of the support order based on a substantial
change in circumstance or pursuant to ORS 25.287 or any other
provision of law.
(b) The notice shall include a statement that the administrator
represents the state and that low cost legal counsel may be
available.
(c) The entity providing enforcement services shall file a copy
of the notice required by paragraph (a) of this subsection with
the circuit court in which the support order or { - decree - }
{ + judgment + } has been entered { - or docketed - } .
(7) Receipt by a child support obligor of cash payments under
any of the programs listed in subsection (1) of this section
shall be sufficient cause for a court or hearing officer to allow
a credit and satisfaction against child support arrearage for
months that the obligor received the cash payments.
(8) The notice and finding of financial responsibility required
by ORS 416.415 shall include notice of the presumption,
nonaccrual and arrearage credit rights provided for in this
section.
(9) The presumption, nonaccrual and arrearage credit rights
created by this section shall apply whether or not child support
enforcement services are being provided under Title IV-D of the
Social Security Act.
(10) Application of the presumption, nonaccrual and arrearage
credit rights created by this section does not constitute a
modification but does not limit the right of any party to seek a
modification of a support order based upon a change of
circumstances or pursuant to ORS 25.287 or any other provision of
law. In determining whether a change in circumstances has
occurred or whether two years have elapsed since entry of a
support order, the court or hearing officer may not consider any
action taken under this section as entry of a support order. The
presumption stated in subsection (1) of this section applies in
any modification proceeding.
SECTION 300. ORS 25.255 is amended to read:
25.255. (1) All child support orders entered pursuant to ORS
chapters 107, 108, 109 and 110 and ORS 416.400 to 416.470 and
419B.400 or 419C.590, and any modifications of those orders,
shall provide, at the election of the obligee, assignee of the
rights to medical support under the Medicaid program or the
assignee of current support rights, that the obligor shall name
the subject child as beneficiary on any health insurance plan
that is available, under the terms of an applicable contract, to
the obligor at reasonable cost. Health insurance is considered
reasonable in cost if it is employment related insurance or other
Enrolled House Bill 2646 (HB 2646-B) Page 247
group health insurance, regardless of service delivery mechanism,
and is available on a group basis or through an employer or union
at a monthly cost, with respect to the coverage of the subject
child, not to exceed the amount of the monthly child support
obligation determined under the formula provided by ORS 25.275
and 25.280. In consideration of the out-of-pocket costs to the
obligor attributable to naming a child on a health insurance
plan, the Administrator of the Division of Child Support, an
administrative hearings officer or a court shall reduce the
obligor's child support obligation by the amount that represents
the obligee's pro rata share, based upon the obligee's
proportionate share of the combined income of the parents, of the
obligor's out-of-pocket costs of health insurance of the child.
When an obligor does not provide health insurance for a child,
and the obligee elects to provide insurance and incurs
out-of-pocket costs to provide health insurance, the
Administrator of the Division of Child Support, an administrative
hearings officer or a court shall increase the obligor's child
support obligation by an amount that represents the obligor's pro
rata share of the obligee's out-of-pocket costs of the health
insurance attributable to enrolling the child. Nothing in this
section limits the cost of the insurance which may be provided by
the obligee when the obligor does not provide insurance for the
child or children. However, nothing in this section shall
authorize an increase in the amount of child support to be paid
by the obligor in consideration of the obligee's out-of-pocket
costs in an amount more than would be the obligor's pro rata
share if the cost of the insurance were reasonable in cost as
defined by this section. As used in this section, 'health
insurance' includes coverage under fee for service, health
maintenance organizations, preferred provider organizations and
other types of coverage under which medical services could be
provided to the dependent child of an absent parent. For purposes
of this section, the term 'insurer' includes a group health plan,
as defined in section 607 (1) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1167), a health maintenance
organization or an entity offering a service benefit plan.
(2) If health insurance is not available to an obligor at the
time a child support order is entered, the order shall include a
provision requiring the obligor to provide health insurance in
the future when health insurance becomes available to the
obligor.
(3) In addition to the health insurance coverage required in
subsections (1) and (2) of this section, the order shall also
require the obligor to provide dependent health insurance for the
benefit of the obligee if it is available at no additional cost
to the obligor and in this case the provisions of this section
apply. The remedy provided by this subsection is in addition to
and not exclusive of any other remedy provided by law.
(4) Where the obligor is eligible for family coverage, and upon
application of the obligor, the employer, union or plan
administrator shall enroll the child as a beneficiary in the
health insurance plan and withhold any required premium from the
obligor's income or wages. If the obligor is enrolled, but fails
to make application to obtain coverage for the child, and subject
to the provisions of subsection (5) or (6) of this section, the
employer, union or plan administrator shall enroll the child
under family coverage upon application of the child's other
parent, or the department or the entity responsible for
enforcement under ORS 25.080. The employer shall withhold from
Enrolled House Bill 2646 (HB 2646-B) Page 248
the employee's compensation the employee's share of premiums for
health coverage as necessary and pay this amount to the insurer.
(5) The obligee or entity responsible for support enforcement
under ORS 25.080 may serve a notice of order to provide for
insurance coverage in a form substantially similar to that
prescribed by the Department of Human Services on the obligor's
employer or union or the employer's or union's registered agent,
bookkeeper, accountant, person responsible for payroll or local
office manager. If a medical child support order is required
under section 609 of the Employee Retirement Income Security Act
of 1974, the order shall be provided to the plan administrator.
The notice of order to provide health insurance or a medical
child support order may be served by regular mail or any means
that is calculated to give actual notice. The notice of order or
medical child support order may be issued ex parte either
administratively or judicially and without advance notice to
enforce the health insurance provisions of an order. The notice
of order or a medical child support order may be issued when the
following conditions are met:
(a) An administrative or judicial order { - , - } { + or + }
judgment { - or decree - } requires the obligor to provide
health insurance for the subject child; and
(b) The obligor is enrolled in but fails to provide written
proof to the obligee or the entity responsible for support
enforcement that the child has been enrolled or application to
enroll the child has been made.
(6) Notwithstanding the provisions of subsections (4) and (5)
of this section, when an obligor provides coverage and changes
employment, the obligee, the Department of Human Services or the
entity responsible for enforcement under ORS 25.080 shall
transfer notice of order to the new employer. Unless the obligor
contests the notice of order by requesting a modification of the
underlying order, the notice of order operates to enroll the
child in the obligor's health plan if the employer provides
health care coverage. If a medical child support order is
required under section 609 of the Employee Retirement Income
Security Act of 1974, the enforcing entity shall issue a medical
child support order.
(7) The signature of the custodial parent or guardian of the
insured dependent is a valid authorization to the insurer for
purposes of processing an insurance reimbursement payment to the
provider of the health services.
(8) When an order for dependent insurance coverage is in effect
or is being sought, the obligor's employer or union shall release
to the obligee or the entity responsible for support enforcement,
upon request, the name and address of the insurer and any plan
administrator.
(9) When an order for dependent insurance coverage is in effect
or is being sought, the insurer shall release to the obligee, or
to the entity responsible for support enforcement, upon request,
information about the dependent coverage.
(10) The obligor who fails to maintain the health insurance for
the benefit of the child as ordered shall be liable for any
health expenses incurred from the date of the order.
{ - (11) The remedies in this section are not exclusive.
Nothing in this section precludes action by the court to enforce
a judicial or docketed administrative order requiring health
insurance for a child or children by imposition of remedial or
punitive sanctions for contempt or otherwise. - }
Enrolled House Bill 2646 (HB 2646-B) Page 249
{ + (11) The remedies in this section are not exclusive.
Nothing in this section precludes action by the court to enforce
a judgment or a judicial or administrative order requiring health
insurance for a child or children by imposition of remedial or
punitive sanctions for contempt or otherwise. + }
SECTION 300a. { + If House Bill 2095 becomes law, section 300
of this 2003 Act (amending ORS 25.255) is repealed. + }
SECTION 301. ORS 25.710 is amended to read:
25.710. (1) Notwithstanding ORS 25.080, the district attorney,
except as provided in subsection (2) of this section, shall
continue to enforce support enforcement cases until the
Department of Human Services otherwise directs if:
(a) The case was being enforced by the district attorney on
October 1, 1985; and
(b) The case involves any arrearages assigned to any government
agency.
(2) This section does not apply where the obligor or
beneficiary of the support { - decree - } { + judgment + } or
order is receiving any of the following:
(a) General or public assistance as defined in ORS 411.010; or
(b) Care, support or services under ORS 418.015.
SECTION 302. ORS 28.010 is amended to read:
28.010. Courts of record within their respective jurisdictions
shall have power to declare rights, status, and other legal
relations, whether or not further relief is or could be claimed.
No action or proceeding shall be open to objection on the ground
that a declaratory judgment { - or decree - } is prayed for.
The declaration may be either affirmative or negative in form and
effect, and such declarations shall have the force and effect of
a
{ - final - } judgment { - or decree - } .
SECTION 303. ORS 28.050 is amended to read:
28.050. The enumeration in ORS 28.010 to 28.040 does not limit
or restrict the exercise of the general powers conferred in ORS
28.010, in any proceedings where declaratory relief is sought, in
which a judgment { - or decree - } will terminate the
controversy or remove an uncertainty.
SECTION 304. ORS 28.060 is amended to read:
28.060. The court may refuse to render or enter a declaratory
judgment { - or decree - } where such judgment { - or
decree - } , if rendered or entered, would not terminate the
uncertainty or controversy giving rise to the proceeding.
SECTION 305. ORS 28.070 is amended to read:
28.070. All orders { - , - } { + and + } judgments { - and
decrees - } under this chapter may be appealed from or reviewed
as other orders { - , - } { + and + } judgments { - and
decrees - } .
SECTION 306. ORS 28.080 is amended to read:
28.080. Further relief based on a declaratory judgment { - or
decree - } may be granted whenever necessary or proper. The
application thereof shall be by petition to a court having
jurisdiction to grant the relief. If the application be deemed
sufficient, the court shall, on reasonable notice, require any
adverse party whose rights have been adjudicated by the
declaratory judgment { - or decree, - } to show cause why
further relief should not be granted forthwith.
SECTION 307. ORS 28.150 is amended to read:
28.150. This chapter shall be so interpreted and construed as
to effectuate its general purpose to make uniform the law of
those states which enact it, and to harmonize, as far as
Enrolled House Bill 2646 (HB 2646-B) Page 250
possible, with federal laws and regulations on the subject of
declaratory judgments { - and decrees - } .
SECTION 308. ORS 33.420 is amended to read:
33.420. (1) Before { - decreeing - } { + entering a
judgment for + } a change of name, except as provided in ORS
109.360, the court shall require public notice of the application
to be given, that all persons may show cause why the same should
not be granted. The court shall also require public notice to be
given of the change after the entry of the { - decree - } { +
judgment + }.
(2) Before { - decreeing - } { + entering a judgment
for + } a change of name in the case of a minor child the court
shall require that, in addition to the notice required under
subsection (1) of this section, written notice be given to the
parents of the child, both custodial and noncustodial, and to any
legal guardian of the child.
(3) Notwithstanding subsection (2) of this section, notice of
an application for the change of name of a minor child need not
be given to a parent of the child if the other parent of the
child files a verified statement in the change of name proceeding
that asserts that the minor child has not resided with the other
parent and that the other parent has not contributed or tried to
contribute to the support of the child.
SECTION 309. ORS 33.460 is amended to read:
33.460. (1) A court that has jurisdiction to determine an
application for change of name of a person under ORS 33.410 and
33.420 may order a legal change of sex and enter a
{ - decree - } { + judgment + } indicating the change of sex
of a person whose sex has been changed by surgical procedure.
(2) The court may order a legal change of sex and enter the
{ - decree - } { + judgment + } in the same manner as that
provided for change of name of a person under ORS 33.410 and
33.420.
(3) If a person applies for a change of name under ORS 33.410
and 33.420 at the time the person applies for a legal change of
sex under this section, the court may order change of name and
legal change of sex at the same time and in the same proceeding.
SECTION 310. ORS 33.510 is amended to read:
33.510. The surety or the representatives of any surety upon
the bond of any trustee, committee, guardian, assignee, receiver,
executor, administrator or other fiduciary, and any irrevocable
letter of credit issuer for any trustee, committee, guardian,
assignee, receiver, executor, administrator or other fiduciary is
entitled as a matter of right to be discharged from liability as
provided in this section, and to that end may, on notice to the
principal named in the bond or irrevocable letter of credit,
apply to the court that accepted the bond or irrevocable letter
of credit or to the court of which the judge who accepted the
bond or irrevocable letter of credit was a member or to any judge
thereof, praying to be relieved from liability for the act or
omission of the principal occurring after the date of the order
relieving such person, and that the principal be required to
account and give new sureties or cause to be issued new letters
of credit. Notice of the application shall be served on the
principal personally not less than five days prior to the date on
which the application is to be made, unless it satisfactorily
appears to the court or judge that personal service cannot be had
with due diligence within the state, in which case notice may be
given by personal service without the state or in such manner as
the court or judge directs. Pending the hearing of the
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application the court or judge may restrain the principal from
acting except to preserve the trust estate until further order.
If upon the return of the application the principal fails to file
a new bond or irrevocable letter of credit to the satisfaction of
the court or judge, the court or judge must make an order
requiring the principal to file a new bond or irrevocable letter
of credit within a period not exceeding five days. If the new
bond or irrevocable letter of credit is filed upon the return of
the application, or within the time fixed by the order, the court
or judge must make a { - decree - } { + judgment + } or order
requiring the principal to account for all acts and proceedings
to and including the date of the { - decree - } { +
judgment + } or order, and to file such account within a time
fixed, not exceeding 20 days, and discharge the surety or letter
of credit issuer making application from liability for any act or
default of the principal subsequent to the date of the
{ - decree - } { + judgment + } or order. If the principal
fails to file a new bond or irrevocable letter of credit within
the time specified, a { - decree - } { + judgment + } or
order must be made revoking the appointment of the principal or
removing and requiring the principal to file an account within
not more than 20 days. If the principal fails to file the
account, the surety or letter of credit issuer may make and file
an account with like force and effect as though filed by the
principal, and upon settlement thereof and upon the trust fund or
estate being found or made good and paid over or properly
secured, credit shall be given for all commissions, costs,
disbursements and allowances to which the principal would be
entitled were the principal accounting, and allowance shall be
made to the surety or letter of credit issuer for the expense
incurred in filing the account and procuring the settlement
thereof. After the filing of the account, either by the principal
or the surety or the letter of credit issuer, the court or judge
must, upon the petition of the principal or surety or the letter
of credit issuer, issue an order requiring all persons interested
in the estate or trust to attend a settlement of the account at a
time and place therein specified, and upon the trust fund or
estate being found or made good and paid over or properly
secured, the surety or the letter of credit issuer shall be
discharged from all liability. Upon demand in writing by the
principal, the surety or the letter of credit issuer shall return
any compensation that has been paid for the unexpired period of
the bond or the letter of credit.
SECTION 311. ORS 34.330 is amended to read:
34.330. A person may not prosecute a writ of habeas corpus if:
(1) The person is imprisoned or restrained by virtue of process
issued by a court of the United States, or a judge, commissioner
or other officer thereof, in cases where such courts, or judges
or officers thereof, have exclusive jurisdiction under the laws
of the United States, or have acquired exclusive jurisdiction by
the commencement of actions, suits or other proceedings in such
court, or before such commissioner or other officer.
(2) The person is imprisoned or restrained by virtue of the
judgment { - or decree - } of a competent tribunal of civil or
criminal jurisdiction, or by virtue of an execution issued upon
such judgment { - or decree - } .
(3) Except as provided in ORS 138.530, the person is eligible
to obtain post-conviction relief pursuant to ORS 138.510 to
138.680.
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(4) The person is eligible to seek judicial review of a final
order of the State Board of Parole and Post-Prison Supervision
under ORS 144.335 but the person fails to seek judicial review of
the order in a timely manner.
(5) The person seeks judicial review of a final order of the
board under ORS 144.335 but the Court of Appeals:
(a) Dismisses the judicial review on the grounds that the
motion for leave to proceed with judicial review described in ORS
144.335 does not present a substantial question of law;
(b) Summarily affirms the order of the board on the grounds
that the motion for leave to proceed with judicial review
described in ORS 144.335 does not present a substantial question
of law;
(c) Otherwise disposes of the judicial review on the merits of
the petitioner's issues on judicial review; or
(d) Dismisses the judicial review because of a procedural
defect.
SECTION 312. ORS 34.360 is amended to read:
34.360. If the challenge is to the authority for confinement,
the petition shall state, in substance:
(1) That the party in whose behalf the writ is petitioned is
imprisoned or restrained of liberty, the place where, and officer
or person by whom the party is imprisoned or restrained, naming
both parties if their names are known, or describing them if not
known.
(2) That such person is not imprisoned or restrained by virtue
of any order, judgment { - , decree - } or process specified in
ORS 34.330.
(3) The cause or pretense of the imprisonment or restraint,
according to the best knowledge or belief of the plaintiff.
(4) If the original imprisonment or restraint is by virtue of
any order, warrant or process, a copy thereof shall be annexed to
the petition, or it must be alleged that, by reason of the
removal or concealment of the party before the application, a
demand of such copy could not be made, or that the demand was
made, and the legal fees therefor tendered to the person having
the party in custody, and that a copy was refused.
(5) That the claim has not already been adjudged upon a prior
writ of habeas corpus, to the knowledge or belief of the
plaintiff.
SECTION 313. ORS 34.362 is amended to read:
34.362. If the person is imprisoned or restrained by virtue of
any order, judgment { - , decree - } or process specified in
ORS 34.330 and the person challenges the conditions of
confinement or complains of a deprivation of rights while
confined, the petition shall:
(1) Comply with requirements of ORS 34.360 (1), (3), (4) and
(5); and
(2) State facts in support of a claim that the person is
deprived of a constitutional right that requires immediate
judicial attention and for which no other timely remedy is
practicably available to the plaintiff.
SECTION 314. ORS 34.600 is amended to read:
34.600. It shall be the duty of the court or judge forthwith to
remand such party if it appears that the party is legally
detained in custody, either:
(1) By virtue of process issued by any court, or judge or
commissioner or any other officer thereof, of the United States,
in a case where such court, or judge or officer thereof, has
exclusive jurisdiction; or,
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(2) By virtue of the judgment { - or decree - } of any
{ - competent court of civil or criminal jurisdiction - } { +
court + }, or of any execution issued upon such judgment { - or
decree - } ; or,
(3) For any contempt, specially and plainly charged in the
commitment, by some court, officer or body having authority to
commit for the contempt so charged; and,
(4) That the time during which such party may legally be
detained has not expired.
SECTION 315. ORS 34.610 is amended to read:
34.610. If it appears on the return that the prisoner is in
custody by virtue of an order or civil process of any court
legally constituted, or issued by an officer in the course of
judicial proceedings before the officer, authorized by law, such
prisoner shall be discharged only if one of the following cases
exists:
(1) The jurisdiction of the court or officer has been exceeded,
either as to matter, place, sum or person.
(2) The original imprisonment was lawful, yet by some act,
omission or event which has taken place afterwards, the party has
become entitled to be discharged.
(3) The order or process is defective in some matter of
substance required by law, rendering the same void.
(4) The order or process, though in proper form, has been
issued in a case not allowed by law.
(5) The person having the custody of the prisoner under such
order or process is not the person empowered by law to detain the
prisoner.
(6) The order or process is not authorized by any judgment
{ - or decree - } of any court, nor by any provision of law.
SECTION 316. ORS 34.720 is amended to read:
34.720. No person who has been finally discharged upon a
proceeding by habeas corpus shall again be imprisoned, restrained
or kept in custody for the same cause; but it is not to be deemed
the same cause if:
(1) The person has been discharged from a commitment on a
criminal charge, and afterwards is committed for the same offense
by the legal order or process of the court wherein the person is
bound by a release agreement or has deposited security, or in
which the person is indicted or convicted for the same offense;
or
(2) After a judgment of discharge for a defect of evidence or
for a material defect in the commitment, in a criminal case, the
party again is arrested on sufficient evidence, and committed by
legal process for the same offense; or
(3) In a civil action or suit, the party has been discharged
for illegality in the judgment { - , decree - } or process, and
afterwards is imprisoned for the same cause of action or suit; or
(4) In a civil action or suit, the person has been discharged
from commitment on a writ of arrest, and afterwards is committed
on execution, in the same action or suit, or on a writ of arrest
in another action or suit, after the dismissal of the first one.
SECTION 317. ORS 58.377 is amended to read:
58.377. If all of the outstanding shares of a professional
corporation organized for the purpose of practicing medicine are
held by an administrator, executor, personal representative,
guardian, conservator or receiver of the estate of a former
shareholder, or by a transferee who receives such shares by
operation of law or { - court decree - } { + by a
judgment + }, such administrator, executor, personal
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representative, guardian, conservator, receiver or transferee may
be a director, officer or shareholder of the professional
corporation for a period of six months following receipt or
transfer of such shares.
SECTION 318. ORS 59.115 is amended to read:
59.115. (1) A person who sells a security is liable as provided
in subsection (2) of this section to a purchaser of the security
if the person:
(a) Sells a security, other than a federal covered security, in
violation of the Oregon Securities Law or of any condition,
limitation or restriction imposed upon a registration or license
under the Oregon Securities Law; or
(b) Sells a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they are made, not misleading (the
buyer not knowing of the untruth or omission), and who does not
sustain the burden of proof that the person did not know, and in
the exercise of reasonable care could not have known, of the
untruth or omission.
(2) The purchaser may recover:
(a) Upon tender of the security, the consideration paid for the
security, and interest from the date of payment equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments { - and decrees - } for the payment of money or the
rate provided in the security if the security is an
interest-bearing obligation, less any amount received on the
security; or
(b) If the purchaser no longer owns the security, damages in
the amount that would be recoverable upon a tender, less the
value of the security when the purchaser disposed of it and less
interest on such value at the rate of interest specified in ORS
82.010 for judgments { - and decrees - } for the payment of
money from the date of disposition.
