74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2316
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon Collectors Association and NACM (National
Association of Credit Managers))
CHAPTER ................
AN ACT
Relating to courts; creating new provisions; and amending ORS
46.405, 46.425, 46.461, 51.080, 55.011, 55.095 and 133.055.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 46.405 is amended to read:
46.405. (1) Except as provided in subsection (6) of this
section, each circuit court shall have a small claims department.
(2) Except as provided in this section, all actions for the
recovery of money, damages, specific personal property, or any
penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the
action does not exceed $750.
(3) Except as provided in this section and ORS 46.455 (2)(c),
an action for the recovery of money, damages, specific personal
property, or any penalty or forfeiture may be commenced and
prosecuted in the small claims department if the amount or value
claimed in the action does not exceed { - $5,000 - } { +
$7,500 + }.
(4) Class actions may not be commenced and prosecuted in the
small claims department.
(5) Actions providing for statutory attorney fees in which the
amount or value claimed does not exceed $750 may be commenced and
prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the circuit court. This
subsection does not apply to an action based on contract for
which attorney fees are authorized under ORS 20.082.
(6) If a circuit court is located in the same city as a justice
court, the circuit court need not have a small claims department
if the circuit court and the justice court enter into an
intergovernmental agreement that provides that only the justice
court will operate a small claims department. If an
intergovernmental agreement is entered into under this
subsection, the agreement must establish appropriate procedures
for referring small claims cases to the justice court.
SECTION 2. ORS 46.425 is amended to read:
46.425. (1) An action in the small claims department shall be
commenced by the plaintiff's filing with the clerk of the court a
verified claim in the form prescribed by the court, and by paying
the fee prescribed by ORS 46.570 (1)(a) for each action filed.
Enrolled House Bill 2316 (HB 2316-INTRO) Page 1
(2) The claim shall contain the name and address of the
plaintiff and of the defendant, followed by a plain and simple
statement of the claim, including the amount and the date the
claim allegedly accrued. The claim shall include an affidavit
signed by the plaintiff and stating that the plaintiff made a
bona fide effort to collect the claim from the defendant before
filing the claim with the clerk.
(3) Except in actions arising under ORS chapter 90, the
plaintiff must include in a claim all amounts claimed from the
defendant arising out of a single transaction or occurrence. Any
plaintiff alleging damages on a transaction requiring installment
payments need only claim the installment payments due and owing
as of the date of filing of the claim, and need not accelerate
the remaining payments. The plaintiff may include in a claim all
amounts claimed from a defendant on more than one transaction or
occurrence if the total amount of the claim does not exceed
{ - $5,000 - } { + $7,500 + }.
(4) Notwithstanding subsection (3) of this section, a plaintiff
bringing an action on assigned claims:
(a) Need bring an action only on those claims that have been
assigned as of the date the action is filed; and
(b) May bring separate actions for each person assigning claims
to the plaintiff.
SECTION 3. ORS 46.461 is amended to read:
46.461. (1) The defendant in an action in the small claims
department may assert as a counterclaim any claim that, on the
date of issuance of notice pursuant to ORS 46.445, the defendant
may have against the plaintiff and that arises out of the same
transaction or occurrence that is the subject matter of the claim
filed by the plaintiff.
(2) If the amount or value of the counterclaim exceeds
{ - $5,000 - } { + $7,500 + }, the court shall strike the
counterclaim and proceed to hear and dispose of the case as
though the counterclaim had not been asserted unless the
defendant files with the counterclaim a motion requesting that
the case be transferred from the small claims department to the
circuit court. After the transfer the plaintiff's claim will not
be limited to the amount stated in the claim filed with the small
claims department, though it must involve the same controversy.
(3)(a) If the amount or value of the counterclaim exceeds that
specified in subsection (2) of this section, and the defendant
files a motion requesting transfer as provided in subsection (2)
of this section, the case shall be transferred to the circuit
court. The clerk of the court shall notify the plaintiff and
defendant, by mail, of the transfer. The notice to the plaintiff
shall contain a copy of the counterclaim and shall instruct the
plaintiff to file with the court and serve by mail on the
defendant, within 20 days following the mailing of the notice, a
reply to the counterclaim and, if the plaintiff proposes to
increase the amount of the claim originally filed with the small
claims department, an amended claim for the increased amount.
