Session Law
AN ACT
HB 2227
Relating to exemptions from
execution on support judgments; creating new provisions; and amending ORS
23.160, 23.170, 29.225, 238.445, 412.115, 412.610 and 657.855.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 23.160 is amended to read:
23.160. (1) All property, including franchises, or rights or
interest therein, of the judgment debtor, shall be liable to an execution,
except as provided in this section and in other statutes granting exemptions
from execution. If selected and reserved by the judgment debtor or the agent of
the judgment debtor at the time of the levy, or as soon thereafter before sale
thereof as the same shall be known to the judgment debtor, the following property,
or rights or interest therein of the judgment debtor, except as provided in ORS
23.220, shall be exempt from execution:
(a) Books, pictures and musical instruments to the value of
$600.
(b) Wearing apparel, jewelry and other personal items to the
value of $1,800.
(c) The tools, implements, apparatus, team, harness or library,
necessary to enable the judgment debtor to carry on the trade, occupation or
profession by which the judgment debtor habitually earns a living, to the value
of $3,000.
(d) A vehicle to the value of $1,700. As used in this paragraph
"vehicle" includes an automobile, truck, trailer, truck and trailer
or other motor vehicle.
(e) Domestic animals and poultry kept for family use, to the
total value of $1,000 and food sufficient to support such animals and poultry
for 60 days.
(f) Household goods, furniture, radios, a television set and
utensils all to the total value of $3,000, if the judgment debtor holds the
property primarily for the personal, family or household use of the judgment
debtor; provisions actually provided for family use and necessary for the
support of a householder and family for 60 days and also 60 days' supply of
fuel.
(g) All property of the state or any county or incorporated
city therein, or of any other public or municipal corporation of like
character.
(h) All professionally prescribed health aids for the debtor or
a dependent of the debtor.
(i) Spousal support, child support, or separate maintenance to
the extent reasonably necessary for the support of the debtor and any dependent
of the debtor.
(j) The debtor's right to receive, or property that is
traceable to, [:]
[(A)] an award under
any crime victim reparation law[;].
[(B)] (k) The debtor's right to receive, or
property that is traceable to, a payment or payments, not to exceed a total
of $10,000, on account of personal bodily injury of the debtor or an individual
of whom the debtor is a dependent[; and]. If the execution arises out of a support
obligation or an order or notice entered or issued under ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C, the amount exempt from execution is 75
percent of the payment or payments, not to exceed a total of $7,500.
[(C)] (L) The debtor's right to receive, or
property that is traceable to, a payment in compensation of loss of future
earnings of the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support of the debtor and
any dependent of the debtor. If the
execution arises out of a support obligation or an order or notice entered or
issued under ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, the amount
exempt from execution is 75 percent of the payment or payments.
(m) Veterans' benefits and
loans. If the execution arises out of a support obligation or an order or
notice entered or issued under ORS chapter 25, 107, 108, 109, 110, 416, 419B or
419C, the amount of veterans' benefits other than loans that are exempt from
execution is 75 percent of the benefits.
[(k)] (n) The debtor's interest, not to
exceed $400 in value, in any personal property. However, this exemption may not
be used to increase the amount of any other exemption.
(2) If the property selected or reserved by the judgment debtor
as exempt is adjudicated by the court out of which the execution issued to be
of a value in excess of that allowed by the appropriate paragraph of subsection
(1) of this section, the officer making the levy shall proceed to sell such
property. Out of the proceeds of such sale, the officer shall deduct costs of
sale and shall pay to the judgment debtor an amount equivalent to the value
declared to be exempt by any of the paragraphs of subsection (1) of this
section and shall apply the balance of the proceeds of sale on the execution.
No sale shall be made under such execution unless the highest bid made exceeds
the appropriate exemption claimed and allowed plus costs of sale. If no bid is
received in excess of the value allowed by the appropriate paragraph of
subsection (1) of this section, the costs of sale shall be borne by the
judgment creditor.
(3) If two or more members of a household are judgment debtors,
each judgment debtor shall be entitled to claim the exemptions in subsection
(1)(a), (b), (c), (d), [and] (j), (k) and (L) of this section in the same or different properties.
