72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2821
Sponsored by Representative BROWN (at the request of Oregon State
Sheriffs Association)
CHAPTER ................
AN ACT
Relating to civil proceedings; creating new provisions; amending
ORS 18.652, 18.705, 18.752, 18.755, 21.410, 105.158 and
206.030; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 206.030 is amended to read:
206.030. An officer to whom any process, order or paper is
delivered shall execute or serve it according to its command or
direction, or as required by law, and must make a written return
of the execution or service thereof. { + If a sheriff is
directed by a court to take personal property into custody at a
specific premises, and the property is concealed in a building or
enclosure, the sheriff shall demand its delivery. If delivery is
not made, the sheriff shall use such reasonable force as is
necessary to enter into the building or enclosure and take the
property into possession. + }
SECTION 2. ORS 18.705 is amended to read:
18.705. (1) Except as provided in subsection (2) of this
section, upon receiving notice of a challenge to a garnishment
under ORS 18.702, a garnishor must send to the court specified in
the writ of garnishment all amounts received by the garnishor
that the debtor has claimed to be exempt or not subject to
garnishment, unless the court specifically orders otherwise. The
payment to the court must be in cash or by check made payable to
the court. If the payment has not reached the court by the time
of the hearing under ORS 18.710, the clerk of the court shall so
notify the judge presiding at the hearing. If the court
determines that any of the garnished money should be disbursed to
the debtor and the payment has not reached the court by the time
of that determination, the court may issue an order requiring
that the garnishor appear and show cause why the garnishor should
not be held in contempt. In addition to contempt proceedings, the
court may require the garnishor to pay attorney fees under ORS
20.105. A court's imposition of sanctions under this subsection
does not limit any remedy otherwise available to the debtor.
(2) Subsection (1) of this section does not apply if the
garnishor is not required by law or allowed by law to disburse
the payment.
(3) The receipt of a challenge to a garnishment does not affect
the requirement under ORS 18.755 (1) that the garnishor mail or
deliver a written request for sale of property, and pay the fees
determined by the sheriff under ORS 18.755 (3), not later than 20
Enrolled House Bill 2821 (HB 2821-B) Page 1
days after the garnishee delivers the garnishee response { + to
the clerk of the court specified in the writ of garnishment as
having authority over the writ + }. The garnishor must note upon
the request for sale that a challenge to the garnishment has been
made by the debtor.
SECTION 3. ORS 18.752 is amended to read:
18.752. (1) If a garnishee indicates in the garnishee response
that the garnishee holds any property described in ORS 18.750,
the garnishee must hold the garnished property, or a portion of
the property sufficient to satisfy the garnishment, for a period
of 30 days after the garnishee delivers the garnishee response
{ + to the clerk of the court specified in the writ of
garnishment as having authority over the writ + }, unless the
sheriff or the garnishor notifies the garnishee that the
garnishment is released or terminated. If the sheriff contacts
the garnishee during the 30-day period, the garnishee shall
deliver the property to the sheriff or take such other action as
may be specified in the notice given to the garnishee under ORS
18.755 (4).
(2) If the garnishee is not contacted by the sheriff before the
end of the 30-day period provided for in subsection (1) of this
section, the garnishment is of no further force or effect with
respect to the property and the garnishee may deal with the
garnished property as if the writ { - of garnishment - } had
not been delivered to the garnishee.
SECTION 4. ORS 18.755 is amended to read:
18.755. (1) If a garnishee indicates in the garnishee response
that the garnishee holds any property described in ORS 18.750,
the garnishor may require that the property be sold and that the
proceeds of the sale be applied against the debt owed to the
creditor. A sale of the property shall be conducted by the
sheriff only if the garnishor mails or delivers a written request
for sale of the property, and pays the fees determined by the
sheriff under subsection (3) of this section, not later than 20
days after the garnishee delivers the garnishee response { + to
the clerk of the court specified in the writ of garnishment as
having authority over the writ + }. A copy of the writ { - of
garnishment - } and a copy of the garnishee response must be
attached to the request for sale of the property.