Proof of service on the defendant of the plaintiff's reply and
amended claim may be made by certificate of the plaintiff or
plaintiff's attorney attached to the reply and amended claim
filed with the court. The defendant is not required to answer an
amended claim of the plaintiff.
(b) Upon filing the motion requesting transfer, the defendant
shall pay to the clerk of the court the transfer fee required by
ORS 46.570 (1)(c) and an amount equal to the difference between
the fee paid by the defendant as required by ORS 46.570 (1)(a)
Enrolled House Bill 2316 (HB 2316-INTRO) Page 2
and the fee required of a defendant by ORS 21.110. Upon filing a
reply to the counterclaim, the plaintiff shall pay to the clerk
of the court an amount equal to the difference between the fee
paid by the plaintiff as required by ORS 46.570 (1)(a) and the
fee required of a plaintiff by ORS 21.110.
SECTION 4. ORS 51.080 is amended to read:
51.080. A justice court has jurisdiction, but not exclusive, of
the following actions:
(1) For the recovery of money or damages only, when the amount
claimed does not exceed { - $5,000 - } { + $7,500 + }.
(2) For the recovery of specific personal property, when the
value of the property claimed and the damages for the detention
do not exceed { - $5,000 - } { + $7,500 + }.
(3) For the recovery of any penalty or forfeiture, whether
given by statute or arising out of contract, not exceeding
{ - $5,000 - } { + $7,500 + }.
(4) Also, to give judgment without action, upon the confession
of the defendant for any of the causes specified in this section,
except for a penalty or forfeiture imposed by statute.
(5) For purposes of this section, the amount claimed, value of
property, damages or any amount in controversy does not include
any amount claimed as costs and disbursements or attorney fees as
defined by ORCP 68 A.
SECTION 5. ORS 55.011 is amended to read:
55.011. (1) Except as provided in subsection (8) of this
section, in each justice court created under any law of this
state there shall be a small claims department.
(2) Except as provided in this section, all actions for the
recovery of money, damages, specific personal property, or any
penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the
action does not exceed $750.
(3) Except as provided in this section and ORS 46.455 (2)(c),
an action for the recovery of money, damages, specific personal
property, or any penalty or forfeiture may be commenced and
prosecuted in the small claims department if the amount or value
claimed in the action does not exceed { - $5,000 - } { +
$7,500 + }.
(4) Class actions may not be commenced and prosecuted in the
small claims department.
(5) Actions providing for statutory attorney fees in which the
amount or value claimed does not exceed $750 may be commenced and
prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the justice court. This
subsection does not apply to an action based on contract for
which attorney fees are authorized under ORS 20.082.
(6) Jurisdiction of the person of the defendant in an action
commenced in the small claims department shall be deemed acquired
as of the time of service of the notice and claim.
(7) Except as provided in ORS 55.065 (2)(c), the provisions of
ORS 55.020 to 55.140 shall apply with regard to proceedings in
the small claims department of any justice court.
(8) If a justice court is located in the same city as a circuit
court, the justice court need not have a small claims department
if the justice court and the circuit court enter into an
intergovernmental agreement that provides that only the circuit
court will operate a small claims department. If an
intergovernmental agreement is entered into under this
subsection, the agreement must establish appropriate procedures
for referring small claims cases to the circuit court.
Enrolled House Bill 2316 (HB 2316-INTRO) Page 3
SECTION 6. ORS 55.095 is amended to read:
55.095. (1) The defendant in an action in the small claims
department may assert as a counterclaim any claim that, on the
date of issuance of notice pursuant to ORS 55.045, the defendant
may have against the plaintiff and that arises out of the same
transaction or occurrence that is the subject matter of the claim
filed by the plaintiff.
(2) If the amount of the counterclaim asserted by the defendant
exceeds { - $5,000 - } { + $7,500 + }, the justice of the
peace shall strike the counterclaim and proceed to hear and
dispose of the case as though the counterclaim had not been
asserted unless the defendant files with the counterclaim a
motion requesting that the case be transferred from the small
claims department to a court of appropriate jurisdiction and an
amount to pay the costs of the transfer. After the transfer the
plaintiff's claim will not be limited to the amount stated in the
claim filed with the justice of the peace, though it must involve
the same controversy.
(3)(a) If the amount or value of the counterclaim exceeds the
jurisdictional limit of the justice court for a counterclaim and
the defendant files a motion requesting transfer and an amount to
pay the costs of transfer as provided in subsection (2) of this
section, the case shall be transferred to the circuit court for
the county in which the justice court is located and be governed
as provided in ORS 52.320 for transfers to the circuit court. The
justice court shall notify the plaintiff and defendant, by mail
within 10 days following the order of transfer, of the transfer.