The exemptions when claimed for the same property shall be combined at the
option of the debtors.
SECTION 2.
ORS 23.170 is amended to read:
23.170. (1) As used in this section:
(a) "Beneficiary" means a person for whom retirement
plan benefits are provided and their spouse.
(b) "Internal Revenue Code" means the federal
Internal Revenue Code as amended and in effect on December 31, 1987.
(c) "Permitted contribution" means:
(A) A contribution that, at the time of the contribution, is
not taxable income to the beneficiary and, if the sponsor is a taxable entity,
is tax deductible to the sponsor;
(B) A nondeductible contribution by a beneficiary to a
retirement plan to the extent that the contribution is permitted to be made
under the Internal Revenue Code;
(C) A deductible or nondeductible contribution to an individual
retirement account to the extent the contribution is not subject to federal
excise tax as an excess contribution;
(D) A contribution, pursuant to a rollover or transfer, from
one retirement plan to another, to the extent the federal tax deferred status
is preserved at such time; and
(E) Any earnings under a retirement plan which are attributable
to a contribution described in subparagraphs (A) to (D) of this paragraph.
(d) "Retirement plan" means:
(A) A pension plan and trust, including a profit sharing plan,
that is described in sections 401(a), 401(c), 401(k), 403 and 457 of the
Internal Revenue Code, including that portion attributable to contributions
made by or attributable to a beneficiary;
(B) An individual retirement account or annuity, including one
that is pursuant to a simplified employee pension, as described in section 408
of the Internal Revenue Code; and
(C) Any pension not described in subparagraphs (A) and (B) of
this paragraph granted to any person in recognition or by reason of a period of
employment by or service for the Government of the United States or any state
or political subdivision of any state, or any municipality, person,
partnership, association or corporation.
(e) "Sponsor" means an individual or entity which
establishes a retirement plan.
(2) Subject to the limitations set forth in subsection (3) of
this section, a retirement plan shall be conclusively presumed to be a valid
spendthrift trust under these statutes and the common law of this state,
whether or not the retirement plan is self-settled, and a beneficiary's
interest in a retirement plan shall be exempt, effective without necessity of
claim thereof, from execution and all other process, mesne or final.
(3) Notwithstanding subsection (2) of this section:
(a) A contribution to a retirement plan, other than a permitted
contribution, shall be subject to ORS 95.200 to 95.310 concerning fraudulent
transfers; and
(b) Unless otherwise
ordered by a court under ORS 25.354, 75 percent of a beneficiary's interest
in a retirement plan shall [not] be
exempt from execution or other process arising out of a support obligation or
an order or notice entered or issued under ORS [25.060, 25.311, 25.314, 110.300 to 110.441, 419B.408 or 419C.600] chapter 25, 107, 108, 109, 110, 416, 419B
or 419C.
SECTION 3.
ORS 238.445 is amended to read:
238.445. (1) Except as
provided in this section, the right of a person to a pension, an annuity or
a retirement allowance, to the return of contribution, the pension, annuity or
retirement allowance itself, any optional benefit or death benefit, or any
other right accrued or accruing to any person under the provisions of this
chapter, and the money in the various funds created by ORS 238.660 and 238.670,
shall be exempt from garnishment and all state, county and municipal taxes
heretofore or hereafter imposed, except as provided under ORS chapter 118,
shall not be subject to execution, garnishment, attachment or any other process
or to the operation of any bankruptcy or insolvency law heretofore or hereafter
existing or enacted [except for execution
or other process upon a support obligation or an order or notice entered
pursuant to ORS 25.060, 25.311, 25.314, 110.300 to 110.441, 419B.408 or
419C.600], and shall be unassignable.
(2) Subsection (1) of this section does not apply to state
personal income taxation of amounts paid under this chapter.
(3) Unless otherwise
ordered by a court under ORS 25.354, the exemption from execution or other
process granted under this section applies to 75 percent of amounts paid under
this chapter if the execution or other process is issued for a support
obligation or an order or notice entered or issued under ORS chapter 25, 107,
108, 109, 110, 416, 419B or 419C.