(2) A sale of the property described in ORS 18.750 may be
conducted under ORS 18.750 to 18.760 only by the sheriff of the
county in which the writ was delivered or, if the property is not
located within the county in which the writ was delivered, by the
sheriff of the county in which the property is located.
(3) A garnishor may request that the sheriff of a county
described in subsection (2) of this section provide a statement
to the garnishor of the fees that the sheriff will charge for
conducting a sale of property that is described in ORS 18.750.
The sheriff shall conduct such investigation as may be necessary
to determine the difficulty of conducting any sale of the
property under ORS 18.758, including any costs that the sheriff
may incur in taking into possession any of the property described
in ORS 18.750 (3). The sheriff shall determine whether the
property described in ORS 18.750 (3) should be taken into
possession of the sheriff, or whether the sheriff should enter
into an agreement with the garnishee for the garnishee to
continue to hold the property pending sale by the sheriff. The
sheriff shall provide the statement of fees to the garnishor not
later than five days after the garnishor requests the statement.
Enrolled House Bill 2821 (HB 2821-B) Page 2
(4) If the garnishor mails or delivers a written request for
sale of property and pays the sheriff fees determined under
subsection (3) of this section within the time allowed by
subsection (1) of this section, the sheriff shall promptly mail
or deliver a written notice to the garnishee. The notice shall
direct the garnishee to:
(a) Hold all property described in ORS 18.750 (2)(a) to (c)
until the garnishee receives further instructions with respect to
disposition of the property; and
(b) Deliver all property described in ORS 18.750 (2)(d) to the
sheriff, unless the sheriff has agreed with the garnishee that
the property should continue to be held by the garnishee pending
sale.
(5) Upon sending a notice to a garnishee under subsection (4)
of this section, the sheriff shall mail or deliver a copy of the
notice to the clerk of the court with authority over the writ
{ - of garnishment - } .
SECTION 5. ORS 18.652 is amended to read:
18.652. (1) A writ of garnishment may be delivered to the
garnishee personally or by certified mail, return receipt
requested. Delivery is effective upon receipt of the writ by the
garnishee. If the garnishee refuses to accept delivery by
certified mail, the garnishor may attempt personal delivery, but
the garnishor must have a new writ issued in order to claim
additional delivery fees.
(2) Personal delivery of a writ of garnishment may be made only
by:
(a) The sheriff of the county where the writ { - of
garnishment - } is to be delivered; or
(b) A competent person 18 years of age or older who is a
resident of the State of Oregon and who is not a party or
attorney in the action.
(3) If personal delivery is made under this section, the person
serving the writ { - of garnishment - } must note the date of
delivery upon the writ delivered to the garnishee or upon a true
copy delivered to the garnishee.
(4) Notwithstanding subsection (2) of this section, a person
other than a sheriff may not deliver a writ of garnishment unless
the person has errors and omissions insurance with limits of not
less than $100,000 per occurrence from a company authorized to do
business in this state.
(5) The delivery fee for a writ of garnishment by a person
other than a sheriff shall be in an amount agreed to between the
person making the delivery and the garnishor. The delivery fee
for a writ { - of garnishment - } by a sheriff under this
section { + is $15. + }
{ - shall be no more than the following, based upon population
as determined by the most recent federal decennial census: - }
{ - (a) $12.50 if the writ is delivered in a county with a
population of fewer than 400,000 persons. - }
{ - (b) $9.50 if the writ is delivered in a county with a
population of 400,000 persons or more. - }
SECTION 6. ORS 21.410 is amended to read:
21.410. (1) The sheriff of a county shall collect the following
fees in civil actions, suits and proceedings for each case
delivered to the office of the sheriff:
(a) { + $28 + } for serving summons, subpoena, citation,
order, notice { + , including notice of seizure and sale of
personal or real property, notice of restitution and notice of
seizure under writ of attachment or execution, + } or similar
Enrolled House Bill 2821 (HB 2821-B) Page 3
documents, including small claims or writ of execution, directed
to not more than two
{ - different - } parties at the same address { - , not less
than $20 and not more than $25; otherwise not less than $20 and
not more than $25 for each party for which service is
requested - } . { + If service is requested for more than two
parties at the same address, the fee is $15 for each party at the
same address. + } The fee authorized by this paragraph shall not
be charged to the state in civil actions, suits and proceedings
where one party is an indigent person who has been appointed
counsel at state expense.