(3) Every person who directly or indirectly controls a seller
liable under subsection (1) of this section, every partner,
limited liability company manager, including a member who is a
manager, officer or director of such seller, every person
occupying a similar status or performing similar functions, and
every person who participates or materially aids in the sale is
also liable jointly and severally with and to the same extent as
the seller, unless the nonseller sustains the burden of proof
that the nonseller did not know, and, in the exercise of
reasonable care, could not have known, of the existence of facts
on which the liability is based. Any person held liable under
this section shall be entitled to contribution from those jointly
and severally liable with that person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the sale
of a security is to provide ministerial functions of escrow,
custody or deposit services in accordance with applicable law is
liable only if the person participates or materially aids in the
sale and the purchaser sustains the burden of proof that the
person knew of the existence of facts on which liability is based
or that the person's failure to know of the existence of such
facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
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(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the sale. An action under this section for a violation of
subsection (1)(b) of this section or ORS 59.135 may be commenced
within three years after the sale or two years after the person
bringing the action discovered or should have discovered the
facts on which the action is based, whichever is later. Failure
to commence an action on a timely basis is an affirmative
defense.
(7) No action may be commenced under this section solely
because an offer was made prior to registration of the
securities.
(8) Any person having a right of action against a
broker-dealer, state investment adviser or against a salesperson
or investment adviser representative acting within the course and
scope or apparent course and scope of authority of the
salesperson or investment adviser representative, under this
section shall have a right of action under the bond or
irrevocable letter of credit provided in ORS 59.175.
(9) Subsection (4) of this section shall not limit the
liability of any person:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
(10) Except as provided in subsection (11) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(11) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (10) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
SECTION 319. ORS 59.127 is amended to read:
59.127. (1) A person who purchases a security is liable as
provided in subsection (2) of this section to the person selling
the security, if the person:
(a) Purchases a security, other than a federal covered
security, in violation of any condition, limitation or
restriction imposed upon a registration under the Oregon
Securities Law; or
(b) Purchases a security by means of an untrue statement of a
material fact or an omission to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading (the
seller not knowing of the untruth or omission), and if the person
does not sustain the burden of proof that the person did not
know, and in the exercise of reasonable care could not have
known, of the untruth or omission.
(2) The seller may recover:
(a) Upon a tender of the consideration paid for the security,
the security plus interest from the date of purchase equal to the
greater of the rate of interest specified in ORS 82.010 for
judgments { - and decrees - } for the payment of money, or the
rate provided in the security if the security is an
interest-bearing obligation;
(b) Damages in the amount that would be recoverable upon a
tender, plus any amount received on the security, less the
consideration paid for the security; or
(c) If the purchaser no longer owns the security, damages equal
to the value of the security when the purchaser disposed of it
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plus interest on such value at the rate of interest specified in
ORS 82.010 for judgments { - and decrees - } for the payment
of money from the date of disposition, less the consideration
paid for the security.
(3) Every person who directly or indirectly controls a
purchaser liable under subsection (1) of this section, every
partner, limited liability company manager, including a member
who is a manager, officer or director of such purchaser, every
person occupying a similar status or performing similar
functions, and every person who participates or materially aids
in the purchase is also liable jointly and severally with and to
the same extent as the purchaser, unless the nonpurchaser
sustains the burden of proof that the nonpurchaser did not know,
and, in the exercise of reasonable care, could not have known, of
the existence of facts on which the liability is based. Any
person held liable under this section shall be entitled to
contribution from those jointly and severally liable with the
person.
(4) Notwithstanding the provisions of subsection (3) of this
section, a person whose sole function in connection with the
purchase of a security is to provide ministerial functions of
escrow, custody or deposit services in accordance with applicable
law is liable only if the person participates or materially aids
in the purchase and the seller sustains the burden of proof that
the person knew of the existence of facts on which liability is
based or that the person's failure to know of the existence of
such facts was the result of the person's recklessness or gross
negligence.
(5) Any tender specified in this section may be made at any
time before entry of judgment.
(6) Except as otherwise provided in this subsection, no action
or suit may be commenced under this section more than three years
after the purchase. An action under this section for a violation
of subsection (1)(b) of this section or ORS 59.135 may be
commenced within three years after the purchase or two years
after the person bringing the action discovered or should have
discovered the facts on which the action is based, whichever is
later. Failure to commence an action on a timely basis is an
affirmative defense.
(7) Any person having a right of action against a
broker-dealer, state investment adviser or against a salesperson
or investment adviser representative acting within the course and
scope or apparent course and scope of the authority of the
salesperson or investment adviser representative, under this
section shall have a right of action under the bond or
irrevocable letter of credit provided in ORS 59.175.
(8) Subsection (4) of this section shall not limit the
liability of any persons:
(a) For conduct other than in the circumstances described in
subsection (4) of this section; or
(b) Under any other law, including any other provisions of the
Oregon Securities Law.
(9) Except as provided in subsection (10) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(10) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (9) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
SECTION 320. ORS 59.131 is amended to read:
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59.131. (1) Except as provided in subsection (3) of this
section, no action or suit may be commenced under ORS 59.127 if
the seller has received before suit a written notice of intent to
return the security as outlined in subsection (2) of this
section.
(2) The notice shall contain:
(a) An offer to tender the security and interest from the date
of purchase, at a rate equal to the greater of the rate of
interest specified in ORS 82.010 for judgments { - and
decrees - } for the payment of money or the rate provided in the
security if the security is an interest-bearing obligation, less
the consideration paid for the security; and
(b) A statement of the effect on the seller's rights of failure
to respond as required in subsection (3) of this section.
(3) An action or suit under this section may be commenced after
receipt of a notice as outlined in subsection (2) of this
section:
(a) If the seller accepts the offer and gives notice of
acceptance within three days after receipt of the offer and fails
to receive the contents of such offer as specified in subsection
(2)(a) of this section within one day from the date the notice of
acceptance was sent; or
(b) If the seller elects to recover damages as specified in
subsection (2)(b) of this section and gives notice of the
election within 30 days after receipt of the offer.
(4) An offer to tender the security pursuant to this section
involves the offer for sale of a security. The transaction must
be registered under ORS 59.055 unless there is an exemption from
the registration requirement or a notice is filed under ORS
59.049.
SECTION 321. ORS 59.305 is amended to read:
59.305. (1) A person aggrieved by an order of the Director of
the Department of Consumer and Business Services which has been
the subject of a timely application for hearing before the
director shall be entitled to judicial review of the order under
ORS 183.310 to 183.550.
(2) { - No decree - } { + A judgment + } of a reviewing
court under ORS 183.310 to 183.550 { - shall - } { + may
not + } bar the director from thereafter vacating or modifying an
order involved in the proceeding for review, or entering any new
order, for a proper cause which was not decided by the reviewing
court.
SECTION 322. ORS 59.910 is amended to read:
59.910. (1) A person aggrieved by an order of the Director of
the Department of Consumer and Business Services which has been
the subject of a timely application for hearing before the
director shall be entitled to judicial review of the order under
ORS 183.310 to 183.550.
(2) { - No decree - } { + A judgment + } of a reviewing
court under ORS 183.310 to 183.550 { - shall - } { + may
not + } bar the director from thereafter vacating or modifying an
order involved in the proceeding for review, or entering any new
order, for a proper cause that was not decided by the reviewing
court.
SECTION 323. ORS 60.671 is amended to read:
60.671. (1) If after a hearing the court determines that one or
more grounds for judicial dissolution described in ORS 60.661 or
60.952 (2)(m) exist, it may enter a { - decree - } { +
judgment + } dissolving the corporation and specifying the
effective date of the dissolution. The clerk of the court shall
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deliver a certified copy of the { - decree - } { +
judgment + } to the office for filing. The Secretary of State
shall file the certified copy of the { - decree - } { +
judgment + }.
(2) After entering the { - decree - } { + judgment + } of
dissolution, the court shall direct the winding up and
liquidation of the corporation's business and affairs in
accordance with ORS 60.637 and the notification of claimants in
accordance with ORS 60.641 and 60.644.
SECTION 324. ORS 62.365 is amended to read:
62.365. (1) In the event of a breach or threatened breach of a
cooperative contract authorized by ORS 62.355, the cooperative is
entitled to an injunction to prevent the breach or any further
breach thereof, and to a { - decree - } { + judgment + } of
specific performance thereof. Upon filing of a verified complaint
showing the breach or threatened breach, and upon filing a
sufficient bond, the cooperative is entitled to a temporary
restraining order.
(2) Any person who, with knowledge that a contract exists,
induces or attempts to induce any member to breach the contract
with the cooperative, or who in any manner aids a breach of the
contract, is liable to the cooperative for damages caused by such
interference. The cooperative is also entitled to an injunction
to prevent any interference or further interference with the
contract.
SECTION 325. ORS 62.695 is amended to read:
62.695. (1) In addition to any other instances in which the law
provides such power, a circuit court has full power to dissolve a
cooperative and liquidate the assets and business thereof:
(a) In an action by a member or shareholder when it is
established that:
(A) The members are deadlocked in voting power, and have
failed, for a period which includes at least two consecutive
annual meeting dates, to elect successors to directors whose
terms have expired or would have expired upon the election of
their successors; or
(B) The corporate assets are being misapplied or wasted.
(b) In an action by a creditor:
(A) When the claim of the creditor has been reduced to judgment
and an execution thereon returned unsatisfied and it is
established that the cooperative is insolvent; or
(B) When the cooperative has admitted in writing that the claim
of the creditor is due and owing and it is established that the
cooperative is insolvent.
(c) Upon application by a cooperative which has commenced
voluntary dissolution proceedings as provided in this chapter, to
have its liquidation continued under the supervision of the
court.
(d) When an action has been filed by the Attorney General to
dissolve a cooperative and it is established that liquidation of
its business and affairs should precede the entry of a
{ - decree - } { + judgment + } of dissolution.
(2) Venue for a proceeding by the Attorney General to dissolve
a corporation lies in Marion County. Venue for a proceeding
brought by any other party named in this section lies in the
county where a corporation's principal office is located or, if
the principal office is not in this state, where its registered
office is or was last located.
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(3) It is not necessary to make members or shareholders parties
to any action or proceeding under this section unless relief is
sought against them personally.
(4) A court in a proceeding brought to dissolve a cooperative
may issue injunctions, appoint a receiver or custodian pendente
lite with all powers and duties the court directs, take other
action required to preserve the assets of the cooperative
wherever located and carry on the business of the cooperative
until a full hearing can be held.
SECTION 326. ORS 62.704 is amended to read:
62.704. (1) If after a hearing the court determines that one or
more grounds for judicial dissolution described in ORS 62.695
exist, it may enter a { - decree - } { + judgment + }
dissolving the cooperative and specifying the effective date of
the dissolution. The clerk of the court shall deliver a certified
copy of the { - decree - } { + + } { + judgment + } to the
office for filing. The Secretary of State shall file the
certified copy of the { - decree - } { + judgment + }.
(2) After entering the { - decree - } { + judgment + } of
dissolution, the court shall direct the winding up and
liquidation of the cooperative's business and affairs in
accordance with ORS 62.708 and the notification of claimants in
accordance with ORS 62.712 and 62.714.
SECTION 327. ORS 63.621 is amended to read:
63.621. A limited liability company is dissolved and its
affairs shall be wound up upon the first to occur of the
following:
(1) Upon reaching the time for dissolution, if any, specified
in the articles of organization.
(2) Upon the occurrence of events specified in the articles of
organization or any operating agreement.
(3) By the vote or such other action of the members as provided
in the articles of organization or any operating agreement or, if
neither the articles of organization nor any operating agreement
so provides, by the consent of all the members.
(4) At such time as the limited liability company has no
members.
(5) Upon administrative dissolution by the Secretary of State
under ORS 63.651.
(6) Upon entry of a { - decree - } { + judgment + } of
judicial dissolution under ORS 63.671.
SECTION 328. ORS 63.671 is amended to read:
63.671. (1) If after a hearing the court determines that one or
more grounds for judicial dissolution described in ORS 63.661
exist, it may enter a { - decree - } { + judgment + }
dissolving the limited liability company and specifying the
effective date of the dissolution. The clerk of the court shall
deliver a certified copy of the { - decree - } { +
judgment + } to the office for filing. The Secretary of State
shall file the certified copy of the { - decree - } { +
judgment + }.
(2) After entering the { - decree - } { + judgment + } of
dissolution, the court shall direct the winding up and
liquidation of the limited liability company's business and
affairs in accordance with ORS 63.637, the notification of
claimants and enforcement of claims in accordance with ORS 63.641
and 63.644, and the distribution of limited liability company
assets in accordance with ORS 63.625.
SECTION 329. ORS 65.671 is amended to read:
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65.671. (1) If after a hearing the court determines that one or
more grounds for judicial dissolution described in ORS 65.661
exist, it may enter a { - decree - } { + judgment + }
dissolving the corporation and specifying the effective date of
the dissolution. The clerk of the court shall deliver a certified
copy of the { - decree - } { + judgment + } to the Office of
the Secretary of State for filing.
(2) After entering the { - decree - } { + judgment + } of
dissolution, the court shall direct the winding up and
liquidation of the corporation's affairs in accordance with ORS
65.637 and the notification of claimants in accordance with ORS
65.641 and 65.644.
SECTION 330. ORS 65.757 is amended to read:
65.757. (1) If after a hearing the court determines that one or
more grounds for judicial revocation of authority described in
ORS 65.751 exists, it may enter a { - decree - } { +
judgment + } revoking the corporation's authority to transact
business in Oregon and specifying the effective date of the
revocation. The clerk of the court shall deliver a certified copy
of the { - decree - } { + judgment + } to the Office of the
Secretary of State for filing.
(2) The authority of a foreign corporation to transact business
in Oregon ceases as of the date of the { - decree - } { +
judgment + } of revocation.
(3) The { - decree - } { + judgment + } of revocation of a
foreign corporation's authority to transact business in this
state appoints the Secretary of State the foreign corporation's
agent for service of process in any proceeding based on a cause
of action which arose during the time the foreign corporation was
authorized to transact business in this state.
(4) Revocation of a foreign corporation's authority to transact
business in this state terminates the authority of the registered
agent of the corporation.
SECTION 331. ORS 65.870 is amended to read:
65.870. Burial lots or space for burial of incinerate remains
in buildings or grounds sold by a nonprofit corporation organized
and existing solely for the purposes of either owning and
operating a cemetery or cremating dead bodies and burying and
caring for incinerate remains shall be for the sole purpose of
interment or deposit and safekeeping of incinerate remains. Such
lots or space shall be exempt from execution, attachment or other
lien or process, if used as intended by the purchaser thereof
from such corporation, or the assigns or representatives of the
purchaser, exclusively for burial purposes, and in no wise with a
view to profit. Such lots or space shall be exempt from taxation
as provided in ORS 307.150. The vendor of any gravestone,
however, shall not be prevented from having and enforcing a lien
thereon for all or part of its purchase price. If a suit is
brought to enforce such a lien, the { - decree - } { +
judgment + } therein is enforceable thereafter; and, for the
purpose of enabling the lien to be had and enforced, the
gravestone shall be deemed personal property and may be severed
and removed, under execution and order of sale, from the lot
where it is situated and may be sold in the same manner as any
other personal property.
SECTION 332. ORS 70.330 is amended to read:
70.330. On application by or for a partner, the circuit court
may { - decree - } { + enter a judgment for the + }
dissolution of a limited partnership whenever it is not
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reasonably practicable to carry on the business in conformity
with the partnership agreement.
SECTION 333. ORS 72.7160 is amended to read:
72.7160. (1) { + A judgment requiring + } specific performance
may be
{ - decreed where - } { + entered if + } the goods are unique
or in other proper circumstances.
(2) The { - decree - } { + judgment + } for specific
performance may include such terms and conditions as to payment
of the price, damages or other relief as the court may deem just.
(3) The buyer has a right of replevin for goods identified to
the contract if after reasonable effort the buyer is unable to
effect cover for such goods or the circumstances reasonably
indicate that such effort will be unavailing or if the goods have
been shipped under reservation and satisfaction of the security
interest in them has been made or tendered. In the case of goods
bought for personal, family or household purposes, the buyer's
right of replevin vests upon acquisition of a special property,
even if the seller had not then repudiated or failed to deliver.
SECTION 334. ORS 72A.5210 is amended to read:
72A.5210. (1) { + A judgment requiring + } specific
performance may be { - decreed - } { + entered + } if the
goods are unique or in other proper circumstances.
(2) A { - decree - } { + judgment + } for specific
performance may include any terms and conditions as to payment of
the rent, damages or other relief that the court considers just.
(3) A lessee has a right of replevin, detinue, sequestration,
claim and delivery or the like for goods identified to the lease
contract if after reasonable effort the lessee is unable to
effect cover for those goods or the circumstances reasonably
indicate that the effort will be unavailing.
SECTION 335. ORS 87.146 is amended to read:
87.146. (1) Except as provided in subsection (2) of this
section:
(a) Liens created by ORS 87.152 to 87.162 have priority over
all other liens, security interests and encumbrances on the
chattel subject to the lien, except that taxes and duly perfected
security interests existing before chattels sought to be
subjected to a lien created by ORS 87.162 are brought upon the
leased premises have priority over that lien.
(b) Liens created by ORS 87.216 to 87.232 have equal priority.
When a { - decree - } { + judgment + } is given foreclosing
two or more liens created by ORS 87.216 to 87.232 upon the same
chattel, the debts secured by those liens shall be satisfied pro
rata out of the proceeds of the sale of the property.
(c) With regard to the same chattel, a lien created by ORS
87.216 to 87.232 has priority over a nonpossessory chattel lien
created by any other law.
(d) With regard to the same chattel, a lien created by ORS
87.216 is junior and subordinate to a duly perfected security
interest in existence when the notice of claim of such lien is
filed under ORS 87.242.
(e) With regard to the same chattel, a lien created by ORS
87.222 to 87.232 has priority over a security interest created
under ORS chapter 79.
(2)(a) A personal property tax lien, a chattel lien claimed by
the State of Oregon, its agencies or any political subdivision
thereof, and a chattel lien claimed by a state officer or
employee during the course of official duty pursuant to law have
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priority over a lien created by ORS 87.152 to 87.162 and 87.216
to 87.232.
(b) A duly perfected security interest of a lessor in any
portion of crops or animals to pay or secure payment of rental of
the premises upon which those crops or animals are grown, not to
exceed 50 percent of those crops or animals, shall not be subject
to the lien created by ORS 87.226.
SECTION 336. ORS 87.342 is amended to read:
87.342. (1) The owner of a chattel subject to a lien created by
ORS 87.216 to 87.232, or any other interested person, may file
with the recording officer of the county in whose office the
claim of lien is filed a bond executed by a corporation
authorized to issue surety bonds in the State of Oregon to the
effect that the owner of the chattel against which the lien is
claimed shall pay the amount of the claim and all costs and
attorney fees which are awarded against the chattel on account of
the lien. The bond shall be in an amount not less than 150
percent of the amount claimed under the lien, and must be filed
prior to the commencement of a foreclosure proceeding by the lien
claimant.
(2)(a) In lieu of the surety bond provided for in subsection
(1) of this section, a person may deposit with the treasurer of
the county in which the claim for lien is filed an irrevocable
letter of credit issued by an insured institution, as defined in
ORS 706.008, or a sum of money or its equivalent equal in value
to 150 percent of the amount claimed under the lien.
(b) When a person deposits money or an irrevocable letter of
credit with the treasurer of a county under this subsection, the
person shall file with the recording officer of the same county
an affidavit stating that the deposit was made.
(3) When a bond is filed under subsection (1) of this section
or an irrevocable letter of credit or money deposited and an
affidavit filed under subsection (2) of this section, the
recording officer shall issue to the owner or other person a
certificate stating that the bond, irrevocable letter of credit
or money is substituted for the chattel and that the lien on the
chattel is discharged. A marginal entry of the discharge and
bond, irrevocable letter of credit or money shall be made in the
index of liens on chattels containing the original record of the
claim of lien.
(4) When a bond is filed under subsection (1) of this section,
or money or an irrevocable letter of credit is deposited under
subsection (2) of this section, the owner or other person filing
the bond or depositing the money or an irrevocable letter of
credit shall promptly send a copy of the certificate received
from the recording officer under subsection (3) of this section
to the lien claimant by registered or certified mail sent to the
lien claimant at the last-known address of the lien claimant.
(5) If the lien claimant establishes the validity of the lien
claim by a suit to enforce it, the lien claimant is entitled to
judgment { - or decree - } against the sureties upon the bond,
against the irrevocable letter of credit issuer or against the
deposited money.
SECTION 337. ORS 87.435 is amended to read:
87.435. (1) The owner of papers or personal property subject to
a lien created by ORS 87.430, or any other interested person, may
file with the recording officer of the county in which the
attorney has the principal office of the attorney a bond executed
by a corporation authorized to issue surety bonds in the State of
Oregon to the effect that the owner of the papers and personal
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property against which the lien is claimed shall pay the amount
of the claim and all costs which are awarded against the papers
and personal property on account of the lien. The bond shall be
in an amount not less than 150 percent of the amount claimed
under the lien, and must be filed prior to the commencement of a
foreclosure proceeding by the attorney.
(2)(a) In lieu of the surety bond provided for in subsection
(1) of this section, a person may deposit with the treasurer of
the county in which the attorney has the principal office of the
attorney an irrevocable letter of credit issued by an insured
institution, as defined in ORS 706.008, or a sum of money or its
equivalent equal in value to 150 percent of the amount claimed
under the lien.
(b) When a person deposits money or an irrevocable letter of
credit with the treasurer of a county under this subsection, the
person shall file with the recording officer of the same county
an affidavit stating that the deposit was made.
(3) When a bond is filed under subsection (1) of this section
or money or an irrevocable letter of credit deposited and an
affidavit filed under subsection (2) of this section, the
recording officer shall issue to the owner or other person a
certificate stating that the bond, irrevocable letter of credit
or money is substituted for the chattel and that the lien on the
chattel is discharged.
