Chapter 249 Oregon Laws 2001

 

AN ACT

 

HB 2386

 

Relating to garnishment; creating new provisions; amending ORS 12.085, 18.335, 23.160, 23.166, 23.425, 25.083, 25.372, 29.367, 52.600, 205.126, 221.346, 310.635 and 652.610 and section 8, chapter 745, Oregon Laws 1999, and ORCP 84 D; and repealing ORS 23.185, 29.087, 29.115, 29.125, 29.135, 29.137, 29.138, 29.139, 29.142, 29.145, 29.147, 29.155, 29.165, 29.185, 29.195, 29.205, 29.215, 29.225, 29.235, 29.237, 29.245, 29.255, 29.265, 29.275, 29.282, 29.285, 29.295, 29.305, 29.315, 29.325, 29.335, 29.343, 29.345, 29.355, 29.357, 29.365, 29.369, 29.371, 29.373, 29.375, 29.377, 29.395, 29.401, 29.405, 29.411 and 29.415.

 

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

 

DEFINITIONS

 

          SECTION 1. Definitions. As used in sections 1 to 65 of this 2001 Act:

          (1) “Check” has the meaning given that term in ORS 73.0104.

          (2) “Creditor” means a person to whom a debt is owed by a debtor.

          (3) “Debt” means any monetary obligation for which a garnishment may be issued under section 3 of this 2001 Act.

          (4) “Debtor” means a person whose property is being garnished for the purpose of paying a debt owed to a creditor.

          (5) “Financial institution” means a financial institution or trust company as those terms are defined in ORS 706.008.

          (6) “Garnishable property” means all property described in section 7 of this 2001 Act, but does not include:

          (a) Any property that is not subject to garnishment under section 8 of this 2001 Act; and

          (b) Any property that is applied as a setoff under section 9 or 56a of this 2001 Act.

          (7) “Garnishee” means a person to whom a writ of garnishment has been delivered.

          (8) “Garnishor” means:

          (a) The creditor, if the writ is issued by the clerk of the court on behalf of the creditor under section 12 (2) of this 2001 Act; or

          (b) The issuer, if the writ is issued under section 12 of this 2001 Act by any person other than the clerk of the court.

          (9) “Past due support” means the amount of child or spousal support, or both, determined under a court or administrative order in a proceeding under ORS 110.303 to 110.452 or ORS chapter 107, 108, 109, 416, 419B or 419C that has not been paid or is certified to be owed by another state under ORS 25.083.

          (10) “Person” includes any public body, as defined in ORS 192.410.

          (11) “Wages” includes all amounts paid for the services of an employee by an employer, including amounts paid as a commission or bonus.

          (12) “Writ” means a writ of garnishment.

 

GARNISHMENT GENERALLY

 

          SECTION 2. Garnishment described. For the purposes of sections 1 to 65 of this 2001 Act, garnishment is the procedure by which a creditor invokes the authority of a circuit court, justice court or municipal court to acquire garnishable property of a debtor that is in the possession, control or custody of a person other than the debtor.

 

          SECTION 3. Debts subject to garnishment; when writ may be issued on debt. (1) Garnishment may be used to acquire garnishable property for application against the following debts:

          (a) A judgment requiring the payment of money that has been entered in the register of a court or docketed in the docket of a court.

          (b) If the writ of garnishment is issued pursuant to provisional process under ORCP 83 and 84, a claim of one party against another party in a civil action.

          (c) Support arrearage shown on the support records of the Department of Justice pursuant to ORS 25.020 and 25.167, even though such records may not constitute a full record of the support arrearage owed.

          (d) Monetary obligations imposed under agency orders or warrants recorded pursuant to law in the County Clerk Lien Record.

          (2) For the purposes of sections 1 to 65 of this 2001 Act:

          (a) A writ may be issued for a monetary obligation based on a judgment other than a judgment for support after the judgment is entered in the register of the court or, if the court does not have a register, after the judgment is docketed in the docket of the court.

          (b) A writ may be issued for a monetary obligation based on a judgment for support after the underlying judgment, decree, court order or administrative order that creates the support obligation is entered in the register of the court or after a request for administrative enforcement services is received under ORS 25.083.

          (c) A writ may be issued pursuant to provisional process under ORCP 83 and 84 after the court order for provisional process is entered in the register of the court.

          (d) A writ may be issued for a monetary obligation based on an agency order or warrant after the order or warrant is recorded in the County Clerk Lien Record.

 

          SECTION 4. Form of writ. (1) Except as otherwise provided by law, a writ of garnishment must be in substantially the form provided by section 59 of this 2001 Act. Notation on the writ of additional information for purposes of identifying the debtor or the garnishable property believed to be held by the garnishee does not affect the validity or operation of the writ. A debt calculation form, in substantially the form provided by section 60 of this 2001 Act, must be prepared for each writ of garnishment issued.

          (2) A writ of garnishment must contain all of the following information:

          (a) The name of the court whose authority is invoked.

          (b) The names of the creditor and debtor.

          (c) The name of the garnishor.

          (d) The date on which judgment was entered against the debtor or the debt otherwise became subject to garnishment under section 3 of this 2001 Act.

          (e) The debtor’s Social Security number or employer identification number, if those numbers are known by the garnishor. A public body, as defined in ORS 192.410, shall not include the Social Security number of the debtor if the disclosure of the Social Security number would violate federal law or any law of this state.

          (f) The amount subject to garnishment under the writ, as determined by completing the debt calculation form provided in section 60 of this 2001 Act.

          (g) The date on which the writ is issued.

          (h) All addresses required in the writ of garnishment form provided by section 59 of this 2001 Act.

          (3) If a writ of garnishment is issued by the clerk of the court, the creditor must sign the certification in the writ indicating that the creditor has read the writ and that to the best of the knowledge, information and belief of the creditor there is good ground to support issuance of the writ and the amount indicated in the writ as subject to garnishment.

          (4) If a writ is issued by any person other than the clerk of the court, the person issuing the writ must sign the certification described in subsection (3) of this section.

 

          SECTION 5. Validity of writ after issuance. (1) A writ of garnishment is valid only if the writ is delivered not more than 60 days after the writ is issued. If the writ is delivered within the time specified in this section, the writ acts to garnish property for the period of time specified by section 10 of this 2001 Act.

          (2) If the clerk of the court is issuing a writ of garnishment, the date of issuance for the writ is the date the clerk stamps and signs the writ. If the writ is issued by any other person, the date of issuance for the writ is the date on which the issuer signs the certification described in section 4 (4) of this 2001 Act.

 

          SECTION 6. Court with authority over writ. (1) Only the following courts have authority over a writ of garnishment issued for the enforcement of a judgment:

          (a) The court in which the judgment to be enforced was originally entered or first registered or docketed;

          (b) The circuit court for the county in which a judgment debtor resides if the requirements of ORS 23.030 have been met; and

          (c) The circuit court for the county in which a debtor has filed a challenge to the garnishment under section 36a of this 2001 Act.

          (2) Only the following courts have authority over a writ of garnishment issued for the enforcement of an agency order or warrant:

          (a) The circuit court for the county in which the order or warrant was first recorded; and

          (b) The circuit court for the county in which the debtor resides if the order or warrant has also been recorded in that county.

          (3) The circuit court for the county in which the order for provisional process is entered has sole authority for issuance of a writ of garnishment issued pursuant to an order for provisional process.

 

GARNISHABLE PROPERTY

 

          SECTION 7. Garnishable property generally. Except as specifically provided in sections 1 to 65 of this 2001 Act, a writ of garnishment delivered to a garnishee garnishes all personal property of the debtor, including but not limited to property in safe deposit boxes, stocks, wages, monetary obligations owing to the debtor that are then in existence whether due or to become due, property held on expired and unexpired bailments and leases, and property held by the garnishee pursuant to a security interest granted by the debtor to the garnishee. A writ of garnishment acts to garnish all property of the debtor possessed by the garnishee, all property of the debtor over which the garnishee has control and all property of the debtor that is in the custody of the garnishee. If a person other than the debtor has an interest in the garnished property, the writ of garnishment acts only to garnish the interest of the debtor in the property.

 

          SECTION 8. Property not subject to garnishment. (1) Notwithstanding section 7 of this 2001 Act, the following are not garnishable property:

          (a) Equitable interests.

          (b) Property in the custody of the law.

          (c) Property in the possession of a conservator.

          (d) Property in the possession of a personal representative that constitutes the subject matter of a trust contained in a duly probated will of a decedent.

          (2) Notwithstanding any other provision of law, if a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor after a writ of garnishment could be issued under section 3 of this 2001 Act, the garnishment of any property of the debtor in the garnishee’s possession, control or custody is stayed pursuant to section 362 of the United States Bankruptcy Code (11 U.S.C. 101 to 1330).

 

          SECTION 9. Setoff for certain amounts payable to underlying lienholders. (1) Notwithstanding section 7 of this 2001 Act, a garnishee may apply a setoff against amounts owing to the debtor under the terms of a land sale contract, under the terms of a promissory note or other evidence of indebtedness that is secured by a mortgage or trust deed, or under the terms of a security agreement as defined in ORS 79.1050, to the extent that those amounts are actually paid to another person:

          (a) Who is entitled to receive the amounts under the terms of the land sale contract, mortgage, trust deed or security agreement, or under the terms of any other land sale contract, mortgage, trust deed or security agreement that is secured by the same property that is the subject of the land sale contract, mortgage, trust deed or security agreement; and

          (b) Who has an interest in the property that is the subject of the land sale contract, mortgage, trust deed or security agreement that is superior to the interest of the creditor under the laws that would govern a foreclosure, trust deed sale, repossession or other action against the property that is the subject of the land sale contract, mortgage, trust deed or security agreement.

          (2) A garnishee must deliver in the manner required by sections 1 to 65 of this 2001 Act all amounts in the garnishee’s possession, control or custody at the time of delivery of the writ of garnishment that are not actually paid by the garnishee to another person as described in subsection (1) of this section, unless those amounts are exempt from execution under other law.

          (3) A garnishee who applies a setoff under this section must disclose that the setoff has been applied, and the amount of the setoff, in the garnishee response required by section 24 of this 2001 Act. The garnishee must certify in the garnishee response that the amounts specified in the certificate were actually paid by the garnishee to another person entitled to receive those amounts under subsection (1) of this section.

 

DURATION OF WRIT’S EFFECT

 

          SECTION 10. Duration of writ’s effect. (1) For any property other than wages, a writ of garnishment acts to garnish only garnishable property of the debtor that is in the garnishee’s possession, control or custody at the time the writ is delivered, including money that is owed but not yet due.

          (2) A writ of garnishment acts to garnish all wages owed by the garnishee to the debtor at the time the writ is delivered. Except as provided in subsection (3) of this section, a writ also acts to garnish all wages earned by the debtor by reason of services to the garnishee during the period commencing with the date the writ is delivered and ending on the earlier of:

          (a) The expiration of 90 days after the date the writ is delivered; or

          (b) The date on which the garnishment is released or satisfied in full.

          (3) If a writ of garnishment is issued on behalf of a county or county agency, the writ acts to garnish all wages earned by the debtor by reason of services to the garnishee until the full amount owed to the county or county agency is paid or until the writ of garnishment is released by the county or county agency or by a court order. A writ of garnishment issued on behalf of a county or county agency shall contain language reasonably designed to notify the garnishee of the provisions of this subsection.

 

          SECTION 11. Multiple writs. (1) Except as otherwise provided by law, the first writ of garnishment delivered to a garnishee has priority over all other writs delivered to the garnishee for the same debtor. A garnishee shall make payments or deliver property under a subsequently delivered writ only if there is garnishable property of the debtor remaining in the garnishee’s possession, control or custody after complying with the first writ delivered to the garnishee.

          (2) If a debtor earns wages from a garnishee during the period that a writ of garnishment is in effect under section 10 of this 2001 Act, the garnishee shall make payments under the first writ delivered to the garnishee until the expiration of the period of time specified in section 10 of this 2001 Act, and shall thereafter make payments on subsequently delivered writs in the order in which they were delivered to the garnishee as long as each writ continues to be effective under section 10 of this 2001 Act. Any delay in payment under a writ by reason of this subsection does not affect the expiration of the writ’s effect at the time specified in section 10 of this 2001 Act. If the first writ does not garnish all wages of the debtor that are not exempt from execution, the garnishee shall make concurrent payment on a subsequently delivered writ of the balance of the wages that are not exempt from execution.

          (3) If a garnishee pays wages to a debtor and the garnishee receives another writ of garnishment during the period that a writ is in effect under section 10 of this 2001 Act, the garnishee shall note those facts on the garnishee response and indicate the date on which the previous writ will expire.

          (4) A subsequent writ of garnishment issued on behalf of the same creditor against the same debtor and delivered to the same garnishee during the period that a previous writ is effective under section 10 of this 2001 Act acts only to garnish property of the debtor other than wages.

 

PERSONS AUTHORIZED TO ISSUE WRITS

 

          SECTION 12. Who may issue writs. (1) A writ of garnishment may be issued only by a person specified in this section.

          (2) The clerk of a court may issue a writ pursuant to sections 13 and 14 of this 2001 Act only:

          (a) For the enforcement of a judgment that requires the payment of money and that has been entered in the register of the court or docketed in the docket of the court;

          (b) Pursuant to an order for provisional process under ORCP 83 and 84; or

          (c) On behalf of a claimant under an order recorded pursuant to ORS 671.707 or 701.150, if the claimant has complied with the requirements of ORS 205.126.

          (3) An attorney who is an active member of the Oregon State Bar may issue a writ for the purpose of enforcing:

          (a) A judgment that requires payment of money and that has been entered in the register of a court of this state or docketed in the docket of a court of this state; and

          (b) An order or warrant that an agency has recorded in the County Clerk Lien Record as authorized by law, including any order that has been recorded pursuant to ORS 671.707 or 701.150.

          (4) The administrator, as defined in ORS 25.010, may issue writs of garnishment only for the collection of past due support. Writs issued under this subsection are subject to the provisions of section 15 of this 2001 Act.

