74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 684
Senate Bill 303
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Oregon State Bar Debtor/Creditor Section)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that wages owing by garnishee to debtor for specific
pay period are not garnishable property under certain
circumstances in which garnishee had issued order to third-party
payroll administrator to pay wages.
A BILL FOR AN ACT
Relating to garnishment; creating new provisions; and amending
ORS 18.618, 18.625, 18.685, 18.750, 18.838, 18.855 and 90.300.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.618 is amended to read:
18.618. (1) { + (a) + } Notwithstanding ORS 18.615, the
following are not garnishable property:
{ - (a) - } { + (A) + } Equitable interests, except to the
extent allowed under ORS chapter 130.
{ - (b) - } { + (B) + } Property in the custody of the law.
{ - (c) - } { + (C) + } Property in the possession of a
conservator.
{ - (d) - } { + (D) + } Property in the possession of a
personal representative that constitutes the subject matter of a
trust contained in a duly probated will of a decedent.
{ - (e) - } { + (E) + } If a residential landlord is the
garnishee, property in the possession of a residential landlord
that is held as a security deposit or prepaid rent under ORS
90.300.
{ - (f) - } { + (F) + } The right of a seller under a land
sale contract, as defined by ORS 18.960, to receive payments that
are due more than 45 days after the writ of garnishment is
delivered.
{ - (2) - } { + (b) + } If a garnishee holds any property
described in
{ - subsection (1) of this section - } { + paragraph (a) of
this subsection + }, the garnishee must note in the garnishee
response required by ORS 18.680 that the garnishee holds the
property, but may not deliver the property to the garnishor.
{ + (2)(a) Notwithstanding ORS 18.615, wages owing by a
garnishee to a debtor for a specific pay period are not
garnishable property if:
(A) Before the writ was delivered to the garnishee, the
garnishee entered into an agreement with a financial institution
or other third party to act as payroll administrator for the
garnishee's payroll;
(B) The debtor's wages are paid by direct deposit to a
financial institution, or by an instrument issued to the debtor
by the payroll administrator;
(C) Before the writ was delivered, the garnishee issued
instructions to the payroll administrator to pay the debtor's
wages; and
(D) The writ is delivered within two business days before the
debtor's normal payday for the pay period, or the writ is
delivered more than two business days before the debtor's normal
payday for the pay period but the garnishee is unable to cancel
the instructions to the payroll administrator using reasonable
efforts.
(b) If a garnishee owes any wages as described in paragraph (a)
of this subsection, the garnishee must so note in the garnishee
response required by ORS 18.680. + }
(3) Notwithstanding any other provision of law, if a voluntary
or involuntary bankruptcy petition has been filed by or on behalf
of the debtor after a writ of garnishment could be issued under
ORS 18.605, the garnishment of any property of the debtor in the
garnishee's possession, control or custody is stayed pursuant to
section 362 of the United States Bankruptcy Code (11 U.S.C. 101
to 1330).
SECTION 2. ORS 18.625 is amended to read:
18.625. (1) For any property other than wages, a writ of
garnishment acts to garnish only garnishable property of the
debtor that is in the garnishee's possession, control or custody
at the time the writ is delivered, including money that is owed
but not yet due.
(2) { + Except as provided in ORS 18.618 (2), + }a writ of
garnishment acts to garnish all wages owed by the garnishee to
the debtor at the time the writ is delivered. Except as provided
in subsection (3) of this section, a writ also acts to garnish
all wages earned by the debtor by reason of services to the
garnishee during the period commencing with the date the writ is
delivered and ending on the earlier of:
(a) The expiration of 90 days after the date the writ is
delivered; or
(b) The date on which the garnishment is released or satisfied
in full.
(3) If a writ of garnishment is issued on behalf of a county or
county agency, the writ acts to garnish all wages earned by the
debtor by reason of services to the garnishee until the full
amount owed to the county or county agency is paid or until the
writ of garnishment is released by the county or county agency or
by a court order. A writ of garnishment issued on behalf of a
county or county agency shall contain language reasonably
designed to notify the garnishee of the provisions of this
subsection.