(4) When a bond is filed under subsection (1) of this section,
or money or an irrevocable letter of credit is deposited under
subsection (2) of this section, the owner or other person filing
the bond or depositing the money shall promptly send a copy of
the certificate received from the recording officer under
subsection (3) of this section to the attorney by registered or
certified mail.
(5) If the attorney establishes the validity of the lien claim
by a suit to enforce it under ORS chapter 88, the attorney is
entitled to judgment { - or decree - } against the sureties
upon the bond, against the irrevocable letter of credit issuer or
against the deposited money.
SECTION 338. ORS 87.445 is amended to read:
87.445. An attorney has a lien upon actions, suits and
proceedings after the commencement thereof, and judgments,
{ - decrees, - } orders and awards entered therein in the
client's favor and the proceeds thereof to the extent of fees and
compensation specially agreed upon with the client, or if there
is no agreement, for the reasonable value of the services of the
attorney.
SECTION 339. ORS 87.455 is amended to read:
87.455. (1) When an attorney claims a lien under ORS 87.445, if
the judgment { - or decree - } is for the possession, award or
transfer of personal property, the attorney must file a notice of
claim of lien not later than one year after entry of the
{ - final - } judgment { - or decree - } and disposition of
any appeal { - thereof - } { + of the judgment + }. The
notice shall be filed with the recording officer of the county in
which the judgment { - or decree - } is rendered, with the
recording officer of the county, if known, in which the personal
property is located and with the recording officer of the county,
if known, in which the attorney's client resides. The recording
officer of a county shall record the notices filed under this
section in a book called 'index of liens upon chattels. '
(2) Except as provided in subsection (3) of this section, a
lien under ORS 87.445 on a judgment { - or decree - } for the
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possession, award or transfer of personal property must be
foreclosed in the manner provided in ORS chapter 88, not later
than one year after the notice of claim of lien is filed under
subsection (1) of this section.
(3) An attorney and the client of the attorney may, by an
agreement in writing, extend the period of time within which a
lien created by ORS 87.445 must be foreclosed to two years after
the notice of claim of lien is filed. An agreement to extend a
foreclosure period under this subsection shall contain the time
and place of the filing of the notice of claim of lien by the
attorney and shall be filed with the recording officer with whom
the notice of claim of lien was filed.
SECTION 340. ORS 87.460 is amended to read:
87.460. (1) When an attorney claims a lien under ORS 87.445, if
the judgment { - or decree - } is for the possession, award or
conveyance of real property, the attorney must file a notice of
claim of lien not later than six months after entry of the
{ - final - } judgment { - or decree - } and disposition of
any appeal { - thereof - } { + of the judgment + }. The
notice shall be filed with the recording officer of the county in
which the real property, or any part of it, is situated. The
recording officer of a county shall record the notices filed
under this section in a book that shall be indexed in the same
manner as the record of deeds and mortgages.
(2) Except as provided in subsection (3) of this section, a
lien under ORS 87.445 upon a judgment { - or decree - } for
the possession, award or conveyance of real property must be
foreclosed in the manner provided in ORS chapter 88, not later
than one year after the notice of claim of lien is filed under
subsection (1) of this section.
(3) An attorney and the client of the attorney may, by
agreement, in writing, extend the period of time within which a
lien created by ORS 87.445 must be foreclosed to two years after
the notice of claim of lien is filed. An agreement to extend a
foreclosure period under this subsection shall contain the time
and place of the filing of the notice of claim of lien by the
attorney and shall be filed with the recording officer with whom
the notice of claim of lien was filed.
SECTION 341. ORS 87.475 is amended to read:
87.475. (1) Except as provided in subsections (3) and (4) of
this section, the lien created by ORS 87.445 is not affected by a
settlement between the parties to the action, suit or proceeding
before or after judgment, { - decree, - } order or award.
(2) Except as provided in subsections (3) and (4) of this
section, a party to the action, suit or proceeding, or any other
person, does not have the right to satisfy the lien created by
ORS 87.445 or any judgment, { - decree, - } order or award
entered in the action, suit or proceeding until the lien, and
claim of the attorney for fees based thereon, is satisfied in
full.
(3) A judgment debtor may pay the full amount of a judgment
{ - or decree - } into court and the clerk of the court shall
thereupon fully satisfy the judgment { - or decree - } on the
record and the judgment debtor shall be thereby released from any
further claims thereunder.
(4) If more than one attorney appears of record for a litigant,
the satisfaction of the lien created by ORS 87.445 by any one of
the attorneys is conclusive evidence that the lien is fully
satisfied.
SECTION 342. ORS 87.480 is amended to read:
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87.480. Attorneys have the same right and power over actions,
suits, proceedings, judgments, { - decrees, - } orders and
awards to enforce their liens as their clients have for the
amount due thereon to them.
SECTION 343. ORS 87.490 is amended to read:
87.490. (1) Except for tax liens, prior encumbrances and prior
liens of record on the real or personal property subject to the
lien created by ORS 87.445, the lien created by ORS 87.445 is
superior to all other liens.
(2) When the lien of an attorney created under ORS 87.445
attaches to a judgment { - or decree - } allowing or enforcing
a client's lien, the attorney's lien has the same priority as the
client's lien with regard to personal or real property subject to
the client's lien.
SECTION 344. ORS 87.585 is amended to read:
87.585. The liens described in ORS 87.555 may be foreclosed by
a suit in the circuit court. In any suit brought pursuant to the
provisions of ORS 87.581 or this section, upon entering a
{ - decree - } { + judgment + } for the plaintiff, the court
shall allow as part of the costs and disbursements all moneys
paid for the filing and recording of the notice of lien, and
reasonable attorney fees at trial and on appeal.
SECTION 345. ORS 88.010 is amended to read:
88.010. Except as otherwise provided by law, a lien upon real
or personal property, other than that of a judgment { - or
decree - } , whether created by mortgage or otherwise, shall be
foreclosed, and the property adjudged to be sold to satisfy the
debt secured thereby by a suit. Except as provided in ORS 88.070,
in addition to the { - decree - } { + judgment + } of
foreclosure and sale, if a promissory note or other personal
obligation for the payment of the debt has been given by the lien
debtor or any other person as principal or otherwise, the court
also shall { - decree a recovery of - } { + enter a judgment
for + }the amount of the debt against { - such - } { +
the + } person or persons { - , as the case may be, as in the
case of an ordinary decree for the recovery of money - } . The
provisions of this chapter as to liens upon personal property are
not intended to exclude a person having such lien from any other
remedy or right in regard to such property.
SECTION 346. ORS 88.020 is amended to read:
88.020. Any cause of suit involving real property provided for
in ORS 88.010 may be joined with any cause of suit provided for
in ORS 105.605 in the same complaint or cross-complaint, if both
causes of suit involve the same real property or some part
thereof and are separately stated. Any person may be joined as a
party who is a proper party to either cause of suit. The court,
in event of such joinder, may render a { - decree which - }
{ + judgment that + } will, among other things, determine the
paramount title to the real property involved or any part
thereof.
SECTION 347. ORS 88.050 is amended to read:
88.050. When it is adjudged that any of the defendants have a
lien upon the property, the court shall make a like
{ - decree - } { + judgment + } in relation thereto, and the
debt secured thereby, as if such defendant were a plaintiff in
the suit. When a { - decree - } { + judgment + } is given
foreclosing two or more liens upon the same property or any
portion thereof in favor of different persons not united in
interest, the { - decree - } { + judgment + } shall specify
the order, according to their priority, in which the debts
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secured by such liens shall be satisfied out of the proceeds of
the sale of the property.
SECTION 348. ORS 88.060 is amended to read:
88.060. The { - decree - } { + judgment + } may be enforced
by execution as an ordinary { - decree - } { + judgment + }
for the recovery of money, except as in this section otherwise
provided:
(1) When a { - decree - } { + judgment + } of foreclosure
and sale is given, an execution may issue thereon against the
property adjudged to be sold. If the { - decree - } { +
judgment + } is in favor of the plaintiff only, the execution may
issue as in ordinary cases, but if it is in favor of different
persons, not united in interest, it shall issue upon the joint
request of such persons or upon the order of the court or judge
thereof on the motion of any of them.
(2) When the { - decree - } { + judgment + } is also
against the defendants or any one of them in person, and the
proceeds of the sale of the property upon which the lien is
foreclosed are not sufficient to satisfy the { - decree - }
{ + judgment + } as to the sum remaining unsatisfied, the
{ - decree - } { + judgment + } may be enforced by execution
as in ordinary cases. When in such case the { - decree - }
{ + judgment + } is in favor of different persons not united in
interest, it shall be deemed a separate { - decree - } { +
judgment + } as to such persons, and may be enforced accordingly.
SECTION 349. ORS 88.070 is amended to read:
88.070. When a { - decree - } { + judgment + } is given for
the foreclosure of any mortgage given to secure payment of the
balance of the purchase price of real property, the
{ - decree - } { + judgment + } shall provide for the sale of
the real property covered by such mortgage for the satisfaction
of the { - decree - } { + judgment + } given therein, but the
mortgagee shall not be entitled to a deficiency judgment on
account of the mortgage or note or obligation secured by the
same.
SECTION 350. ORS 88.080 is amended to read:
88.080. A { - decree - } { + judgment + } of foreclosure
shall order the mortgaged property sold. Property sold on
execution issued upon a
{ - decree - } { + judgment + } may be redeemed in like
manner and with like effect as property sold on an execution
pursuant to ORS 23.410 to 23.600, and not otherwise. A sheriff's
deed for property sold on execution issued upon a
{ - decree - } { + judgment + } shall have the same force and
effect as a sheriff's deed issued for property sold on an
execution pursuant to ORS 23.410 to 23.600.
SECTION 351. ORS 88.090 is amended to read:
88.090. When a suit is commenced to foreclose a lien securing a
debt payable in installments, either of interest or principal,
and any of such installments is not then due, the court shall
{ - decree a - } { + enter a judgment for the + } foreclosure
of the lien, and may also { - decree a sale of - }
{ + include in the judgment a requirement that + } the property
{ + be sold + } for the satisfaction of the whole debt, or so
much thereof as may be necessary to satisfy the installment then
due, with costs of suit. In the latter case, the { - decree - }
{ + judgment + } of foreclosure as to the remainder of the
property may be enforced by an order of sale, in whole or in
part, whenever default occurs in the payment of the installments
not then due.
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SECTION 352. ORS 88.100 is amended to read:
88.100. If, before a { - decree - } { + judgment + } is
given, the amount then due with the costs of suit is brought into
court and paid to the clerk, the suit shall be dismissed. If the
same is done after
{ - decree - } { + judgment + } and before sale, the effect
of the { - decree - } { + judgment + } as to the amount then
due and paid shall be terminated, and the execution, if any has
issued, shall be recalled by the clerk. When an installment not
due is adjudged to be paid, the court shall determine and specify
in the { - decree - } { + judgment + } what sum shall be
received in satisfaction thereof, which sum may be equal to such
installment, or otherwise, according to the present value
thereof.
SECTION 353. ORS 93.190 is amended to read:
93.190. (1) Every conveyance, deed of trust, mortgage or devise
of an interest in or lien upon real or personal property to two
or more persons as trustees or personal representatives, creates
a joint tenancy in such interest or lien in the trustees or
personal representatives unless it is expressly declared in the
conveyance, deed of trust, mortgage or devise that the trustees
or personal representatives shall take or hold the property as
tenants in common or otherwise.
(2) If the conveyance, deed of trust, mortgage or devise
provides for filling any vacancy in the office of trustee or
personal representative, it may be filled as therein provided,
but a court of competent jurisdiction may fill a vacancy in the
trusteeship according to the established rules and principles of
equity. In whichever way the vacancy is filled, the new trustee
shall hold the property with all powers, rights and duties of an
original trustee unless otherwise directed by conveyance, deed of
trust, mortgage or devise, or order or { - decree - } { +
judgment + } of the court.
SECTION 354. ORS 93.730 is amended to read:
93.730. A certified copy of any judgment { - , decree - } or
order of confirmation affecting lands in this state made in any
{ - suit - } { + action + } may be recorded in the records of
deeds in any county in which the land affected is wholly or
partly situated by any party interested in the land or
{ - suit - } { + in the action + }. After the transcript is so
recorded, the { - decree - } { + judgment + } is notice to
all persons of { - such suit - } { + the action + } and
{ + of + } the judgment { - , - } { + or + } order
{ - or decree - } , as completely as if the entire proceedings
were had originally in the county in which the transcript is
recorded. The record of the transcript is prima facie evidence of
title as therein determined.
SECTION 355. ORS 93.810 is amended to read:
93.810. The following are subjects of validating or curative
Acts applicable to this chapter:
(1) Evidentiary effect and recordation of conveyances before
1854.
(2) Evidentiary effect and recordation of certified copies of
deeds issued by State Land Board prior to 1885 where original
deed was lost.
(3) Defective acknowledgments of married women to conveyances
prior to 1891.
(4) Foreign instruments executed prior to 1903.
(5) Deeds of married women before 1907, validity; executed
under power of attorney and record as evidence.
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(6) Conveyances by reversioners and remaindermen to life
tenant.
(7) Decrees { + or judgments + } affecting lands in more than
one county.
(8) Irregular deeds and conveyances; defective acknowledgments;
irregularities in judicial sales; sales and deeds of
executors { + , personal representatives + }, administrators,
conservators and guardians; vested rights arising by adverse
title; recordation { - , - } { + . + }
(9) Defective acknowledgments.
(10) Title to lands from or through aliens.
SECTION 356. ORS 94.816 is amended to read:
94.816. (1) Except as otherwise provided in this section, no
judicial action for partition of a timeshare property may be
undertaken as long as the property remains subject to a timeshare
plan.
(2) If any timeshare is owned by two or more persons as tenants
in common, as tenants by the entirety or as tenants with rights
of survivorship, nothing in this section shall prohibit the
judicial sale of the timeshare in lieu of partition as between
the cotenants.
(3) A court of competent jurisdiction, on petition of the
developer of a timeshare plan or the developer's successor in
interest, may grant a waiver of the prohibition against partition
under subsection (1) of this section, if the court is satisfied
that:
(a) The developer retains at least 50 percent of the timeshares
created in the timeshare plan;
(b) The timeshare plan has failed and the continuation of the
use of timeshare property by timeshare owners is no longer
possible in the manner prescribed by the timeshare instruments;
(c) It is in the best interest of timeshare owners to terminate
the timeshare plan and that no reasonable alternative to
partition of the timeshare property exists;
(d) The petition has not been brought by the developer to avoid
the developer's responsibilities under the timeshare instrument
without good cause; and
(e) The holder of each blanket encumbrance consents to the
proceeding under this section.
(4) Except as otherwise provided in subsection (5) of this
section, upon a court declaration of timeshare plan failure under
subsection (3) of this section, the court shall proceed to
partition the timeshare property as otherwise provided by law.
(5) In the event of a court ordered sale in connection with
partition, proceeds of the sale shall be applied in the following
order:
(a) Costs described in ORS 105.285 (1) and (2);
(b) Repayment to owners except the developer of down payments
and payments of principal and interest paid by such owners for
their timeshares less the value, as determined by the court, of
the owners' use of their timeshares;
(c) Payments to satisfy and discharge the remaining timeshare
purchase money obligations of all owners except the developer. If
the developer or an entity closely related to the developer holds
the beneficial interest in any of such purchase money
obligations, funds shall first be applied to discharge the
purchase money obligations held by other holders, and then to the
credit of the developer and its related entity for purchase money
obligations held by the developer or such entity. Funds paid to
the developer or the related entity's credit shall be held by the
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court as proceeds available to lienholders and other claimants in
such partition. If there are insufficient funds to fully
discharge purchase money obligations of all owners except the
developer, the balance of unsatisfied purchase money obligations
of all owners except the developer shall be discharged by
{ - decree - } { + judgment + } of the court; and
(d) As otherwise provided by law.
SECTION 357. ORS 97.580 is amended to read:
97.580. No conveyance or other action of the owner without the
written consent or joinder of the spouse of the owner divests the
spouse of the vested right of interment, except that a
{ - final decree - } { + judgment + } of divorce between them
terminates the right unless otherwise provided in the
{ - decree - } { + judgment + }.
SECTION 358. ORS 97.890 is amended to read:
97.890. (1) Upon the adoption of the resolution described in
ORS 97.880 the officers of the cemetery association may file a
complaint in the circuit court for the county in which the
cemetery is located against the owners, holders or parties
interested in such abandoned portion of its cemetery demanding
that the court require such owners, holders or interested parties
to keep the premises clear of weeds and brush and in condition in
harmony with other lots and, if the owners, holders, or
interested parties fail to appear in court and comply with the
order of the court, demanding that the court make a
{ - decree - } { + judgment + } declaring such portions of the
cemetery a common nuisance, directing the governing board to
abate the nuisance by clearing the premises and keeping them
clear of weeds and brush, creating a lien upon such lots and
parcels in favor of the cemetery association or other proprietor,
{ - decreeing - } { + providing + } that the lien be
foreclosed and the lots and parcels be sold in the same manner as
other sales upon execution are made and authorizing the governing
board to become a purchaser thereof on behalf of the association
or the proprietor.
(2) In such suit any number of owners of different lots,
subdivisions of lots, pieces or parcels of the cemetery may be
included in the one suit.
(3) It is a sufficient designation of the property so abandoned
and unimproved to give the lot number or portion thereof, or a
description of the piece or parcel having no lot number, together
with the name of the owner thereof, as appears on the record of
the cemetery association.
(4) In addition to the names of the persons that appear on the
records of the cemetery association as the record owners of such
unused and unimproved portions of the cemetery, the plaintiff
shall include as a defendant in a complaint the following: 'Also
all other persons unknown claiming any right, title, estate, lien
or interest in the unused and unimproved portions of the cemetery
described in the complaint. '
SECTION 359. ORS 97.900 is amended to read:
97.900. (1) Summons shall be served upon all owners or holders
who are residents of this state in like manner as in service of
summons in a civil action if such owners and holders are known to
the sheriff in the county in which the cemetery is located. If
the defendants are not known to the sheriff, it is sufficient to
serve the owners and holders whose names appear on the tax rolls
of the county for the year previous to that in which the suit is
started. The plaintiff is not required to mail a copy of the
summons or complaint to nonresident defendants.
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(2) All owners and holders of such unimproved lots whose names
do not appear on the tax rolls as aforesaid as shown by the
return of the sheriff may be served by publication in any legal
newspaper published in the county in which the cemetery is
located for four consecutive weeks upon return of the sheriff
that such owners and holders are not known and cannot be served
in the jurisdiction of the sheriff.
(3) The published summons shall contain the names of the record
owners, as shown by the records of the cemetery association, and
'also all other persons unknown claiming any right, title,
estate, lien or interest in the unused and unimproved portions of
the cemetery described in the complaint, ' together with a brief
description of the lot, or subdivisions of lots, pieces or
parcels of the cemetery and a statement setting forth the order
and { - decree - } { + judgment + } described in ORS 97.890
(1) for which the plaintiff has applied to the court in the
complaint. Such summons shall require all parties defendant to
appear and show cause why an order should not be made declaring
the unused and unimproved portions of the cemeteries to be a
common nuisance, directing the cemetery association or other
proprietor to abate the nuisance, creating a lien thereon,
{ - decreeing - } { + providing + } that it be foreclosed and
directing that the unused and unimproved portion of the cemetery
be sold within four weeks from and after the date of the first
publication thereof.
SECTION 360. ORS 97.920 is amended to read:
97.920. Upon the failure of the owner of the premises to comply
with the order of the court requiring proper care of the premises
or upon the failure of any of the defendants to appear and answer
the complaint or upon the trial of the cause, if the court finds
that the allegations of the complaint are supported by the
evidence and that the summons has been served as provided in ORS
97.900, the court may enter a { - decree - } { + judgment + }
in accordance with the allegations of the complaint and the
provisions of ORS 97.890 (1).
SECTION 361. ORS 105.240 is amended to read:
105.240. The rights of the plaintiffs and defendants may be put
in issue, tried and determined in the suit. If a defendant fails
to answer, or if a sale of the property is necessary, the title
shall be ascertained by proof to the satisfaction of the court
before the { - decree - } { + judgment + } for partition or
sale is given.
SECTION 362. ORS 105.245 is amended to read:
105.245. If it is alleged in the complaint and established by
evidence, or if it appears by the evidence to the satisfaction of
the court without an allegation in the complaint, that the
property or any part of it is so situated that partition cannot
be made without great prejudice to the owners, the court may
order a sale of the property, and for that purpose may appoint
one or more referees. Otherwise, upon the requisite proofs being
made, it shall { - decree - } { + enter a judgment requiring
+ }a partition according to the respective rights of the
parties, as ascertained by the court. The court shall appoint
three referees to partition the property and shall designate the
portion to remain undivided for the owners whose interest remain
unknown or not ascertained.
SECTION 363. ORS 105.260 is amended to read:
105.260. The court may confirm or set aside the report in whole
or in part and if necessary appoint new referees. Upon the report
being confirmed, a { - decree - } { + judgment + } shall be
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given stating that the partition shall be effectual forever.
Except as provided in ORS 105.265, the { - decree - } { +
judgment + } is binding and conclusive:
(1) On all parties named therein, and their legal
representatives, who have at the time any interest in any part of
the property divided as owners in fee or as tenants for life or
for years.
(2) On all parties named therein, and their legal
representatives, entitled to the reversion, remainder or
inheritance of the property or any part thereof after the
termination of a particular estate therein, or who by any
contingency may be entitled to a beneficial interest in the
property.
(3) On all parties named therein, or their legal
representatives, who have an interest in any undivided share of
the property as tenants for years or for life.
(4) On all persons interested in the property who are unknown,
to whom notice was given of the application for partition by
publication, as directed by ORS 105.230.
(5) On all persons claiming from parties or persons listed in
subsections (1) to (4) of this section.
