69th OREGON LEGISLATIVE ASSEMBLY--1997 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 1646
A-Engrossed
House Bill 2415
Ordered by the House April 14
Including House Amendments dated April 14
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
Collector's 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.
Allows issuance of writ of execution, including writ of
garnishment, by circuit court for county in which judgment debtor
resides { + if transcript of original judgment is filed with
court. Allows execution against real property only if certified
copy of original judgment or lien record abstract is recorded in
county lien record + }.
Declares state to be single judicial district for purposes of
federal Fair Debt Collection Practices Act.
A BILL FOR AN ACT
Relating to enforcement of judgments; creating new provisions;
and amending ORS 18.335, 23.030, 23.168, 29.137 and 29.142.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 23.030 is amended to read:
23.030. { + (1) + } Except as otherwise provided in this
section, or as otherwise provided by law, the party in whose
favor a judgment is given, which requires the payment of money,
the delivery of real or personal property, or either of them, at
any time after the entry thereof, may have a writ of execution
issued for its enforcement. In the case of real property:
{ - (1) - } { + (a) + } { + Except as otherwise provided
in subsection (2) of this section, + } no writ shall be issued
under this section unless, at the time the application for writ
is made, the judgment upon which the writ is issued is docketed
in the judgment docket { + of the court in which the judgment
was originally entered + }.
{ - (2) - } { + (b) + } Upon issuance of the writ, the
party requesting the writ shall have a certified copy of the writ
or an abstract of the writ recorded in the County Clerk Lien
Record of the county in which the real property is located.
{ + (2) The circuit court for the county in which a judgment
debtor resides may issue a writ of execution if a transcript of
the original judgment is filed with the court. A circuit court
may issue execution against real property under the provisions of
this subsection only if a certified copy of the original
judgment, or a lien record abstract in the form provided by ORS
18.325, is recorded in the County Clerk Lien Record for the
county in addition to the filing of a transcript of the original
judgment with the court. In no event shall the clerk of the court
be liable for issuing a writ of execution pursuant to a judgment
transcribed pursuant to this subsection.
(3) A judgment creditor or an attorney for a judgment creditor
who files a transcript of a judgment pursuant to subsection (2)
of this section must give written notice of the filing to the
court in which the judgment was originally entered.
(4) At the time a transcript of a judgment is filed under
subsection (2) of this section, the judgment creditor or the
attorney for the judgment creditor must make and file with the
clerk of the court a statement containing the information
required for a money judgment under ORCP 70 A(2)(a) and an
affidavit setting forth:
(a) The name and last-known address of the judgment creditor;
(b) The name and last-known address of the judgment debtor;
(c) A statement that the judgment creditor has a good faith
belief that the judgment debtor resides in the county in which
the transcript of judgment is filed;
(d) A statement that the judgment has not been satisfied and
that execution on the judgment has not been stayed; and
(e) A statement that written notice of the filing has been
given to the court in which the judgment was originally entered.
(5) The court in which a transcript of a judgment is filed
under subsection (2) of this section is the only court with
authority to issue execution for the enforcement of the
transcribed judgment until the judgment creditor files an
affidavit with the court certifying that the judgment debtor no
longer resides in the county. A copy of the affidavit must be
filed by the judgment creditor in the court in which the judgment
was originally entered. After the filing of an affidavit under
this subsection, execution on the judgment may be issued by the
court in which the judgment was originally entered.
(6) When a transcribed judgment is filed with the court under
subsection (2) of this section, the clerk of the court shall
enter the transcribed judgment in the register but shall not
docket the judgment in the judgment docket. The files and records
of the court in which the judgment was originally entered remain
the official record of the proceeding, and files and records
maintained by a court in which a transcribed judgment has been
filed are auxiliary to the files and records of the court in
which the judgment was originally entered. Satisfactions of
judgment and renewal of the judgment may only be filed in the
court in which the judgment was originally entered.