SECTION 3. ORS 18.838 is amended to read:
18.838. Instructions to garnishees must be in substantially the
following form:
_________________________________________________________________
INSTRUCTIONS TO GARNISHEE
Except as specifically provided in these instructions, you must
complete and deliver the Garnishee Response within seven calendar
days after you receive the writ of garnishment. If the writ does
not comply with Oregon law, the writ is not effective to garnish
any property of the Debtor, but you still must complete and
deliver the Garnishee Response. You must complete and deliver the
response even though you cannot determine from the writ whether
you hold any property or owe any debt to the Debtor. If the
seventh calendar day is a Saturday, Sunday or legal holiday, you
must deliver your response on or before the next following day
that is not a Saturday, Sunday or legal holiday.
The writ is not effective, and you need not make a Garnishee
Response, if:
o You do not receive the writ within 60 days after the date of
issuance shown on the face of the writ.
o You do not receive an original writ of garnishment 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
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. { + Except as provided below, + } 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 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).
{ + The writ does not garnish any wages you owe to a debtor
for a specific pay period if:
(a) Before the writ was delivered to you, you entered into an
agreement with a financial institution or other third party to
act as payroll administrator for your payroll;
(b) The debtor's wages are paid by direct deposit to a
financial institution, or by an instrument issued to the debtor
by the payroll administrator;
(c) Before the writ was delivered, you issued instructions to
the payroll administrator to pay the debtor's wages; and
(d) The writ was delivered within two business days before the
debtor's normal payday for the pay period, or the writ was
delivered more than two business days before the debtor's normal
payday for the pay period but you were unable to cancel the
instructions to the payroll administrator using reasonable
efforts. + }
{ + If any wages are not garnishable by reason of the
issuance of instructions to a payroll administrator as described
above, you must so note in the Garnishee Response. Thereafter,
you must pay to the Garnishor all wages that are subject to
garnishment that are attributable to services performed by the
Debtor during the 90-day period following the date you received
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
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).
Processing fee. You may collect a $1 processing fee for each
week of wages, or fraction of a week of wages, for which a
payment is made under the writ. The fee must be collected after
you make the last payment under the writ. The fee must be
withheld from the wages of the debtor, and is in addition to the
amounts withheld for payment to the garnishor under the writ or
under any other writ you have received.
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.
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 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
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 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
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 4. ORS 18.855 is amended to read:
18.855. (1) Notwithstanding ORS 18.607, a notice of garnishment
issued by a state agency need not contain the name of a court
whose authority is invoked.
(2) State agencies shall make such modifications as are
necessary in the wage exemption calculation form provided by ORS
18.840 if a notice of garnishment is issued for a debt due for a
state tax that is subject to the provisions of ORS 18.385 (6).
(3) Notwithstanding ORS 18.625, { + but subject to ORS 18.618
(2), + } a notice of garnishment issued by a state agency acts to
garnish all wages earned by the debtor by reason of services to
the garnishee until the full amount of the debt is paid or until
the notice of garnishment is released by the state agency or by
court order. A notice of garnishment issued by a state agency
must contain language reasonably designed to notify the garnishee
of the provisions of this subsection.
(4) Notwithstanding ORS 18.690, a garnishee who receives a
notice of garnishment issued by a state agency need not deliver a
copy of the garnishee response to the clerk of the court, but
must deliver the original of the response to the state agency.
(5) Notwithstanding ORS 18.700, a challenge to a notice of
garnishment issued by a state agency must be delivered in person
or by first class mail to the state agency within the time
specified by ORS 18.700 (2). Within 14 days after receiving the
challenge, the state agency must either concede the challenge or
give the person making the challenge opportunity for hearing. If
the person making the challenge requests a hearing, the agency
shall immediately refer the challenge to the Office of
Administrative Hearings established under ORS 183.605. The
hearing shall be conducted as soon as possible. Notwithstanding
ORS 183.315, the hearing shall be conducted as a contested case
hearing. An issue that was decided in a previous hearing, or for
which the debtor was previously afforded an opportunity for
hearing, may not be reconsidered.