SECTION 364. ORS 105.265 is amended to read:
105.265. The { - decree - } { + judgment + } provided for
in ORS 105.260 shall not affect tenants for years or for life of
the whole of the property which is the subject of partition.
Except as provided in ORS 105.260, the { - decree - } { +
judgment + } and partition shall not preclude any person from
claiming title to the property in question, or from controverting
the title of the parties between whom the partition was made.
SECTION 365. ORS 105.270 is amended to read:
105.270. If the referees report to the court that the property
{ - for which partition has been decreed - } { + to be
partitioned + }, or any separate portion thereof, is so situated
that a partition thereof cannot be made without great prejudice
to the owners, and the court is satisfied that the report is
correct, it may, by an order, direct the referees to sell the
property or separate portion thereof so situated.
SECTION 366. ORS 105.285 is amended to read:
105.285. The proceeds of the sale of encumbered property shall
be distributed by the { - decree - } { + judgment + } of the
court as follows:
(1) To pay the property's just proportion of the general costs
of the suit.
(2) To pay the costs of the reference.
(3) To satisfy the several liens in their order of priority, by
payment of the sums due and to become due, according to the
{ - decree - } { + judgment + }.
(4) The residue among the owners of the property sold,
according to their respective shares.
SECTION 367. ORS 105.360 is amended to read:
105.360. The report of sale may be excepted to by any party
entitled to a share of the proceeds in like manner and with like
effect as in ordinary cases. If the sale is confirmed the order
of confirmation shall direct the referees to execute conveyances
and take securities pursuant to the sale, which acts they are
hereby authorized to do. The order shall discharge the property
of the estate or interest of every person mentioned in ORS
105.260 and of tenants for life or years of the property sold.
The order shall be binding and conclusive upon all such persons
as if it were a
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{ - decree - } { + judgment + } for the partition of such
property and except as provided in ORS 105.350, upon all persons
whomsoever as to the regularity of the proceedings concerning
such sale.
SECTION 368. ORS 105.405 is amended to read:
105.405. (1) The expenses of the referees, including those of a
surveyor and assistants of the surveyor when employed, shall be
ascertained and allowed by the court, and the amount thereof,
together with the fees allowed by law to the referees, shall be
paid by the plaintiff, and may be allowed as part of the costs of
partition.
(2) The reasonable costs of partition, including reasonable
attorney fees and disbursements, that are for services performed
for the common benefit of all parties, shall be paid by the
parties { - decreed to - } { + that will + } share in the
lands divided in proportion to their respective interests
therein, and shall be included and specified in the
{ - decree - } { + judgment + }. They shall be a lien on the
several shares, and the { - decree - } { + judgment + } may
be enforced by execution against the parties separately. When,
however, a controversy arises between some of the parties only,
the court may require the expense of such controversy to be paid
by any of, or all, the parties thereto.
SECTION 369. ORS 105.624 is amended to read:
105.624. As used in ORS 105.623 to 105.649:
(1) 'Disclaimant' means the person to whom a disclaimed
interest or power would have passed had the disclaimer not been
made.
(2) 'Disclaimed interest' means the interest that would have
passed to the disclaimant had the disclaimer not been made.
(3) 'Disclaimer' means the refusal to accept an interest in
property or a power over property.
(4) 'Fiduciary' means a personal representative, trustee, agent
acting under a power of attorney or other person authorized to
act as a fiduciary with respect to the property of another
person.
(5) 'Jointly held property' means property held in the name of
two or more persons under an arrangement pursuant to which:
(a) All holders have concurrent interests; and
(b) The last surviving holder is entitled to the whole of the
property.
(6) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company,
association, joint venture, government, governmental subdivision,
agency, public corporation or any other legal or commercial
entity.
(7) 'State' means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of
the United States. The term includes an Indian tribe or band, or
Alaskan native village, recognized by federal law or formally
acknowledged by another state.
(8) 'Trust' means:
(a) A charitable or noncharitable express trust, including any
additions made to the trust, whenever and however created; and
(b) A trust created pursuant to a statute { - , - } { +
or + } judgment { - or decree - } that requires the trust to
be administered in the same manner as an express trust.
SECTION 370. ORS 105.890 is amended to read:
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105.890. (1) A solar energy easement shall be appurtenant to
and run with the real property benefited and burdened by such an
easement.
(2) A solar energy easement shall terminate:
(a) Upon the conditions stated therein;
(b) By { - court decree - } { + judgment of a court
+ }based upon abandonment or changed conditions; or
(c) At any time by agreement of all owners of benefited and
burdened property.
SECTION 371. ORS 105.905 is amended to read:
105.905. (1) A wind energy easement shall be appurtenant to and
run with the real property benefited and burdened by the
easement.
(2) A wind energy easement shall terminate:
(a) Upon occurrence of the conditions stated in the creating
instrument;
(b) By { - court decree - } { + judgment of a court + }
based upon abandonment or changed conditions; or
(c) At any time by agreement of all the owners of the benefited
and burdened property.
SECTION 372. ORS 106.030 is amended to read:
106.030. When either party to a marriage is incapable of making
such contract or consenting thereto for want of legal age or
sufficient understanding, or when the consent of either party is
obtained by force or fraud, such marriage shall be void from the
time it is so declared by { - decree - } { + judgment + } of
a court having jurisdiction thereof.
SECTION 373. ORS 106.190 is amended to read:
106.190. (1) The issue of marriages void under ORS 106.020 are
legitimate.
(2) All children conceived or born of parents who married or
who may hereafter marry prior to the expiration of six months
from the date of a { - decree - } { + judgment + } of divorce
or declaring a marriage void rendered in a suit to which one of
the parents was a party or during the period of an appeal from
such a { - decree - } { + judgment + }, if the marriage is in
all other respects regular, are legitimate.
SECTION 374. ORS 114.135 is amended to read:
114.135. If the decedent and the surviving spouse were living
apart at the time of the death of the decedent, whether or not
there was a { - decree - } { + judgment + } for legal
separation, the court in its discretion may deny any right to
elect against the will, may reduce the elective share of the
spouse to such amount as the court determines reasonable and
proper or may grant the full elective share in accordance with
the circumstances of the particular case. The court, in deciding
what elective share, if any, should be granted, shall consider
the length of the marriage, whether the marriage was a first or
subsequent marriage for either or both of the spouses, the
contribution of the surviving spouse to the property of the
decedent in the form of services or transfers of property, the
length and cause of the separation and any other relevant
circumstances.
SECTION 375. ORS 116.083 is amended to read:
116.083. (1) A personal representative shall make and file in
the estate proceeding a verified account of the personal
representative's administration:
(a) Unless the court orders otherwise, annually within 30 days
after the anniversary date of the personal representative's
appointment.
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(b) Within 30 days after the date of the personal
representative's removal or resignation or the revocation of the
personal representative's letters.
(c) When the estate is ready for final settlement and
distribution.
(d) At such other times as the court may order.
(2) Each account shall include the following information:
(a) The period of time covered by the account.
(b) The total value of the property with which the personal
representative is chargeable according to the inventory, or, if
there was a prior account, the amount of the balance of the prior
account.
(c) All money and property received during the period covered
by the account.
(d) All disbursements made during the period covered by the
account. Vouchers for disbursements shall accompany the account,
unless otherwise provided by order or rule of the court, or
unless the personal representative is a trust company that has
complied with ORS 709.030, but that personal representative
shall:
(A) Maintain the vouchers for a period of not less than one
year following the date on which the order approving the final
account is entered;
(B) Permit interested persons to inspect the vouchers and
receive copies thereof at their own expense at the place of
business of the personal representative during the personal
representative's normal business hours at any time prior to the
end of the one-year period following the date on which the order
approving the final account is entered; and
(C) Include in each annual account and in the final account a
statement that the vouchers are not filed with the account but
are maintained by the personal representative and may be
inspected and copied as provided in subparagraph (B) of this
paragraph.
(e) The money and property of the estate on hand.
(f) Such other information as the personal representative
considers necessary to show the condition of the affairs of the
estate or as the court may require.
(3) When the estate is ready for final settlement and
distribution, the account shall also include:
(a) A statement that all Oregon income, inheritance and
personal property taxes, if any, have been paid, or if not so
paid, that payment of those taxes has been secured by bond,
deposit or otherwise, and that all required tax returns have been
filed.
(b) A petition for a { - decree - } { + judgment + }
authorizing the personal representative to distribute the estate
to the persons and in the portions specified therein.
(4) If the distributees consent thereto in writing and all
creditors of the estate have been paid in full, the personal
representative, in lieu of the final account otherwise required
by this section, may file a verified statement that includes the
following:
(a) The period of time covered by the statement.
(b) A statement that all creditors have been paid in full.
(c) The statement and petition referred to in subsection (3) of
this section.
Notice of time for filing objections to the verified statement is
not required.
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(5) The Chief Justice of the Supreme Court may by rule specify
the form and contents of accounts that must be filed by a
personal representative.
SECTION 376. ORS 116.093 is amended to read:
116.093. (1) Upon filing the final account and petition for
{ - decree - } { + a judgment + } of distribution, the
personal representative shall fix a time for filing objections
thereto in a notice thereof. Not less than 20 days before the
time fixed in the notice, the personal representative shall cause
a copy of the notice to be mailed to:
(a) Each heir at the last-known address of the heir, if the
decedent died intestate.
(b) Each devisee at the last-known address of the devisee, if
the decedent died testate.
(c) Each creditor who has not received payment in full and
whose claim has not otherwise been barred.
(d) Any other person known to the personal representative to
have or to claim an interest in the estate being distributed.
(2) The notice need not be mailed to the personal
representative.
(3) Proof of the mailing to those persons entitled to notice
shall be made by affidavit and filed in the estate proceeding at
or before approval of the final account.
(4) If the Department of Human Services has presented a claim
under ORS chapters 411 to 415 and ORS 416.310 to 416.340 and
416.510 to 416.990 or 417.010 to 417.080, or the Department of
Corrections or the authorized agent of the Department of
Corrections has presented a claim under ORS 179.620 (3), and the
claim has not been settled or paid in full, the personal
representative shall mail to the appropriate department a copy of
the final account at the same time, and shall make proof of the
mailing in the same manner, as the notice provided for in this
section.
SECTION 377. ORS 116.113 is amended to read:
116.113. (1) If no objections to the final account and petition
for distribution are filed, or if objections are filed, upon the
hearing, the court shall give { - its decree - } { + a
judgment + } of final distribution. In { - its decree - } { +
the judgment + } the court shall designate the persons in whom
title to the estate available for distribution is vested and the
portion of the estate or property to which each is entitled under
the will, by agreement approved by the court or pursuant to
intestate succession. The { - decree - } { + judgment + }
shall also contain any findings of the court in respect to:
(a) Advancements.
(b) Election against will by the surviving spouse.
(c) Renunciation.
(d) Lapse.
(e) Adjudicated controversies.
(f) Partial distribution, which shall be confirmed or modified.
(g) Retainer.
(h) Claims for which a special fund is set aside, and the
amount set aside.
(i) Contingent claims that have been allowed and are still
unpaid.
(j) Approval of the final account in whole or in part.
(2) The personal representative is not entitled to approval of
the final account until Oregon income and personal property
taxes, if any, have been paid and appropriate receipts and
clearances therefor have been filed, or until payment of those
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taxes has been secured by bond, deposit or otherwise, provided,
however, that no such receipts or clearances shall be required
with regard to damages accepted upon settlement of a claim or
recovered on a judgment in an action for wrongful death as
provided in ORS 30.010 to 30.100.
(3) If, by agreement approved by the court, property is
distributed to persons in whom title is vested by the
{ - decree - } { + judgment + } of final distribution
otherwise than as provided by the will or pursuant to intestate
succession, the { - decree - } { + judgment + } operates as a
transfer of the property between those persons.
(4) The { - decree - } { + judgment + } of final
distribution is a conclusive determination of the persons who are
the successors in interest to the estate and of the extent and
character of their interest therein, subject only to the right of
appeal and the power of the court to vacate the { - decree - }
{ + judgment + }.
SECTION 378. ORS 116.203 is amended to read:
116.203. If a report filed in the estate proceeding by the
personal representative not less than 30 days after the date of
entry of the { - decree - } { + judgment + } of distribution
shows that payment or delivery of property in the possession of
the personal representative or under the control of the personal
representative cannot be made to a distributee entitled thereto,
either because the distributee refuses to accept the property or
because the distributee cannot be found, the court may direct the
personal representative to pay or deliver the property to the
Division of State Lands, to be placed in the escheat funds of the
state. The personal representative shall take the receipt of the
Division of State Lands stating from whom the property was
received, a description of the property and the name of the
person entitled to the property. The person entitled thereto may
apply for and recover the property in the manner provided for
recovery of escheat funds.
SECTION 379. ORS 116.213 is amended to read:
116.213. Upon the filing of receipts or other evidence
satisfactory to the court that distribution has been made as
ordered in the { - final decree - } { + general judgment + },
the court shall enter { - an order - } { + a supplemental
judgment + } of discharge. Except as provided in ORS 115.004, the
discharge so entered operates as a release of the personal
representative from further duties and as a bar to any action
against the personal representative and the surety of the
personal representative. The court may, in its discretion and
upon such terms as may be just, within one year after entry of
the { - order - } { + supplemental judgment + } of discharge,
permit an action to be brought against the personal
representative and the surety of the personal representative if
the { - order - } { + supplemental judgment + } of discharge
was taken through fraud or misrepresentation of the personal
representative or the surety of the personal representative or
through the mistake, inadvertence, surprise or excusable neglect
of the claimant.
SECTION 380. ORS 116.253 is amended to read:
116.253. (1) Within 10 years after the entry of a
{ - decree - } { + judgment + } of final distribution
designating title to an estate available for distribution in the
Division of State Lands or an order of escheat to the state, a
claim may be made for the property escheated, or the proceeds
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thereof, by or on behalf of a person not having actual knowledge
of the { - decree - } { + judgment + } or order.
(2) The claim shall be made by a petition filed with the
Director of the Division of State Lands. The claim is considered
a contested case as provided in ORS 183.310 and there is the
right of judicial review as provided in ORS 183.480. The petition
shall be verified in the same manner as a complaint and shall
state:
(a) The age and place of residence of the claimant by whom or
on whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof;
(d) That the claimant claims the property or proceeds as an
heir or as the personal representative of the estate of an heir,
setting forth the relationship of the decedent who at the time of
death was the owner;
(e) That 10 years have not elapsed since the entry of the
{ - decree - } { + judgment + } or order escheating the
property to the state; and
(f) If the petition is not filed by the claimant, the status of
the petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the Director of the Division of
State Lands shall deliver the property to the petitioner, subject
to and charged with the inheritance tax thereon, if any, and the
costs and expenses of the state in connection therewith.
(4) If the person whose property escheated or reverted to the
state was at any time an inmate of a state institution in Oregon
for the mentally ill or mentally deficient, the reasonable unpaid
cost, as determined by the Department of Human Services, of the
care and maintenance of the person while a ward of the
institution, regardless of when the cost was incurred, may be
deducted from, or, if necessary, be offset in full against, the
amount of the escheated property.
SECTION 380a. { + If Senate Bill 64 becomes law, section 380
of this 2003 Act (amending ORS 116.253) is repealed and ORS
116.253, as amended by section 18, chapter 395, Oregon Laws 2003
(Enrolled Senate Bill 64), is amended to read: + }
116.253. (1) Within 10 years after the death of a decedent
whose estate escheated in whole or in part to the state, or
within eight years after the entry of a { - decree - } { +
judgment + } or order escheating property of an estate to the
state, a claim may be made for the property escheated, or the
proceeds thereof, by or on behalf of a person not having actual
knowledge of the escheat or by or on behalf of a person who at
the time of the escheat was unable to prove entitlement to the
escheated property.
(2) The claim shall be made by a petition filed with the
Director of the Division of State Lands. The claim is considered
a contested case as provided in ORS 183.310 and there is the
right of judicial review as provided in ORS 183.480. The petition
shall be verified in the same manner as a petition in probate and
shall state:
(a) The age and place of residence of the claimant by whom or
on whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
Enrolled House Bill 2646 (HB 2646-B) Page 278
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof or was unable to
prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement;
(d) That the claimant claims the property or proceeds as an
heir or devisee or as the personal representative of the estate
of an heir or devisee, setting forth the relationship, if any, of
the claimant to the decedent who at the time of death was the
owner;
(e) That 10 years have not elapsed since the death of the
decedent, or that eight years have not elapsed since the entry of
the { - decree - } { + judgment + } or order escheating the
property to the state; and
(f) If the petition is not filed by the claimant, the status of
the petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the Director of the Division of
State Lands shall deliver the property to the petitioner, subject
to and charged with any tax on the property and the costs and
expenses of the state in connection therewith.
(4) If the person whose property escheated or reverted to the
state was at any time an inmate of a state institution in Oregon
for the mentally ill or mentally deficient, the reasonable unpaid
cost, as determined by the Department of Human Services, of the
care and maintenance of the person while a ward of the
institution, regardless of when the cost was incurred, may be
deducted from, or, if necessary, be offset in full against, the
amount of the escheated property.
(5) For the purposes of this section, the death of the decedent
is presumed to have occurred on the date shown in the decedent's
death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency
of the federal government.
SECTION 381. ORS 118.350 is amended to read:
118.350. (1) Whenever an estate, devise, legacy or beneficial
interest therein, charged or sought to be charged with the
inheritance tax is of such nature or is so disposed that the
liability of the same is doubtful, or the value thereof cannot
with reasonable certainty be ascertained under the provisions of
law, the Department of Revenue may compromise with the
beneficiaries or representatives of such estate, and compound the
tax thereon. The payment of the amount of the taxes so agreed
upon shall discharge the lien against the property of the estate.
(2) In any suit or action involving the title to real property,
in which it appears, by the pleadings or otherwise, that an
inheritance tax is or might be payable to the State of Oregon by
reason of the death of any person whose estate has not been
administered in Oregon, the circuit court shall direct that a
copy of the pleadings in such cause be served upon the Department
of Revenue, such service to be made as summons is served in any
cause in the circuit court of this state. Thereupon further
proceedings in the cause shall be suspended until the department
has had an opportunity to appear therein, such appearance to be
made within the time that is required by the service of summons
upon a private person or corporation. The department shall appear
in the cause and present the claims of the state, if any, to an
inheritance tax, and it is the duty of the Attorney General of
the state to represent the state and the department in such
proceedings, and the department may compromise and compound the
tax claimed to be due upon the passing of such real property.
Enrolled House Bill 2646 (HB 2646-B) Page 279
Such settlement and compromise shall be entered of record in the
register of such court. Thereafter the payment of the amount of
taxes so agreed upon shall discharge the inheritance tax lien
against the property. If a compromise is not effected, the amount
of tax, if any, due upon the passing of the real property shall
be determined by the court as are other questions involved in
such litigation, and subject to the same right of appeal to the
Court of Appeals. The { - decree - } { + judgment + } of the
court or of the Court of Appeals, if there is an appeal, is
conclusive as to the amount of taxes due upon the passing of the
real property and payment thereof shall discharge the lien
against the property.
SECTION 382. ORS 118.830 is amended to read:
118.830. The proof required by ORS 118.820 may be in the form
of a certificate issued by the official or body charged with the
administration of the death tax laws of the domiciliary state but
if such proof is not filed within the time limit set out in ORS
118.820, the clerk of the court forthwith shall notify by mail
the official or body of the domiciliary state charged with the
administration of the death tax laws thereof with respect to such
estate, and shall state in such notice as far as is known to the
clerk, the name, date of death and last domicile of such
decedent; the name and address of each executor or administrator;
a summary of the values of the real estate, tangible personalty
and intangible personalty, wherever situated, belonging to such
decedent at the time of death; and the fact that such executor or
administrator has not filed theretofore the proof required in ORS
118.820. The clerk shall attach to such notice a plain copy of
the will and codicils of such decedent, if the decedent died
testate, or if the decedent died intestate, a list of heirs and
next of kin of the decedent, so far as is known to such clerk.
Within 60 days after the mailing of such notice, the official or
body charged with the administration of the death tax laws of the
domiciliary state may file with the court in this state a
petition for an accounting in such estate. Such official or body
of the domiciliary state shall be deemed a party interested for
the purpose of petitioning the court for such accounting. If such
petition is filed within the period of 60 days, the court shall
{ - decree such - } { + order the + } accounting, and upon
the accounting being filed and approved shall { - decree - }
{ + enter a judgment requiring + }the remission to the
fiduciary appointed by the domiciliary probate court of the
balance of the intangible personalty after the payment of
creditors and expenses of administration in this state.
SECTION 383. ORS 128.001 is amended to read:
128.001. (1) Except as provided in this section, a person may
not accept anything of value in exchange for the preparation of a
trust.
(2) Subsection (1) of this section does not apply to an
attorney who charges and accepts a fee for the preparation of a
trust for a client in the course of representing that client.
(3) Subsection (1) of this section does not apply to any trust
company or financial institution as defined in ORS chapter 706.
(4) Subsection (1) of this section does not apply to a
resulting or constructive trust, a business trust that provides
for certificates to be issued to the beneficiary, an investment
trust, a voting trust, a security instrument, a trust created by
the judgment { - or decree - } of a court, a liquidation
trust, a trust for the primary purpose of paying dividends,
interests, interest coupons, salaries, wages, pensions, profits
Enrolled House Bill 2646 (HB 2646-B) Page 280
or employee benefits of any kind, an instrument in which a person
is nominee or escrowee for another person or a trust created in
deposits in any financial institution.
(5) Nothing in this section authorizes any person to engage in
the practice of law in violation of ORS 9.160.
SECTION 384. ORS 128.005 is amended to read:
128.005. As used in ORS 128.003 to 128.051 and 128.065:
(1) 'Trust' means an express trust created by a trust
instrument, including a will, whereby a trustee has the duty to
administer a trust asset for the benefit of a named or otherwise
described income or principal beneficiary, or both; 'trust' does
not include a resulting or constructive trust, a business trust
which provides for certificates to be issued to the beneficiary,
an investment trust, a voting trust, a security instrument, a
trust created by the judgment { - or decree - } of a court, a
liquidation trust, or a trust for the primary purpose of paying
dividends, interests, interest coupons, salaries, wages, pensions
or profits, or employee benefits of any kind, an instrument
wherein a person is nominee or escrowee for another, a trust
created in deposits in any financial institution, or other trust
the nature of which does not admit of general trust
administration.