 

WRITS ISSUED BY CLERK OF COURT

 

          SECTION 13. Writs issued by clerks generally. (1) Unless there are grounds for denying issuance of a writ of garnishment under section 14 of this 2001 Act, the clerk of the court shall issue writs of garnishment upon proper application and payment of all required fees. A writ of garnishment issued by the clerk must be signed by the creditor. The signature constitutes a certificate by the person under ORCP 17 and is subject to the sanctions provided by ORCP 17.

          (2) The clerk of the court may not fill in or complete a writ of garnishment on behalf of a creditor.

          (3) The clerk of the court is not responsible for verifying the amounts set forth in a writ issued by the clerk, and is not liable for errors in the writ made by the creditor.

 

          SECTION 14. Grounds for denying issuance of writ. (1) The clerk of the court shall refuse to issue a writ of garnishment that is not substantially in the form required by section 59 of this 2001 Act.

          (2) The clerk of the court shall refuse to issue a writ of garnishment that is incomplete or contains improper instructions. Grounds for refusing issuance of a writ under this subsection include:

          (a) The clerk’s inability to verify the existence of the debt claimed as the basis for the writ by a review of the register of the court.

          (b) A determination by the clerk, based on a review of the register of the court, that a satisfaction of judgment has been filed with the court.

          (3) The clerk of the court shall refuse to issue a writ of garnishment pursuant to an order for provisional process under ORCP 83 and 84 if the party seeking issuance of the writ has not complied with all requirements of ORCP 82 A(3), A(5) and A(6) and B to G, 83 and 84.

 

WRITS ISSUED BY DIVISION OF CHILD

SUPPORT OR DISTRICT ATTORNEY

 

          SECTION 15. Writs issued by Division of Child Support or district attorney. (1) The administrator, as defined in ORS 25.010, may issue writs of garnishment for the collection of past due support in the manner provided by this section. Except as otherwise specifically provided in sections 1 to 65 of this 2001 Act, the provisions of sections 1 to 65 of this 2001 Act apply to all writs issued under this section.

          (2) Notwithstanding section 4 of this 2001 Act, a writ of garnishment issued under this section need not contain the name of the court whose authority is invoked.

          (3) Notwithstanding section 28 of this 2001 Act, a garnishee who receives a writ of garnishment issued under this section need not deliver a copy of the garnishee response to the clerk of the court.

          (4) Notwithstanding section 38 of this 2001 Act, the issuer of a writ under this section must hold any payments received from the garnishee:

          (a) For a period of 120 days after delivery of the writ, if the garnishee is making a payment of wages; and

          (b) For a period of 30 days after delivery of the writ, if the garnishee is making a payment other than wages.

          (5) When issuing writs under this section, the Administrator of the Division of Child Support of the Department of Justice shall modify the forms provided in sections 1 to 65 of this 2001 Act to reflect the provisions of this section.

 

DELIVERY OF WRIT

 

          SECTION 16. Items required to be delivered to garnishee. (1) All of the following items must be delivered to a garnishee:

          (a) The original writ of garnishment in substantially the form provided by section 59 of this 2001 Act and a copy of the writ certified to be true by the garnishor, or two copies of the original writ certified to be true by the garnishor.

          (b) A garnishee response form in substantially the form provided by section 61 of this 2001 Act.

          (c) An instructions to garnishee form in substantially the form provided by section 62 of this 2001 Act.

          (d) A wage exemption calculation form in substantially the form provided by section 63 of this 2001 Act.

          (e) Any search fee required by section 55 of this 2001 Act.

          (2) If any of the items described in subsection (1) of this section is not delivered to the garnishee, the garnishment is not effective to garnish any property of the debtor, the garnishee is not required to respond to the garnishment and the garnishee may proceed to deal with any property of the debtor as though the writ of garnishment had not been issued.

 

          SECTION 17. Manner of delivery. (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 of garnishment 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 of garnishment must note the date of delivery upon the writ delivered to the garnishee or upon a true copy 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 of garnishment by a sheriff under this section shall be no more than the following, based upon population as determined by the most recent federal decennial census:

          (a) $12.50 if the writ is delivered in a county with a population of fewer than 400,000 persons.

          (b) $9.50 if the writ is delivered in a county with a population of 400,000 persons or more.

 

          SECTION 18. Proper person to receive writ. (1) Except as otherwise provided in this section, a writ of garnishment may be delivered to any of the following persons:

          (a) If the property of the debtor is in the possession, control or custody of an individual, the writ may be delivered to the individual. If the individual maintains an office for the conduct of business, office delivery may be made by leaving all of the items required by section 16 (1) of this 2001 Act at the office during normal working hours with the person who is apparently in charge. If office delivery is used, the person delivering the writ, as soon as reasonably possible, shall cause to be mailed by first class mail all of the items required by section 16 (1) of this 2001 Act to the garnishee at the garnishee’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the garnishee of the garnishment, together with a statement of the date, time and place at which office delivery was made. Delivery under this paragraph is effective upon the receipt of the writ by the person who is apparently in charge of the office.

          (b) If the property of the debtor is in the possession, control or custody of a partnership, the writ may be delivered to any partner or to any person designated by the partnership to accept service of a writ of garnishment. However, if the partnership is a limited partnership, the writ of garnishment may be delivered only to a general partner or to a person designated by the partnership to accept service.

          (c) If the property of the debtor is in the possession, control or custody of a corporation, the writ may be delivered to any officer or managing agent of the corporation or to any person designated by the corporation to accept service.

          (d) If the property of the debtor is in the possession, control or custody of a limited liability company, the writ may be delivered to any member of the company or to any person designated by the company to accept service.

          (e) If the property of the debtor is in the possession, control or custody of a financial institution, the writ may be delivered to the manager, assistant manager or other designated person at any office or branch of the financial institution where deposits are received or that has been designated by the institution as a place for receiving writs of garnishment. Delivery of a writ in the manner prescribed in this paragraph is effective to garnish all property of the debtor held at all offices and branches of the financial institution located in this state.

          (f) If the property of the debtor is in the possession, control or custody of a public body, as defined in ORS 192.410, the writ may be delivered to the board, department, institution, commission or officer charged with approving a claim for the property.

          (2) Notwithstanding ORS 78.1120 (2), if the property of the debtor is money that is owed to the debtor that is not evidenced by a negotiable instrument, certificate, document or similar instrument, the writ of garnishment must be delivered to the person who owes the money in the manner provided by subsection (1) of this section.

          (3) Notwithstanding ORS 78.1120 (2), if the property of the debtor is stock in a corporation, other than stock represented by a negotiable certificate or similar instrument, the writ of garnishment must be delivered to the corporation in the manner provided by subsection (1) of this section.

          (4) Notwithstanding ORS 77.6020 and 78.1120, if the property of the debtor is a negotiable instrument, certificate, document or similar instrument, the writ of garnishment must be delivered to the person having possession of the instrument in the manner provided by subsection (1) of this section. The garnishment does not limit the rights of a holder in due course of a negotiable instrument under ORS 73.0302, a holder to whom a negotiable document has been duly negotiated under ORS 77.5010 or a protected purchaser of a security under ORS 78.3030.

          (5) If the property of the debtor is an interest of an heir or legatee in an estate of a decedent, the writ of garnishment must be delivered to the personal representative of the estate in the manner provided by subsection (1) of this section.

 

          SECTION 19. Documents to be delivered to debtor. (1) Following delivery of a writ of garnishment to a garnishee, the person who delivered the writ must mail or deliver promptly the following documents to the debtor whose property is being garnished by the writ:

          (a) A copy of the writ of garnishment.

          (b) The original of the debt calculation form.

          (c) A notice of exemptions form in substantially the form provided by section 64 of this 2001 Act.

          (d) A challenge to garnishment form in substantially the form provided by section 65 of this 2001 Act.

          (2) A person serving a writ of garnishment may meet the requirements of subsection (1) of this section by mailing the documents to the address of the debtor that appears in the writ of garnishment. If an address for the debtor does not appear in the writ, the person serving the writ need not comply with subsection (1) of this section.

 

DUTIES OF GARNISHEE GENERALLY

 

          SECTION 20. Duties generally. (1) Upon receiving a writ of garnishment, the garnishee shall determine whether a garnishee response is required under sections 24 and 25 of this 2001 Act. The garnishee has no duty to determine whether the garnishor, sheriff or other person has complied with the requirements of sections 1 to 65 of this 2001 Act, or to otherwise determine whether the writ of garnishment is valid. If a garnishee response is required, the garnishee must make a diligent effort to determine whether the garnishee is the employer of the debtor and whether the garnishee has possession, control or custody of any property of the debtor as described in section 7 of this 2001 Act. If the garnishee has possession, control or custody of such property, the garnishee must hold the property, or as much of the property as is necessary to satisfy the garnishment, as required by sections 1 to 65 of this 2001 Act, and thereafter make delivery of the property in the manner required by sections 1 to 65 of this 2001 Act.

          (2) The duty of a garnishee to hold and deliver property is not affected by joint ownership of the property. If a garnishee holds property that is owned, or appears to be owned, by the debtor and one or more other persons, the garnishee must still hold and deliver all of the property, or as much of the property as is necessary to satisfy the garnishment.

 

          SECTION 21. Immunity by payment to clerk or delivery to sheriff. (1) Notwithstanding any provision of sections 1 to 65 of this 2001 Act, a garnishee may pay to the garnishor or to the clerk of the court any money that the garnishee reasonably believes may have been garnished and may deliver to the sheriff in the manner provided by sections 1 to 65 of this 2001 Act any property that the garnishee reasonably believes to have been garnished. The garnishee has no duty to determine whether money or property held by the garnishee is exempt from garnishment or to determine whether the money or property is garnishable property.

          (2) If the garnishee makes payment of garnished money to the garnishor or to the clerk of the court under subsection (1) of this section, or delivers garnished property to the sheriff in the manner provided by sections 1 to 65 of this 2001 Act, the garnishee is discharged from liability to the creditor for the value of the money paid or property delivered.

          (3) If the garnishee requests a receipt, the sheriff or clerk of the court shall provide the garnishee with a receipt for any property delivered to the sheriff or payment made to the clerk.

 

          SECTION 22. Exceptions to garnishee’s duties. (1) A garnishee has no duty to hold or deliver any property under a writ of garnishment if the property has been released by a court order or a release of garnishment has been delivered to the garnishee under section 50 of this 2001 Act.

          (2) The duty of a garnishee to hold or deliver any property under a writ of garnishment is not breached if the property is removed from the possession, control or custody of the garnishee before the garnishee can act to stop that removal through the exercise of reasonable care.

 

          SECTION 23. Duties of personal representative who is garnished. Garnishment does not impair the powers of a personal representative over estate property for the purposes of administration. If a personal representative receives a writ of garnishment, the personal representative must prepare and deliver a garnishee response in the manner provided by sections 1 to 65 of this 2001 Act, but no payment of money or delivery of property need be made by the personal representative until such time as specified in this section. The personal representative must note on the response that the property is estate property subject to administration. The personal representative must also file a copy of the writ of garnishment and the garnishee response in the office of the clerk of the court in which the estate is being administered, and must report the garnishment to the court in any petition for distribution. In a decree made upon such petition, distribution shall be ordered to the heir or legatee, but delivery shall be ordered to the sheriff or to the garnishor, as required by sections 1 to 65 of this 2001 Act.

 

GARNISHEE RESPONSE

 

          SECTION 24. Response required; time. (1) Except as specifically provided under section 25 of this 2001 Act, a garnishee must prepare a garnishee response in substantially the form provided by section 61 of this 2001 Act and must deliver the response in the manner provided in section 28 of this 2001 Act.

          (2) Except as provided in subsection (3) of this section, a garnishee response must be delivered by the garnishee not later than seven calendar days after the date on which the writ of garnishment was delivered to the garnishee.

          (3) If the seventh calendar day after delivery of a writ of garnishment is a Saturday, Sunday or legal holiday, a garnishee response must be delivered by the garnishee on or before the next following day that is not a Saturday, Sunday or legal holiday.

 

          SECTION 25. When response not required. A garnishee has no duty to prepare and deliver a garnishee response if:

          (1) The writ of garnishment is not delivered to the garnishee within the time provided under section 5 of this 2001 Act;

          (2) The garnishor fails to serve the garnishee with all items required under section 16 of this 2001 Act;

          (3) The garnishee receives a release of garnishment issued under section 50 of this 2001 Act; or

          (4) Any other law or court order directs that the response not be made.

 

          SECTION 26. Contents of response. A garnishee must note upon a garnishee response the date on which the garnishee received the writ of garnishment. The garnishee must also note upon the response the following information and deliver the response in the manner provided by section 28 of this 2001 Act:

          (1) If the garnishee discovers that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor and the petition was filed after the date shown on the face of the writ as the date on which the judgment was entered or otherwise first became subject to garnishment.

          (2) If the garnishee does not employ the debtor and the garnishee does not have any garnishable property of the debtor in the possession, control or custody of the garnishee, the garnishee must so note on the response.

          (3) If the garnishee employs the debtor, the garnishee must so state on the response and make all other responses required by this section or section 27 of this 2001 Act. The garnishee must thereafter make payment under the writ in the manner provided by section 40 of this 2001 Act.

          (4) If the garnishee has any cash belonging to the debtor, or the garnishee owes any money to the debtor other than wages that is due as of the time the response is made, the garnishee must so note on the response. The garnishee must make payment with the response in the manner provided by section 38 of this 2001 Act of the amount subject to the garnishment, or of such amount as will satisfy the garnishment, whichever amount is less.

          (5) If the garnishee owes any money to the debtor other than wages that is not due as of the time the response is made but that will become due within 45 days after the time the response is made, the garnishee must so note on the response. When the money becomes due, the garnishee must make payment in the manner provided by section 39 of this 2001 Act of the amount subject to the garnishment, or of such amount as will satisfy the garnishment, whichever amount is less.

          (6) If the garnishee owes any money to the debtor other than wages that is not due as of the time the response is made and the money will not become due within 45 days after the time the response is made, the garnishee must so note on the response. The garnishee must thereafter comply with sections 45 to 49 of this 2001 Act.

