75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1238
House Bill 2393
Sponsored by Representative COWAN (at the request of Oregon State
Sheriffs' Association) (Presession filed.)
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.
Increases fees collectible by sheriff for serving legal
documents and performing other civil duties.
Allows two or more sheriffs to enter into intergovernmental
agreement for the purpose of establishing and maintaining website
for purpose of giving legal notices relating to writs of
execution issued to sheriffs.
Provides procedures for notice to sheriff of challenges to
notices of garnishment.
Provides that certain property seized for forfeiture be
delivered to law enforcement agency that employs officer seizing
property.
A BILL FOR AN ACT
Relating to sheriffs; creating new provisions; and amending ORS
18.652, 18.855, 18.857, 18.920, 18.924, 18.926, 21.410,
167.162, 506.695 and 506.700.
Be It Enacted by the People of the State of Oregon:
{ +
SERVICE FEES + }
SECTION 1. 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 - } { + $40 + } for serving { + a + } summons,
{ + a + } subpoena, { + a + } citation, { + an + } order,
{ + a + } notice, including notice of seizure and sale of
personal or real property, { + a + } notice of restitution and
notice of seizure under writ of attachment or execution, { + a
writ of garnishment + } or { + a + } similar { - documents - }
{ + document + }, including small claims or writ of execution,
directed to not more than two parties at the same address. If
service is requested for more than two parties at the same
address, the fee is { - $15 - } { + $20 + } 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 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 - } { +
$70 + }, and, in addition, such sums as may be reasonable and
necessary { - to - } { + for the costs of standing by in
anticipation of securing custody of the property, the expense
of + } { - secure - } { + securing + } each keeper or
custodian of property { - in custody - } , the expense of
inventory of property { - in custody - } and { + the + }
expense incurred in { - newspaper - } advertising required by
law in the { - execution of process - } { + sale of the
property + }.
(c) For making a conveyance of real property sold on any
process, { - $15 - } { + $30 + }, to be paid by, or for, the
grantee.
(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 document not actually made by the sheriff.
(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 - } { + $40 + } 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.
SECTION 2. { + The amendments to ORS 21.410 by section 1 of
this 2009 Act apply only to documents submitted to a sheriff for
service on or after the effective date of this 2009 Act and to
services requested of a sheriff on or after the effective date of
this 2009 Act. + }
SECTION 3. 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 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 must note the date of delivery upon the original
writ delivered to the garnishee or upon the copy of the writ
delivered to the garnishee.
(4) Notwithstanding subsection (2) of this section, a person
other than a sheriff may not deliver a writ of garnishment unless
the person has errors and omissions insurance with limits of not
less than $100,000 per occurrence from a company authorized to do
business in this state.
{ - (5) The delivery fee for a writ of garnishment by a
person other than a sheriff shall be in an amount agreed to
between the person making the delivery and the garnishor. The
delivery fee for a writ by a sheriff under this section is
$15. - }
{ +
LEGAL NOTICES WEBSITE + }
SECTION 4. ORS 18.926 is amended to read:
18.926. (1) { - Subject to the availability of funding, the
State Court Administrator may establish and maintain a website
for the purpose of giving legal notices pursuant to ORS 18.860 to
18.993. - } { + Two or more sheriffs may enter into an
intergovernmental agreement under ORS chapter 190 for the purpose
of establishing and maintaining a website where legal notices
under ORS 18.860 to 18.993 may be posted. + }
(2) { - The State Court Administrator - } { + An
intergovernmental agreement entered into under this section + }
may establish fees for posting legal notices on a website
maintained under this section.
{ - All fees collected by the State Court Administrator under
this subsection shall be deposited in the Judicial Department
Operating Account established under ORS 1.009. - }
(3) For the purpose of determining whether a legal notice has
been posted for the period of time required by law, an
interruption of service of a website maintained under this
section that does not exceed 48 hours does not affect the
continuity of the posting. An interruption of service of a
website maintained under this section does not prevent the
sheriff from conducting an execution sale unless the court orders
otherwise.
SECTION 5. ORS 18.920 is amended to read:
18.920. (1) Before conducting an execution sale of personal
property, a sheriff shall give written notice of the sale in the
manner provided by this section. The notice must identify the
property to be sold and the time and place of the sale.