(2) 'Trustee' means an original, added, or successor trustee
and includes the state, or any agency thereof, when it is acting
as the trustee of a trust as defined in this section.
SECTION 385. ORS 128.720 is amended to read:
128.720. Every person who offers for probate any instrument
which establishes a testamentary trust of property for charitable
purposes or who records in any county any inter vivos transfer of
property for charitable purposes shall furnish a copy of such
document to the Attorney General. Upon filing the final account
and petition for { - decree - } { + a judgment + } of
distribution of any estate through which a residuary testamentary
trust for charitable purposes is established, the personal
representative shall mail a copy thereof, and a copy of the
notice fixing the time for filing objections thereto, to the
Attorney General not less than 20 days before the time fixed in
the notice. The custodian of the records of a court having
jurisdiction of probate matters or of charitable trusts shall
furnish such copies of papers, records and files of the office of
the custodian relating to the subject of ORS 128.610 to 128.750
as the Attorney General requires.
{ + NOTE: + } Section 386 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 387. Section 14, chapter 666, Oregon Laws 2001, is
amended to read:
{ + Sec. 14. + } (1) If no financial institution has filed
the affidavit described in section 11 (1) { + , chapter 666,
Oregon Laws 2001, + } { - of this 2001 Act, - } and if the
court has failed to uphold the claim or affidavit of any other
person claiming an interest in the property, the effect of the
judgment is that:
(a) Title to the property passes to the seizing agency free of
any interest or encumbrance thereon in favor of any person who
has been given notice;
(b) The seizing agency may transfer good and sufficient title
to any subsequent purchaser or transferee, and all courts, the
state and the departments and agencies of this state, and any
political subdivision shall recognize the title. In the case of
real property, the seizing agency shall warrant the title against
Enrolled House Bill 2646 (HB 2646-B) Page 281
constitutional defect. A warranty under this paragraph is limited
to the purchase price of the real property; and
(c) Any department, agency or officer of this state or any
political subdivision whose official functions include the
issuance of certificates or other evidence of title is immune
from civil or criminal liability when such issuance is pursuant
to a judgment of criminal forfeiture.
(2) If an affidavit is filed by a financial institution under
section 11 (1) { + , chapter 666, Oregon Laws 2001, + } { - of
this 2001 Act, - } or if a person files an affidavit under
section 11 (2) { + , chapter 666, Oregon Laws 2001 + } { - of
this 2001 Act - } :
(a) The court shall foreclose all security interests, liens and
vendor's interests of financial institutions and claimants as to
which the court determines that there is a legal or equitable
basis for foreclosure; and
(b) All other interests applicable to the property that are not
foreclosed or otherwise eliminated through a judgment { - and
decree - } of foreclosure, if and to the extent that they are
valid and subsisting, remain in effect and the property remains
subject to them upon completion of the criminal forfeiture
proceeding.
(3) Notwithstanding any other provision of law, if a financial
institution or other person has filed an affidavit described in
section 11 { + , chapter 666, Oregon Laws 2001, + } { - of this
2001 Act, - } or if the court has upheld the claim of any
claimant, then as to each item of property seized:
(a) If the court has determined that the property should not be
forfeited and has not foreclosed the security interests, liens or
other interests covering the property, the court shall render
judgment in favor of the owner of the property, the property must
be returned to the owner and all security interests, liens and
other interests applicable to the property remain in effect as
though the property had never been seized. Upon the return of the
property to the owner, the seizing agency shall pay all costs and
expenses relating to towing and storage of the property and shall
cause to be discharged any possessory chattel liens on the
property arising under ORS 87.152 to 87.162 that have attached to
the property since the seizure.
(b) If the court has determined that the property should not be
forfeited and has foreclosed one or more interests covering the
property, including security interests or liens covering the
property or contracts for the transfer or conveyance of the
property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure, and the court shall order the
property sold pursuant to a sheriff's sale or other sale
authorized by the court within such time as may be prescribed by
the court following entry of the judgment. If any interests
covering the property have not been foreclosed, including any
liens or security interests of a claimant whose claim has been
upheld, or of a financial institution that has filed the
affidavit described in section 11 { + , chapter 666, Oregon Laws
2001, + } { - of this 2001 Act, - } the property must be sold
subject to those interests. The judgment shall order the proceeds
of the sale applied in the following order:
(A) To the payment of the costs of the sale;
Enrolled House Bill 2646 (HB 2646-B) Page 282
(B) To the satisfaction of the foreclosed liens, security
interests and contracts in order of their priority; and
(C) The excess, if any, to the owner of the property.
(c) If the court has determined that the property should be
forfeited and has foreclosed one or more security interests,
liens, contracts or other interests covering the property, the
seizing agency shall pay all costs and expenses relating to
towing and storage of the property and shall cause to be
discharged any possessory chattel liens on the property arising
under ORS 87.152 to 87.162 that have attached to the property
since the seizure, and the court shall order the property sold
pursuant to a sheriff's sale or other sale authorized by the
court. If any interest in the property was claimed by a financial
institution or other claimant and the interest was upheld but not
foreclosed, the property must be sold subject to the interest.
The sale of the property must be held within such time as may be
prescribed by the court following entry of the judgment. The
judgment shall also order the proceeds of such sale applied in
the following order:
(A) To the payment of the costs of the sale;
(B) To the satisfaction of the foreclosed liens, security
interests and contracts in the order of their priority; and
(C) The excess, if any, to the seizing agency to be disposed of
as provided in section 16 or 17 { + , chapter 666, Oregon Laws
2001 + }
{ - of this 2001 Act - } .
(d) If the court has determined that the property should be
forfeited and has not foreclosed the interests of any party in
the property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure. The court shall enter a judgment
awarding the property to the seizing agency, subject to the
interests of any claimants whose claims or affidavits were upheld
by the court, and subject to the interests of any financial
institutions that filed affidavits under section 11 (1) { + ,
chapter 666, Oregon Laws 2001, + }
{ - of this 2001 Act - } that remain in full force and effect.
(4) The court may include in the judgment of criminal
forfeiture an order that directs the seizing agency to distribute
to the victim of the crime of conviction a portion of any
proceeds from property received by the seizing agency if:
(a) The crime of conviction was a person felony or person Class
A misdemeanor as those terms are defined by rule of the Oregon
Criminal Justice Commission; and
(b) The court included an order of restitution in the criminal
judgment.
(5) The seizing agency is not liable to any person as a
consequence of obedience to a judgment directing conveyance to a
financial institution.
(6) The forfeiture counsel shall send a copy of the judgment to
the Asset Forfeiture Oversight Advisory Committee.
(7)(a) On entry of judgment for a claimant in any proceeding to
forfeit property under sections 1 to 18 { + , chapter 666, Oregon
Laws 2001, + } { - of this 2001 Act, - } unless the court has
foreclosed one or more security interests, liens or other
interests covering the property, the property or interest in
property must be returned or conveyed immediately to the claimant
designated by the court.
Enrolled House Bill 2646 (HB 2646-B) Page 283
(b) If it appears that there was reasonable suspicion that the
property was subject to criminal forfeiture, the court shall
cause a finding to be entered and no claimant or financial
institution is entitled to damages nor is the person who made the
seizure, the seizing agency or forfeiture counsel liable to suit
or judgment on account of the seizure or action. An order
directing seizure issued under section 5 { + , chapter 666,
Oregon Laws 2001, + } { - of this 2001 Act - } constitutes a
finding of reasonable suspicion that the property was subject to
criminal forfeiture.
(8) Nothing in this section prevents a claimant or financial
institution from obtaining any deficiency to which the claimant
or financial institution would otherwise be entitled.
(9) Nothing in this section or in section 6 { + , chapter 666,
Oregon Laws 2001, + } { - of this 2001 Act - } prevents a
seizing agency from entering into an agreement with a claimant or
other person for the reimbursement of the seizing agency for the
costs and expenses relating to towing and storage of property or
the cost of discharging any possessory chattel lien on the
property arising under ORS 87.152 to 87.162 that attached to the
property in the period between the seizure of the property and
the release or criminal forfeiture of the property.
SECTION 388. ORS 137.010 is amended to read:
137.010. (1) The statutes that define offenses impose a duty
upon the court having jurisdiction to pass sentence in accordance
with this section or, for felonies committed on or after November
1, 1989, in accordance with rules of the Oregon Criminal Justice
Commission unless otherwise specifically provided by law.
(2) If it cannot be determined whether the felony was committed
on or after November 1, 1989, the defendant shall be sentenced as
if the felony had been committed prior to November 1, 1989.
(3) Except when a person is convicted of a felony committed on
or after November 1, 1989, if the court is of the opinion that it
is in the best interests of the public as well as of the
defendant, the court may suspend the imposition or execution of
any part of a sentence for any period of not more than five
years. The court may extend the period of suspension beyond five
years in accordance with subsection (4) of this section.
(4) If the court suspends the imposition or execution of a part
of a sentence for an offense other than a felony committed on or
after November 1, 1989, the court may also impose and execute a
sentence of probation on the defendant for a definite or
indefinite period of not more than five years. However, upon a
later finding that a defendant sentenced to probation for a
felony has violated a condition of the probation and in lieu of
revocation, the court may order the period of both the suspended
sentence and the sentence of probation extended until a date not
more than six years from the date of original imposition of
sentence. Time during which the probationer has absconded from
supervision and a bench warrant has been issued for the
probationer's arrest shall not be counted in determining the time
elapsed since imposition of the sentence of probation.
(5) If the court announces that it intends to suspend
imposition or execution of any part of a sentence, the defendant
may, at that time, object and request imposition of the full
sentence. In no case, however, does the defendant have a right to
refuse the court's order, and the court may suspend imposition or
execution of a part of the sentence despite the defendant's
objection or request. If the court further announces that it
intends to sentence the defendant to a period of probation, the
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defendant may, at that time, object and request that a sentence
of probation or its conditions not be imposed or that different
conditions be imposed. In no case, however, does the defendant
have the right to refuse a sentence of probation or any of the
conditions of the probation, and the court may sentence the
defendant to probation subject to conditions despite the
defendant's objection or request.
(6) The power of the judge of any court to suspend execution of
any part of a sentence or to sentence any person convicted of a
crime to probation shall continue until the person is delivered
to the custody of the Department of Corrections.
(7) When a person is convicted of an offense and the court does
not suspend the imposition or execution of any part of a sentence
or when a suspended sentence or sentence of probation is revoked,
the court shall impose the following sentence:
(a) A term of imprisonment;
(b) A fine;
(c) Both imprisonment and a fine; or
(d) Discharge of the defendant.
(8) This section does not deprive the court of any authority
conferred by law to { - decree a - } { + enter a judgment for
the + }forfeiture of property, suspend or cancel a license,
remove a person from office or impose any other civil penalty. An
order exercising that authority may be included as part of the
judgment of conviction.
(9) When imposing sentence for a felony committed on or after
November 1, 1989, the court shall complete a sentencing report
form as established under section 7, chapter 790, Oregon Laws
1989. The completed form shall be submitted to the Oregon
Criminal Justice Commission forthwith.
(10) A judgment of conviction that includes a term of
imprisonment for a felony committed on or after November 1, 1989,
shall state the length of incarceration and the length of
post-prison supervision. The judgment of conviction shall also
provide that if the defendant violates the conditions of
post-prison supervision, the defendant shall be subject to
sanctions including the possibility of additional imprisonment in
accordance with rules of the Oregon Criminal Justice Commission.
SECTION 389. ORS 147.355 is amended to read:
147.355. (1) The state has a claim for the amount of
compensation paid under ORS 135.905 and 147.005 to 147.365 upon
all claims, demand or causes of action against an assailant to
recover for the injuries or death of a victim which were the
basis for an award.
(2) At the time an award is paid under ORS 135.905 and 147.005
to 147.365 the Department of Justice shall give written notice of
this claim to the applicant and all other recipients of the
award. The claim attaches to any verdict { - , - } { + or + }
judgment { - or decree - } entered and to any money or
property which is recovered on account of the claim, demand,
cause of action or suit against the assailant after notice is
given.
(3) On petition filed by the department on behalf of the state
or by the applicant or other recipient of an award, the Circuit
Court for Marion County, on written notice to all interested
parties, shall adjudicate the rights of the parties and enforce
the claim.
SECTION 390. ORS 166.725 is amended to read:
166.725. (1) Any circuit court may, after making due provision
for the rights of innocent persons, enjoin violations of the
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provisions of ORS 166.720 (1) to (4) by issuing appropriate
orders and judgments, including, but not limited to:
(a) Ordering a divestiture by the defendant of any interest in
any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities
or investments of any defendant, including, but not limited to,
prohibiting any defendant from engaging in the same type of
endeavor as the enterprise in which the defendant was engaged in
violation of the provisions of ORS 166.720 (1) to (4).
(c) Ordering the dissolution or reorganization of any
enterprise.
(d) Ordering the suspension or revocation of a license, permit
or prior approval granted to any enterprise by any agency of the
state.
(e) Ordering the forfeiture of the charter of a corporation
organized under the laws of this state, or the revocation of a
certificate of authority authorizing a foreign corporation to
conduct business within this state, upon finding that the board
of directors or a managerial agent acting on behalf of the
corporation, in conducting the affairs of the corporation, has
authorized or engaged in conduct in violation of ORS 166.720 (1)
to (4) and that, for the prevention of future criminal activity,
the public interest requires the charter of the corporation
forfeited and the corporation dissolved or the certificate of
authority revoked.
(2) All property, real or personal, including money, used in
the course of, derived from or realized through conduct in
violation of a provision of ORS 166.715 to 166.735 is subject to
civil forfeiture to the state. The state shall dispose of all
forfeited property as soon as commercially feasible. If property
is not exercisable or transferable for value by the state, it
shall expire. All forfeitures or dispositions under this section
shall be made with due provision for the rights of innocent
persons. Forfeited property shall be distributed as follows:
(a)(A) All moneys and the clear proceeds of all other property
forfeited shall be deposited with the State Treasurer to the
credit of the Common School Fund.
(B) For purposes of subparagraph (A) of this paragraph, ' clear
proceeds' means proceeds of forfeited property less costs of
maintaining and preserving property pending its sale or other
disposition, less costs of sale or disposition and, if the
Department of Justice has not otherwise recovered its costs and
expenses of the investigation and prosecution leading to the
forfeiture, less 30 percent of the remaining proceeds of the
property which is awarded to the department as reasonable
reimbursement for costs of such investigation and prosecution.
(b) Any amounts awarded to the Department of Justice pursuant
to paragraph (a) of this subsection shall be deposited in the
Criminal Justice Revolving Account in the State Treasury.
(3) Property subject to forfeiture under this section may be
seized by a police officer, as defined in ORS 133.525 (2), upon
court process. Seizure without process may be made if:
(a) The seizure is incident to a lawful arrest or search or an
inspection under an administrative inspection warrant; or
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
based upon this section.
(4) In the event of a seizure under subsection (3) of this
section, a forfeiture proceeding shall be instituted promptly.
Property taken or detained under this section shall not be
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subject to replevin, but is deemed to be in the custody of the
police officer making the seizure, subject only to the order of
the court. When property is seized under this section, pending
forfeiture and final disposition, the police officer may:
(a) Place the property under seal;
(b) Remove the property to a place designated by the court; or
(c) Require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(5) The Attorney General, any district attorney or any state
agency having jurisdiction over conduct in violation of a
provision of ORS 166.715 to 166.735 may institute civil
proceedings under this section. In any action brought under this
section, the circuit court shall give priority to the hearing and
determination. Pending final determination, the circuit court may
at any time enter such injunctions, prohibitions or restraining
orders, or take such actions, including the acceptance of
satisfactory performance bonds, as the court may deem proper. The
Attorney General, district attorney or state agency bringing an
action under this section may be awarded, upon entry of a
{ - final judgment or decree - } { + judgment + } in favor of
the state, costs of investigation and litigation, reasonably
incurred. Amounts recovered may include costs and expenses of
state and local governmental departments and agencies incurred in
connection with the investigation or litigation.
(6)(a) Any aggrieved person may institute a proceeding under
subsection (1) of this section:
(A) If the proceeding is based upon racketeering activity for
which a criminal conviction has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; or
(B) If the person is entitled to pursue a cause of action under
subsection (7)(a)(B) of this section.
(b) In such proceeding, relief shall be granted in conformity
with the principles that govern the granting of injunctive relief
from threatened loss or damage in other civil cases, except that
no showing of special or irreparable damage to the person shall
have to be made. Upon the execution of proper bond against
damages for an injunction improvidently granted and a showing of
immediate danger of significant loss or damage, a temporary
restraining order and a preliminary injunction may be issued in
any such action before a final determination on the merits.
(7)(a) Any person who is injured by reason of any violation of
the provisions of ORS 166.720 (1) to (4) shall have a cause of
action for three-fold the actual damages sustained and, when
appropriate, punitive damages:
(A) If a criminal conviction for the racketeering activity that
is the basis of the violation has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; or
(B) If the violation is based on racketeering activity as
defined in ORS 166.715 (6)(a)(B) to (J), (K) as it relates to
burglary and criminal trespass, (L) to (P), (S), (T) except for
claims arising under ORS 167.087, (U), (V), (X) to (Z), (AA) to
(DD), (KK), (LL) or (OO) to (VV).
(b) The defendant or any injured person may demand a trial by
jury in any civil action brought pursuant to this subsection.
(c) Any injured person shall have a right or claim to forfeited
property or to the proceeds derived therefrom superior to any
right or claim the state has in the same property or proceeds.
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(8) An investigative agency may bring an action for civil
penalties for any violation of ORS 166.720 (1) to (4). Upon proof
of any such violation, the court shall impose a civil penalty of
not more than $250,000.
(9) A { - final judgment or decree - } { + judgment + }
rendered in favor of the state in any criminal proceeding under
ORS 166.715 to 166.735 shall estop the defendant in any
subsequent civil action or proceeding brought by the state or any
other person as to all matters as to which such judgment { - or
decree - } would be an estoppel as between the state and the
defendant.
(10) The Attorney General may, upon timely application,
intervene in any civil action or proceeding brought under
subsection (6) or (7) of this section if the Attorney General
certifies that, in the opinion of the Attorney General, the
action or proceeding is of general public importance. In such
action or proceeding, the state shall be entitled to the same
relief as if the Attorney General instituted the action or
proceeding.
(11)(a) Notwithstanding any other provision of law, a criminal
or civil action or proceeding under ORS 166.715 to 166.735 may be
commenced at any time within five years after the conduct in
violation of a provision of ORS 166.715 to 166.735 terminates or
the cause of action accrues. If a criminal prosecution or civil
action or other proceeding is brought, or intervened in, to
punish, prevent or restrain any violation of the provisions of
ORS 166.715 to 166.735, the running of the period of limitations
prescribed by this section with respect to any cause of action
arising under subsection (6) or (7) of this section which is
based in whole or in part upon any matter complained of in any
such prosecution, action or proceeding shall be suspended during
the pendency of such prosecution, action or proceeding and for
two years following its termination.
(b) A cause of action arising under subsection (6)(a)(A) or
(7)(a)(A) of this section accrues when the criminal conviction
for the underlying activity is obtained. In addition to any
suspension of the running of the period of limitations provided
for in paragraph (a) of this subsection, the period of
limitations prescribed by paragraph (a) of this subsection is
suspended during any appeal from the criminal conviction for the
underlying activity.
(12) The application of one civil remedy under any provision of
ORS 166.715 to 166.735 shall not preclude the application of any
other remedy, civil or criminal, under ORS 166.715 to 166.735 or
any other provision of law. Civil remedies under ORS 166.715 to
166.735 are supplemental and not mutually exclusive.
(13) Notwithstanding subsection (6) or (7) of this section, a
person may not institute a proceeding under subsection (6) of
this section and does not have a cause of action under subsection
(7) of this section if the conduct that is the basis of the
proceeding or action could also be the basis of a claim of
discrimination because of sex that constitutes sexual harassment.
(14) In an action brought under the provisions of this section
by a person other than the Attorney General, a district attorney
or a state agency, the court may award reasonable attorney fees
to the prevailing party. In a civil action brought under the
provisions of this section by the Attorney General, a district
attorney or a state agency:
(a) The court may award reasonable attorney fees to the
Attorney General, district attorney or state agency if the
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Attorney General, district attorney or state agency prevails in
the action; and
(b) The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court
determines that the Attorney General, district attorney or state
agency had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court.
SECTION 391. ORS 167.162 is amended to read:
167.162. (1) A gambling device is a public nuisance. Any peace
officer shall summarily seize any such device that the peace
officer finds and deliver it to the custody of the sheriff, who
shall hold it subject to the order of the court having
jurisdiction.
(2) Whenever it appears to the court that the gambling device
has been possessed in violation of ORS 167.147, the court shall
adjudge forfeiture thereof and shall order the sheriff to destroy
the device and to deliver any coins taken therefrom to the county
treasurer, who shall deposit them to the general fund of the
county. However, when the defense provided by ORS 167.147 (3) is
raised by the defendant, the gambling device or slot machine
shall not be forfeited or destroyed until after a final judicial
determination that the defense is not applicable. If the defense
is applicable, the gambling device or slot machine shall be
returned to its owner.
(3) The seizure of the gambling device or operating part
thereof constitutes sufficient notice to the owner or person in
possession thereof. The sheriff shall make return to the court
showing that the sheriff has complied with the order.
(4) Whenever, in any proceeding in court for the forfeiture of
any gambling device except a slot machine seized for a violation
of ORS 167.147, and { - such - } { + a judgment for + }
forfeiture is
{ - decreed - } { + entered + }, the court shall have
exclusive jurisdiction to remit or mitigate the forfeiture.
