Chapter 84 Oregon Laws 1999

Session Law

AN ACT

SB 42

Relating to small claims departments; creating new provisions; amending ORS 46.405, 46.425, 46.461, 46.475, 46.485, 51.080, 55.011 and 55.095; and repealing sections 2, 5, 8 and 11, chapter 378, Oregon Laws 1997.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 46.405 is amended to read:

46.405. (1) Each circuit court shall have a small claims department.

(2) All actions for the recovery of money, damages, specific personal property, or any penalty or forfeiture, excepting class actions and actions providing for statutory attorney fees, where the amount or value claimed does not exceed $750, shall be commenced and prosecuted only in the small claims department. Where the amount or value claimed does not exceed [$3,500] $5,000, such actions may be commenced and prosecuted in the small claims department.

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.

(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 [$3,500] $5,000.

(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 [$3,500] $5,000, 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) 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 [$3,500] $5,000.

(2) For the recovery of specific personal property, when the value of the property claimed and the damages for the detention do not exceed [$3,500] $5,000.

(3) For the recovery of any penalty or forfeiture, whether given by statute or arising out of contract, not exceeding [$3,500] $5,000.

(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) In each justice court created under any law of this state there shall be a department to be known as the Small Claims Department of the Justice Court.

(2) All actions in the justice court for the recovery of money or damages only, excepting class actions and actions providing for statutory attorney fees, where the amount claimed does not exceed $750, shall be commenced and prosecuted only in the small claims department. Where the amount claimed does not exceed [$3,500] $5,000, such actions may be commenced and prosecuted in the small claims department subject to the provisions of ORS 55.065 (2)(c).

(3) 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.

(4) 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.

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 [$3,500] $5,000, 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. The amendments to ORS 46.405, 46.425, 46.461, 51.080, 55.011 and 55.095 by sections 1 to 6 of this 1999 Act apply only to actions commenced on or after the effective date of this 1999 Act.

SECTION 8. ORS 46.485 is amended to read:

46.485. (1) In addition to any other award, the prevailing party shall be entitled to a judgment for the small claims filing fees and service expenses paid by the party and the prevailing party fee provided for in ORS 20.190 (1)(c) or (2)(b). The prevailing party may also be awarded prevailing party fees under ORS 20.190 (3). The award shall be paid or the property delivered upon such terms and conditions as the judge may prescribe.

(2) The court may allow to the defendant a set-off not to exceed the amount of plaintiff's claim, but in such case the court shall cause to be entered in the record the amount of the set-off allowed.

(3) No attachment shall issue on any cause in the small claims department.

(4) A judgment in the small claims department is conclusive upon the parties and no appeal may be taken from the judgment.

(5) The clerk of the court shall keep a record of all actions, proceedings and judgments in the small claims department.

(6) A judgment in the small claims department is a judgment of the circuit court. The clerk shall enter such judgment in the register of the circuit court. A judgment in the small claims department may be docketed as provided in ORS 46.488. Money judgments shall be subject to ORCP 70 A(2) and ORCP 70 B. Execution and other process on execution provided by law may issue on judgments in the small claims department as in other cases in the circuit court.

SECTION 9. Sections 2, 5 and 8, chapter 378, Oregon Laws 1997 (amending ORS 46.405, 46.425 and 46.461), and section 11, chapter 378, Oregon Laws 1997, are repealed.

SECTION 10. ORS 46.475 is amended to read:

46.475. (1) Upon written request, the court may extend to the parties additional time within which to make formal appearances required in the small claims department of a circuit court.

(2) If the defendant fails to pay the claim, demand a hearing, or demand a jury trial and comply with ORS 46.465 (3)(c), upon written request from the plaintiff the clerk shall enter a judgment against the defendant for the relief claimed plus the amount of the small claims filing fees and service expenses paid by the plaintiff and the prevailing party fee provided by ORS 20.190 [(1)(c)].

(3) If the plaintiff fails within the time provided to file a formal complaint pursuant to ORS 46.465 (3)(a), the clerk shall:

(a) Dismiss the case without prejudice; and

(b) If the defendant applies therefor in writing to the clerk not later than 30 days after the expiration of the time provided for the plaintiff to file a formal complaint, refund to the defendant the amount of the jury trial fee paid by the defendant under ORS 46.455 (2)(c).

(4) If the defendant appears at the time set for hearing but no appearance is made by the plaintiff, the claim shall be dismissed with prejudice. If neither party appears, the claim shall be dismissed without prejudice.

(5) Upon good cause shown within 60 days, the court may set aside a default judgment or dismissal and reset the claim for hearing.

Approved by the Governor April 20, 1999

Filed in the office of Secretary of State April 20, 1999

Effective date October 23, 1999

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