The notice to the plaintiff shall contain a copy of the
counterclaim and shall inform the plaintiff as to further
pleading by the plaintiff in the court of appropriate
jurisdiction.
(b) Upon filing the motion requesting transfer, the defendant
shall pay to the court of appropriate jurisdiction an amount
equal to the difference between the fee paid by the defendant as
required by ORS 51.310 (1)(c) and the appearance fee for a
defendant in the court of appropriate jurisdiction.
SECTION 7. ORS 133.055 is amended to read:
133.055. (1) A peace officer may issue a criminal citation to a
person if the peace officer has probable cause to believe that
the person has committed a misdemeanor or has committed any
felony that is subject to misdemeanor treatment under ORS
161.705. The peace officer shall deliver a copy of the criminal
citation to the person. The criminal citation shall require the
person to appear at the court of the magistrate before whom the
person would be taken pursuant to ORS 133.450 if the person were
arrested for the offense.
(2)(a) Notwithstanding the provisions of subsection (1) of this
section, when a peace officer responds to an incident of domestic
disturbance and has probable cause to believe that an assault has
occurred between family or household members, as defined in ORS
107.705, or to believe that one such person has placed the other
in fear of imminent serious physical injury, the officer shall
arrest and take into custody the alleged assailant or potential
assailant.
(b) When the peace officer makes an arrest under paragraph (a)
of this subsection, the peace officer is not required to arrest
both persons.
(c) When a peace officer makes an arrest under paragraph (a) of
this subsection, the peace officer shall make every effort to
Enrolled House Bill 2316 (HB 2316-INTRO) Page 4
determine who is the assailant or potential assailant by
considering, among other factors:
(A) The comparative extent of the injuries inflicted or the
seriousness of threats creating a fear of physical injury;
(B) If reasonably ascertainable, the history of domestic
violence between the persons involved;
(C) Whether any alleged crime was committed in self-defense;
and
(D) The potential for future assaults.
(3) Whenever any peace officer has reason to believe that a
family or household member, as defined in ORS 107.705, has been
abused as defined in ORS 107.705 or that an elderly person or a
person with disabilities has been abused as defined in ORS
124.005, that officer shall use all reasonable means to prevent
further abuse, including advising each person of the availability
of a shelter or other services in the community and giving each
person immediate notice of the legal rights and remedies
available. The notice shall consist of handing each person a copy
of the following statement:
_________________________________________________________________
IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE OR ABUSE, you can
ask the district attorney to file a criminal complaint. You also
have the right to go to the circuit court and file a petition
requesting any of the following orders for relief: (a) An order
restraining your attacker from abusing you; (b) an order
directing your attacker to leave your household; (c) an order
preventing your attacker from entering your residence, school,
business or place of employment; (d) an order awarding you or the
other parent custody of or parenting time with a minor child or
children; (e) an order restraining your attacker from molesting
or interfering with minor children in your custody; (f) an order
awarding you other relief the court considers necessary to
provide for your or your children's safety, including emergency
monetary assistance. Such orders are enforceable in every state.
You may also request an order awarding support for minor
children in your care or for your support if the other party has
a legal obligation to support you or your children.
You also have the right to sue for losses suffered as a result
of the abuse, including medical and moving expenses, loss of
earnings or support, and other out-of-pocket expenses for
injuries sustained and damage to your property. This can be done
without an attorney in { + the + } small claims { + department
of a + } court if the total amount claimed is under
{ - $3,500 - } { + $7,500 + }.
Similar relief may also be available in tribal courts.
For further information you may contact: ___.
_________________________________________________________________
SECTION 8. { + The amendments to ORS 46.405, 46.425, 46.461,
51.080, 55.011, 55.095 and 133.055 by sections 1 to 7 of this
2007 Act apply to all actions commenced in the small claims
department of a court on or after the effective date of this 2007
Act, without regard to whether the claim for which the action is
commenced arose before, on or after the effective date of this
2007 Act. + }
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Enrolled House Bill 2316 (HB 2316-INTRO) Page 5
Passed by House February 15, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate March 29, 2007
...........................................................
President of Senate
Enrolled House Bill 2316 (HB 2316-INTRO) Page 6
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2316 (HB 2316-INTRO) Page 7