SECTION 4.
ORS 412.115 is amended to read:
412.115. (1) Except as
provided in subsection (2) of this section, aid under ORS 412.005 to 412.125 is not transferable or assignable, nor
is aid subject to execution, levy, attachment or garnishment.
(2) The exemption from
execution or other process granted under this section applies to only 75
percent of aid payable under ORS 412.005 to 412.125 if the execution or other
process is issued for a support obligation or an order or notice entered
pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C.
SECTION 5.
ORS 412.610 is amended to read:
412.610. (1) Except as
provided in subsection (2) of this section, aid given under ORS 412.510 to
412.630 is not transferable or assignable and moneys paid to any recipient are
not subject to execution.
(2) The exemption from
execution or other process granted under this section applies to only 75
percent of aid payable under ORS 412.510 to 412.630 if the execution or other
process is issued for a support obligation or an order or notice entered
pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C.
SECTION 6.
ORS 657.855 is amended to read:
657.855. (1) Except as
provided in this section, benefits due under this chapter shall not be
assigned, pledged, encumbered, released or commuted and shall, except as
otherwise provided in this chapter, be exempt from all claims of creditors and
from levy, execution and attachment or remedy for recovery or collection of a
debt, which exemption may not be waived. No agreement by an individual to waive
the individual's rights under this chapter is valid.
(2) The exemption from
execution or other process granted under this section applies to only 75
percent of benefits payable under this chapter if the execution or other
process is issued for a support obligation or an order or notice entered
pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C.
SECTION 7.
ORS 29.225 is amended to read:
29.225. (1) The notice of exemptions referred to in ORS 29.215
shall be in substantially the form set forth in this subsection. Nothing in the
notice form described under this subsection is intended either to expand or
restrict the law relating to exempt property. Whether property is exempt from
execution, attachment and garnishment shall be determined by reference to other
law. The form may be modified either to provide more complete information or to
update the notice based on subsequent changes in exemption laws. However, any
such modification shall not be required. The following form is for notice of
exemption:
___________________________________________________________________
NOTICE OF EXEMPT PROPERTY
Property belonging to you
may have been taken or held in order to satisfy a claim or judgment which has
been asserted or entered against you. Important legal papers are enclosed.
YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE
CAREFULLY.
State and federal law say certain property may not be taken.
Some of the property which may not be taken is listed below.
(1) Wages or a salary as described in ORS 23.175 and 23.185
(whichever of the following amounts is more: (a) 75 percent of your take-home
wages; (b) For wages payable before June 30, 1992, $150; (c) For wages payable
before June 30, 1993, $160; or (d) For wages payable on or after July 1, 1993,
$170).
(2) Social security (including SSI).
(3) Public assistance (welfare).
(4) Unemployment benefits.
(5) Disability benefits.
(6) Workers' compensation benefits, unless the benefits are lump sum payments on a settlement or judgment
and the debt owed is for past due support. When the debt is for past due support, 75 percent of the lump sum
payment.
(7) Exempt wages, social security, welfare, unemployment benefits
and disability benefits when placed in a checking or savings account (up to
$7,500).
(8) Spousal support, child support, or separate maintenance to
the extent reasonably necessary for your support or the support of any of your
dependents.
(9) A homestead (home, farm, manufactured dwelling, houseboat)
if you live in it, to the value of $20,000 ($23,000 for a manufactured dwelling
with land included; $25,000 for any other homestead with land included) or
proceeds from its sale for one (1) year.
(10) Household goods, furniture, radios, a television set and
utensils to $3,000.
*(11) Automobile, truck, trailer or other vehicle to $1,700.
*(12) Tools, implements, apparatus, team, harness or library
necessary to carry on your occupation to $3,000.
*(13) Books, pictures and musical instruments to $600.
*(14) Wearing apparel, jewelry and other personal items to
$1,800.
(15) Domestic animals and poultry for family use to $1,000 and
their food for 60 days.