(6) If a state agency is issuing a notice of garnishment for
collection of a state tax, and the state agency has reason to
believe that the debtor intends to leave the state or do any
other act that would jeopardize collection of the tax, the state
agency may issue a special notice of garnishment. Any earnings,
as defined in ORS 18.375, garnished under a special notice of
garnishment are not subject to a claim of exemption under ORS
18.385. A special notice of garnishment issued under this
subsection garnishes only that property of the debtor that is in
the garnishee's possession, control or custody at the time the
special notice is delivered, including debts not yet due, and all
wages owed by the garnishee to the debtor at the time the special
notice is delivered. A special notice of garnishment does not act
to garnish wages earned by the debtor by reason of services
rendered to the garnishee after the delivery of the special
notice of garnishment.
(7) A special notice of garnishment issued under subsection (6)
of this section shall contain a statement indicating that it is a
special notice of garnishment under subsection (6) of this
section and a statement reflecting the provisions of subsection
(6) of this section. Notwithstanding ORS 18.854 (1), a wage
exemption calculation form shall not be delivered to the
garnishee with a special notice of garnishment.
SECTION 5. ORS 18.685 is amended to read:
18.685. A garnishee must note upon a garnishee response the
date on which the garnishee received the writ of garnishment. The
garnishee must also note upon the response the following
information and deliver the response in the manner provided by
ORS 18.690:
(1) If the garnishee discovers that a voluntary or involuntary
bankruptcy petition has been filed by or on behalf of the debtor
and the petition was filed after the date shown on the face of
the writ as the date on which the judgment was entered or
otherwise first became subject to garnishment.
(2) If the garnishee does not employ the debtor and the
garnishee does not have any garnishable property of the debtor in
the possession, control or custody of the garnishee, the
garnishee must so note on the response.
(3) If the garnishee employs the debtor, the garnishee must so
state on the response and make all other responses required by
this section or ORS 18.688. The garnishee must thereafter make
payment under the writ in the manner provided by ORS 18.735.
(4) If the garnishee has any cash belonging to the debtor, or
the garnishee owes any money to the debtor other than wages that
is due as of the time the response is made, the garnishee must so
note on the response. The garnishee must make payment with the
response in the manner provided by ORS 18.730 of the amount
subject to the garnishment, or of such amount as will satisfy the
garnishment, whichever amount is less.
(5) If the garnishee owes any money to the debtor other than
wages that is not due as of the time the response is made but
that will become due within 45 days after the time the writ is
delivered, the garnishee must so note on the response. When the
money becomes due, the garnishee must make payment in the manner
provided by ORS 18.732 of the amount subject to the garnishment,
or of such amount as will satisfy the garnishment, whichever
amount is less.
(6) Except as provided in ORS 18.618 { - (1)(f) - } { +
(1)(a)(F) + }, if the garnishee owes any money to the debtor
other than wages that is not due as of the time the response is
made and the money will not become due within 45 days after the
time the writ is delivered, the garnishee must so note on the
response. The garnishee must thereafter comply with ORS 18.750 to
18.760.
(7) If the garnishee has any garnishable property of the debtor
in the possession, control or custody of the garnishee that is
not cash or owed money, the garnishee must so note on the
response. The garnishee must thereafter comply with ORS 18.750 to
18.760.
(8) If the garnishee can determine from the writ that the
garnishee may owe money to or hold garnishable property of the
debtor, but is not sure what or how much, the garnishee must so
state on the response and must state that the garnishee will file
an amended response when the garnishee determines what or how
much money or property the garnishee owes or holds.
(9) If the garnishee determines that the writ of garnishment
does not comply on its face with ORS 18.600 to 18.850, or if the
garnishee is unable to determine the identity of the debtor from
the information contained in the writ, the writ of garnishment is
ineffective to garnish the property of the debtor. The garnishee
must so note on the response and provide an explanation.