          (7) If the garnishee has any garnishable property of the debtor in the possession, control or custody of the garnishee that is not cash or owed money, the garnishee must so note on the response. The garnishee must thereafter comply with sections 45 to 49 of this 2001 Act.

          (8) If the garnishee can determine from the writ that the garnishee may owe money to or hold garnishable property of the debtor, but is not sure what or how much, the garnishee must so state on the response and must state that the garnishee will file an amended response when the garnishee determines what or how much money or property the garnishee owes or holds.

          (9) If the garnishee determines that the writ of garnishment does not comply on its face with sections 1 to 65 of this 2001 Act, or if the garnishee is unable to determine the identity of the debtor from the information contained in the writ, the writ of garnishment is ineffective to garnish the property of the debtor. The garnishee must so note on the response and provide an explanation.

          (10) If, before delivering the garnishee response, the garnishee receives an order to withhold income issued under ORS chapter 25 that applies to the income of the debtor, the garnishee must so note on the response. The garnishee must provide details of the order to withhold income, including the name of the agency serving the order, the date the order was served on the garnishee and the amount to be withheld. If the garnishee employs the debtor, the garnishee must make the responses required under section 27 of this 2001 Act.

          (11) If the garnishee receives notice of a challenge to the garnishment before delivering the response, the garnishee must so note on the response. The garnishee must thereafter comply with section 33 of this 2001 Act.

 

          SECTION 27. Response of garnishee who is employer of debtor. In addition to the requirements of section 26 of this 2001 Act, if a garnishee employs the debtor, the garnishee must so note on the garnishee response and indicate the pay period and the next payday for the debtor.

 

          SECTION 28. Delivery of garnishee response. (1) Except as provided in subsection (2) of this section, a garnishee who is required to deliver a garnishee response must mail or personally deliver:

          (a) The original of the response to the garnishor;

          (b) A copy of the response to the debtor; and

          (c) A copy of the writ of garnishment and a copy of the response to the clerk of the court specified in the writ as having authority over the writ.

          (2) The garnishee shall not mail or personally deliver a copy of the writ and a copy of the garnishee response to the clerk of the court if:

          (a) The garnishee discovers that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor after the debt was adjudicated as provided in section 3 of this 2001 Act, and the garnishee will not make payments or deliver property under the writ pursuant to section 8 (2) of this 2001 Act; or

          (b) The garnishee does not employ the debtor and the garnishee has no property of the debtor in the garnishee’s possession, control or custody that is garnishable property.

          (3) For the purpose of compliance with section 24 of this 2001 Act, delivery of a garnishee response under this section is accomplished upon mailing or upon personal delivery of the response.

 

          SECTION 29. Supplemental garnishee response. (1) The garnishee shall prepare a supplemental garnishee response in substantially the form provided by subsection (2) of this section, and deliver the supplemental response to the garnishor and to the debtor, if either of the following occurs after the garnishee has delivered an initial garnishee response and before the garnishee delivers all property that is subject to garnishment under the writ of garnishment:

          (a) The garnishee discovers that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor under section 301, 302 or 303 of the United States Bankruptcy Code (11 U.S.C. 101 to 1330) after the debt was adjudicated as provided in section 3 of this 2001 Act; or

          (b) The garnishee receives an order to withhold income that is entitled to priority under ORS 25.375.

          (2) The supplemental response required under subsection (1) of this section must be in substantially the following form:

____________________________________________________________________________

 

SUPPLEMENTAL GARNISHEE RESPONSE

 

          To: The Garnishor and the Debtor

 

          Re: Writ of garnishment delivered ___, 2__ (date), in the case of _____ (Plaintiff) vs. _____(Defendant), Circuit Court of ___ County, Oregon, Case No. ___.

 

          The undersigned garnishee furnished a garnishee response to this garnishment on ___, 2__ (date). Since that time (check appropriate box):

 

__     I have discovered that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the Debtor after the judgment was entered against the Debtor.

 

__     I have received an order to withhold income of the Debtor by reason of a support obligation. Under ORS 25.375, the order to withhold income has priority over any other legal process under Oregon law against the same income. The withholding of income pursuant to the order to withhold income might reduce or eliminate subsequent payments under the garnishment. (Provide details, including the name of the agency serving the order to withhold, the date the order was served on you and the amount to be withheld.)

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

 

Dated: ___, 2__

 

_______________

Name of Garnishee

 

_______________

Signature

 

_______________

Address

____________________________________________________________________________

 

CHALLENGE TO GARNISHMENT

 

          SECTION 30. Manner of making challenge to garnishment. (1) A debtor may use a challenge to a garnishment to claim such exemptions from garnishment as are permitted by law. A challenge to a garnishment may also be used by a debtor:

          (a) To assert that the amount specified in the writ of garnishment as being subject to garnishment is greater than the total amount owed by the debtor to the creditor; or

          (b) To assert that property is not garnishable property.

          (2) A debtor may make a challenge to a garnishment by completing the challenge to garnishment form provided by section 65 of this 2001 Act, or a substantially similar form, and by delivering the original of the completed form in person or by first class mail to the clerk of the court named in the writ of garnishment as the court with authority over the writ. A challenge to a garnishment must be delivered:

          (a) Within 120 days after a copy of the writ of garnishment is delivered to the debtor, if the garnishee is the employer of the debtor and the challenge is based on an exemption that is claimed for wages earned by the debtor from the garnishee; or

          (b) Within 30 days after a copy of the writ of garnishment is delivered to the debtor, if the challenge is made on any other basis.

          (3) Upon receiving a challenge to a garnishment under subsection (2) of this section, the clerk of the court shall retain all payments sent to the clerk under sections 32 and 33 of this 2001 Act until such time as the court enters a decision on the challenge. The clerk shall reject any payment that is received after the challenge is made and that is not payable to the court, and shall return the payment to the garnishee with instructions to reissue the payment as payable to the court.

          (4) A court shall not require the payment of any fee for the filing of a challenge to a garnishment.

 

          SECTION 31. Notice to garnishor and garnishee of challenge to garnishment. (1) Without unreasonable delay, a clerk of the court who has received a challenge to a garnishment under section 30 of this 2001 Act shall provide written notice of the challenge as provided in this section. The notice must include a statement reflecting the consequences of failure of a garnishor or garnishee to comply with the requirements of sections 32 and 33 of this 2001 Act. The notice may include the notice of hearing under section 34 of this 2001 Act.

          (2) The clerk of the court shall provide the notice of a challenge required by subsection (1) of this section to:

          (a) The garnishor.

          (b) The garnishee, unless the clerk knows that the garnishee has already delivered all garnishable property to the garnishor.

          (c) The sheriff of the county identified in any notice delivered to the clerk under section 47 (5) of this 2001 Act.

 

          SECTION 32. Duties of garnishor created by challenge to garnishment. (1) Except as provided in subsection (2) of this section, upon receiving notice of a challenge to a garnishment under section 31 of this 2001 Act, a garnishor must send to the court specified in the writ of garnishment all amounts received by the garnishor that the debtor has claimed to be exempt or not subject to garnishment, unless the court specifically orders otherwise. The payment to the court must be in cash or by check made payable to the court. If the payment has not reached the court by the time of the hearing under section 34 of this 2001 Act, the clerk of the court shall so notify the judge presiding at the hearing. If the court determines that any of the garnished money should be disbursed to the debtor and the payment has not reached the court by the time of that determination, the court may issue an order requiring that the garnishor appear and show cause why the garnishor should not be held in contempt. In addition to contempt proceedings, the court may require the garnishor to pay attorney fees under ORS 20.105. A court’s imposition of sanctions under this subsection does not limit any remedy otherwise available to the debtor.

          (2) Subsection (1) of this section does not apply if the garnishor is not required by law or allowed by law to disburse the payment.

          (3) The receipt of a challenge to a garnishment does not affect the requirement under section 47 (1) of this 2001 Act that the garnishor mail or deliver a written request for sale of property, and pay the fees determined by the sheriff under section 47 (3) of this 2001 Act, not later than 20 days after the garnishee delivers the garnishee response. The garnishor must note upon the request for sale that a challenge to the garnishment has been made by the debtor.

 

          SECTION 33. Duties of garnishee created by challenge to garnishment. (1) Upon receiving notice of a challenge to a garnishment under section 31 of this 2001 Act, a garnishee who would otherwise be required to make a payment to the garnishor shall mail or deliver the payment, by cash or by check made payable to the court, to the clerk of the court. The garnishee must make the payment to the court within the time that the garnishee would have otherwise been required to mail or deliver the payment to the garnishor. A garnishee who fails to make payment in the manner required by this section is subject to liability under the provisions of sections 51 to 54 of this 2001 Act.

          (2) Upon receiving notice of a challenge under section 31 of this 2001 Act, a garnishee who holds any property described in section 45 of this 2001 Act must hold the garnished property for the period specified in section 46 (1) of this 2001 Act. If the sheriff informs the garnishee before the end of the period specified in section 46 (1) of this 2001 Act that the property held by the garnishee will be sold, the garnishee shall continue to hold the property until receiving further directions from the court.

 

          SECTION 34. Hearing on challenge to garnishment. (1) A debtor’s challenge to a garnishment shall be adjudicated in a summary manner at a hearing before the court with authority over the writ of garnishment. The clerk of the court shall immediately set a hearing date and send notice of the hearing to the parties. The hearing shall be held as soon as possible.

          (2) Hearings on a challenge to a garnishment may be held by telecommunication.

          (3) The debtor has the burden to prove timely delivery of a challenge to a garnishment.

 

          SECTION 35. Allowance or denial of challenge. (1) Except as provided in subsection (3) of this section, if a challenge to a garnishment is allowed by the court, the clerk of the court shall mail to the debtor from any payments made to the clerk all amounts determined to be exempt from or not subject to garnishment within 10 judicial days after the court’s order allowing the challenge. If the challenge to a garnishment has been made for property described in section 45 of this 2001 Act and a request for sale of the property has been made by the garnishor under section 47 of this 2001 Act, the clerk shall give notice of the court’s decision to the garnishee and to the sheriff who would conduct the sale.

          (2) Except as provided in subsection (3) of this section, any amount determined to be garnishable property that is not exempt after a hearing shall be mailed to the garnishor within 10 judicial days after the court’s order denying the challenge as to that amount.

          (3) The Judicial Department may by written policy establish time limitations different from the 10-day period provided in subsections (1) and (2) of this section for the delivery of amounts after a judicial determination on a challenge to a garnishment. The time limitations established by the department may be longer or shorter than the 10-day period. The policy may provide for a period longer than 10 days for a category of payments only if the department determines that the category is subject to special circumstances that create substantial difficulties in meeting a requirement of delivery within 10 days. The policy shall provide for delivery in less than 10 days for any category of payments that the department determines can be delivered within a shorter period of time. The department shall consider federal guidelines and rules relating to the timing of transactions in financial institutions in developing a policy under this subsection. Any policy adopted under this subsection applies to all courts of this state, except that municipal courts and justice courts are not bound by any requirement that a category of payments be delivered in less than 10 days.

 

          SECTION 36. Sanctions. (1) A court may impose sanctions against any person who files a challenge to a garnishment in bad faith. The sanctions a court may impose under this subsection are a penalty of not more than $100 and responsibility for attorney fees under ORS 20.105.

          (2) The court shall order a creditor to return any property that is garnished under a writ of garnishment and that was exempt from garnishment or not subject to garnishment, and shall order the creditor to pay a penalty of $200 to the debtor in addition to all costs and reasonable attorney fees incurred by the debtor in recovering the property and penalty, if:

          (a) The creditor is the garnishor and fails to provide in the writ any address for the debtor that is known to the creditor; or

          (b) The creditor is not the garnishor and fails to provide to the garnishor any address for the debtor that is known to the creditor.

          (3) The imposition of sanctions under this section does not limit any remedy otherwise available to the creditor or debtor.

 

          SECTION 36a. Special rules for writs issued for past due support. (1) Notwithstanding section 30 (2) of this 2001 Act, if a writ of garnishment is issued pursuant to ORS 25.083, the debtor may:

          (a) Challenge the enforcement of the past due support in the appropriate tribunal of the state upon whose request the writ was issued as indicated in the writ of garnishment; or

          (b) File a challenge to the garnishment with the clerk of the court in the county in which the property was located when the writ was delivered, if the debtor pays the filing fee required for an appearance under ORS chapter 21 and files with the clerk of the court copies of the writ of garnishment, the debt calculation form and the garnishee response delivered to the debtor under section 19 of this 2001 Act.

          (2) When a challenge to a garnishment is filed under this section, the clerk of the court shall enter the filing in the court register and the court shall decide the challenge in the manner provided by section 34 of this 2001 Act.

          (3) Immediately upon receipt of a notice of a challenge to a garnishment under this section, the issuer of the writ shall file with the clerk of the court a response to the challenge, attaching copies of the writ of garnishment and garnishee response, and any supporting documentation necessary or helpful to the court in making a determination on the challenge.

 

CLAIM BY PERSON OTHER THAN DEBTOR

 

          SECTION 37. Claim by person other than debtor for all or part of garnished property. Any person other than a debtor who has an interest in any garnished property or in any part of the garnished property may assert that interest by filing with the clerk of the court specified in the writ of garnishment an application in substantially the form set forth in section 65 of this 2001 Act for a challenge to a garnishment. The provisions of sections 30 to 36 of this 2001 Act apply to an application made under this section.

 

PAYMENT OF MONEY UNDER WRIT

(Payments generally)

 

          SECTION 38. Payment of money under writ; garnishor’s duty to hold payments. (1) Unless the court has directed otherwise or the garnishee has received notice that a challenge to the garnishment has been filed by the debtor, a garnishee shall make payments of money under a writ of garnishment to the garnishor.

          (2) Except as provided in sections 15 and 44 of this 2001 Act, a garnishor receiving a payment under a writ of garnishment must hold the payment for a period of 10 days after receipt. The payments must be held in this state, must be clearly identifiable and must be held separate and apart from any account used for operating a business or used to pay personal or business expenses. A payment under a writ may be commingled with other garnished money.

          (3) If a garnishee receives notice of a challenge to the garnishment from the clerk of the court under section 31 of this 2001 Act, the garnishee shall cease making payments to the garnishor and shall make all further payments to the clerk of the court in the manner provided by section 33 of this 2001 Act.