(2) Before any execution sale of personal property, the sheriff
shall:
(a) Mail copies of the notice of sale by first class mail and
by certified mail, return receipt requested, to the judgment
debtor at the address provided in the instructions to the
sheriff; and
(b) Mail a copy of the notice of sale by first class mail to
any attorney for the judgment debtor identified in the
instructions at the address provided in the instructions to the
sheriff.
(3) The notices required by subsection (2) of this section must
be mailed not less than 10 days before an execution sale is
conducted.
(4) The sheriff shall post a notice of the sale in three public
places in the county in which the sale is to take place. The
notice must be posted not more than 20 days before the date of
sale identified in the notice of sale and not less than 10 days
before that date.
(5) In lieu of posting notice under subsection (4) of this
section, a sheriff shall give notice of an execution sale by
Internet posting if the judgment creditor requests that posting
in the instructions given to the sheriff under ORS 18.875 and
{ - the State Court Administrator has established - } a website
{ + has been established under ORS 18.926 + } for the purpose of
giving legal
{ - notice pursuant to ORS 18.926 - } { + notices under ORS
18.860 to 18.993 + }. Subject to ORS 18.926 (3), the notice must
be posted on the Internet not less than 10 days before the date
identified in the notice of sale and remain posted until that
date.
SECTION 6. ORS 18.924 is amended to read:
18.924. (1) Before conducting an execution sale of real
property, a sheriff shall give written notice of the sale in the
manner provided by this section. The notice must identify the
property to be sold and the time and place of the sale.
(2) Before any execution sale of real property, the sheriff
shall:
(a) Mail copies of the notice of sale by first class mail and
by certified mail, return receipt requested, to the judgment
debtor at the address provided in the instructions to the
sheriff;
(b) Mail a copy of the notice of sale by first class mail to
any attorney for the judgment debtor identified in the
instructions at the address provided in the instructions; and
(c) Mail a copy of the notice of sale by first class mail to
any other person listed in the instructions pursuant to ORS
18.918 at the address provided in the instructions.
(3) The notices required by subsection (2) of this section must
be mailed not less than 28 days before an execution sale is
conducted.
(4) Before any execution sale of real property for which the
judgment creditor has provided a street address under ORS 18.875
(3), the sheriff shall post a notice of the sale in a conspicuous
place on the property. The notice must be posted not more than
seven days after the sheriff mails notices as required by
subsection (2) of this section.
(5) The sheriff shall publish a copy of the notice of sale of
real property once a week for four successive weeks in a
newspaper of general circulation in the county where the real
property is located. The sheriff may not conduct the sale until
the expiration of the four-week period.
(6) In lieu of publication in a newspaper under subsection (5)
of this section, a sheriff shall publish a notice of sale of real
property by Internet posting if { - the State Court
Administrator has established - } a website { + has been
established under ORS 18.926 + } for the purpose of giving legal
{ - notice pursuant to the provisions of ORS 18.926 - } { +
notices under ORS 18.860 to 18.993, + }and the judgment creditor
has requested that notice be published by Internet posting in the
instructions provided to the sheriff under ORS 18.875. Subject to
ORS 18.926 (3), the notice must be posted on the Internet not
less than 28 days before the date identified in the notice of
sale and remain posted until that date.
{ +
CHALLENGE TO NOTICE OF GARNISHMENT + }
SECTION 7. 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). { + Upon receiving a challenge, the
state agency shall provide notice of the challenge in the manner
provided by ORS 18.702. Upon a sheriff receiving notice under ORS
18.702, the sheriff shall proceed as provided by ORS 18.760,
except that upon determination of the challenge by an
administrative law judge, the sheriff shall proceed as directed
by the judge. + }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 8. ORS 18.857 is amended to read:
18.857. (1) A notice of garnishment issued by a county tax
collector must name the circuit court for the county that employs
the tax collector as the court whose authority is invoked.
(2) At least 15 days before any county tax collector issues a
notice of garnishment, the tax collector must mail to the debtor
by certified mail, return receipt requested, at the debtor's
last-known address, a notification of all amounts owing to the
county, a statement that further collection enforcement actions
may be taken by the county to collect those amounts, and a
statement that those enforcement actions may include seizing any
real property owned by the debtor, imposing a lien against any
real property owned by the debtor, or garnishing bank accounts,
wages and other property owned by the debtor. Only one such
notification shall be required and any number of garnishments may
be issued after the notification is mailed.
