68th OREGON LEGISLATIVE ASSEMBLY--1995 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 1625
A-Engrossed
Senate Bill 424
Ordered by the House May 15
Including House Amendments dated May 15
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
Collectors Association)
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.
{ - Reduces - } { + Changes + } time for filing claim of
exemption from execution or garnishment { - from 90 days to 30
days - } .
A BILL FOR AN ACT
Relating to debtor's exemptions; creating new provisions; and
amending ORS 29.142 and 29.225.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 29.142 is amended to read:
29.142. When a defendant receives a copy of a writ of
garnishment under ORS 29.215, the defendant may claim such
exemptions from garnishment as are permitted by law. This section
establishes provisions and procedures applicable to a defendant's
claim of exemption. The following apply as described:
(1) The defendant may claim an exemption by completing the
claim of exemption form described in ORS 29.225 or a
substantially similar form and by delivering, in person or by
first-class mail, the completed original form to the clerk of the
court where the judgment was first obtained or, if a foreign
judgment registered in this state, where the judgment was
originally filed { - within 90 days after the writ of
garnishment is delivered to the defendant - } . { + A claim of
exemption must be filed:
(a) Within 120 days after the writ of garnishment is delivered
to the defendant if the writ is a writ of continuing garnishment
described in ORS 29.401 to 29.415; or
(b) Within 30 days after the writ of garnishment is delivered
to the defendant if the writ is not a writ of continuing
garnishment described in ORS 29.401 to 29.415. + }
(2) The clerk, upon receipt of a claim of exemption under
subsection (1) of this section, shall retain payments as provided
under ORS 29.138 or 29.139 and, without unreasonable delay, shall
provide written notice of the claim of exemption as provided
under this subsection. Upon receipt, the notice creates the
duties under subsection (4) of this section. The notice may
include the notice of hearing under subsection (5) of this
section. The notice shall apprise garnishees, plaintiffs and
plaintiffs' attorneys of consequences under this section of
failure to comply with requirements under subsection (4) of this
section. The clerk shall provide notice of claim of exemption as
follows:
(a) To the plaintiff or the plaintiff's attorney.
(b) To the garnishee named in the writ. The clerk is not
required to provide notice to the garnishee if the clerk knows
that the garnishee has already forwarded any money or property
subject to the garnishment.
(c) To the sheriff of the county where the writ was delivered
to the garnishee. The clerk is not required to provide notice to
the sheriff if the clerk knows that the garnishee was not
required to notify the sheriff under ORS 29.235 or that the
sheriff has already forwarded any property or proceeds subject to
the garnishment.
(3) All the following apply to a defendant regarding a claim of
exemption under this section:
(a) Nothing in the notice of exemption form under ORS 29.215
and 29.225 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 this section and other law.
(b) The court may impose sanctions on a defendant who files a
claim of exemption in bad faith. The sanctions a court may impose
under this paragraph are a fine of not more than $100 and
responsibility for attorney fees under ORS 20.105. A court's
imposition of sanctions under this paragraph does not limit any
remedy otherwise available to the plaintiff.
(c) The defendant has the burden to prove timely delivery of
the claim of exemption.
(d) In addition to any other claims of exemption, the defendant
may claim an exemption where the writ of garnishment claims an
amount greater than the total amount the defendant asserts is due
the creditor.
(e) In addition to any other claims of exemption, the defendant
may claim as exempt any property that may not be taken by
garnishment as described under ORS 29.205.
(4) The following are duties imposed upon the described parties
who have received notice of claim of exemption from the clerk
under this section:
(a) The plaintiff or plaintiff's attorney shall send any
garnished debt or obligation payable in money to the court by
cash or by check or other draft made payable to the court. If the
funds have not reached the court by the time of the exemption
hearing, the clerk shall so notify the judge presiding at the
hearing. If the court determines that any of the garnished funds
should be disbursed to the defendant and the funds have not
reached the court by the time of that determination, the court
shall issue an order that the person obligated to return the
funds under this paragraph appear and show cause why the person
should not be held in contempt. In addition to contempt
proceedings, the court may require the person to pay attorney
fees under ORS 20.105. A court's imposition of sanctions under
this paragraph does not limit any remedy otherwise available to
the defendant. This paragraph does not apply in any circumstances
where:
(A) The debt or obligation has not been forwarded to the
plaintiff or plaintiff's attorney; or
(B) A garnishee is not required or allowed, by law, to disburse
the debt or obligation.
(b) A garnishee who holds and has not yet forwarded:
(A) A debt or obligation payable in money shall send or deliver
the garnished debt or obligation to the court by cash or by check
or other draft made payable to the court. The garnishee shall
make the delivery to the court within the time the garnishee
would have otherwise been required to deliver or send the debt or
obligation to the plaintiff. Any payments to be delivered from
the garnishee to the clerk of the court under this paragraph
shall be made payable to the court and not payable to the
plaintiff. A garnishee who fails to comply with this paragraph is
subject to ORS 29.275 and 29.285.
(B) Other property or a debt or obligation in existence but not
yet due and which will not become due within 45 days shall comply
with the direction of the sheriff under ORS 29.237 and 29.255.
(c) A sheriff who has received notice from a garnishee under
ORS 29.235 or who holds property under the writ shall hold the
property as provided under ORS 29.265.
(5) A defendant's claim of exemption is subject to the
procedures under ORS 23.168 for a claim of exemption from
execution. The clerk of the court shall immediately set a hearing
date and send notice of the hearing to the parties. Hearings on a
claim of exemption may be held by telecommunication.
(6) If a claim of exemption is allowed by the court, the clerk
shall mail the amount of money or proceeds determined to be
exempt to the defendant within 10 judicial days after the court's
order allowing the claim of exemption.
(7) Any money or proceeds determined not to be exempt after a
hearing shall be mailed to the plaintiff or plaintiff's attorney
within 10 judicial days after the court's order denying the
exemption as to those funds.
SECTION 2. 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.
(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) A tax refund allowed pursuant to ORS 310.635 or 310.640
as set forth in ORS 310.637.
*(27) Your right to receive, or property traceable to:
*(a) An award under any crime victim reparation law.
*(b) A payment, not exceeding $7,500, on account of personal
bodily injury, not including pain and suffering or compensation
for actual pecuniary loss, of 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) Within 90 days after you received this notice, mail
or deliver the form for claim exemption to the clerk of court at
the address shown on the writ of garnishment. - }
{ + (2) Mail or deliver the form for claim 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:
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
______
)CLAIM OF EXEMPTION
Plaintiff )Case No._____
vs. )
______
)
______
)
Defendant )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I/We claim the following described property or money as exempt
from execution:
_________________________________________________________________
_________________________________________________________________
I/We believe this property is exempt because:
_________________________________________________________________
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name______
Name ______
Signature____
Signature ____
Address_____
Address _____
________
________
Telephone Telephone
Number_____
Number _____
(Required) (Required)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
SECTION 3. { + The amendments to ORS 29.142 and 29.225 by
sections 1 and 2 of this Act apply only to execution, including
garnishment, issued on or after the effective date of this
Act. + }
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