 

          SECTION 39. Money owed to debtor that is due within 45 days. (1) If the property garnished by a writ of garnishment is money that is owed to the debtor and that is not due to be paid at the time the writ is delivered but that will become due within 45 days after the delivery date, the garnishee is not required to deliver the money until payment is due. Within five days after the payment is due, unless the garnishment has been satisfied or released, the garnishee must mail or deliver to the garnishor the amount of the payment then due or a portion of the payment sufficient to satisfy the garnishment, whichever is less.

          (2) If the garnishee receives notice of a challenge to the garnishment at any time before the garnishee mails or delivers the amount due, the garnishee shall comply with section 33 of this 2001 Act.

 

(Payment of nonexempt wages)

 

          SECTION 40. Payment of wages subject to garnishment. Upon delivery of a writ of garnishment, a garnishee that employs the debtor shall pay to the garnishor all wages that are determined to be subject to garnishment, and that are not exempt under section 69b of this 2001 Act, at the following times:

          (1) The garnishee must make an initial payment when the garnishee next pays any wages to the debtor. The payment must be for all wages that were owing to the debtor on the date that the writ was delivered to the garnishee, and all amounts that are being paid to the debtor for work performed after the writ was delivered and before issuance of the paycheck. The garnishee must compute the amount of wages subject to garnishment using the wage exemption calculation form provided by section 63 of this 2001 Act and must mail a copy of the completed form along with the first payment under the writ.

          (2) Unless the writ of garnishment is satisfied or released, the garnishee must make subsequent payments under the writ whenever the garnishee makes any payment of wages to the debtor during the period specified in section 10 of this 2001 Act. Each time there is any change in the debtor’s pay period or any change in the amount paid to the debtor during the debtor’s pay period, the garnishee must complete a new wage exemption calculation form and mail a copy of the completed form along with the payment.

          (3) Unless the writ of garnishment is satisfied or released sooner, the garnishee must make a final payment under the writ when the garnishee next makes a payment of wages to the debtor after the writ expires under the provisions of section 10 of this 2001 Act. The payment must be for all wages that were owing to the debtor on the date that the writ expires. The garnishee must complete a new wage exemption calculation form and mail a copy of the completed form along with the final payment.

 

(Payments made to clerk of court)

 

          SECTION 41. Acceptance or rejection of payments by clerk. (1) The clerk of the court is not liable for accepting any amount of payment under a writ of garnishment, including any payment that is sent to the clerk in error or any payment that exceeds the amount required to satisfy the garnishment.

          (2) The clerk of the court may return to the garnishee any payment received from the garnishee unless the garnishee has delivered a garnishee response to the court in the manner required by section 28 of this 2001 Act or has provided a statement to the clerk that the payment is a voluntary payment on behalf of the debtor to be applied toward satisfaction of the garnishment or is a payment under another law or court order that requires or allows the garnishee to pay money to the court.

 

          SECTION 42. Payments erroneously sent to court. (1) If a garnishee erroneously sends a payment to the court that should have been sent to the garnishor, the clerk of the court shall immediately forward to the garnishor any cash or check made payable to the garnishor. If a garnishee erroneously sends a payment in the form of a check made payable to the court, the clerk may deposit and hold the check until the check has cleared and then forward the payment to the garnishor.

          (2) The clerk of the court is not liable for interest on money erroneously sent to the court if the clerk transmits the money to the garnishor in a timely manner.

 

(Crediting of payments)

 

          SECTION 43. Crediting of payments against debt. (1) If a garnishee makes payment to the garnishor, the payment shall be credited against the debt on the date the garnishor receives the payment.

          (2) If a garnishee makes payment to the court, the payment shall be credited against the debt on the date the clerk of the court disburses payment to the garnishor, unless the court otherwise orders. This subsection applies even if the garnishee makes payment to the court in error or when the clerk holds money pending a decision on a challenge to the garnishment.

 

          SECTION 44. Excess payments. Within 10 days after receiving a payment under a writ of garnishment, a garnishor must return to the debtor any amount that exceeds the amount owing on the debt. If payment was made by check, the garnishor is not required to return the payment until 10 days after the check has cleared.

 

PROPERTY SUBJECT TO SALE BY SHERIFF

 

          SECTION 45. Application of sections 45 to 49. (1) A garnishee shall not deliver the property described in this section to the garnishor. If the garnishor seeks to apply the property described in this section against the debt of the debtor, the property must be sold by the sheriff in the manner specified in sections 45 to 49 of this 2001 Act.

          (2) The provisions of sections 45 to 49 of this 2001 Act apply to:

          (a) Any money owed by a garnishee to a debtor the payment of which is not due at the time the writ of garnishment is delivered to the garnishee and the payment of which does not become due within 45 days after the date of delivery;

          (b) Property of the debtor that the garnishee holds under an unexpired bailment or lease;

          (c) Property of the debtor in which the garnishee has a security interest that was granted to the garnishee by the debtor before the delivery of the writ; and

          (d) Any other garnishable property that is not payable in money.

          (3) The property described in subsection (2)(a) to (c) of this section must be delivered by the garnishee to the purchaser in the manner provided by section 48 (3) of this 2001 Act if the interest of the debtor in the property is sold by the sheriff under section 48 of this 2001 Act. Subject to the provisions of section 47 of this 2001 Act, the garnishee must deliver to the sheriff any other garnishable property that is not payable in money upon receiving notice from the sheriff under section 47 (4) of this 2001 Act.

 

          SECTION 46. Garnishee duties. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in section 45 of this 2001 Act, the garnishee must hold the garnished property, or a portion of the property sufficient to satisfy the garnishment, for a period of 30 days after the garnishee delivers the garnishee response, unless the sheriff or the garnishor notifies the garnishee that the garnishment is released or terminated. If the sheriff contacts the garnishee during the 30-day period, the garnishee shall deliver the property to the sheriff or take such other action as may be specified in the notice given to the garnishee under section 47 (4) of this 2001 Act.

          (2) If the garnishee is not contacted by the sheriff before the end of the 30-day period provided for in subsection (1) of this section, the garnishment is of no further force or effect with respect to the property and the garnishee may deal with the garnished property as if the writ of garnishment had not been delivered to the garnishee.

 

          SECTION 47. Request for sale; sheriff’s fees. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in section 45 of this 2001 Act, the garnishor may require that the property be sold and that the proceeds of the sale be applied against the debt owed to the creditor. A sale of the property shall be conducted by the sheriff only if the garnishor mails or delivers a written request for sale of the property, and pays the fees determined by the sheriff under subsection (3) of this section, not later than 20 days after the garnishee delivers the garnishee response. A copy of the writ of garnishment and a copy of the garnishee response must be attached to the request for sale of the property.

          (2) A sale of the property described in section 45 of this 2001 Act may be conducted under sections 45 to 49 of this 2001 Act only by the sheriff of the county in which the writ was delivered or, if the property is not located within the county in which the writ was delivered, by the sheriff of the county in which the property is located.

          (3) A garnishor may request that the sheriff of a county described in subsection (2) of this section provide a statement to the garnishor of the fees that the sheriff will charge for conducting a sale of property that is described in section 45 of this 2001 Act. The sheriff shall conduct such investigation as may be necessary to determine the difficulty of conducting any sale of the property under section 48 of this 2001 Act, including any costs that the sheriff may incur in taking into possession any of the property described in section 45 (3) of this 2001 Act. The sheriff shall determine whether the property described in section 45 (3) of this 2001 Act should be taken into possession of the sheriff, or whether the sheriff should enter into an agreement with the garnishee for the garnishee to continue to hold the property pending sale by the sheriff. The sheriff shall provide the statement of fees to the garnishor not later than five days after the garnishor requests the statement.

          (4) If the garnishor mails or delivers a written request for sale of property and pays the sheriff fees determined under subsection (3) of this section within the time allowed by subsection (1) of this section, the sheriff shall promptly mail or deliver a written notice to the garnishee. The notice shall direct the garnishee to:

          (a) Hold all property described in section 45 (2)(a) to (c) of this 2001 Act until the garnishee receives further instructions with respect to disposition of the property; and

          (b) Deliver all property described in section 45 (2)(d) of this 2001 Act to the sheriff, unless the sheriff has agreed with the garnishee that the property should continue to be held by the garnishee pending sale.

          (5) Upon sending a notice to a garnishee under subsection (4) of this section, the sheriff shall mail or deliver a copy of the notice to the clerk of the court with authority over the writ of garnishment.

 

          SECTION 48. Sheriff’s sale. (1) A sheriff shall sell property under sections 45 to 49 of this 2001 Act in the same manner in which property is sold on execution. If the debtor owns only part of the property, the sheriff shall sell the interest of the debtor in the property. The sale of the property must be conducted by the sheriff:

          (a) Within 15 days after notice is sent to the garnishee under section 47 (4) of this 2001 Act, if the garnishee is directed to continue to hold the property pending sale by the sheriff; or

          (b) Within 15 days after the property is delivered to the sheriff, if the garnishee is directed to deliver the property to the sheriff under section 47 (4) of this 2001 Act.

          (2) If the garnishor notifies the sheriff that property should be released to the debtor, the sheriff shall promptly release the property.

          (3) If the garnishee continues to hold property of the debtor pending sale of the property under sections 45 to 49 of this 2001 Act, within five days after the sale of property under this section the sheriff shall advise the garnishee in writing of the identity of the purchaser and that the purchaser is entitled to possession of the property or to possession of the debtor’s interest in the property. If the property is a debt owed to the debtor for which payment is not due or is subject to a bailment, lease or security interest that has not yet expired or been satisfied or released, the garnishee need not deliver the property to the purchaser until five days after payment is due, the bailment or lease has expired, or the indebtedness secured by the property is satisfied or the security interest is released.

 

          SECTION 49. Challenge to garnishment. If the sheriff receives notice of a challenge to the garnishment pursuant to section 31 of this 2001 Act after a request for sale of property has been submitted by the garnishor under section 47 of this 2001 Act, the sheriff shall not take possession of or sell any property that is subject to the challenge. If the sheriff has taken property into possession before receiving the notice provided for in section 31 of this 2001 Act, the sheriff shall hold the property pending the court’s determination on the challenge. Upon receiving notice of the court’s determination under section 35 of this 2001 Act, the sheriff shall proceed as directed by the court.

 

RELEASE OF GARNISHMENT

 

          SECTION 50. Release of garnishment. (1) A garnishor may issue a release of garnishment that covers all or any portion of the property held under a writ of garnishment. The release must be in substantially the form provided by section 63a of this 2001 Act. The garnishor must deliver a copy of the release to the garnishee and the debtor. In addition, the garnishor must deliver a copy of the release to:

          (a) The sheriff, if the garnishor has made a request for sale of property under section 47 of this 2001 Act; and

          (b) The clerk of the court specified in the writ of garnishment as the court with authority over the writ, if the garnishor has made a request for sale of property under section 47 of this 2001 Act or if the garnishor has received a challenge to the garnishment.

          (2) A person who does not receive a copy of a release under this section is not liable for treating the property as though the writ were still in effect.

          (3) Any proceedings for the sale of property under section 48 of this 2001 Act shall be terminated immediately upon receipt by the sheriff of a copy of a release of garnishment.

          (4) Upon receipt of a copy of a release under this section, the garnishee may proceed to deal with the released property as though the writ of garnishment had not been issued.

 

SANCTIONS AGAINST NONCOMPLYING GARNISHEE

 

          SECTION 51. Liability of garnishee. (1) If a garnishee fails to file a garnishee response within the time required by law, or fails to deliver all garnishable property required to be delivered under the writ of garnishment within the time required by law, the garnishee is liable to the creditor in an amount equal to the lesser of:

          (a) The amount required to satisfy the garnishment; or

          (b) The value of the debtor’s garnishable property held by the garnishee at the time the writ is delivered to the garnishee.

          (2) A judgment may be entered against the garnishee for the amounts specified in this section if, after a hearing, the court finds that:

          (a) The garnishee at the time of the delivery of the writ of garnishment held garnishable property of the debtor beyond the amount reported in the garnishee response;

          (b) The garnishee held any garnishable property of the debtor and the garnishee failed to make a response; or

          (c) The garnishee failed to deliver garnishable property required to be delivered under the writ.

          (3) The creditor may also recover costs of the creditor as determined under ORCP 68. If the garnishee fails to file a garnishee response within the time required by law, the costs of the creditor may be recovered from the garnishee even if it is determined that the garnishee held no garnishable property of the debtor at the time the writ was delivered to the garnishee.

          (4) Any amounts from a garnishee collected other than costs under a judgment entered pursuant to this section must be credited against the debt owed by the debtor to the creditor.

 

          SECTION 52. Order to appear. (1) If a garnishee fails to provide a garnishee response within the time required by law, or the response is unsatisfactory to the garnishor, or the garnishee fails to deliver garnishable property under the writ of garnishment within the time required by law, upon application of the garnishor, the garnishee may be ordered by the court to appear at a specified time and place for an examination. In addition to or in lieu of an order to appear for examination, the court may order the garnishee to appear for a hearing under section 54 of this 2001 Act to determine whether the garnishee should be held liable for the amount specified in section 51 of this 2001 Act.

          (2) At any time after a garnishor applies for an order under this section, the court may enter an order restraining the garnishee from in any manner disposing of or injuring any of the property of the debtor alleged by the garnishor to be in the garnishee’s possession.

          (3) Disobedience of any order of the court under this section, or refusal to answer any question upon appearance under an order to appear for examination, may be punished as contempt.

 

          SECTION 53. Pleadings; default judgment. (1) If the court orders a garnishee to appear for a hearing under section 54 of this 2001 Act, the garnishor must serve upon the garnishee written allegations not less than 20 days before the time set for the hearing or within such time as may be specified in the order. The allegations must inform the garnishee that if the garnishee fails to answer the allegations not less than 10 days before the time when the garnishee is required to appear for hearing, default judgment may be given against the garnishee for an amount no greater than the judgment against the debtor, plus any costs awarded by the court in the proceeding. The garnishor may also serve upon the garnishee, not less than 20 days before the time set for the hearing or within such time as may be specified in the order, written interrogatories concerning matters relating to the garnishment.