{ - (b) For serving notice of seizure and sale of personal or
real property, notice of restitution, or other seizure under writ
of attachment or execution, or other process or proceeding,
$20. - }
{ - (c) - } { + (b) + } For seizure and sale of personal or
real property, enforcement of writ of execution of judgment of
restitution, or other enforcement or seizure under writ of
attachment or execution, or other process or proceeding, $47,
and, in addition, such sums as may be reasonable and necessary to
secure each keeper or custodian of property in custody, the
expense of inventory of property in custody and expense incurred
in newspaper advertising required by law in the execution of
process.
{ - (d) - } { + (c) + } For making a conveyance of real
property sold on any process, $15, to be paid by, or for, the
grantee.
{ - (e) - } { + (d) + } For making a copy of any process,
order, notice or other instrument in writing, when necessary to
complete the service thereof, for each folio, $3; but no charge
shall be made for copy of complaint or other paper not actually
made by the sheriff.
{ - (f) - } { + (e) + } For entering and processing
distraint warrants for state agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other
documents may charge any fee agreed to between the server and the
person requesting service.
(3) Fees collected for service by the sheriff shall be retained
for the benefit of the county where the party to be served cannot
be found.
(4) No mileage or commission shall be collected by a sheriff
for service of any document or process but in any service
involving travel in excess of 75 miles round trip an additional
fee not to exceed $25 may be billed and collected by a sheriff.
Mileage shall be measured from the location at which the service
is made to the circuit court in that county.
(5) Amounts paid for service of process and other documents may
be recovered as costs and disbursements to the extent provided by
ORS 20.115.
(6) A sheriff may not collect a fee under this section for
serving a foreign restraining order or an order that only grants
relief under ORS 107.095 (1)(c).
(7) As used in this section:
(a) 'Folio' means 100 words, counting two figures as one word.
Any portion of a folio, when the whole paper contains less than a
folio, or when such portion is an excess over the last folio,
shall be deemed a folio.
(b) 'Foreign restraining order' means a restraining order that
is a foreign judgment as defined by ORS 24.105.
Enrolled House Bill 2821 (HB 2821-B) Page 4
SECTION 7. ORS 21.410, as amended by section 86, chapter 962,
Oregon Laws 2001, is amended to read:
21.410. (1) The sheriff of a county shall collect the following
fees in civil actions, suits and proceedings for each case
delivered to the office of the sheriff:
(a) { + $28 + } for serving summons, subpoena, citation,
order, notice { + , including notice of seizure and sale of
personal or real property, notice of restitution and notice of
seizure under writ of attachment or execution, + } or similar
documents, including small claims or writ of execution, directed
to not more than two
{ - different - } parties at the same address { - , not less
than $20 and not more than $25; otherwise not less than $20 and
not more than $25 for each party for which service is
requested - } . { + If service is requested for more than two
parties at the same address, the fee is $15 for each party at the
same address. + } The fee authorized by this paragraph shall not
be charged to the state in civil actions, suits and proceedings
where one party is a person who has been appointed counsel at
state expense.
{ - (b) For serving notice of seizure and sale of personal or
real property, notice of restitution, or other seizure under writ
of attachment or execution, or other process or proceeding,
$20. - }
{ - (c) - } { + (b) + } For seizure and sale of personal or
real property, enforcement of writ of execution of judgment of
restitution, or other enforcement or seizure under writ of
attachment or execution, or other process or proceeding, $47,
and, in addition, such sums as may be reasonable and necessary to
secure each keeper or custodian of property in custody, the
expense of inventory of property in custody and expense incurred
in newspaper advertising required by law in the execution of
process.
{ - (d) - } { + (c) + } For making a conveyance of real
property sold on any process, $15, to be paid by, or for, the
grantee.