(5) In any such proceeding the court shall not allow the claim
of any claimant for remission or mitigation unless and until the
claimant proves that the claimant:
(a) Has an interest in the gambling device, as owner or
otherwise, which the claimant acquired in good faith.
(b) At no time had any knowledge or reason to believe that it
was being or would be used in violation of law relating to
gambling.
(6) In any proceeding in court for the forfeiture of any
gambling device except a slot machine seized for a violation of
law relating to gambling, the court may in its discretion order
delivery thereof to any claimant who shall establish the right to
the immediate possession thereof, and shall execute, with one or
more sureties, or by a surety company, approved by the court, and
deliver to the court, a bond in such sum as the court shall
determine, running to the State of Oregon, and conditioned to
return such gambling device at the time of trial, and conditioned
further that, if the gambling device be not returned at the time
of trial, the bond may in the discretion of the court stand in
lieu of and be forfeited in the same manner as such gambling
device.
SECTION 392. ORS 169.340 is amended to read:
169.340. (1) A sheriff who suffers the escape of a prisoner,
arrested or in a local correctional facility, without the consent
or connivance of the party on whose behalf the arrest or
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imprisonment was made, is liable to an action by such party, as
follows:
(a) When the arrest is upon an order of arrest in a civil
action, suit or proceeding; when the presence of the defendant at
the return of the summons is necessary to enable the plaintiff to
proceed therein, and the defendant does not appear at the time
and place specified in the summons.
(b) When the arrest or imprisonment is upon an order of arrest
in any other civil action, suit or proceeding, or upon a
surrender in exoneration of the sheriff or security release, and
the defendant is not found upon an execution against the person
of the defendant issued to the proper county on a judgment
{ - or decree - } in such action, suit, or proceeding.
(c) When the arrest is on an execution or commitment to enforce
the payment of money, and the party interested is not recaptured
or surrendered into custody at the expiration of the time limited
for the service thereof, or legally discharged therefrom.
(d) When a person is imprisoned on an execution or commitment
to enforce the payment of money, and the person escapes after the
time limited for the service, and is not recaptured or
surrendered before an action is commenced for the escape.
(2) The measure of damages in an action brought under
subsection (1) of this section, is as follows:
(a) For the escape mentioned in subsection (1)(a) of this
section, the actual damages sustained.
(b) In any other case, the amount expressed in the execution or
commitment.
SECTION 393. ORS 180.380 is amended to read:
180.380. (1) In addition to its other duties, powers and
functions, the Division of Child Support may use its facilities
and sources of information to search for any child or absent
parent for the purpose of enforcing any state or federal law
regarding the unlawful taking or restraint of a child or for the
purpose of making or enforcing a child custody determination.
(2) Only information concerning the most recent address and
place of employment of such child or parent may be provided, and
then only to authorized persons as defined in subsection (3) of
this section.
(3) As used in ORS 180.320 and this section:
(a) 'Authorized person' means:
(A) Any agent or attorney of any state who has the duty or
authority under the law of such state to enforce a child custody
determination;
(B) Any court having jurisdiction to make or enforce such a
child custody determination, or any agent of such court;
(C) Any agent or attorney of the United States or of a state
who has the duty or authority to investigate, enforce or bring a
prosecution with respect to the unlawful taking or restraint of a
child; and
(D) A state agency responsible for administering an approved
child welfare plan or an approved foster care and adoption
assistance plan.
(b) 'Custody determination' means a judgment { - , decree - }
or other order of a court providing for the custody of, parenting
time with or visitation with a child, and includes permanent and
temporary orders, and initial orders and modifications.
SECTION 394. ORS 183.500 is amended to read:
183.500. Any party to the proceedings before the circuit court
may appeal from the { - decree - } { + judgment + } of that
court to the Court of Appeals. Such appeal shall be taken in the
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manner provided by law for appeals from the circuit court in
suits in equity.
SECTION 395. ORS 206.110 is amended to read:
206.110. (1) The former sheriff shall return all process,
whether before or after judgment { - or decree - } , which the
former sheriff has fully executed, and the new sheriff and the
successor in office shall complete the execution of all final
process which the predecessor commenced and did not complete.
(2) In all cases where real property is sold under execution by
any sheriff, and the sheriff fails or neglects during the term of
office of the sheriff, by virtue of the expiration thereof, or
otherwise, to make or execute a proper sheriff's deed conveying
the property to the purchaser, or if through mistake in its
execution, or otherwise, any sheriff's deed is inoperative, or if
by reason of the loss of an unrecorded sheriff's deed, the
purchaser, the heirs or assigns or successors in interest of the
purchaser desire the execution of another sheriff's deed, the
sheriff in office at any time after the purchaser is entitled to
a deed shall execute such conveyance. When executed to cure or
replace a defective or lost deed such conveyance shall be to the
grantee in the defective or lost deed, but shall relate back and
be deemed to take effect as of the date of the execution of the
defective or lost deed so as to inure to the benefit of the heirs
and assigns, or other successors in interest, of the grantee
named therein. Such conveyance so executed by the sheriff in
office shall have the same force and effect as if executed by the
sheriff who made the sale.
SECTION 396. ORS 221.785 is amended to read:
221.785. (1) Notwithstanding ORS 221.770, 323.455, 366.785 to
366.820 and 471.810, when a proceeding challenging the validity
of the incorporation of a city is commenced before a court or
administrative agency of this state within two years after the
incorporation, if the court or agency determines that the
incorporation is invalid, moneys otherwise payable to the city
under ORS 221.770, 323.455, 366.785 to 366.820 and 471.810 shall
not be distributed to the city, but shall be deposited with the
State Treasurer as provided in subsection (3) of this section.
(2) Not later than 30 days after the issuance of an order or
judgment declaring the incorporation of a city invalid, the party
challenging the incorporation shall send a certified copy of the
order or judgment to the State Treasurer, Department of
Transportation, Department of Revenue and the Oregon Liquor
Control Commission.
(3) Upon receiving a certified copy of the order or judgment
under subsection (2) of this section, the state officer or
department having responsibility for the distribution of moneys
under ORS 221.770, 323.455, 366.785 to 366.820 and 471.810 shall
deposit those moneys in an escrow account administered by the
State Treasurer.
(4) Upon final determination of the validity of an
incorporation by judgment { - or decree - } rendered by the
highest court in which a decision could be had, the moneys in the
escrow account established under subsection (3) of this section
shall be distributed as follows:
(a) If the incorporation is determined to be valid, to the
city.
(b) If the incorporation is determined to be invalid, each city
in this state shall receive such share of the moneys as its
population bears to the total population of the cities of the
state.
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(5) The State Treasurer, upon receiving a certified copy of the
judgment { - or decree - } of the court which constitutes the
final determination of the validity of the challenged
incorporation shall distribute moneys in the escrow account as
provided in subsection (4) of this section.
(6) The State Treasurer shall retain interest earned on moneys
deposited in the escrow account and shall distribute the interest
in the same manner as other moneys in the account are
distributed.
SECTION 397. ORS 223.565 is amended to read:
223.565. (1) The owner, or legal representatives of the owner,
or the successor in interest of the owner, or any person having a
lien by judgment { - , decree - } or mortgage, or owner of a
tax lien, on any property sold by virtue of ORS 223.520 may
redeem it upon conditions provided in this section. Redemption of
any real property sold for a delinquent final assessment or lien
under the provisions of ORS 223.505 to 223.590 may be made by
paying to the treasurer, at any time within one year from the
date of the certificate of sale, the purchase price and 10
percent thereof as penalty, and interest on the purchase price at
the rate of 10 percent per annum, from the date of the
certificate. Where redemption is made by the holder of a tax lien
the holder may have such redemption noted upon the record of the
lien in like manner and with like effect as prescribed in this
section. Such redemption shall discharge the property so sold
from the effect of the sale and, if made by a lien creditor, the
amount paid for the redemption shall thereafter be deemed a part
of the judgment,
{ - decree, - } mortgage or tax lien, as the case may be, and
shall bear like interest, and may be enforced and collected as a
part thereof.
(2) Anyone applying or seeking to redeem property sold under
the provisions of ORS 223.505 to 223.590 must pay or offer to pay
the sum necessary in lawful money of the United States.
(3) When an individual purchases real property at a foreclosure
sale under ORS 223.505 to 223.590, if, with the approval of the
governmental unit, that purchaser incurs costs for maintaining or
improving the property during the period allowed for redemption
and if the property is subsequently redeemed, the treasurer may
return all or part of the penalty paid by the person redeeming
the property to the purchaser as provided by charter or ordinance
of the governmental unit.
SECTION 398. ORS 223.593 is amended to read:
223.593. (1) Notwithstanding ORS 223.565 and 223.650, when a
governmental unit sells real property under ORS 223.510 to
223.590 or pursuant to a { - decree - } { + judgment + } of
foreclosure entered in an action authorized by ORS 223.610 for
neglect or refusal by the owner to pay installments under ORS
223.265, the property may be redeemed as provided in this section
by the owner, a legal representative or a successor in interest
or by any other person having a lien on the property.
(2) Redemption of such real property may be made by paying to
the treasurer of the governmental unit, at any time within one
year after the date of sale, the following amounts:
(a) The purchase price at the foreclosure sale and 10 percent
thereof as penalty;
(b) The amount of any taxes, assessments or liens upon the
property that are paid after the sale by the purchaser at the
sale; and
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(c) Interest on the amounts paid under paragraphs (a) and (b)
of this subsection at a rate of 10 percent per annum from the
respective times of the payments of the purchase price, taxes,
assessments or liens to the date of redemption.
(3) A redemption of property under this section shall be made
for cash.
SECTION 399. ORS 223.645 is amended to read:
223.645. The governmental unit may bid at the sale on execution
of the property involved in the foreclosure suit any amount not
exceeding the sum found by the { - decree - } { +
judgment + } of the court to be due upon the governmental unit's
lien, together with interest, costs, penalties and attorney fees,
and it may credit the amount of its bid upon the execution.
SECTION 400. ORS 225.300 is amended to read:
225.300. Any filing made by any city upon the unappropriated
waters of this state for use in the future development of a
hydroelectric plant by such city shall be reserved to such city
and shall not be subject to appropriation by any other person,
municipality or corporation unless it is judicially determined
that the filing exceeds the reasonable present and future
requirements of such city. In that event the surplus or excess
may, by { - decree - } { + judgment + } of a court of
competent jurisdiction, be released and discharged from the
filing. Proceedings in court for the determination of whether or
not the filing by any city exceeds its reasonable present and
future requirements may be instituted by the State of Oregon, by
the Water Resources Commission in the name of and for the State
of Oregon, or by any other applicant for the right to use the
waters involved.
SECTION 401. ORS 226.600 is amended to read:
226.600. All such persons or parties having or claiming any
right, title, estate or interest in the real property in
controversy, so served by publication as in ORS 226.590 provided,
shall have the same rights as provided by law in case of all
other defendants upon whom service is made by publication, and
the suit shall proceed against such persons in the same manner as
against defendants who are named, upon whom service is made by
publication, and with like effect; and any such persons or
parties who claim any right, title, estate or interest in said
real property in controversy, at the time of the commencement of
the suit, duly served as aforesaid, shall be found and concluded
by the judgment { - or decree - } in such suit, and if the
same is in favor of the plaintiff therein, as effectually as if
the suit was brought against such defendant by his or her name
and constructive service obtained.
SECTION 402. ORS 226.620 is amended to read:
226.620. Whenever any municipal corporation shall have
proceeded under ORS 226.510 to 226.630, and a { - decree - }
{ + judgment + } of the court shall vest in said municipal
corporation the title to such cemetery properties, as referred to
herein, by eminent domain, such municipal corporation shall
proceed with the removal of remains, stones, monuments and any
and all evidences of a grave, and provide for reinterment in a
suitable location, within a reasonable time after the entry of a
{ - final decree - } { + general judgment + }, and the
expiration of the time for appeal therefrom, or the final
disposition of any appeal which may be filed in connection with
{ - said decree - } { + the judgment + }.
SECTION 403. ORS 237.600 is amended to read:
Enrolled House Bill 2646 (HB 2646-B) Page 293
237.600. (1) Notwithstanding any other provision of law,
payment of any pension, annuity, retirement allowance, disability
benefit, death benefit, refund benefit or other benefit under any
public employer retirement plan other than the Public Employees
Retirement System that would otherwise be made to a person
entitled to benefits under the plan shall be paid, in whole or in
part, to an alternate payee if and to the extent expressly
provided for in the terms of any { - court decree - } { +
judgment + } of annulment or dissolution of marriage or of
separation, or the terms of any court order or court-approved
property settlement agreement incident to any { - court
decree - } { + judgment + } of annulment or dissolution of
marriage or of separation. Notwithstanding any other provisions
of this section, the total value of benefits payable to a member
and to an alternate payee under this section may not be greater
than the value of the benefits the member would otherwise be
eligible to receive. Any payment under this subsection to an
alternate payee bars recovery by any other person.
(2) A { - decree - } { + judgment + }, order or settlement
providing for payment to an alternate payee under subsection (1)
of this section may also provide:
(a) That payments to the alternate payee may commence, at the
election of the alternate payee, at any time after the earlier
of:
(A) The earliest date the member would be eligible to receive
retirement benefits if the member separates from service; or
(B) The date the member actually separates from service due to
death, disability, retirement or termination of employment.
(b) That the alternate payee may elect to receive payment in
any form of pension, annuity, retirement allowance, disability
benefit, death benefit, refund benefit or other benefit, except a
benefit in the form of a joint and survivor annuity, available to
the member under the public employer retirement plan, or that
would be available to the member if the member retired or
separated from service at the time of election by the alternate
payee, without regard to the form of benefit elected by the
member.
(c) That the alternate payee's life is the measuring life for
the purposes of measuring payments to the alternate payee under
the form of benefit selected by the alternate payee.
(3) Subsection (1) of this section applies only to payments
made by the public employer retirement plan after the date of
receipt by the administrators of the plan of written notice of
the
{ - decree - } { + judgment + }, order or agreement and such
additional information and documentation as the plan
administrators may prescribe.
(4)(a) A { - decree - } { + judgment + }, order or
agreement providing for payment to an alternate payee under
subsection (1) of this section may not provide for payment to an
alternate payee of:
(A) Any disability payments provided to a member of a public
employer retirement plan in lieu of workers' compensation
benefits pursuant to ORS 656.027 (6), to the extent those
payments are to be made before the member attains 55 years of
age; or
(B) Any medical or hospital benefits payable to a member as
part of a disability benefit provided to a member of a public
employer retirement plan in lieu of workers' compensation
Enrolled House Bill 2646 (HB 2646-B) Page 294
benefits pursuant to ORS 656.027 (6), regardless of the member's
age.
(b) Paragraph (a) of this subsection does not prevent a court
from considering the disability payments described in that
paragraph in making a division of property pursuant to ORS
107.105 or an award of support.
(5) Any public employer or public employer retirement plan that
is required by the provisions of this section to make a payment
to some person other than a member of the retirement plan offered
by the public employer shall charge and collect out of the
benefits payable to the member and the other person actual and
reasonable administrative expenses and related costs incurred by
the public employer or public employer retirement plan in
obtaining data and making calculations that are necessary by
reason of the provisions of this section. A public employer or
public employer retirement plan may not charge more than $300 for
total administrative expenses and related costs incurred in
obtaining data or making calculations that are necessary by
reason of the provisions of this section. A public employer or
public employer retirement plan that charges and collects
administrative expenses and related costs under the provisions of
this subsection shall allocate those expenses between the member
of the retirement plan and any other person receiving a benefit
from the plan based on the fraction of the benefit received by
the member or person.
(6) As used in this section:
(a) 'Court' means any court of appropriate jurisdiction of this
or any other state or of the District of Columbia.
(b) 'Member' means a person entitled to a benefit from a public
employer retirement plan.
(c) 'Public employer' means the state, one of its agencies, any
city, county, municipal or public corporation, any political
subdivision of the state or any instrumentality thereof, or an
agency created by two or more such political subdivisions to
provide themselves governmental services.
(d) 'Public employer retirement plan' means any system,
program, annuity, contract or other plan established by a public
employer for the purpose of providing a pension, annuity,
retirement allowance or disability benefit to officers or
employees of the public employer.
SECTION 404. ORS 238.462 is amended to read:
238.462. (1) A member of the Public Employees Retirement System
who is married on the effective date of member's retirement shall
receive a service retirement allowance in the form provided for
in Option 3 under ORS 238.305 (1) or a disability retirement
allowance in the form provided for in Option 3 under ORS 238.325
(1) unless the member provides proof of spousal consent to
receiving an allowance in the form provided by ORS 238.300 or
238.320, or in one of the optional forms provided for in ORS
238.305 and 238.325 other than Option 3.
(2) Except as provided in subsection (3) of this section, a
member of the system who is married on the effective date of the
member's retirement may not change the form in which a retirement
allowance is paid after an election has been made as to the form
of the retirement allowance unless the member provides proof of
spousal consent.
(3) A member of the system who is married on the effective date
of the member's retirement is not required to provide spousal
consent to a change in the form in which a retirement allowance
is paid if the spouse of the member dies after the effective date
Enrolled House Bill 2646 (HB 2646-B) Page 295
of the member's retirement or disability and the change in the
form of the allowance is made within the time periods provided by
ORS 238.305 and 238.325. A member seeking to change the form of a
retirement allowance without spousal consent under the provisions
of this subsection must provide a notarized statement to the
Public Employees Retirement Board that certifies to the board
that the spouse of the member is deceased.
(4) Any member of the system who is not married on the
effective date of the member's retirement must provide a
notarized statement to the Public Employees Retirement Board that
certifies to the board that the member is not married. No
retirement allowance may be paid to a member of the system who is
not married until the statement required by this subsection is
provided to the board.
(5) A member of the system who is married on the effective date
of the member's retirement must provide proof of spousal consent
for the purposes of this section by submitting a statement to the
board that:
(a) Contains the notarized signature of the member's spouse;
(b) Indicates the form in which the retirement allowance is to
be paid; and
(c) Contains a statement that the member's spouse consents to
the payment of the retirement allowance in the specified form.
(6) If a member of the system who is married on the effective
date of the member's retirement fails to provide proof of spousal
consent as required by this section, the board shall calculate
and pay to the member a retirement allowance in the form provided
for in Option 3 under ORS 238.305 (1) if the retirement is for
service, or a retirement allowance in the form provided for in
Option 3 under ORS 238.325 (1) if the retirement is for
disability. The allowance will be calculated based on the ages of
the member and the spouse, and the spouse will be designated as
the beneficiary for any survivor benefits that may thereafter
become payable.
(7) Proof of spousal consent under this section is not required
for, and cannot alter, the designation of any form of a
retirement allowance that is required under the terms of any
{ - court decree - } { + judgment + } of annulment or
dissolution of marriage or of separation, or the terms of any
court order or court-approved property settlement agreement
incident to any { - court decree - } { + judgment + } of
annulment or dissolution of marriage or of separation, that has
been received by the board in compliance with the requirements
prescribed by ORS 238.465.
SECTION 405. ORS 238.465, as amended by section 89, chapter
945, Oregon Laws 2001, is amended to read:
238.465. (1) Notwithstanding ORS 238.445 or any other provision
of law, payments under this chapter of any pension, annuity,
retirement allowance, disability benefit, death benefit, refund
benefit or other benefit that would otherwise be made to a person
entitled thereto under this chapter shall be paid, in whole or in
part, by the Public Employees Retirement Board to an alternate
payee if and to the extent expressly provided for in the terms of
any { - court decree - } { + judgment + } of annulment or
dissolution of marriage or of separation, or the terms of any
court order or court-approved property settlement agreement
incident to any
{ - court decree - } { + judgment + } of annulment or
dissolution of marriage or of separation. Notwithstanding any
other provisions of this section, the total value of benefits
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payable to a member and to an alternate payee under this section
may not be greater than the value of the benefits the member
would otherwise be eligible to receive. Any payment under this
subsection to an alternate payee bars recovery by any other
person.
(2) A { - decree - } { + judgment + }, order or settlement
providing for payment to an alternate payee under subsection (1)
of this section may also provide:
(a) That payments to the alternate payee may commence, at the
election of the alternate payee, at any time after the earlier
of:
(A) The earliest date the member would be eligible to receive
retirement benefits if the member separates from service; or
(B) The date the member actually separates from service due to
death, disability, retirement or termination of employment.
(b) That the alternate payee may elect to receive payment in
any form of pension, annuity, retirement allowance, disability
benefit, death benefit, refund benefit or other benefit, except a
benefit in the form of a joint and survivor annuity, that would
be available to the member under this chapter, or that would be
available to the member if the member retired or separated from
service at the time of election by the alternate payee, without
regard to the form of benefit elected by the member.
(c) That the alternate payee's life is the measuring life for
the purpose of measuring payments to the alternate payee under
the form of benefit selected by the alternate payee and for the
purpose of determining necessary employer reserves.
(d) Except as provided in ORS 238.305 (10) and 238.325 (7),
that any person designated by the member as a beneficiary under
ORS 238.300, 238.305 or 238.325 be changed, even though the
member has retired and has begun receiving a retirement
allowance. If a change of beneficiary is ordered under this
paragraph, the board shall adjust the anticipated benefits that
would be payable to the member and the beneficiary to ensure that
the cost to the system of providing benefits to the member and
the new beneficiary does not exceed the cost that the system
would have incurred to provide benefits to the member and the
original beneficiary. The { - decree - } { + judgment + },
order or settlement may not provide for any change to the option
selected by the retired member under ORS 238.300, 238.305,
238.320 or 238.325 as to the form of the retirement benefit.
(3) The board shall adopt rules that provide for:
(a) The creation of a separate account in the name of the
alternate payee reflecting the { - decree's - } { +
judgment's + }, order's or agreement's distribution of the
member's benefits under this chapter;
(b) The establishing of criteria to determine whether domestic
relations { - decrees - } { + judgments + }, orders and
agreements comply with this section; and
(c) The definitions and procedures for the administration of
this section.