(16) Provisions (food) and fuel for your family for 60 days.
(17) One rifle or shotgun and one pistol. The combined value of
all firearms claimed as exempt may not exceed $1,000.
(18) Public or private pensions.
(19) Veterans benefits and loans.
(20) Medical assistance benefits.
(21) Health insurance proceeds and disability proceeds of life
insurance policies.
(22) Cash surrender value of life insurance policies not
payable to your estate.
(23) Federal annuities.
(24) Other annuities to $250 per month, excess over $250 per
month subject to same exemption as wage.
(25) Professionally prescribed health aids for you or any of
your dependents.
*(26) Elderly rental assistance allowed pursuant to ORS
310.635.
*(27) Your right to receive, or property traceable to:
*(a) An award under any crime victim reparation law.
*(b) A payment or payments, not exceeding a total of $10,000,
on account of personal bodily injury suffered by you or an individual of whom
you are a dependent.
*(c) A payment in compensation of loss of future earnings of
you or an individual of whom you are or were a dependent, to the extent
reasonably necessary for your support and the support of any of your
dependents.
(28) Interest in personal property to the value of $400, but
this cannot be used to increase the amount of any other exemption.
(29) The difference between what you actually owe the creditor
and the total amount due listed in the writ of garnishment, if the amount
listed in the writ is larger.
___________________________________________________________________
Note: If two or more people in your household owe the claim or
judgment, each of them may claim the exemptions marked by *.
___________________________________________________________________
You must act promptly if you want to get your money or property
back. You may seek to reclaim your exempt property by doing the following:
(1) Fill out the form for claim of exemption that you received
with this notice.
(2) Mail or deliver the form for claim of exemption to the
clerk of the court at the address shown on the writ of garnishment. If the writ
of garnishment is a writ of continuing garnishment, you must mail or deliver
the form within 120 days after you receive this notice. If the writ of
garnishment is not a writ of continuing garnishment, you must mail or deliver
the form within 30 days after you receive this notice.
(3) Although (2) above allows you to claim an exemption, the
law only requires the creditor to hold the money or property for 10 days before
applying it to the creditor's use. You may be able to keep the property from
being used by the creditor before being allowed a hearing by promptly following
(1) and (2) above.
_______
You should be prepared to explain your exemption in court. If
you have any questions, you should see an attorney.
IF YOU CLAIM AN EXEMPTION IN BAD FAITH, YOU MAY BE SUBJECT TO
PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A FINE.
Penalties you could be subject to are listed in ORS 29.142.
When you file this claim of exemption, the garnishee and
Creditor will be required to pay any debt or obligation they hold into court.
They are subject to penalties if they do not. For a more complete explanation
of their responsibilities, see ORS 29.142.
___________________________________________________________________
(2) The claim of exemption form referred to in subsection (1)
of this section, ORS 29.142 and 29.215 shall be in substantially the following
form:
___________________________________________________________________
_______ ) CLAIM OF EXEMPTION
Plaintiff ) Case No. ______
vs. )
_______ )
_______ )
Defendant )
I/We claim the following described property or money as exempt
from execution:
____________________________________
____________________________________
I/We believe this property is exempt because:
____________________________________
____________________________________
Name ___________ Name ___________
Signature ________ Signature ________
Address _________ Address _________
________________ ________________
Telephone Telephone
Number _________ Number _________
(Required) (Required)
___________________________________________________________________
SECTION 8. (1) Except as provided in subsection (2) of
this section, the amendments to ORS 23.160, 23.170, 29.225, 238.445, 412.115,
412.610 and 657.855 by sections 1 to 7 of this 1999 Act apply to all judgments,
whether issued before, on or after the effective date of this 1999 Act.
(2) The amendments to ORS
23.160, 23.170, 29.225, 238.445, 412.115, 412.610 and 657.855 by sections 1 to
7 of this 1999 Act do not apply to any execution issued before the effective
date of this 1999 Act.
Approved by the Governor July 15, 1999
Filed in the office of Secretary of State July 15,
1999
Effective date October 23, 1999
__________