{ - (e) - } { + (d) + } For making a copy of any process,
order, notice or other instrument in writing, when necessary to
complete the service thereof, for each folio, $3; but no charge
shall be made for copy of complaint or other paper not actually
made by the sheriff.
{ - (f) - } { + (e) + } For entering and processing
distraint warrants for state agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other
documents may charge any fee agreed to between the server and the
person requesting service.
(3) Fees collected for service by the sheriff shall be retained
for the benefit of the county where the party to be served cannot
be found.
(4) No mileage or commission shall be collected by a sheriff
for service of any document or process but in any service
involving travel in excess of 75 miles round trip an additional
fee not to exceed $25 may be billed and collected by a sheriff.
Mileage shall be measured from the location at which the service
is made to the circuit court in that county.
(5) Amounts paid for service of process and other documents may
be recovered as costs and disbursements to the extent provided by
ORS 20.115.
Enrolled House Bill 2821 (HB 2821-B) Page 5
(6) A sheriff may not collect a fee under this section for
serving a foreign restraining order or an order that only grants
relief under ORS 107.095 (1)(c).
(7) As used in this section:
(a) 'Folio' means 100 words, counting two figures as one word.
Any portion of a folio, when the whole paper contains less than a
folio, or when such portion is an excess over the last folio,
shall be deemed a folio.
(b) 'Foreign restraining order' means a restraining order that
is a foreign judgment as defined by ORS 24.105.
SECTION 8. ORS 105.158 is amended to read:
105.158. (1) For purposes of this section, 'process server '
means any competent person 18 years of age or older who:
(a) Is a resident of the State of Oregon;
(b) Is not the plaintiff, a relative of the plaintiff or an
agent of the plaintiff for purposes of management of the
premises;
(c) Is a person regularly employed in the business of serving
process; and
(d) Charges a fee no greater than that set by ORS 21.410
{ - (1)(b) - } { + (1)(a) + } for service of the notice of
restitution.
(2) The sheriff or a process server shall serve the notice of
restitution under ORS 105.152 or 105.153 in the manner provided
by this subsection. Notwithstanding ORCP 10, by the end of the
next judicial day following the payment of fees:
(a) The sheriff or process server shall mail a copy of the
notice of restitution by first class mail to the defendant at the
premises; and
(b) The sheriff or process server shall serve the notice of
restitution at the premises by personal delivery to the defendant
or, if the defendant is not available for service, by attaching a
copy of the notice in a secure manner to the main entrance to
that portion of the premises of which the defendant has
possession.
(3) If service of the notice of restitution is made by a
process server, by the end of the next judicial day following
service the process server shall file with the clerk of the court
a certificate of service in the same manner as provided by ORCP 7
F(2)(a).
SECTION 9. { + Section 10 of this 2003 Act is added to and
made a part of ORS 107.700 to 107.732. + }
SECTION 10. { + A sheriff may serve a restraining order under
ORS 107.718 in the county in which the sheriff was elected and in
any other county that is adjacent to the county in which the
sheriff was elected. + }
SECTION 11. { + Section 12 of this 2003 Act is added to and
made a part of ORS 124.005 to 124.040. + }
SECTION 12. { + A sheriff may serve a restraining order under
ORS 124.020 in the county in which the sheriff was elected and in
any other county that is adjacent to the county in which the
sheriff was elected. + }
SECTION 13. { + Section 14 of this 2003 Act is added to and
made a part of ORS 419B.800 to 419B.929. + }
SECTION 14. { + A sheriff may serve a restraining order under
ORS 419B.845 in the county in which the sheriff was elected and
in any other county that is adjacent to the county in which the
sheriff was elected. + }
SECTION 15. { + The amendments to ORS 18.652, 21.410 and
105.158 by sections 5 to 8 of this 2003 Act apply only to
Enrolled House Bill 2821 (HB 2821-B) Page 6
documents received for service on or after the effective date of
this 2003 Act. + }
SECTION 16. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
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Passed by House April 21, 2003
Repassed by House May 23, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 21, 2003
...........................................................
President of Senate
Enrolled House Bill 2821 (HB 2821-B) Page 7
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2821 (HB 2821-B) Page 8