          (2) Unless further time is allowed for good cause, not less than 10 days before the time when the garnishee is required to appear for hearing, the garnishee must file with the court an answer to the allegations and interrogatories of the garnishor and deliver a true copy of the answer to the garnishor. The answer shall be on oath and shall contain a full response to all of the allegations and interrogatories.

          (3) The garnishor may except to the answer of the garnishee for insufficiency, within such time as may be allowed by the court. If the answer is adjudged insufficient, the garnishee may be allowed to amend the answer.

          (4) If the garnishee fails to answer as required under subsection (2) of this section, the creditor may have judgment against the garnishee for want of answer. In no case shall default judgment be given against the garnishee for an amount greater than the judgment against the debtor, plus any costs awarded by the court in the proceeding. The judgment provided for in this subsection is in lieu of any judgment under section 51 of this 2001 Act. Any amounts other than costs collected from a garnishee under a judgment entered pursuant to this subsection must be credited against the debt owed by the debtor to the creditor.

 

          SECTION 54. Hearing. Witnesses, including the debtor and garnishee, may be required to appear and testify at a hearing held pursuant to an order issued under section 52 of this 2001 Act. The proceedings against a garnishee shall be tried by the court as upon the trial of an issue of law between a plaintiff and defendant.

 

FINANCIAL INSTITUTION AS GARNISHEE

 

          SECTION 55. Search fee; garnishment processing fee. (1) Except as provided in subsection (2) of this section, the garnishor must pay a $10 search fee at the time of delivery of any writ of garnishment on a financial institution, or at the time a notice of garnishment is delivered to the financial institution under section 81 of this 2001 Act. If the search fee required by this section is not paid:

          (a) The garnishment is not effective to garnish any property of the debtor; and

          (b) The financial institution need not file a garnishee response.

          (2) The search fee provided for in this section need not be paid to a financial institution if the debtor is an employee of the financial institution.

          (3) Notwithstanding subsection (1) of this section, a financial institution may enter into an agreement with any state agency authorized to garnish pursuant to section 81 of this 2001 Act for periodic billing and payment of garnishee search fees required under this section.

          (4) The right of a financial institution to receive the search fee provided for in this section does not in any way restrict or impair the right of the financial institution to charge and collect an additional garnishment processing fee from any debtor whose property the financial institution holds, or to whom the financial institution owes money. However, a financial institution may not charge or collect a garnishment processing fee in violation of ORS 652.610. If a financial institution charges a garnishment processing fee, the financial institution may collect the fee by deducting the amount of the fee from any amount that the financial institution owes to the debtor.

 

          SECTION 56. Safe deposit boxes. Notwithstanding any other provision of sections 1 to 65 of this 2001 Act, but subject to the provisions of section 81 of this 2001 Act, the duty of a financial institution that is a garnishee to deliver any property of the debtor that may be contained in a safe deposit box that is in the garnishee’s possession, control or custody at the time the writ of garnishment is delivered is conditioned upon the garnishor first paying to the garnishee, in addition to the search fee provided for in section 55 of this 2001 Act, all reasonable costs incurred by the garnishee in gaining entry to the safe deposit box. The costs must be paid to the garnishee by the garnishor before access to the safe deposit box is granted. If the garnishor fails to pay such costs to the garnishee within 20 days after the delivery of the garnishee response, the garnishment shall not be effective to garnish any property of the debtor that may be contained in the safe deposit box and the garnishee may proceed to deal with the safe deposit box and its contents as though the writ of garnishment had not been issued. Nothing in this section limits the right of a garnishor to reach the contents of any safe deposit box in any manner otherwise provided by law.

 

          SECTION 56a. Setoff for amounts owing to financial institution. In addition to such rights as the garnishee may have at law or in equity, a garnishee who is a financial institution may, following delivery of a writ of garnishment to the garnishee, set off such sums as are due from the debtor at the time the writ of garnishment is delivered. A garnishee may not set off any amounts that are not otherwise due to be paid but that have been accelerated after the delivery of a writ of garnishment. Notwithstanding any other provision of sections 1 to 65 of this 2001 Act, such a garnishee shall have no obligation to remit any sums upon the garnishment that the garnishee has set off pursuant to this section. A garnishee who sets off amounts pursuant to this section shall disclose the fact and the amount of the setoff in the garnishee response required by section 24 of this 2001 Act, and must certify in the response that the amount set off by the garnishee was due from the debtor to the garnishee at the time the writ was delivered.

 

          SECTION 56b. Effect of garnishment served on financial institution. Notwithstanding any other provision of sections 1 to 65 of this 2001 Act, if a writ of garnishment is delivered to a financial institution after 4 p.m. and the financial institution has a deposit account held in the name of the debtor, the writ of garnishment only garnishes moneys on deposit in the account at the beginning of the business day next following the day on which the writ is delivered.

 

WRITS ISSUED TO ENFORCE AGENCY

ORDERS OR WARRANTS

 

          SECTION 57. Special rules for writs issued to enforce agency orders or warrants. (1) Except as provided in this section, the provisions of sections 1 to 65 of this 2001 Act apply to all writs of garnishment issued on behalf of agencies for the enforcement of agency orders or warrants that are recorded in the County Clerk Lien Record.

          (2) Notwithstanding section 28 of this 2001 Act, a garnishee who receives a writ of garnishment described in subsection (1) of this section need not deliver a copy of the garnishee response to the clerk of the court identified as having authority over the writ.

          (3) Notwithstanding section 30 of this 2001 Act, a debtor who wishes to make a challenge to a writ of garnishment described in subsection (1) of this section must deliver the challenge in person or by first class mail to the garnishor within the time specified by section 30 (2) of this 2001 Act.

          (4) A person issuing a writ of garnishment described in subsection (1) of this section shall modify the forms provided in sections 1 to 65 of this 2001 Act to reflect that:

          (a) The writ of garnishment is issued pursuant to an order or warrant recorded in the County Clerk Lien Record;

          (b) A copy of the garnishee response need not be delivered or mailed to the clerk of the court identified in the writ; and

          (c) A challenge to a writ of garnishment described in subsection (1) of this section must be delivered to the garnishor and not to the court.

          (5) Within 14 days after receipt of a challenge to a garnishment described in subsection (1) of this section, the garnishor 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 writ and garnishee response, and any supporting documentation necessary or helpful to the court in making its determination on the challenge to the garnishment.

          (6) The provisions of this section do not apply to writs of garnishment issued by the clerk of the court, writs issued by an attorney for the enforcement of an order recorded under ORS 671.707 or 701.150 or writs issued by the administrator, as defined in ORS 25.010, under section 15 of this 2001 Act.

 

USE OF WRIT FOR PROVISIONAL PROCESS

 

          SECTION 58. Use of writ for provisional process. (1) Notwithstanding any other provision of sections 1 to 65 of this 2001 Act, a debt calculation form need not be prepared or delivered for any writ of garnishment issued pursuant to an order for provisional process under ORCP 83 and 84.

          (2) Notwithstanding section 38 of this 2001 Act, if a writ of garnishment is issued pursuant to an order for provisional process under ORCP 83 and 84, all payments of money by the garnishee under the writ shall be made to the clerk of the court specified in the writ as the court with authority over the writ. The clerk shall hold the money pending final judgment against the debtor unless the court finds, upon a challenge to the garnishment made by the debtor under section 30 of this 2001 Act, that all or part of the money is exempt from execution or not subject to garnishment. If final judgment is rendered in favor of the debtor, the court shall order the clerk to pay the money to the debtor. If final judgment is rendered in favor of the creditor, the court shall order the clerk to pay to the creditor as much of the money as will satisfy the judgment and to pay the remainder to the debtor.

          (3) Notwithstanding sections 45 to 49 of this 2001 Act, if a writ of garnishment is issued pursuant to an order for provisional process under ORCP 83 and 84, the sheriff shall not sell any property described in section 45 of this 2001 Act before final judgment is entered in the proceedings, unless the court finds, upon a challenge made by the debtor under section 30 of this 2001 Act, that all or part of the property is exempt from execution or is not subject to garnishment. If final judgment is rendered in favor of the debtor, the court shall order the sheriff to deliver the property to the debtor. If final judgment is rendered in favor of the creditor, the court shall order the sheriff to sell the property in the manner provided by section 48 of this 2001 Act.

          (4) If property taken into the possession of the sheriff under a writ of garnishment issued pursuant to an order for provisional process under ORCP 83 and 84 is perishable, or the cost of storing the property is great, the sheriff shall sell the property in the same manner in which property is sold on execution. The proceeds shall be held and distributed in the same manner as provided in subsection (2) of this section for payments made under the writ.

          (5) The clerk of the court shall attach to any writ of garnishment issued pursuant to an order for provisional process under ORCP 83 and 84 a notice that informs the garnishee of the provisions of subsection (2) of this section.

 

FORMS

 

          SECTION 59. Writ of garnishment form. A writ of garnishment must be in substantially the following form:

____________________________________________________________________________

 

_____COURT

COUNTY OF _____

 

________                        )

Plaintiff,                         )  WRIT OF

                                        )  GARNISHMENT

                                        ) 

                          vs.          )  Case No. ___

                                        )

________                        )

Defendant.                     )

 

TO: ________.

 

          You are now a Garnishee. AS A GARNISHEE, YOU NEED TO KNOW THE FOLLOWING:

 

          _____ (who is called the “Debtor”) owes money to _____ (who is called the “Creditor”). A judgment was entered against the Debtor for the debt, or the debt otherwise became subject to garnishment, on ___, 2_. The Debtor’s Social Security number or employer identification number is _________ (insert if known).

 

          The amount subject to garnishment is $_______.

 

          This writ garnishes all of the following:

 

   Wages that you owe the Debtor at the time this writ is delivered to you, and all wages that the Debtor earns during the 90-day period following the date on which you receive this writ.

 

   All property of the Debtor (including money) that is in your possession, control or custody at the time this writ is delivered to you.

 

   All debts that you owe the Debtor at the time this writ is delivered to you, whether or not payment is due on the debt at the time you receive this writ.

 

          YOU MUST ANSWER THIS WRIT BY COMPLETING THE ATTACHED GARNISHEE RESPONSE WITHIN THE TIME ALLOWED BY LAW, WHETHER OR NOT YOU HOLD ANY OF THE DEBTOR’S PROPERTY OR OWE ANYTHING TO THE DEBTOR. IF YOU DO NOT TRUTHFULLY ANSWER THIS WRIT, OR YOU DO NOT DELIVER MONEY OR PROPERTY WHEN YOU ARE REQUIRED TO DO SO, YOU WILL BE LIABLE TO THE CREDITOR.

 

          If you have questions, you should contact an attorney. The clerk of the court cannot give you legal advice. The Creditor’s attorney cannot give you legal advice.

 

          A writ of garnishment may only be issued by the clerk of the court, by the attorney for the Creditor or by a person who is specifically authorized by law to issue garnishments. This writ is issued by:

 

          __      The clerk of the court

          __      The attorney for the Creditor

          __      Other authorized issuer:

                             Name and title ____________

                             Authority to issue writ ____________

 

          This writ is valid only if it has been delivered to you within 60 days after the date of issuance. If the clerk of the court is issuing this writ, the date of issuance is the date the clerk signs the writ (see “COURT SEAL” below). If this writ is issued by any other person, the date of issuance is the date on which the issuer signs the certification (see “CERTIFICATION” below).

 

IMPORTANT ADDRESSES

      (see Step 2 of Instructions to Garnishee form)

 

          (Clerk of the Court)

 

          _________ Court

          Street address _________

          City _______ County _______

          State _______ Zip Code _______

 

          (Debtor)

 

          Name _____________

          Telephone number (if known) ___________

 

          __      Street address __________

                    City _______ State _______

                    Zip Code _______

 

          __      Creditor has no knowledge of Debtor’s address

 

          (Garnishor; check one)

 

          __      Creditor: (Must be filled in if clerk of the court issues writ.)

                    Name _____________

                    Street address _________

                    City _______        State _______

                    Zip Code _______

 

          __      Attorney for Creditor:

                    Name _________

                    Street address _________

                    City _______        State _______

                    Zip Code _______

                    Telephone number _________

                    Oregon State Bar number _________

 

 

          __      Other authorized issuer of writ:

          Name _________

          Street address _________

          City _______        State _______

          Zip Code _______

          Telephone number _________

 

CERTIFICATION

 

          (The following certification must be signed by the Creditor if this writ is issued by the clerk of the court. In all other cases, the following certification must be signed by the person issuing the writ.)

 

          I certify that I have read this writ of garnishment and to the best of my knowledge, information and belief, there is good ground to support issuance of the writ, and the amount indicated as subject to garnishment is lawfully subject to collection by this writ.

 

______________                 ________, 2__

Signature    Date

______________________________

Oregon State Bar No. (if attorney)

 

COURT SEAL

 

          (To be completed only if this writ is issued by the clerk of the court. The writ must be stamped by the clerk. The clerk has not calculated any amounts on the writ and is not liable for errors made in the writ by the Creditor.)

 

          Issued by the clerk of the court this ______ day of ________, 2__.

 

CLERK OF THE COURT

By _______________________

____________________________________________________________________________

 

          SECTION 60. Debt calculation form. (1) A debt calculation form shall be prepared for each writ of garnishment issued. A copy of the form need not be served on the garnishee, but a copy must be delivered to the debtor along with a copy of the writ in the manner required by section 19 of this 2001 Act.

          (2) A debt calculation form must be in substantially the following form:

____________________________________________________________________________

 

_________ COURT

COUNTY OF _________

 

__________                    )

Plaintiff,                         )  DEBT CALCULATION

                                        )

                          vs.          )  Case No. ___

                                        )

__________                    )

Defendant.                     )

 

          TO: _____ (Debtor).

 

          The following amounts have been calculated to be owing from you to _________ (Creditor). The amounts are owed by reason of:

 

          __    A judgment entered against you dated _______, 2__, in Case No. ______, _______Court, _______County.

 

          __    Other debt subject to garnishment under the law (provide details):

_____________________________________________________________________

_____________________________________________________________________

 

          THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS FOR THE PURPOSE OF THIS FORM AND IS NOT LIABLE FOR ERRORS IN THIS FORM OR IN THE WRIT OF GARNISHMENT MADE BY THE CREDITOR OR GARNISHOR.