(4) If a { - decree - } { + judgment + }, order or
agreement awards an interest to an alternate payee, and if the
alternate payee predeceases the member before the alternate payee
has commenced receiving benefits, the alternate payee shall be
considered a member of the system who died before retiring for
the purposes of the death benefits provided in ORS 238.390 and
238.395, but for purposes of the death benefits provided in ORS
238.395, the alternate payee shall be considered a member of the
system who died before retiring only if the member would have
Enrolled House Bill 2646 (HB 2646-B) Page 297
been eligible for death benefits under ORS 238.395 had the member
died at the same time as the alternate payee. Payment of the
death benefits to the beneficiaries, estate or other persons
entitled to receive the benefits under ORS 238.390 and 238.395
shall constitute payment in full of the alternate payee's
interest under the { - decree - } { + judgment + }, order or
agreement.
(5) Any increase in the retirement allowance provided to the
member shall increase the amounts paid to the spouse or former
spouse of the member in the same proportion, except that an
alternate payee is not entitled to receive cost-of-living
adjustments under ORS 238.360 or any other retirement allowance
increase until benefits are first paid from the system on behalf
of the member.
(6) An alternate payee under this section is not eligible to
receive the benefits provided under ORS 238.410, 238.415, 238.420
and 238.440 by reason of the provisions of this section.
(7) An alternate payee who elects to begin receiving payments
under subsection (1) of this section before the member's
effective date of retirement is not eligible to receive any
additional payment by reason of credit in the system acquired by
the member after the alternate payee begins to receive payments.
(8) Subsection (1) of this section applies only to payments
made by the board after the date of receipt by the board of
written notice of the { - decree - } { + judgment + }, order
or agreement and such additional information and documentation as
the board may prescribe.
(9) Whenever the board is required to make payment to an
alternate payee under the provisions of this section, the board
shall charge and collect out of the benefits payable to the
member and the alternate payee actual and reasonable
administrative expenses and related costs incurred by the board
in obtaining data and making calculations that are necessary by
reason of the provisions of this section. The board may not
charge more than $300 for total administrative expenses and
related costs incurred in obtaining data or making calculations
that are necessary by reason of the provisions of this section.
The board shall allocate expenses and costs charged under the
provisions of this subsection between the member and the
alternate payee based on the fraction of the benefit received by
the member or alternate payee.
(10) As used in this section, 'court' means any court of
appropriate jurisdiction of this or any other state or of the
District of Columbia.
SECTION 406. ORS 243.507 is amended to read:
243.507. (1) Notwithstanding any other provision of law,
deferred compensation under a deferred compensation plan that
would otherwise be paid by a public employer to an eligible
employee shall be paid, in whole or in part, to an alternate
payee if and to the extent expressly provided for in the terms of
any
{ - court decree - } { + judgment + } of annulment or
dissolution of marriage or of separation, or the terms of any
court order or court-approved property settlement agreement
incident to any { - court decree - } { + judgment + } of
annulment or dissolution of marriage or of separation. Any
payment under this subsection to an alternate payee bars recovery
by any other person.
Enrolled House Bill 2646 (HB 2646-B) Page 298
(2) A { - decree - } { + judgment + }, order or agreement
providing for payment to an alternate payee under subsection (1)
of this section may also provide:
(a) That payments to the alternate payee may commence on the
date the employee separates from service or at such later date as
may be allowed under the provisions of the deferred compensation
plan.
(b) That the alternate payee may elect to receive payment in
any manner available to the employee under the deferred
compensation plan, without regard to the form of payment elected
by the employee.
(c) That the alternate payee's life is the measuring life for
the purposes of measuring payments to the alternate payee under
the form of payment selected by the alternate payee.
(d) That all or a portion of the deferred compensation account
of the eligible employee be segregated in an account in the name
of and for the benefit of the alternate payee, and that the
alternate payee have the same rights and privileges as an
eligible employee only concerning the investment or deposit of
funds under the deferred compensation plan.
(3) Subsection (1) of this section applies only to payments of
deferred compensation made after the date of receipt by the
administrator of the deferred compensation plan of written notice
of the { - decree - } { + judgment + }, order or agreement
and such additional information and documentation as the plan
administrator may prescribe.
(4) Payment of all or any part of deferred compensation to an
alternate payee under this section shall be reported for state
and federal income tax purposes as payment to the eligible
employee. Any amount required to be withheld for state or
federal income tax purposes shall be withheld from the payment to
the alternate payee.
(5) If an eligible employee transfers from a deferred
compensation plan of a public employer to a deferred compensation
plan established by another public employer, the new employer is
not required to accept as part of the transfer any portion of the
eligible employee's account with the former employer that is
subject to { - decree - } { + judgment + }, order or
agreement requiring payment of that portion of the eligible
employee's account to an alternate payee.
(6) If an eligible employee transfers from a deferred
compensation plan of a public employer to a deferred compensation
plan established by another public employer, the employee's
previous employer shall not transfer to the plan established by
the new employer any portion of the eligible employee's account
that is subject to a { - decree - } { + judgment + }, order
or agreement requiring payment of that portion of the eligible
employee's account to an alternate payee.
(7) The Public Employees Retirement Board, or the plan
administrator for any local government deferred compensation
plan, may adopt rules, policies or other regulations for the
purpose of maintaining compliance of a deferred compensation plan
with section 457 of the Internal Revenue Code or any other
provision of federal law that affects the tax qualification of a
deferred compensation plan. Rules, policies or other regulations
adopted under this subsection may vary from the express language
of this section if the rules, policies or other regulations are
required for the purpose of maintaining compliance of a deferred
compensation plan with section 457 of the Internal Revenue Code
Enrolled House Bill 2646 (HB 2646-B) Page 299
or any other provision of federal law that affects the tax
qualification of a deferred compensation plan.
(8) Any public employer or deferred compensation plan that is
required by the provisions of this section to make a payment to
an alternate payee shall charge and collect out of the deferred
compensation payable to the eligible employee and the alternate
payee actual and reasonable administrative expenses and related
costs incurred by the public employer or deferred compensation
plan in obtaining data and making calculations that are necessary
by reason of the provisions of this section. A public employer or
deferred compensation plan may not charge more than $300 for
total administrative expenses and related costs incurred in
obtaining data or making calculations that are necessary by
reason of the provisions of this section. A public employer or
deferred compensation plan that charges and collects
administrative expenses and related costs under the provisions of
this subsection shall allocate those expenses and costs between
the eligible employee and the alternate payee based on the
fraction of the benefit received by the member or alternate
payee.
(9) As used in this section:
(a) 'Alternate payee' means a spouse, former spouse, child or
other dependent of a member.
(b) 'Court' means any court of appropriate jurisdiction of this
or any other state or of the District of Columbia.
(c) 'Eligible employee' means a state plan participant or local
plan participant.
(d) 'Public employer' means the state or a local government
that establishes a deferred compensation plan.
SECTION 407. ORS 261.330 is amended to read:
261.330. Any filing made by any utility district upon the
unappropriated waters of this state for use in the future
development of a hydroelectric plant by the district shall be
reserved to the district and shall not be subject to
appropriation by any other person, municipality or corporation,
unless it is judicially determined that such filing exceeds the
reasonable present and future requirements of the district, in
which event the surplus or excess may be by { - decree - }
{ + judgment + } of a court of competent jurisdiction released
and discharged from such filing. Proceedings in court for the
determination of whether or not the filing by any utility
district exceeds its reasonable present and future requirements
may be instituted by the State of Oregon, by the Water Resources
Commission in the name of and for the State of Oregon, or by any
other applicant for the right to the use of the waters involved.
SECTION 408. ORS 261.615 is amended to read:
261.615. Either party may appeal to the Court of Appeals at any
time within 30 days after the rendering of the { - final - }
{ + general + } judgment { - or decree - } , which appeal
must be heard and determined within three months from the time of
taking such appeal.
SECTION 409. ORS 264.220 is amended to read:
264.220. When an attempt has been made to organize a district
under the provisions of this chapter and subsequently by a
{ - decree - } { + judgment + } of a court of competent
jurisdiction it has been declared that the organization is
invalid, but prior to such
{ - decree - } { + judgment + } the invalid organization has
levied taxes, the funds derived from the levy shall be disposed
of as follows:
Enrolled House Bill 2646 (HB 2646-B) Page 300
(1) If the area embraced in the invalid organization is
embraced in a subsequently created organization composed of
unincorporated or incorporated territory, or combinations
thereof, for the purpose of furnishing domestic water to the
inhabitants thereof, the custodian of the taxes collected for the
invalid organization shall turn them over to the subsequent
organization to be used only for the purpose of furnishing
domestic water to such inhabitants.
(2) If the subsequent organization does not embrace all
territory embraced in the invalid organization, such taxes as
have been collected from the levy upon property in areas not
embraced in the subsequent organization shall be refunded to the
payers thereof by the custodian of the taxes before the balance
is turned over to the subsequent organization.
(3) If no such subsequent organization is created to provide
domestic water for the inhabitants of such an area, within a
period of two years after the entry of the { - decree - } { +
judgment + } of invalidation, the taxes collected shall be
refunded by the custodian of them to the taxpayers who paid them.
SECTION 410. ORS 267.225 is amended to read:
267.225. (1) A district may cooperate with or enter into
agreements with any city, county, port or state agency having
jurisdiction or control over any right of way that is available
for public travel for the joint use of such right of way. A city,
county, port or state agency may cooperate with or enter
agreements with a district for the joint use of any right of way
open to public travel located within the district.
(2) For the purpose of providing a mass transit system, a
district may commence a condemnation proceeding to acquire land
or an interest in land for right of way for the system over any
public right of way already located, condemned or occupied or
that may be located, condemned or occupied by some other public
agency for the purpose of travel by the public. The proceeding
shall be conducted as provided by the laws of this state for the
condemnation of land or an interest in land for right of way for
highway purposes. At the time of rendering judgment for
compensation or damages, the court shall enter a judgment
{ - or decree - } authorizing the district to occupy and use
the right of way, if necessary, in common with the public agency
already occupying or owning the right of way, and defining the
terms and conditions upon which the right of way shall be so
occupied and used in common.
SECTION 411. ORS 273.880 is amended to read:
273.880. (1) Jurisdiction for judicial review of actions of the
Board of County Commissioners of Clatsop County under ORS 273.855
(3), (4) and (5) and 273.860 to 273.880 is conferred on the
circuit court for the county in which the land applied for is
located. Proceedings for review shall be instituted by filing a
petition not later than the 60th day after the date on which the
findings of the county board became final. The petition shall
state the nature of the petitioner's interest, the facts showing
how the petitioner is aggrieved by the county board's decision,
and the grounds on which the petitioner contends that the
decision should be reversed or set aside. True copies of the
petition shall be served by registered or certified mail on the
county board and all other parties of record in the proceeding.
No responsive pleading is required of the county board. In its
discretion the court may permit other interested persons to
intervene.
Enrolled House Bill 2646 (HB 2646-B) Page 301
(2) Not later than the 30th day after service of the petition,
or within such further time as the court may allow, the county
board shall transmit to the court the original or a certified
copy of the entire record of the proceeding under review;
however, by stipulation of all parties to the review proceeding,
the record may be shortened. Any party unreasonably refusing to
stipulate to limit the record may be taxed by the court for the
additional costs. The court may require or permit subsequent
corrections or additions to the record when deemed desirable.
(3) If, before the date set for hearing, application is made to
the court for leave to present additional evidence to the issues
in the case, and it is shown to the satisfaction of the court
that the additional evidence is material and that there were good
and substantial reasons for failure to present it in the
proceeding before the county board, the court may order that the
additional evidence be taken before the county board on such
conditions as the court deems proper. The county board may modify
its findings and decision by reason of the additional evidence
and, within a time to be fixed by the court, shall file with the
reviewing court, to become a part of the record, the additional
evidence, together with any modifications or new findings or
decision, or its certificate that it elects to stand on its
original findings and decision, as the case may be.
(4) The review shall be conducted by the court without a jury
as a suit in equity and shall be confined to the record, except
that, in cases of alleged irregularities in procedure before the
county board, not shown in the record, testimony thereon may be
taken in the court. The court, on request, shall hear oral
argument and receive written briefs.
(5) The court may adopt the county board's findings of fact and
affirm the decision of the county board; or it may reverse and
set aside the county board's decision, or reverse and remand for
further proceedings, after review of all the facts disclosed by
the record, and any additional facts established under subsection
(4) of this section. The court thereupon shall enter { - its
decree - } { + a judgment + }. In the case of reversal the
court shall make special findings of fact based on evidence in
the record and conclusions of law indicating clearly all respects
in which the county board's decision is erroneous.
(6) Any party to the proceedings before the circuit court may
appeal from the { - decree - } { + judgment + } of that court
to the Court of Appeals. Such appeal shall be taken in the manner
provided by law for appeals from the circuit courts in suits in
equity.
SECTION 412. ORS 305.440 is amended to read:
305.440. (1) The decision of the court shall be binding upon
all parties until changed, if at all, by the decision of the
Supreme Court upon appeal. If no appeal is taken to the Supreme
Court, the decision of the court shall constitute a final
determination of the matter. If an appeal is taken, the decision
of the court shall become final in the same manner as the
decision { - , - } { + or + } judgment { - or decree - } of
the circuit court becomes final when appeal therefrom is taken to
the Supreme Court.
(2) Upon the final determination of any ad valorem tax matter,
all officers having charge of the rolls on which the assessments
involved in such proceeding appears shall correct the same in
accordance with such determination, and taxes shall be refunded
as provided in ORS 311.806 or additional taxes collected by the
proper officers. In the case of an appeal as to properties
Enrolled House Bill 2646 (HB 2646-B) Page 302
assessed or taxed under ORS 308.505 to 308.665 or 308.805 to
308.820, a certified copy of the { - decree - } { +
judgment + } of the court shall be sufficient warrant for the
apportionment, levying and collecting of taxes against the
property constituting the subject matter of the appeal and upon
the valuation determined by the court. If any reapportionment as
between counties is made by the court on appeal, corresponding
adjustments shall be made by the tax collectors of the counties
affected.
SECTION 413. ORS 311.691 is amended to read:
311.691. (1) Notwithstanding any provision of ORS chapter 312
to the contrary and ORS 311.696 (1), upon compliance with ORS
311.693, taxes assessed against a tax-deferred homestead for any
tax year that were unpaid as of July 1 of the tax year for which
homestead property tax deferral was initially granted under ORS
311.666 to 311.701, and that remain unpaid, shall remain a lien
and shall become delinquent as otherwise provided by law, but
shall not be subject to foreclosure under ORS chapter 312 until
August 15 of the calendar year following the calendar year in
which one of the circumstances listed in ORS 311.684 occurs.
(2) This section does not apply if:
(a) The tax-deferred homestead property is a manufactured
structure or floating home and is moved out of state;
(b) Except in the case of a manufactured structure or floating
home, the tax-deferred homestead property is personal property;
or
(c) The owner of the tax-deferred homestead property has
household income, for the calendar year immediately preceding the
calendar year in which application is filed under ORS 311.693, of
more than the maximum household income that may be incurred under
an allowable claim for deferral, as provided in ORS 311.668.
(3) If the property to which subsection (1) of this section
applies has been included on a foreclosure list, or a
{ - decree - } { + judgment + } of foreclosure entered, the
property shall be removed from the foreclosure list, or
{ - decree - } { + judgment + } vacated, unless the proceeding
against the property involves delinquent taxes other than those
described in subsection (1) of this section.
(4) Upon removal from the foreclosure list, or upon vacation of
the { - decree - } { + judgment + }, no penalty shall be
imposed under ORS 312.110 or 312.120. In lieu thereof, the
penalty is abated, or if the penalty has been paid, upon
application made to the county assessor on or before July 1 of
the year immediately following the year of vacation or removal,
the penalty shall be refunded out of the unsegregated tax
collections account in the manner provided in ORS 311.806.
(5) Within 60 days after approval of an application under ORS
311.693, with respect to any property to which this section
applies, the tax collector shall make the proper entries on the
tax roll and shall remove the property from the foreclosure list
and proceeding.
(6) If a { - decree - } { + judgment + } has been entered
foreclosing liens for delinquent taxes against any property which
is the subject of an application filed under ORS 311.693, and the
delinquent taxes include only those taxes described in subsection
(1) of this section, or taxes in excess of those described in
subsection (1) of this section are paid, the { - decree - }
{ + judgment + } shall be null and void and of no effect and
the tax collector shall make the proper entries on the assessment
Enrolled House Bill 2646 (HB 2646-B) Page 303
and tax rolls to reflect the vacation of the { - decree - }
{ + judgment + } and to acknowledge the subsisting liens.
(7) Nothing in this section shall remove or release property to
which this section applies from the lien of any unpaid tax
thereon, but the unpaid taxes shall remain valid and subsisting
liens as though the foreclosure proceeding had not been
instituted or as though the foreclosure proceeding had not been
instituted and a { - decree - } { + judgment + } entered.
(8) Nothing in this section shall affect a foreclosure
proceeding instituted, or a { - decree - } { + judgment + }
entered, to foreclose liens for delinquent taxes against
properties subject to foreclosure if the delinquent taxes include
taxes other than those described under subsection (1) of this
section. Such foreclosure proceedings shall be instituted or
continued without regard to this section and such
{ - decree - } { + judgment + } shall be of full force and
effect as if this section did not exist.
(9) Interest on taxes to which this section applies shall be
determined from the same dates, in the same manner and until paid
as for other property taxes remaining unpaid upon the due dates,
upon preparation of the foreclosure list in accordance with ORS
chapter 312 and subsection (1) of this section and upon entry and
following a { - decree - } { + judgment + } of foreclosure.
SECTION 414. ORS 312.060 is amended to read:
312.060. (1) Application for judgment { - and decree - }
foreclosing any tax lien shall be in writing, shall be verified,
and shall contain a succinct statement of the cause of suit. All
amendments may be made which are permissible in any civil action.
The application for judgment { - and decree - } , together with
a certified copy of the foreclosure list, shall be filed with the
clerk of the court on the day of the first publication of the
foreclosure list.
(2) No assessment of property or charge for taxes shall be
considered invalid because of:
(a) An irregularity in an assessment roll.
(b) An assessment roll not having been made, completed or
returned within the time prescribed by law.
(c) The property having been listed or charged in an assessment
or tax roll without any name, or with a name other than that of
the owner.
(3) No error or informality on the part of any officer in
connection with assessment, equalization, levy or collection
shall vitiate or affect the assessment of the property or the
taxes thereon.
(4) Any such irregularity, informality, omission or other error
may, in the discretion of the court, be corrected to conform to
law.
SECTION 415. ORS 312.070 is amended to read:
312.070. Any person interested in any real property included in
the foreclosure list may file an answer and defense to the
application for judgment { - and decree - } within 30 days
after the date of the first publication of the foreclosure list,
exclusive of the day of the first publication. The answer and
defense shall be in writing under oath and shall specify the
particular cause of objection.
SECTION 416. ORS 312.080 is amended to read:
312.080. The court shall examine the application for judgment
{ - and decree - } . If answer and defense is filed by any
defendant or other interested person, the matter shall be heard
in a summary manner without other pleading.
Enrolled House Bill 2646 (HB 2646-B) Page 304
SECTION 417. ORS 312.090 is amended to read:
312.090. The court shall give judgment { - and decree - }
for the delinquent taxes and interest appearing to be due on the
several parcels of real property described in the application,
and shall
{ - decree - } { + enter a judgment requiring + } that the
several liens of such taxes be foreclosed. The judgment shall be
a several judgment against and a lien on each parcel of property
included therein. The several judgment shall bear interest at
the legal rate from the date of entry thereof.
SECTION 418. ORS 312.100 is amended to read:
312.100. The court shall order that the several properties,
against which the judgment { - and decree - } is entered,
shall be sold directly to the county for the respective amounts
of taxes and interest for which the properties severally are
liable. The clerk of the court shall deliver to the tax collector
a certified copy of the judgment { - and decree - } , included
in which shall be a list of the properties so ordered sold, with
the several amounts due thereon. The certified copy shall
constitute a certificate of sale to the county of the several
properties described in the judgment
{ - and decree - } and no other certificate need be issued.
SECTION 419. ORS 312.110 is amended to read:
312.110. At any time prior to judgment { + , + } { - and
decree - } any parcel of real property may be removed from the
foreclosure proceeding by payments such as would have prevented
inclusion of the property in the foreclosure list, plus any
additional interest or penalty accrued; except that after the
first publication of the foreclosure list any person seeking to
remove any property from the foreclosure proceeding shall pay, in
addition to the particular amounts of taxes and interest
otherwise required, a penalty of five percent of the total amount
of taxes and interest charged against the property. The penalty
and fee shall be in lieu of all publication costs and other
charges in connection with the foreclosure proceeding. On receipt
of the payments as to a particular property, prior to the filing
of the application for judgment { - and decree - } , the tax
collector shall make the proper entries in the tax roll and shall
remove the property from the foreclosure list and proceeding.
Subsequent to filing of the application for judgment { - and
decree - } , no property may be removed from the foreclosure list
and proceeding except on order entered by the court. The removal
of any property from the foreclosure list and proceeding, as
provided in this section, does not release the property from the
lien of any unpaid tax thereon, but the unpaid taxes shall remain
valid and subsisting liens as though the foreclosure proceeding
had not been instituted.
SECTION 420. ORS 312.120 is amended to read:
312.120. (1) Except as provided in ORS 312.122, all real
properties sold to the county under ORS 312.100, shall be held by
the county for the period of two years from and after the date of
the judgment { - and decree - } of foreclosure, unless sooner
redeemed.