(3) Notwithstanding ORS 18.615, a notice of garnishment issued
by a county tax collector acts to garnish only that property of
the debtor that is in the garnishee's possession, control or
custody at the time the notice is delivered, including debts not
yet due, and all wages owed by the garnishee to the debtor at the
time the notice is delivered. A notice of garnishment issued by a
county tax collector does not act to garnish wages earned by the
debtor by reason of services rendered to the garnishee after the
delivery of the notice of garnishment.
(4) Notwithstanding ORS 18.690, a garnishee who receives a
notice of garnishment issued by a county tax collector 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
county tax collector.
(5) Notwithstanding ORS 18.700, a debtor who wishes to make a
challenge to a notice of garnishment issued by a county tax
collector must deliver the challenge in person or by first class
mail to the county tax collector within the time specified by ORS
18.700 (2). { + Upon receiving a challenge, the county tax
collector shall provide notice of the challenge in the manner
provided by ORS 18.702. Upon a sheriff receiving notice under ORS
18.702, the sheriff shall proceed as provided in ORS 18.760. + }
(6) Within 14 days after receipt of a challenge to a
garnishment under subsection (5) of this section, the county tax
collector 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 a response to the
challenge, attaching copies of the notice of garnishment and the
garnishee response, and any supporting documentation necessary or
helpful to the court in making its determination on the challenge
to the garnishment.
{ +
CUSTODY OF PROPERTY SEIZED FOR FORFEITURE + }
SECTION 9. 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 - } { + law enforcement agency that employs the
officer + }, { - who - } { + which + } 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 - }
{ + law enforcement agency holding the gambling device + } 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 - } { + law enforcement
agency + } shall make return to the court showing that the
{ - sheriff - } { + law enforcement agency + } has complied
with the { + court's + } 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, a judgment for forfeiture is 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, that 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 10. ORS 506.695 is amended to read:
506.695. (1) All boats, fishing gear and vehicles used in
violation of the commercial fishing laws or the rules of the
State Fish and Wildlife Commission may be seized, and piling
driven for the sole or primary purposes of violation of such laws
may be removed, by any member of the commission or any officer
described in ORS 506.521. { - Following the seizure the boats,
gear and vehicles shall be delivered to the sheriff of the county
in which the seizure occurred. - } The { - sheriff - } { +
agency that seizes property under this subsection + } shall
retain custody of the seized property until it is ordered
returned to the owner or confiscation is adjudged pursuant to
this section.
(2) Upon the order of the court at the time of passing sentence
for a crime, the property seized under subsection (1) of this
section may be forfeited. If forfeited, such property shall be
turned over to the commission.
(3) The commission may dispose of such forfeited property in
any manner it deems proper, but the clear proceeds derived from
the sale of any forfeited property shall be deposited with the
State Treasury to be placed in the Common School Fund.
SECTION 11. ORS 506.700 is amended to read:
506.700. (1) At any time after the seizure mentioned in ORS
506.695, but before the entry of judgment pursuant to ORS
506.695, the owner of the seized property may require the return
thereof upon giving to the { - sheriff - } { + agency that
seized the property + } a written undertaking, executed by
sufficient surety, to be approved by the court described in ORS
506.695, to the effect that such surety is bound in double the
value of the property as determined by the court, for the
delivery thereof to the plaintiff, if such delivery be adjudged,
and for the payment to the plaintiff of such sum as may, for any
cause, be recovered against the owner. The owner shall file such
written undertaking with the clerk of the court for the county in
which the seizure occurred and shall serve a true copy thereof
upon the district attorney for the same county.
(2) If confiscation or forfeiture of such property is required
by a judgment of the court under ORS 506.695, the owner shall
return the property to the plaintiff. If the owner fails to
return the property, any officer described under ORS 506.521 may
maintain an action upon such undertaking, and the clear proceeds
shall be deposited with the State Treasury in the Common School
Fund.
SECTION 12. { + The amendments to ORS 167.162, 506.695 and
506.700 by sections 9, 10 and 11 of this 2009 Act apply only to
property seized under ORS 167.162, 506.695 and 506.700 on or
after the effective date of this 2009 Act. + }
SECTION 13. { + The unit captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
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