(10) If, before delivering the garnishee response, the
garnishee receives an order to withhold income issued under ORS
chapter 25 that applies to the income of the debtor, the
garnishee must so note on the response. The garnishee must
provide details of the order to withhold income, including the
name of the agency serving the order, the date the order was
served on the garnishee and the amount to be withheld. If the
garnishee employs the debtor, the garnishee must make the
responses required under ORS 18.688.
(11) If the garnishee receives notice of a challenge to the
garnishment before delivering the response, the garnishee must so
note on the response. The garnishee must thereafter comply with
ORS 18.708.
SECTION 6. ORS 18.750 is amended to read:
18.750. (1) A garnishee shall not deliver the property
described in this section to the garnishor. If the garnishor
seeks to apply the property described in this section against the
debt of the debtor, the property must be sold by the sheriff in
the manner specified in ORS 18.750 to 18.760.
(2) The provisions of ORS 18.750 to 18.760 apply to:
(a) Except as provided in ORS 18.618 { - (1)(f) - } { +
(1)(a)(F) + }, any money owed by a garnishee to a debtor the
payment of which is not due at the time the writ of garnishment
is delivered to the garnishee and the payment of which does not
become due within 45 days after the date of delivery;
(b) Property of the debtor that the garnishee holds under an
unexpired bailment or lease;
(c) Property of the debtor in which the garnishee has a
security interest that was granted to the garnishee by the debtor
before the delivery of the writ; and
(d) Any other garnishable property that is not payable in
money.
(3) The property described in subsection (2)(a) to (c) of this
section must be delivered by the garnishee to the purchaser in
the manner provided by ORS 18.758 (3) if the interest of the
debtor in the property is sold by the sheriff under ORS 18.758.
Subject to the provisions of ORS 18.755, the garnishee must
deliver to the sheriff any other garnishable property that is not
payable in money upon receiving notice from the sheriff under ORS
18.755 (4).
SECTION 7. ORS 90.300 is amended to read:
90.300. (1) As used in this section, 'security deposit '
includes any last month's rent deposit.
(2) Except as otherwise provided in this section, a landlord
may require the payment of a security deposit. A security deposit
or prepaid rent shall be held by the landlord for the tenant who
is a party to the rental agreement. The claim of a tenant to the
security deposit or prepaid rent shall be prior to the claim of
any creditor of the landlord, including a trustee in bankruptcy.
The holder of the landlord's interest in the premises at the time
of termination of the tenancy is responsible to the tenant for
any security deposit or prepaid rent and is bound by this
section.
(3)(a) A landlord may not change the rental agreement to
require the payment of a new or increased security deposit during
the first year after the tenancy has begun, except that an
additional deposit may be required if the landlord and tenant
agree to modify the terms and conditions of the rental agreement
to permit a pet or for other cause and the additional deposit
relates to that modification. This paragraph does not prevent the
collection of a security deposit that was provided for under an
initial rental agreement but remained unpaid at the time the
tenancy began.
(b) If a landlord requires a new or increased security deposit
after the first year of the tenancy, the landlord shall allow the
tenant at least three months to pay that deposit.
(4) The landlord may claim all or part of the security deposit
only if the security deposit was made for any or all of the
purposes provided by subsection (5) of this section.
(5) The landlord may claim from the security deposit only the
amount reasonably necessary:
(a) To remedy the tenant's defaults in the performance of the
rental agreement including, but not limited to, unpaid rent; and
(b) To repair damages to the premises caused by the tenant, not
including ordinary wear and tear.
(6) A landlord may not require that a security deposit or
prepaid rent be required or forfeited to the landlord upon the
failure of the tenant to maintain a tenancy for a minimum number
of months in a month-to-month tenancy.
(7) Any last month's rent deposit must be applied to the rent
due for the last month of the tenancy:
(a) Upon either the landlord or tenant giving to the other a
notice of termination, pursuant to this chapter, other than a
notice of termination under ORS 90.394;
(b) Upon agreement by the landlord and tenant to terminate the
tenancy; or
(c) Upon termination pursuant to the provisions of a written
rental agreement for a term tenancy.