(7) For the purposes of this section, the court in which the
judgment is originally entered is the court in which the judgment
is first registered or, if the judgment is a foreign judgment
filed in a court of this state, the court in which the judgment
is first filed under ORS 24.115. + }
SECTION 2. ORS 23.168 is amended to read:
23.168. Except as provided in ORS 23.445, the judgment debtor's
claim of exemption shall, upon application of either plaintiff or
judgment debtor, be adjudicated in a summary manner at a hearing
in { - the following court: - }
{ - (1) - } the court out of which the execution
{ - issued - } { + issues + }.
{ - (2) In the case of garnishment, the court where the
judgment was originally entered or, if a foreign judgment
registered in this state, in the court where the judgment was
originally filed. - }
SECTION 3. ORS 29.137 is amended to read:
29.137. This section establishes by whom and for whom writs of
garnishment are issued. Such writs may be issued only by and for
the following described persons:
(1) The clerk of the court shall issue one or more writs of
garnishment upon proper application and payment of the
appropriate fee. Issuance under this subsection shall be by the
clerk of the court for the county in which a judgment was
originally entered or, if a judgment is from another jurisdiction
and is registered in this state, the clerk of the court for the
county in which the judgment was first filed in this state.
{ + A writ of garnishment may be issued by the clerk of a
circuit court for the county in which a judgment debtor resides
if the judgment creditor or the attorney for the judgment
creditor has complied with the requirements of ORS 23.030 (2) to
(5). + } The provisions of ORS 29.138 apply to writs issued by a
clerk under this subsection. Clerks will issue writs only for the
following persons under this subsection:
(a) A person who complies with the requirements of ORCP 82
A(3), (5) and (6), 82 B to G, 83 and 84.
(b) A person on whose behalf a judgment requiring the payment
of money has been entered in the register of actions.
(2) An attorney who is an active member of the Oregon State Bar
may issue one or more writs of garnishment. The provisions of ORS
29.139 apply to writs issued by attorneys. Attorneys will issue
writs under this subsection only for:
(a) A person on whose behalf a judgment requiring the payment
of money has been entered in the register of actions of a court
of this state; or
(b) An agency that has recorded a civil penalty order in the
County Clerk Lien Record pursuant to ORS 183.090 (6).
(3) Writs of garnishments for an agency under subsection (2)(b)
of this section shall be issued in the manner provided by ORS
29.357.
SECTION 4. 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 - } { + that issued the writ of
garnishment + }. 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 5. ORS 18.335 is amended to read:
18.335. (1) In every proceeding, the clerk shall attach
together, file and maintain in the office of the clerk until all
actions in such proceeding have been completed and any judgment
entered in such proceeding either has expired or has been
satisfied, in the order of their filing, all the following:
(a) The original papers filed in the court, whether before or
after judgment, including but not limited to the summons and
proof of service, pleadings, motions, affidavits, depositions,
stipulations and orders.
(b) The judgment.
(c) The notice of appeal and the undertaking on appeal, if any.
(2) { + Except as provided in ORS 23.030, + } the court in
which the judgment was originally entered is the only court with
authority to issue post-judgment process under ORS chapter 23 or
29 against personal property involving that judgment. { - This
subsection does not apply to justice courts. If a judgment is a
foreign judgment registered in this state, then - } { + Except
as provided in ORS 23.030, + } the court in this state where
{ - the - } { + a foreign + } judgment { - was - } { +
is + } first filed is the only court with authority to issue
post-judgment process against personal property involving that
judgment.
{ + (3) Subsection (2) of this section does not apply to
justice courts. + }
SECTION 6. { + The amendments to ORS 18.335, 23.030, 23.168,
29.137 and 29.142 by sections 1 to 5 of this Act apply only to
writs of garnishment and other writs of execution issued on or
after the effective date of this Act. + }
SECTION 7. { + For the purposes of 15 U.S.C. 1692i, the state
shall be considered a single judicial district. + }
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