 

Original Debt Amount                    $______

+Pre-adjudication Interest             $______

+Attorney Fees                                $______

+Cost Bill                                         $______

+Post-adjudication Interest            $______

+Delivery Fee for Writ                   $______

+ Sheriff’s Fees other

than Delivery Fees                        $______

+ Other (Explain. Attach

additional sheets

if necessary.)

______                                           $______

______                                           $______

______                                           $______

______                                           $______

Total “Other”

from additional

sheets (if used)

+ Past Writ Issuance Fees               $______

+ Past Delivery Fees                        $______

+ Transcript and Filing

Fees for Other Counties              $______

= Subtotal                                         $______

LESS Payments Made on Debt     $(_____)

= Total Amount Required to

Satisfy Debt in Full                      $______

 

          NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL EXECUTION.

 

          I certify that I have read this Debt Calculation form and to the best of my knowledge, information and belief the amount shown as owing is correct.

______________________________

Creditor (Creditor must sign if writ

issued by clerk of court.)

______________________________

Garnishor (Attorney for Creditor

or other person authorized by

law to issue writ.)

_______________________

Address

_______________________

Telephone Number

_______________________

Oregon State Bar Number (if attorney)

_________________, 2__

Date of Calculation

____________________________________________________________________________

 

          SECTION 61. Garnishee response form. A garnishee response must be in substantially the following form:

____________________________________________________________________________

 

_________ COURT

COUNTY OF _________

 

__________                    )

Plaintiff,                         )  GARNISHEE RESPONSE

                                        )

                          vs.          )  Case No. ___

                                        )

__________                    )

Defendant.                     )

 

          The writ of garnishment was delivered to me on the ______ day of _______, 2__. The following responses are accurate and complete as of that date.

____________________________________________________________________________

 

PART I: DEBTOR’S PROPERTY GENERALLY

(ALL GARNISHEES MUST FILL OUT

THIS PORTION OF THE RESPONSE)

 

Place a check in front of all the following statements that apply. You may need to check more than one statement.

 

            __  I have discovered that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the Debtor after the date shown on the face of the writ as the date on which the judgment was entered against the Debtor or after the debt otherwise became subject to garnishment. (You need not complete any other part of this response, but you must sign the response and deliver it in the manner specified in Step 2 of the Instructions to Garnishee form.)

 

            __  I do not employ the Debtor, I do not have in my possession, control or custody any personal property of the Debtor, and I do not owe any debts or other obligations to the Debtor.

 

            __  I employ the Debtor. (You must complete Part II of this response.)

 

            __  I have in my possession, control or custody money that belongs to the Debtor (other than wages), or I owe a debt or other obligation to the Debtor (other than wages) that is due as of the time of this response. I am forwarding this money, or enough of it to satisfy the garnishment, to the Garnishor.

 

            __  I owe a debt or other obligation to the Debtor (other than wages) that is not due as of the time of this response but will become due within 45 days. I will forward the money, or enough of it to satisfy the garnishment, to the Garnishor when the debt or other obligation becomes due.

 

            __  I owe the following debt or other obligation to the Debtor (other than wages) that will not become due within 45 days of the time of this response. I will not make any payments on the debt or obligation until I receive instructions from the Sheriff or until 30 days have passed from the date on which I deliver this response. (See Instructions to Garnishee form.)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

            __  I have in my possession, control or custody the following personal property (other than money) that belongs to the Debtor. I will hold all of the property for the Garnishor until I receive instructions from the Sheriff or until 30 days have passed from the date on which I deliver this response. (See Instructions to Garnishee form.)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

            __  I may owe money to or hold property of the Debtor, but I am not sure what or how much it might be. (You must provide an explanation in the following space and you must deliver an amended response when you find out. You must deliver an amended response even if you find out that you have no property of the Debtor or owe no money to the Debtor.)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

            __  The writ of garnishment delivered to me, on its face, does not comply with the Oregon laws governing writs of garnishment, or I cannot determine the identity of the Debtor from the information in the writ. (You must provide an explanation in the following space.)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

            __  I have received an order to withhold income that applies to the income of the Debtor. The order to withhold income has priority over the writ of garnishment, and compliance with the order will reduce or eliminate the money that I would otherwise deliver under the writ. (Provide details, including the name of the agency serving the order to withhold income, the date the order was served on you and the amount to be withheld. If you employ the Debtor, you must still complete Part II of this response.)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

            __  I have received notice of a challenge to the garnishment. I will deliver to the clerk of the court all money that I would otherwise deliver to the Garnishor. (See Step 3 of Instructions to Garnishee form.)

 

            __  Other (Explain)

                  _____________________________________________________________________

                  _____________________________________________________________________

                  _____________________________________________________________________

 

____________________________________________________________________________

 

PART II: DEBTOR’S EMPLOYER

(GARNISHEES WHO EMPLOY THE DEBTOR

MUST FILL OUT THIS PORTION OF THE

RESPONSE)

 

Place a check in front of all the following statements that apply. You may need to check more than one statement.

 

NOTE: THE LAW PROHIBITS DISCHARGE OF THE DEBTOR FROM EMPLOYMENT BY REASON OF GARNISHMENT.

 

            __  I employ the Debtor. The Debtor is paid on a ___ basis (insert “weekly,” “monthly” or other pay period). Wages will next be payable to the Debtor on the ____ day of______, 2__. I will complete a Wage Exemption Calculation form for each payment of wages that is made during the 90-day period immediately following the date that the writ of garnishment was delivered to me. I will also complete a Wage Exemption Calculation form for the payday immediately following the end of the 90-day period. I will forward to the Garnishor on each of these occasions those wages calculated to be subject to garnishment, or enough of those wages to satisfy the garnishment.

 

 

            __  I had already received a writ of garnishment from another Garnishor before this writ was delivered to me. Under Oregon law, the previous writ has priority. The previous writ will terminate on the _____ day of ______, 2__.

____________________________________________________________________________

 

          I hereby certify that I have fully and accurately completed this garnishee response.

 

Dated ______, 2__

 

__________________

Name of Garnishee

__________________

Signature

__________________

Address

____________________________________________________________________________

 

          SECTION 62. Instructions to garnishee form. Instructions to garnishees must be in substantially the following form:

____________________________________________________________________________

 

INSTRUCTIONS TO GARNISHEE

 

          Except as specifically provided in these instructions, you must complete and deliver the Garnishee Response within seven calendar days after you receive the writ of garnishment. If the writ does not comply with Oregon law, the writ is not effective to garnish any property of the Debtor, but you still must complete and deliver the Garnishee Response. You must complete and deliver the response even though you cannot determine from the writ whether you hold any property or owe any debt to the Debtor. If the seventh calendar day is a Saturday, Sunday or legal holiday, you must deliver your response on or before the next following day that is not a Saturday, Sunday or legal holiday.

 

          The writ is not effective, and you need not make a Garnishee Response, if:

 

              You do not receive the writ within 60 days after the date of issuance shown on the face of the writ.

 

              You do not receive an original writ of garnishment and a copy of the writ certified to be true by the Garnishor, or two copies of the original writ certified to be true by the Garnishor.

 

          Statutes that may affect your rights and duties under the writ can be found in sections 1 to 65 of this 2001 Act.

 

 

          NOTE: The Garnishor may be the Creditor, the attorney for the Creditor or some other person who is authorized by law to issue the writ of garnishment. See the writ to determine who the Garnishor is.

 

STEP 1. FILL OUT THE GARNISHEE RESPONSE.

 

          All garnishees who are required to deliver a garnishee response must fill in Part I of the Garnishee Response. Garnishees who employ the Debtor must also fill in Part II of the response. You should keep a copy of the response for your records.

 

          Completing Part I of the Garnishee Response. If you discover before you deliver your response that a bankruptcy petition has been filed by or on behalf of the Debtor, and the bankruptcy petition was filed after a judgment was entered against the Debtor or after the debt otherwise became subject to garnishment (see the date specified in the writ), you must put a check by the appropriate statement in Part I. If a bankruptcy petition has been filed, you should not make any payments to the Garnishor unless the court orders otherwise. You need not complete any other part of the response, but you still must sign the response and deliver it in the manner described in Step 2 of these instructions.

          In all other cases you must list in Part I all money and personal property of the Debtor that is in your possession, control or custody at the time of delivery of the writ. You must also list all debts that you owe to the Debtor, whether or not those debts are currently due (e.g., money loaned to you by the Debtor that is to be repaid at a later time).

          If you are the employer of the Debtor at the time the writ is delivered to you, you must put a check by the appropriate statement in Part I. In addition, you must complete Part II of the response.

          If you believe that you may hold property of the Debtor or that you owe a debt to the Debtor, but you are not sure, you must put a check by the appropriate statement and provide an explanation. When you find out what property you hold that belongs to the Debtor, or you find out whether you owe money to the Debtor and how much, you must prepare and deliver an amended response. You must do this even if you find out that you have no property of the Debtor or that you do not owe anything to the Debtor.

          If you determine that the writ, on its face, does not comply with Oregon laws governing writs of garnishment, or if you are unable to determine the identity of the Debtor from the information in the writ, then the writ is not effective to garnish any property of the Debtor. You must put a check by the appropriate statement in Part I and provide an explanation. You still must complete the response and deliver the response in the manner described in Step 2 of these instructions.

          If you have received an order to withhold income that applies to the income of the Debtor and that order has priority over the garnishment, and if compliance with the order will reduce or eliminate the money or property that you would otherwise deliver under the garnishment, you must put a check by the appropriate statement in Part I. You still must fill out the remainder of the response and deliver the response in the manner described in Step 2 of these instructions. If you employ the Debtor, you still must complete Part II of the response.

          If you receive notice of a challenge to the garnishment before you send your response, you must complete and deliver your response as otherwise required by these instructions. However, see Step 3 of these instructions regarding payment of money or delivery of property after receipt of notice of a challenge to the garnishment.

          If you owe a debt to the Debtor and the Debtor owes a debt to the holder of an underlying lien on your property, you may be able to offset the amount payable to the underlying lienholder. See section 9 of this 2001 Act. You must note that you have made the offset in Part I of the response (under “Other”) and specify the amount that was offset.

 

          Completing Part II of the Garnishee Response (employers only). You must fill in Part II of the response if you employ the Debtor on the date the writ of garnishment is delivered to you, or if you previously employed the Debtor and still owe wages to the Debtor on the date the writ is delivered to you.

 

          Wages affected. The writ garnishes all wages that you owe to the Debtor for work performed before the date you received the writ, even though the wages will not be paid until a later date. The writ also garnishes all wages that are attributable to services performed during the 90-day period following the date you received the writ, even though you would not pay the Debtor for all or part of those services until after the end of the 90-day period. Wages subject to garnishment under the writ include all amounts paid by you as an employer, whether on an hourly, weekly or monthly basis, and include commission payments and bonuses.

 

Example 1: Debtor A is employed by you and is paid a monthly salary on the first day of each month. You receive a writ of garnishment on July 17. The writ garnishes all wages that you owe to Debtor A for work performed on or before July 17. If Debtor A was paid on July 1 for services performed in the month of June, the writ garnishes Debtor A’s salary for the period beginning July 1 and ending October 15 (90 days after receipt of the writ).

 

          Calculation of wages subject to garnishment. A Wage Exemption Calculation form is attached to the writ of garnishment. You must use this form to calculate the amount of the Debtor’s wages that is subject to garnishment. You should read the instructions printed on the Wage Exemption Calculation form to determine the normal wage exemption and the minimum wage exemption for each payment you make under the writ.

          A Wage Exemption Calculation form must be sent with the first payment you make under the writ. For the 90-day period during which the writ is effective, you must also fill out and return a Wage Exemption Calculation form with a subsequent payment any time the initial calculation changes. Finally, you must fill out and return a Wage Exemption Calculation form with the final payment that you make under the writ.

 

          Payment of amount subject to garnishment. Payments under the writ must be made at the following times, unless the amount owing on the judgment or other debt is fully paid before the final payment is made or the writ is released:

 

          (a) You must make a payment to the Garnishor of all wages subject to garnishment at the time you next pay wages to the Debtor. Complete the wage exemption computation, using the Wage Exemption Calculation form, to determine the portion of the Debtor’s wages that is subject to garnishment. Be sure to adjust the minimum exemption amount for any payment that covers less than a full pay period. You must include a copy of the Wage Exemption Calculation form with this first payment.

 

Example 2: Using the facts given in Example 1, when you next make any payment of wages to Debtor A after you receive the writ on July 17, you must complete the Wage Exemption Calculation form and send the form to the Garnishor along with all amounts determined to be subject to garnishment that are attributable to the period covered by the payment. If you pay Debtor A on August 1, the payment will be for all wages attributable to the period beginning July 1 and ending July 31.

 

          (b) Unless the writ of garnishment is satisfied or released, during the 90-day period following the date you received the writ, you must pay to the Garnishor all wages that are determined to be subject to garnishment whenever you issue a paycheck to the Debtor. If the Debtor is paid on a weekly basis, you must make payment under the writ on a weekly basis. If the Debtor is paid on a monthly basis, you must make payment under the writ on a monthly basis. If the amount paid to the Debtor varies from paycheck to paycheck, or changes at any time from the amount being paid at the time the writ was delivered to you, you must perform a new wage exemption computation to determine the amount of wages subject to garnishment under the writ. You must send a copy of the new Wage Exemption Calculation form with your payment to the Garnishor.

 

Example 3: Using the facts given above, as you make each subsequent payment of wages to Debtor A you must make a payment of that portion of the Debtor’s wages that are subject to garnishment. If you continue to pay Debtor A on the first of each month, payments must be made on September 1 and October 1.

 

          (c) Upon the expiration of the 90-day period, you must make a final payment to the Garnishor for all wages that were owing to the Debtor for the work performed by the Debtor through the 90th day following your receipt of the writ. This payment may be made at the time of the Debtor’s next paycheck. You will need to complete another Wage Exemption Calculation form to determine the amount of the wages subject to garnishment.