(2) During the two-year period any person having an interest in
the property at the date of the judgment { - and decree - } of
foreclosure, or any heir or devisee of such person, or any person
holding a lien of record on the property, or any municipal
corporation having a lien on the property, may redeem the
property by payment of the full amount applicable to the property
under the judgment { - and decree - } , with interest thereon
Enrolled House Bill 2646 (HB 2646-B) Page 305
as provided by law, plus a penalty of five percent of the total
amount applicable to the property under the judgment { - and
decree - } and a fee as specified under subsection (5) of this
section. The penalty of five percent and fee shall be in lieu of
all costs chargeable against the property in connection with the
foreclosure proceeding. The fee shall be used to defray the
costs, among other costs, incurred by the county to provide the
notices of redemption period expiration to lienholders and others
required under ORS 312.125.
(3) Property so redeemed shall be subject to assessment for
taxation during the period of redemption, as though it had
continued in private ownership.
(4) Any person holding a mortgage or other lien of record
covering a part only of a particular parcel of real property
included in the judgment { - and decree - } of foreclosure may
redeem such part by payment of the proportionate amount
applicable thereto under the judgment { - and decree - } .
(5) The fee specified by this subsection is as follows:
(a) If the property is redeemed before the date the notice by
certified mail required by ORS 312.125 is given, $50.
(b) If the property is redeemed on or after the date the notice
by certified mail required by ORS 312.125 is given, the greater
of $50 or the actual cost to the county for a title search and
other expenses related to obtaining a title search.
SECTION 421. ORS 312.122 is amended to read:
312.122. (1) A county may by ordinance provide the means to
require the tax collector of the county to deed to the county
pursuant to ORS 312.200 any real property sold to the county
under ORS 312.100 after the expiration of the 30-day period
provided in subsection (2) of this section if:
(a) The property is subjected to waste which results in a
forfeiture to the county of the right to possession of the
property under ORS 312.180; or
(b) The property is not occupied by the owner or any person or
entity that appears in the records of the county to have a lien
or other interest in the property for a period of six consecutive
months, and the property has suffered a substantial depreciation
in value or will suffer a substantial depreciation in value if
not occupied.
(2)(a) Upon determining that real property sold to the county
under ORS 312.100 may be subject to waste or abandonment as
provided in subsection (1) of this section, the county shall set
a date, time and place within the county for a hearing for the
purpose of determining whether the property should be deeded to
the county pursuant to subsection (1) of this section.
(b) The owner and any person or entity that appears in the
records of the county to have a lien or other interest in the
property shall be given an opportunity to be heard at the hearing
provided in paragraph (a) of this subsection.
(c) If the county determines after the hearing provided in
paragraph (a) of this subsection that the property is subject to
waste or abandonment as provided in subsection (1) of this
section, the county governing body shall provide that any rights
of possession the owner may have in the property are forfeited
and direct the property be deeded to the county by the tax
collector of the county after expiration of a period of 30 days
from the date of the action of the county governing body
determining property subject to forfeiture unless it is sooner
redeemed by the owner or any person or entity that then appears
in the records of the county to have a lien or other interest in
Enrolled House Bill 2646 (HB 2646-B) Page 306
the property. All rights of redemption with respect to the real
property described in that deed shall terminate on the execution
of the deed to the county.
(d) The county shall, in its ordinance, provide for procedures
for the hearing required under this subsection that are
compatible with the requirements of due process of law.
(3) Not less than 30 days prior to the hearing provided in
subsection (2) of this section, the county shall notify the owner
and any person or entity that then appears in the records of the
county to have a lien or other interest in the property of the
hearing. The notice shall contain:
(a) The date, time and place of the hearing provided for in
subsection (2) of this section;
(b) The date of the judgment { - and decree - } ;
(c) The normal date of expiration of the period of redemption
under ORS 312.120;
(d) Warning to the effect that if the county determines that
the property is subject to waste or abandonment as provided in
subsection (1) of this section, the property will be deeded to
the county immediately after the expiration of 30 days from the
date of the county governing body action so determining and that
every right or interest of any person in the property will be
forfeited forever to the county unless the property is redeemed
within that 30-day period;
(e) A legal description of the property and a tax account
number; and
(f) The name of the owner as it appears on the latest tax roll.
(4) The notice required to be given under subsection (3) of
this section shall be given by both certified mail and by regular
first class mail.
(5)(a) If the notice required under subsection (3) of this
section is to be given to an owner, the notice shall be addressed
to the owner or owners, as reflected in the county records of
deeds, at the true and correct address of the owner as appearing
on the instrument of conveyance under ORS 93.260 or as furnished
under ORS 311.555 or as otherwise ascertained by the tax
collector of the county pursuant to ORS 311.560.
(b) If the person or entity to whom the notice is required
under subsection (3) of this section to be given is a lienholder,
or person or entity other than the owner, having or appearing to
have a lien or other interest in the property, the notice shall
be addressed to the lienholder, person or entity at the address
which the county knows or after reasonable inquiry, has reason to
believe to be the address at which the lienholder, person or
entity will most likely receive actual notice.
(6) For purposes of subsection (5)(b) of this section, if the
lienholder is a corporation or a limited partnership, the county
shall be considered to have made reasonable inquiry if the notice
is mailed to the registered agent or last registered office of
the corporation or limited partnership, if any, as shown by the
records on file in the office of the Corporation Commissioner, or
if the corporation or limited partnership is not authorized to
transact business in this state, to the principal office or place
of business of the corporation or limited partnership.
(7) As used in this section, 'records of the county' has that
meaning given in ORS 312.125 (7).
SECTION 422. ORS 312.125 is amended to read:
312.125. (1) Not less than one year prior to the expiration of
the period of redemption of any real property ordered sold to the
county under a judgment { - and decree - } under ORS 312.100,
Enrolled House Bill 2646 (HB 2646-B) Page 307
the tax collector shall provide notice of the expiration of the
period of redemption to any person or entity entitled to redeem
the property under ORS 312.120 (2) whose interest appears in the
records of the county as of the date foreclosure proceedings were
instituted. Any person or entity whose interest has terminated by
any means other than a judgment { - and decree - } of
foreclosure under ORS 312.120 shall not be entitled to such
notice.
(2) The notice shall contain:
(a) The date of the judgment { - and decree - } ;
(b) The date of expiration of the period of redemption;
(c) Warning to the effect that the property ordered sold under
the judgment { - and decree - } , unless sooner redeemed, will
be deeded to the county immediately on expiration of the period
of redemption and that every right or interest of any person in
the property will be forfeited forever to the county;
(d) A legal description of the property and a tax account
number; and
(e) The name of the owner as it appears on the latest tax roll.
(3) The notice required to be given under subsections (1) and
(2) of this section shall be given by both certified mail and by
regular first class mail and subsections (4) and (5) of this
section shall apply to both mailings.
(4)(a) If the notice required under subsections (1) and (2) of
this section is to be given to an owner, the notice shall be
addressed to the owner or owners, as reflected in the county
records of deeds, at the true and correct address of the owner as
appearing on the instrument of conveyance under ORS 93.260 or as
furnished under ORS 311.555 or as otherwise ascertained by the
tax collector pursuant to ORS 311.560.
(b) If the person or entity to whom the notice is required
under subsection (1) of this section to be given is a lienholder,
or person or entity other than the owner, having or appearing to
have a lien or other interest in the property, the notice shall
be addressed to the lienholder, person or entity at the address
which the tax collector knows or after reasonable inquiry, has
reason to believe to be the address at which the lienholder,
person or entity will most likely receive actual notice. For the
convenience of the county, any lien, instrument or other
document, memorandum or writing, filed on or after September 27,
1987, that creates an interest with respect to which notice is
required to be given under this paragraph, shall contain:
(A) The address of the person or entity holding lien or other
interest created by the instrument or other document, memorandum
or writing; and
(B) The tax account number, if any, and if known, of the
property subject to the lien or in which the interest is created.
(5) Failure of a lien, instrument or other document, memorandum
or other writing to contain the address and tax account number
information required under subsection (4)(b) of this section does
not invalidate the lien, instrument or other document, memorandum
or writing, nor shall the failure of the writing to contain the
information relieve the tax collector of the duty to obtain and
mail the notice required under subsection (4)(b) of this section
to the address that the tax collector believes to be the address
at which the lienholder, person or entity is most likely to
receive actual notice.
(6) For purposes of subsection (4)(b) of this section, if the
lienholder is a corporation or a limited partnership, the tax
collector shall be considered to have made reasonable inquiry if
Enrolled House Bill 2646 (HB 2646-B) Page 308
the notice is mailed to the registered agent or last registered
office of the corporation or limited partnership, if any, as
shown by the records on file in the office of the Corporation
Commissioner, or if the corporation or limited partnership is not
authorized to transact business in this state, to the principal
office or place of business of the corporation or limited
partnership.
(7)(a) As used in this section, 'records of the county ' means
the following:
(A) The grantor-grantee indexes.
(B) Other records of deeds, mortgages, powers of attorney,
contracts and other instruments, documents or memorandum of
conveyance or otherwise of real property that are described in
ORS 205.130 (1) and (2).
(C) The County Clerk Lien Record described in ORS 205.130 (3).
(D) Records of federal tax liens and other liens, instruments
or other documents or writings reflecting an interest in real
property described in ORS 205.246, if those records are kept
separately from the records described in paragraph (b) of this
subsection.
(E) Records of statutory liens on real property described in
ORS 87.372.
(F) Any other records of interests in real property required to
be kept by the county clerk, if the records contain a legal
description of the property and an address specifically
designated as indicated on the instrument, document or other
memorandum or writing for purposes of mailing the notice required
by this section.
(b) For purposes of this section only, 'records of the county'
includes:
(A) The appropriate records of the courts described in ORS
7.010 in the custody of the clerk of the appropriate court or
court administrator under ORS 7.110; and
(B) Probate records in the custody of the clerk of the
appropriate court or court administrator under ORS 7.230 and
7.240. Notwithstanding any provision to the contrary in ORS
chapter 7 or other law, the clerk of the appropriate court or the
court administrator shall make available to and assist the tax
collector in the examination of the records described in this
paragraph for purposes of carrying out the obligations of the tax
collector under this section without charge.
SECTION 423. ORS 312.130 is amended to read:
312.130. The receipt of redemption money by the tax collector
shall operate to release all claims of the county, under the
judgment { - and decree - } of foreclosure, to the property so
redeemed. The tax collector, on receipt of the redemption money,
immediately shall make the proper entries in the records of the
office of the tax collector showing that the delinquent taxes,
interest and penalty have been paid and that the property has
been redeemed from the sale to the county, and the tax collector
shall deliver to the person redeeming the property a certificate
of redemption. The certificate shall contain a description of
the property so redeemed, the total amount of taxes, interest and
penalty paid, and the date of entry of the judgment { - and
decree - } of foreclosure. The certificate shall be signed by
the tax collector or deputy and shall be filed by the
redemptioner with the clerk of the court that issued the judgment
{ - and decree - } of foreclosure. The clerk then shall enter
the filing of the certificate of redemption in the court register
and thereafter file the certificate of redemption as part of the
Enrolled House Bill 2646 (HB 2646-B) Page 309
case file in the foreclosure proceeding. No fee shall be charged
for the issuance of a certificate of redemption.
SECTION 424. ORS 312.170 is amended to read:
312.170. (1) The governing body of any municipal or other
public corporation, having a lien on any real property included
in a foreclosure list or proceeding, may use its funds to remove
the property from the list or proceeding, or to redeem the
property after judgment { - and decree - } of foreclosure.
Such corporation shall have the same right of redemption as the
owner of the property.
(2) Where any municipal or other public corporation so removes
or redeems any real property on which it claims a lien, or pays
any taxes thereon, the corporation may add to its lien the amount
so disbursed and cause that amount to be noted on its lien
docket. The amount so disbursed shall be recoverable as part of
the lien of the municipal or other public corporation. In case of
foreclosure of the original lien claimed by such corporation, the
amount so disbursed may be added to the original lien and
recovered as part thereof.
(3) Any county and municipal or other public corporation may
enter into a cooperative agreement to facilitate foreclosure
sales for the collection of delinquent property taxes and
municipal liens.
SECTION 425. ORS 312.190 is amended to read:
312.190. Not more than 30 days nor less than 10 days prior to
the expiration of the period of redemption of any real property
ordered sold to the county under a judgment { - and decree - }
under ORS 312.100, the tax collector shall publish a general
notice relative to the expiration of the period of redemption.
The notice shall contain the date of the judgment { - and
decree - } , the date of expiration of the period of redemption,
and warning to the effect that all the properties ordered sold
under the judgment { - and decree - } , unless sooner redeemed,
will be deeded to the county immediately on expiration of the
period of redemption and that every right or interest of any
person in the properties will be forfeited forever to the county.
The notice shall be published in two weekly issues of a duly
designated newspaper of general circulation in the county within
the period of 20 days as specified in this section. Proof of
publication shall be attached to and made a part of the deed
issued to the county. The published notice may be a general
notice and it shall not be necessary to include therein
descriptions of the several properties or the names of the
respective owners.
SECTION 426. ORS 312.210 is amended to read:
312.210. Appeal from any judgment { - and decree - } under
ORS 312.010 to 312.120 and 312.130 to 312.240, or from any final
order in the proceeding, may be taken to the Court of Appeals by
giving notice thereof orally in open court at the time of the
judgment
{ - and decree - } or final order, or by giving written notice
thereof at any time within 30 days after the date of the judgment
{ - and decree - } or final order. The manner of perfecting
appeals to the Court of Appeals and the proceedings thereon, and
the determination and disposition thereof, shall be governed by
the statutes on appeals in equitable cases.
SECTION 427. ORS 312.220 is amended to read:
312.220. Any judgment { - and decree - } for the sale of
real property to the county, on foreclosure for delinquent taxes,
is conclusive evidence of its regularity and validity in all
Enrolled House Bill 2646 (HB 2646-B) Page 310
collateral proceedings, except where the taxes have been paid or
the property was not liable to assessment and taxation. The
judgment { - and decree - } is prima facie evidence that the
taxes have not been paid and that the property was subject to
taxation at the time it was assessed. The judgment { - and
decree - } shall estop all persons raising objections thereto,
or to the title based thereon, which existed at or before the
date of the judgment { - and decree - } and could have been
presented as an objection or defense to the application for the
judgment { - and decree - } .
SECTION 428. ORS 312.230 is amended to read:
312.230. (1) Every action, suit or proceeding, commenced for
the purpose of determining the validity of a sale of real
property on foreclosure for delinquent taxes, or to quiet title
against such sale, or to remove the cloud thereof, or to recover
possession of the property, shall be commenced within two years
from the date of the judgment { - and decree - } of
foreclosure and sale to the county, or within six months from
June 1, 1961, whichever is the later.
(2) Notwithstanding any other provisions of law, in every such
action, suit or proceeding any person claiming to be the owner of
the property, as against the county or grantee, shall pay into
court with the first pleading the amount charged against the
property in the judgment { - and decree - } of foreclosure,
plus the amount or amounts that would otherwise have been
assessed and levied against said property as taxes from the date
of the said judgment { - and decree - } to the time of the
filing of such action, suit or proceeding, together with any
penalties and interest that would have accrued thereon as by
statute provided. In every such action, suit or proceeding any
person claiming to be the owner of the property as against any
person holding title from the county, shall pay into court with
the first pleading the amount charged against the property in the
judgment { - and decree - } of foreclosure, together with
interest thereon at the rate of six percent per year from the
date of the judgment { - and decree - } to the date of filing
the pleading.
(3) For all purposes this section shall be construed as a
statute of prescription as well as a statute of limitation.
SECTION 429. ORS 312.240 is amended to read:
312.240. Whenever the court vacates or sets aside a judgment
{ - and decree - } of foreclosure with respect to any
particular property, the court shall determine the value of any
improvements placed on the property by the county or by any
purchaser from the county, and shall give judgment therefor and
collect the same from the claimant before putting the claimant in
possession.
SECTION 430. ORS 312.300 is amended to read:
312.300. No proceedings subsequent to a judgment { - or
decree - } foreclosing a tax lien or liens upon property
purchased under ORS 312.270 or 312.290, whether by a private
purchaser or by a municipal corporation, shall be invalidated and
no deed shall be declared void or set aside for irregularities,
omissions or defects, unless the record owner of the property
sold actually has been misled by the irregularities, omissions or
defects to the injury of the record owner.
SECTION 431. ORS 312.360 is amended to read:
312.360. (1) All sales of land for taxes made to counties or
other public corporations are declared legal and valid and shall
pass good title to the lands assessed.
Enrolled House Bill 2646 (HB 2646-B) Page 311
(2) No proceedings subsequent to a judgment { - or decree - }
foreclosing a tax lien or liens shall be invalidated and no tax
deed declared void or set aside for irregularities, omissions or
defects unless the record owner of the land sold has been
actually misled by the irregularities, omissions or defects to
the injury of the record owner.
SECTION 432. ORS 316.567 is amended to read:
316.567. (1) Except as provided in subsection (2) of this
section, a husband and wife may make a single declaration jointly
under ORS 316.557 to 316.589. The liability of the husband and
wife making such a declaration shall be joint and several.
(2) A husband and wife may not make a joint declaration:
(a) If either the husband or the wife is a nonresident alien;
(b) If they are separated under a { - decree - } { +
judgment + } of divorce or of separate maintenance; or
(c) If they have different taxable years.
(3) If a husband and wife make a joint declaration but not a
joint return for the taxable year, the husband and wife may, in
such manner as they may agree, and after giving notice of the
agreement to the Department of Revenue:
(a) Treat the estimated tax for the year as the estimated tax
of either the husband or of the wife; or
(b) Divide the estimated tax between them.
(4) If a husband and wife fail to agree, or fail to notify the
department of the manner in which they agree, to the treatment of
estimated tax for a taxable year for which they make a joint
declaration but not a joint return, the payments shall be
allocated between them according to rules adopted by the
department. Notwithstanding ORS 314.835, 314.840 or 314.991, the
department may disclose to either the husband or the wife the
information upon which an allocation of estimated tax was made
under this section.
SECTION 433. ORS 327.480 is amended to read:
327.480. (1) Where the { - court decree - } { +
judgment + } in a suit instituted by the State of Oregon to
cancel and set aside any deed of lands from the State of Oregon
alleged to have been procured by fraud and in violation of law
grants relief to the State of Oregon which is conditioned on the
payment of money, the Division of State Lands may pay from the
Common School Fund the sum necessary to comply with the
conditions of the { - decree - } { + judgment + }.
(2) This section shall not be considered as a legislative
interpretation relieving the defendants in such suit from
applying to the legislature for repayment of the purchase price
of such land, or that the State of Oregon is not entitled to an
accounting from the purchaser, the assignee, or successor in
interest, for school or other lands obtained in violation of law,
or that the State of Oregon must repay the purchase price of such
lands, with or without interest as a condition of obtaining
relief. This section is intended to prevent the loss to the State
of Oregon of lands obtained in violation of law, where the court
imposes as a condition for granting relief the payment of money.
SECTION 434. ORS 332.030 is amended to read:
332.030. (1) The district school board shall declare the office
of a director vacant upon the happening of any of the following:
(a) The death or resignation of the incumbent.
(b) When an incumbent is removed from office or the election of
the incumbent thereto has been declared void by the judgment
{ - or decree - } of any { - competent - } court.
Enrolled House Bill 2646 (HB 2646-B) Page 312
(c) Subject to the provisions of subsections (2) and (3) of
this section, when an incumbent ceases to be a resident of the
district or zone from which nominated.
(d) When an incumbent ceases to discharge the duties of office
for two consecutive months unless prevented therefrom by sickness
or other unavoidable cause.
(e) When an incumbent ceases to discharge the duties of office
for four consecutive months for any reason.
(f) When an incumbent is recalled.
(2) A director of a union high school board who changes the
director's permanent residence from one component common school
district to another component common school district in which
another director resides shall continue to serve as director to
June 30 next following the next regular district election. At
that election, a successor shall be elected to serve the
remainder, if any, of the unexpired term to which the director
was elected. If the term to which the director was elected
expires June 30 next following the election of the successor, the
successor shall be elected to a full term. In either case, the
successor shall take office July 1 next following the election.
(3) A director of a common school district nominated from a
zone who changes the director's permanent residence from one zone
to another zone in which another director resides shall continue
to serve as director to June 30 next following the next regular
district election. At that election, a successor shall be elected
to serve the remainder, if any, of the unexpired term to which
the director was elected. If the term to which the director was
elected expires June 30 next following the election of the
successor, the successor shall be elected to a full term. In
either case, the successor shall take office July 1 next
following the election.
(4) When a vacancy is declared under subsection (1) of this
section, the remaining member or members of the board shall meet
and appoint a person to fill the vacancy. The person must satisfy
the eligibility requirements under ORS 332.018 and, if the
district is zoned, reside in the zone in which the vacancy
occurs. A director appointed under this subsection shall serve
to June 30 next following the next regular district election. At
that election, a successor shall be elected to serve the
remainder, if any, of the unexpired term to which the director
was appointed. If the term to which the director was appointed
expires June 30 next following the election of the successor, the
successor shall be elected to a full term. In any case, the
successor shall take office July 1 next following the election.
(5) If the offices of a majority of the directors of any
district are vacant at the same time, the education service
district board, or if there is none, the governing body of the
county shall appoint persons to fill the vacancies. The persons
must satisfy the eligibility requirements under ORS 332.018 and,
if the district is zoned, reside in the zones in which the
vacancies occur. If the vacancies occur in a joint district that
is not included in an education service district, the governing
body of the county containing the greater portion of the pupils
in average daily membership shall appoint the directors. Each
director appointed under this subsection shall serve to June 30
next following the next regular district election. At that
election, a successor shall be elected to serve the remainder, if
any, of the unexpired term to which the director was appointed.
If the term to which the director was appointed expires June 30
next following the election of the successor, the successor shall
Enrolled House Bill 2646 (HB 2646-B) Page 313
be elected to a full term. In any case, the successor shall take
office July 1 next following the election.
SECTION 435. ORS 334.095 is amended to read:
334.095. (1) The education service district board shall declare
the office of director vacant upon the happening of any of the
following:
(a) When an incumbent dies or resigns;
(b) When an incumbent is removed from office or the election
thereto has been declared void by the judgment { - or
decree - } of any
{ - competent - } court;
(c