(8) Any portion of a last month's rent deposit not applied as
provided under subsection (7) of this section shall be accounted
for and refunded as provided under subsections (10) to (12) of
this section. Unless the tenant and landlord agree otherwise, a
last month's rent deposit shall not be applied to rent due for
any period other than the last month of the tenancy. A last
month's rent deposit shall not operate to limit the amount of
rent charged unless a written rental agreement provides
otherwise.
(9) Upon termination of the tenancy, a landlord shall account
for and refund to the tenant the unused balance of any prepaid
rent not previously refunded to the tenant as required by ORS
90.380 and 105.120 (4)(b) or any other provision of this chapter,
in the same manner as required for security deposits by this
section. The landlord may claim from the remaining prepaid rent
only the amount reasonably necessary to pay the tenant's unpaid
rent.
(10) In order to claim all or part of any prepaid rent or
security deposit, within 31 days after the termination of the
tenancy and delivery of possession the landlord shall give to the
tenant a written accounting that states specifically the basis or
bases of the claim. The landlord shall give a separate accounting
for security deposits and for prepaid rent.
(11) The security deposit or prepaid rent or portion thereof
not claimed in the manner provided by subsections (9) and (10) of
this section shall be returned to the tenant not later than 31
days after the termination of the tenancy and delivery of
possession to the landlord.
(12) The landlord shall give the written accounting as required
by subsection (10) of this section or shall return the security
deposit or prepaid rent as required by subsection (11) of this
section by personal delivery or by first class mail.
(13) If a security deposit or prepaid rent secures a tenancy
for a space for a tenant owned and occupied manufactured dwelling
or floating home, whether or not in a facility, and the dwelling
or home is abandoned as described in ORS 90.425 (2) or 90.675
(2), the 31-day period described in subsections (10) and (11) of
this section commences on the earliest of:
(a) Waiver of the abandoned property process under ORS 90.425
(25) or 90.675 (22);
(b) Removal of the manufactured dwelling or floating home from
the rented space;
(c) Destruction or other disposition of the manufactured
dwelling or floating home under ORS 90.425 (10)(b) or 90.675
(10)(b); or
(d) Sale of the manufactured dwelling or floating home pursuant
to ORS 90.425 (10)(a) or 90.675 (10)(a).
(14) If the landlord fails to comply with subsection (11) of
this section or if the landlord in bad faith fails to return all
or any portion of any prepaid rent or security deposit due to the
tenant under this chapter or the rental agreement, the tenant may
recover the money due in an amount equal to twice the amount:
(a) Withheld without a written accounting under subsection (10)
of this section; or
(b) Withheld in bad faith.
(15)(a) A security deposit or prepaid rent in the possession of
the landlord is not garnishable property, as provided in ORS
18.618.
(b) If a security deposit or prepaid rent is delivered to a
garnishor in violation of ORS 18.618 { - (2) - } { +
(1)(b) + }, the landlord that delivered the security deposit or
prepaid rent to the garnishor shall allow the tenant at least 30
days after a copy of the garnishee response required by ORS
18.680 is delivered to the tenant under ORS 18.690 to restore the
security deposit or prepaid rent. If the tenant fails to restore
a security deposit or prepaid rent under the provisions of this
paragraph before the tenancy terminates, and the landlord retains
no security deposit or prepaid rent from the tenant after the
garnishment, the landlord is not required to refund or account
for the security deposit or prepaid rent under subsection (9) of
this section.
(16) This section does not preclude the landlord or tenant from
recovering other damages under this chapter.
SECTION 8. { + The amendments to ORS 18.618, 18.625, 18.685,
18.750, 18.838, 18.855 and 90.300 by sections 1 to 7 of this 2007
Act apply only to writs of garnishment and notices of garnishment
delivered on or after the effective date of this 2007 Act. + }
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