 

Example 4: Using the facts given above, you must make a final payment for the wages owing to Debtor A for the period beginning October 1 and ending October 15. You may make this payment at the time you issue Debtor A’s paycheck on November 1, but you must make the payment at any time you issue a paycheck to Debtor A after October 15. Be sure that in completing the wage exemption computation for the final payment you adjust the minimum exemption amount to take into account the fact that the period covered is only 15 days of the full month (see instructions on Wage Exemption Calculation form).

 

          If you receive more than one writ of garnishment. If you receive a second writ of garnishment for the same Debtor from another Garnishor, the first writ will have priority for wages. The priority of the first writ lasts for the 90-day period following delivery of that writ to you, or until the first writ is paid in full, whichever comes first. In your response to the second writ, you must put a check by the appropriate statement in Part II and indicate the date on which the first writ will expire (90 days after the date you received the writ). You should make no payments under the second writ until expiration of the first writ. The expiration date of the second writ is 90 days after the date you received the second writ; the expiration date is not affected by any delay in payment attributable to the priority of the first writ.

 

STEP 2. DELIVER THE GARNISHEE RESPONSE.

 

          You must deliver your Garnishee Response and copies of the response in the manner provided in this step. The response and copies may be mailed or delivered personally.

 

          You must complete and deliver the Garnishee Response within seven calendar days after you receive the writ of garnishment. If the seventh calendar day is a Saturday, Sunday or legal holiday, you must deliver your response on or before the next following day that is not a Saturday, Sunday or legal holiday.

 

          If you are required to hold any property under the writ or make any payment under the writ, either at the time of making your response or later, you must:

          (a) Send the original of your Garnishee Response to the clerk of the court at the address indicated on the writ under Important Addresses.

          (b) Send a copy of your Garnishee Response to the Garnishor at the address indicated on the writ under Important Addresses.

          (c) Send a copy of your Garnishee Response to the Debtor if an address is indicated on the writ under Important Addresses.

 

          If you are not required to hold any property under the writ or make any payment under the writ, either at the time of making your response or later, you must:

          (a) Send the original of your Garnishee Response to the Garnishor at the address indicated on the writ under Important Addresses.

          (b) Send a copy of your Garnishee Response to the Debtor if an address is indicated on the writ under Important Addresses.

 

STEP 3. DELIVER THE FUNDS OR OTHER PROPERTY.

 

          As long as the writ is in effect, you may be liable to the Creditor if you pay any debt or turn over any property to the Debtor except as specifically allowed by law. If you have any money or property of the Debtor in your possession, control or custody at the time of delivery of the writ, or owe any debt to the Debtor, you must pay the money or hold the property as required by this step. Exceptions to this requirement are listed below.

 

          IF YOU ARE HOLDING MONEY FOR THE DEBTOR OR OWE A DEBT THAT IS CURRENTLY DUE, you must pay the money to the Garnishor with your response. You must send your payment to the Garnishor at the address indicated on the writ under Important Addresses. Make your check payable to the Garnishor.

 

          IF YOU OWE A DEBT TO THE DEBTOR THAT WILL BECOME DUE WITHIN 45 DAYS AFTER THE DATE YOU RECEIVED THE WRIT, you must send your payment directly to the Garnishor at the address provided in the writ when the debt becomes due. Make your check payable to the Garnishor.

 

          IF YOU ARE HOLDING PROPERTY THAT BELONGS TO THE DEBTOR, OR OWE A DEBT TO THE DEBTOR THAT WILL NOT BECOME DUE WITHIN 45 DAYS AFTER THE DATE YOU RECEIVED THE WRIT, you must keep the property or debt in your possession, control or custody until you receive written notice from the Sheriff. The Sheriff’s notice will tell you what to do with the property or debt. If you have followed all of the instructions in the writ and you receive no notice from the Sheriff within 30 days after the date on which you delivered your Garnishee Response, you may treat the writ as being of no further force or effect.

 

          EXCEPTIONS:

 

          1. Challenge to garnishment or specific directions from court. If you are making any payments under the garnishment and before making a payment you receive notice of a challenge to the garnishment from the court, or receive a specific direction from the court to make payments to the court, you must send or deliver the payment directly to the clerk of the court. If the money is currently due when you receive the notice, send the payment promptly to the court. If the payment is for a debt that is payable within 45 days after you receive the writ, make the payment to the court promptly when it becomes due. If you make payment by check, make the check payable to the State of Oregon. Because you may be liable for any payment that does not reach the court, it is better not to send cash by mail.

          A challenge to the garnishment does not affect your duty to follow the instructions you receive from the Sheriff for property that belongs to the Debtor and debts that you owe to the Debtor that do not become due within 45 days.

 

          2. Previous writ of garnishment. If you receive a second writ of garnishment for the same Debtor from another Garnishor, the first writ will have priority and you need not make payments or deliver property under the second writ to the extent that compliance with the first writ will reduce or eliminate the payment of money or delivery of property that you would otherwise make under the garnishment. You must still deliver a Garnishee Response to the second writ, and must commence payment under the second writ as soon as the first writ is satisfied or expires.

 

          3. Offset for payment of underlying lien. If you owe a debt to the Debtor and the Debtor owes a debt to the holder of an underlying lien on your property, you may be able to offset the amount payable to the underlying lienholder. See section 9 of this 2001 Act.

 

          4. Subsequent events:

 

          (a) Bankruptcy. If you make your response and then discover that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the Debtor after the judgment was entered against the Debtor or after the debt otherwise became subject to garnishment (see date in writ), you may not make any further payments or delivery of property under the writ unless the court orders otherwise. You must mail the following notice to the Garnishor and to the Debtor.

          (b) Order to withhold income. If you make your response and then receive an order to withhold income that has priority over the writ, you may make payments or deliver property under the writ only after payment of the amounts required under the order to withhold income. You must mail the following notice to the Garnishor and to the Debtor.

____________________________________________________________________________

 

NOTICE OF BANKRUPTCY FILING OR

RECEIPT OF ORDER TO WITHHOLD INCOME

 

          TO: The Garnishor and the Debtor

 

          RE: Writ of garnishment received _______, 2__ (date), in the case of _________ (Plaintiff) vs. _________ (Defendant), Circuit Court of ________ County, Oregon, Case No. ___.

 

          The undersigned Garnishee furnished a Garnishee Response to this writ of garnishment on _______, 2__ (date). Since that time (check appropriate statement):

 

           __  I have discovered that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the Debtor after the judgment was entered against the Debtor or after the debt otherwise became subject to garnishment.

 

           __  I have received an order to withhold income of the Debtor by reason of a support obligation. Under ORS 25.375, the order to withhold income has priority over any other legal process under Oregon law against the same income. The withholding of income pursuant to the order to withhold income might reduce or eliminate subsequent payments under the garnishment. (Provide details, including the name of the agency serving the order to withhold, the date the order was served on you and the amounts to be withheld.)

 

          Dated ________, 2__

          __________________

          Name of Garnishee

          _________________

          Signature

          _________________

          Address

____________________________________________________________________________

 

SPECIAL INSTRUCTIONS FOR BANKS

AND OTHER FINANCIAL INSTITUTIONS

 

          If the Garnishor fails to pay the search fee required by section 55 of this 2001 Act and you do not employ the Debtor, you are not required to deliver a Garnishee Response and you may deal with any property of the Debtor as though the garnishment had not been issued.

 

          If the Debtor owes a debt to you that was due at the time you received the writ of garnishment, you may be able to offset the amount of that debt. See section 56a of this 2001 Act. You must note that you have made the offset in Part I of the Garnishee Response (under “Other”) and specify the amount that was offset.

 

          Before making a payment under the writ, you may first deduct any processing fee that you are allowed under section 55 of this 2001 Act.

 

          You need not deliver any property contained in a safe deposit box unless the Garnishor pays you in advance for the costs that will be incurred in gaining entry to the box. See section 56 of this 2001 Act.

____________________________________________________________________________

 

          SECTION 63. Wage exemption calculation form. A wage exemption calculation form must be served on the garnishee with each writ of garnishment. A wage exemption calculation form must be in substantially the following form:

____________________________________________________________________________

 

WAGE EXEMPTION CALCULATION

(to be filled out by employers only)

 

1.    Debtor’s gross wages

       for period covered by this

       payment..................................................   $______

2.    Total amount required to be

       withheld by law for amount

       in Line 1 (Federal and state

                        withholding, Social

                        Security, etc.)........................   $______

3.    Debtor’s disposable

       wages (Subtract Line 2

                        from Line 1)..........................   $______

4.    Normal exemption (Enter 75

                        percent of Line 3).................   $______

5.    Minimum exemption (check one)

       __  $170 (payment of wages weekly)

       __  $340 (payment of wages every two weeks)

       __  $368 (payment of wages half-monthly)

       __  $731 (payment of wages monthly)

       __  $____ (Any other period longer than one

            week, including partial payments for

            less than full pay period) (Multiply

            $170 by number of weeks or fraction

            of a week)

6.    Wages exempt

       from garnishment

                        (Line 4 or 5,

                        whichever is greater)............   $______

7.    Nonexempt wages (Subtract

       Line 6 from Line 3)...............................   $______

8.    Amount withheld pursuant

       to a support order under

       support withholding

       process....................................................   $______

9.    Wages subject to

       garnishment (Subtract

                        Line 8 from Line 7)..............   $______

 

INSTRUCTIONS FOR WAGE EXEMPTION CALCULATION FORM

 

          If you employ the Debtor named in the writ of garnishment, you must fill out and return this Wage Exemption Calculation form. A Wage Exemption Calculation form must be sent with the first payment you make under the writ. For the 90-day period during which the writ is effective, you must also fill out and return a Wage Exemption Calculation form with a subsequent payment any time the initial calculation changes. Finally, you must fill out and return a Wage Exemption Calculation form with the final payment that you make under the writ.

 

          Normal wage exemption. The wage exemption calculation is based on the amount of the payment you make under the writ of garnishment. The normal wage exemption in Line 4 is 75 percent of the employee’s disposable wages in Line 3.

 

          Minimum wage exemption. The minimum exemption in Line 5 is also based on the amount of the payment you are making. The minimum exemption is designed to ensure that an employee receives at least a certain minimum amount in any one-week period. If the payment is for a one-week period (without regard to whether the period is a calendar week or any other seven-day period), the minimum exemption is $170. The minimum exemption is $340 if the payment is for a two-week period. If the payment is for one-half of one month (i.e., the Debtor is paid twice each month), the minimum exemption is $368. The minimum exemption for a monthly payment is $731.

          If the payment you are making is based on some period of time other than one week, two weeks, half month or month, and the payment is for more than one week, you must calculate the minimum exemption by multiplying $170 by the number of weeks covered by the paycheck, including any fraction of a week. You should round the amount calculated to the nearest dollar.

 

Example 1: You pay Debtor A every 10 days. Each 10-day period is equal to 1.429 weeks (10 divided by 7). The minimum exemption is $243 ($170 ´ 1.429 rounded to the nearest dollar).

 

          You must use this same calculation for computing the minimum exemption when making a payment for less than a full pay period (e.g., for the final payment at the end of the 90-day period covered by the writ).

 

Example 2: You pay Debtor A on a monthly basis. You are required to make a final payment under a writ of garnishment for the wages owing to Debtor A for the period beginning October 1 and ending October 15. This period is equal to 2.143 weeks (15 divided by 7). The minimum exemption is $364 ($170 ´ 2.143 rounded to the nearest dollar).

 

          The amount of time actually worked by the Debtor during the period covered by the paycheck does not affect the calculation of the minimum exemption.

 

Example 3: You pay Debtor A on a weekly basis. Debtor A works two days per week. The minimum exemption is $170 for each weekly payment you make for Debtor A.

 

          If the payment you are making is based on a period of time less than one week, the minimum wage exemption may not exceed $170 for any one-week period.

____________________________________________________________________________

 

          SECTION 63a. Release of garnishment form. A release of garnishment must be in substantially the following form:

____________________________________________________________________________

 

_________COURT

COUNTY OF _________

__________                    )

Plaintiff,                         )  RELEASE OF

                                        )  GARNISHMENT

                          vs.          ) 

                                        )  Case No. ___

                                        )

__________                    )

Defendant.                     )

 

TO: __________ (Garnishee).

 

          A writ of garnishment was delivered to you by the Garnishor named below on the __ day of _______, 2__. The following money or other property that is subject to the writ is hereby released:

 

          __   All money and property of the Debtor held by you.

          __   The following money or property of the Debtor held by you (provide details):

          _________________________________________________________________________

          _________________________________________________________________________

 

          The writ of garnishment has no further force or effect with respect to the specified property.

 

Dated _______, 2__

_________________

Name of Garnishor

_________________

Signature

_________________

Address

____________________________________________________________________________

 

          SECTION 64. Notice of exemptions form. A notice of exemptions form must be in substantially the form set forth in this section. Nothing in the notice form described in this section is intended to expand or restrict the law relating to exempt property. A determination as to whether property is exempt from execution, attachment and garnishment must be made by reference to other law. The form provided in this section may be modified to provide more information or to update the notice based on subsequent changes in exemption laws.

____________________________________________________________________________

 

NOTICE OF EXEMPT PROPERTY

 

Property belonging to you may have been taken or held in order to satisfy a debt. The debt may be reflected in a judgment or in a warrant or order issued by a state agency. Important legal papers are enclosed.

          YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE CAREFULLY.

          State and federal law specify that certain property may not be taken. Some of the property that you may be able to get back is listed below.

          (1) Wages or a salary as described in ORS 23.175 and section 69b of this 2001 Act. Whichever of the following amounts is greater:

          (a) 75 percent of your take-home wages; or

          (b) $170 per workweek.

          (2) Social Security benefits.

          (3) Supplemental Security Income (SSI).

          (4) Public assistance (welfare).

          (5) Unemployment benefits.

          (6) Disability benefits (other than SSI benefits).

          (7) Workers’ compensation benefits.

          (8) Exempt wages, Social Security benefits (other than SSI), welfare, unemployment benefits and disability benefits when placed in a checking or savings account (up to $7,500).

          (9) Spousal support, child support or separate maintenance to the extent reasonably necessary for your support or the support of any of your dependents.

          (10) A homestead (home, farm, manufactured dwelling or 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 year.

          (11) Household goods, furniture, radios, a television set and utensils with a combined value not to exceed $3,000.

          *(12) An automobile, truck, trailer or other vehicle with a value not to exceed $1,700.

          *(13) Tools, implements, apparatus, team, harness or library that are necessary to carry on your occupation, with a combined value not to exceed $3,000.

          *(14) Books, pictures and musical instruments with a combined value not to exceed $600.

          *(15) Wearing apparel, jewelry and other personal items with a combined value not to exceed $1,800.

          (16) Domestic animals and poultry for family use with a combined value not to exceed $1,000 and their food for 60 days.

          (17) Provisions (food) and fuel for your family for 60 days.

          (18) One rifle or shotgun and one pistol. The combined value of all firearms claimed as exempt may not exceed $1,000.

          (19) Public or private pensions.

          (20) Veterans’ benefits and loans.

          (21) Medical assistance benefits.

          (22) Health insurance proceeds and disability proceeds of life insurance policies.

          (23) Cash surrender value of life insurance policies not payable to your estate.

          (24) Federal annuities.

          (25) Other annuities to $250 per month (excess over $250 per month is subject to the same exemption as wages).

          (26) Professionally prescribed health aids for you or any of your dependents.

          *(27) Elderly rental assistance allowed pursuant to ORS 310.635.

          *(28) 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.

          (29) Interest in personal property to the value of $400, but this cannot be used to increase the amount of any other exemption.

          (30) Equitable interests in property.

          (31) If the amount shown as owing on the Debt Calculation form exceeds the amount you actually owe to the creditor, the difference between the amount owed and the amount shown on the Debt Calculation form.

 

          Note: If two or more people in your household owe the claim or judgment, each of them may claim the exemptions marked by an asterisk (*).

____________________________________________________________________________

 

          SPECIAL RULES APPLY FOR DEBTS THAT ARE OWED FOR CHILD SUPPORT AND SPOUSAL SUPPORT. Some property that may not otherwise be taken for payment against the debt may be taken to pay for overdue support. For instance, Social Security benefits, workers’ compensation benefits, unemployment benefits, veterans’ benefits and pensions are normally exempt, but only 75 percent of a lump sum payment of these benefits is exempt if the debt is owed for a support obligation.

 

          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 Challenge to Garnishment form that you received with this notice.

          (2) Mail or deliver the Challenge to Garnishment form to the clerk of the court at the address shown on the writ of garnishment. If you wish to claim wages or salary as exempt, you must mail or deliver the form within 120 days after you receive this notice. If you wish to claim that any other money or property is exempt, or claim that the property is not subject to garnishment, you must mail or deliver the form within 30 days after you receive this notice. You have the burden of showing that your challenge is made on time, so you should keep records showing when the challenge was mailed or delivered.

          (3) The law only requires that the Garnishor hold the garnished 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 by promptly following (1) and (2) above.

 

          You should be prepared to explain your exemption in court. If you have any questions about the garnishment or the debt, 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 that you could be subject to are listed in section 36 of this 2001 Act.

          When you file a Challenge to Garnishment form, the Garnishee may be required to make all payments under the garnishment to the court, and the Garnishor may be required to pay to the court all amounts received by the Garnishor that are subject to the challenge to the garnishment. The Garnishee and Garnishor are subject to penalties if they do not. For a complete explanation of their responsibilities, see sections 32 and 33 of this 2001 Act.

____________________________________________________________________________

 

          SECTION 65. Challenge to garnishment form. A challenge to garnishment form must be in substantially the following form:

____________________________________________________________________________

 

_________COURT

COUNTY OF _________

 

__________                    )  CHALLENGE TO

Plaintiff,                         ) GARNISHMENT

                                        )

                          vs.          )  Case No. ___

                                        )

__________                    )

Defendant.                     )

 

          I/We claim that the following described property or money is exempt from execution or is not subject to garnishment:

____________________________________________________________________________

____________________________________________________________________________

 

          I/We believe this property is exempt from or not subject to garnishment because (the Notice of Exempt Property that you received lists most types of property that you can claim as exempt from or not subject to garnishment):

____________________________________________________________________________

____________________________________________________________________________

 

          I am a person other than the Debtor and I have the following interest in the property:

____________________________________________________________________________

____________________________________________________________________________

 

Name ________         Name ________

Signature ________   Signature ________

Address ________     Address ________

____________            ____________

Telephone                  Telephone

Number ________     Number ________

            (Required)                  (Required)

____________________________________________________________________________

.

CONFORMING AMENDMENTS

 

          SECTION 66. ORS 12.085 is amended to read:

          12.085. [Garnishment proceedings pursuant to ORS 29.282 to 29.345 shall] Proceedings against a garnishee under sections 51 to 54 of this 2001 Act must be commenced within one year from the delivery of the writ of garnishment [under ORS 29.155].

 

          SECTION 67. 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 the following documents in the order in which they are filed until all actions in such proceeding have been completed and thereafter for such period of time as may be required under the minimum retention schedule prescribed by the State Court Administrator pursuant to ORS 8.125:

          (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] sections 1 to 65 of this 2001 Act against personal property involving that judgment. Except as provided in ORS 23.030, the court in this state where a foreign judgment 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 68. 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, an award under any crime victim reparation law.

          (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. [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.]

          (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.]

          (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), (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.

          (4) Notwithstanding any other provision of law, if a writ of garnishment or other execution is issued to collect past due support as defined in section 1 of this 2001 Act, 75 percent of unemployment compensation benefits, workers’ compensation benefits and other benefits paid to the debtor by the United States, by the state or by a political subdivision of the state are exempt. The exemption provided by this subsection applies without regard to whether the payment is made on a periodic basis or in a lump sum, including any lump sum payable pursuant to a settlement or judgment. Notwithstanding subsection (1)(k) of this section, if a payment is made under a settlement or judgment on account of personal bodily injury and the garnishment or other execution is issued to collect past due support as defined in section 1 of this 2001 Act, the lesser of 75 percent of the payment or $7,500 is exempt.

 

          SECTION 69. ORS 23.166 is amended to read:

          23.166. (1) All funds exempt from execution and other process under ORS 23.170[, 23.185 (1)(b), (c), (d) and (e)], 238.445, 344.580, 401.405, 407.595, 411.760, 412.115, 412.610, 413.130, 414.095, 655.530, 656.234, 657.855 and 748.207 and section 69b (2) to (4) of this 2001 Act and section 3101, title 38, United States Code and section 407, title 42, United States Code shall remain exempt when deposited in an account of a judgment debtor as long as the exempt funds are identifiable.

          (2) The provisions of subsection (1) of this section shall not apply to any accumulation of funds greater than $7,500.

 

          SECTION 69a. ORS 23.185 is repealed and section 69b of this 2001 Act is enacted in lieu thereof.

 

          SECTION 69b. (1) Except as provided in this section, 75 percent of the disposable earnings of an individual are exempt from execution.

          (2) The disposable earnings of an individual are exempt from execution to the extent that payment under a garnishment would result in net disposable earnings for an individual of less than the following amounts:

          (a) $170 for any period of one week or less;

          (b) $340 for any two-week period;

          (c) $368 for any half-month period;

          (d) $731 for any one-month period; and

          (e) For any other period longer than one week, $170 multiplied by that fraction produced by dividing the number of days for which the earnings are paid by seven. The amount calculated under this paragraph must be rounded to the nearest dollar.

          (3) If an individual is paid for a period shorter than one week, the exemption calculated under subsection (2) of this section may not exceed $170 for any one-week period.

          (4) An employer shall deduct from the amount of disposable earnings determined to be nonexempt under subsections (1) to (3) of this section any amounts withheld from the individual’s earnings for the same period of time under an order issued pursuant to ORS 25.378, 110.303 to 110.452, 419B.408 or 419C.600. The employer shall make payment under a garnishment only of those amounts remaining after the deduction is made.

          (5) Subsections (1) to (4) of this section do not apply to:

          (a) Any order of a court of bankruptcy.

          (b) Any debt due for federal tax.

          (6) Subsections (2) to (4) of this section do not apply to any debt due for state tax. Subsection (1) of this section does not apply to a debt due for state tax if a state agency issues a special notice of garnishment under section 82 (6) of this 2001 Act.

          (7) A court may not make, execute or enforce any order or process in violation of this section.

          (8) Any waiver by an individual of the provisions of this section is void.

          (9) An employer may not discharge any individual because the individual has had earnings garnished.

 

          SECTION 70. ORS 23.425 is amended to read:

          23.425. (1) Following levy by the sheriff pursuant to ORS 23.410, the sheriff shall promptly mail or deliver the following to each judgment debtor who is not a corporation at the last-known address of each such judgment debtor:

          (a) A copy of the writ; [and]

          (b) A [copy of the] notice of exemptions [and claim form described in ORS 29.225] form provided by section 64 of this 2001 Act; and

          (c) A challenge to garnishment form provided by section 65 of this 2001 Act.

          (2) The sheriff may meet the requirements of subsection (1) of this section by mailing the documents to the last-known address of the judgment debtor as provided by the judgment creditor. The sheriff may withhold execution of the writ until the judgment creditor either provides such address or a statement that the judgment creditor has no knowledge of the judgment debtor’s address. The sheriff shall have no duty under this section if the judgment creditor provides a statement that the judgment creditor has no knowledge of the judgment debtor’s address.

 

          SECTION 71. ORS 25.083 is amended to read:

          25.083. (1) As necessary to meet the requirements of 42 U.S.C. 666(a)(14), the Division of Child Support of the Department of Justice, when requested by another state, shall provide high-volume automated administrative enforcement services. In providing services to another state under this section, the division may:

          (a) Through automated data matches with financial institutions and other entities where assets may be found, identify assets owned by persons who owe child support in other states; and

          (b) Seize such assets through levy or by other appropriate processes. For purposes of this paragraph, “levy” means the process for garnishment under [ORS 29.137 (3)] sections 1 to 65 of this 2001 Act or execution under ORS 23.050 (2) or such other processes to seize property as the division is authorized by law to use.

          (2) A request by another state for services provided under subsection (1) of this section:

          (a) Must include information, as required by rule, that will enable the department to compare the information about the case with information in databases within Oregon; and

          (b) Constitutes a certification by the state requesting the services:

          (A) Of the amount of periodic support under an order, the payment of which is in arrears; and

          (B) That it has complied with all procedural due process requirements applicable to the case.

          (3) The administrator is authorized to request from other states services of the type provided under subsection (1) of this section.

 

          SECTION 72. ORS 29.367 is amended to read:

          29.367. This section establishes the right of a plaintiff to recover certain moneys the plaintiff has expended to recover a debt under [ORS 29.375] section 81 of this 2001 Act or to enforce a judgment and establishes procedures for that recovery. The following apply to this section:

          (1) When a plaintiff receives moneys under a garnishment, attachment or payment, the plaintiff may proceed as follows:

          (a) Before crediting the total amount of moneys received against the judgment or debt, the plaintiff may recover and keep from the total amount received under the garnishment, attachment or payment any moneys allowed to be recovered under this section.

          (b) After recovering moneys as allowed under paragraph (a) of this subsection, the plaintiff shall credit the remainder of the moneys received against the judgment or debt as provided by law.

          (2) Moneys recovered under subsection (1)(a) of this section shall not be considered moneys paid on and to be credited against the original judgment or debt sought to be enforced. No additional judgment is necessary to recover moneys in the manner provided in subsection (1)(a) of this section.

          (3) The only moneys a plaintiff may recover under subsection (1)(a) of this section are those described in subsection (4) of this section that the plaintiff has paid to enforce the existing specific judgment or debt that the specific garnishment or attachment was issued to enforce or upon which the payment was received. Moneys recoverable under subsection (1)(a) of this section remain recoverable and, except as provided under subsection (8) of this section, may be recovered from moneys received by the plaintiff under subsequent garnishments, attachments or payments on the same specific judgment or debt.

          (4) This section allows the recovery only of the following:

          (a) Statutorily established moneys that meet the requirements under subsection (3) of this section, as follows:

          (A) Garnishee’s search fees under [ORS 29.377 (1)] section 55 of this 2001 Act.

          (B) Fees for delivery of writs of garnishment under [ORS 29.165] section 17 of this 2001 Act.

          (C) Circuit court fees as provided under ORS 21.325.

          (D) County court fees as provided under ORS 5.125.

          (E) County clerk recording fees as provided in ORS 205.320.

          (F) Actual fees or disbursements made under ORS 21.410.

          (G) Costs of execution as provided in ORS 105.112.

          (b) Interest on the amounts specified in paragraph (a)(A) to (G) of this subsection at the rate provided for judgments in ORS 82.010 for the period of time beginning with the expenditure of the amount and ending upon recovery of the amount under this section.

          (5) The plaintiff shall be responsible for doing all of the following:

          (a) Maintaining a precise accounting of moneys recovered under subsection (1)(a) of this section and making the accounting available for any proceeding relating to that judgment or debt.

          (b) Providing reasonable notice to the defendant of moneys the plaintiff recovers under subsection (1)(a) of this section.

          (6) Moneys recovered under subsection (1)(a) of this section remain subject to all other provisions of law relating to payments, or garnished or attached moneys including, but not limited to, those relating to exemption, claim of exemption, overpayment and holding periods.

          (7) Nothing in this section limits the right of a plaintiff to recover moneys described in this section or other moneys in any manner otherwise allowed by law.

          (8) A writ of garnishment or attachment is not valid if issued solely to recover moneys recoverable under subsection (1)(a) of this section unless the right to collect the moneys is first reduced to a judgment or to a debt enforceable under [ORS 29.375] section 81 of this 2001 Act.

 

          SECTION 73. ORS 25.372 is amended to read:

          25.372. ORS 25.372 to 25.427 and the amendments to ORS 23.170, 23.175, 23.185 (1999 Edition), 25.010, 25.070, 25.381, 25.384, 29.145 (1999 Edition), 29.147 (1999 Edition), 29.411 (1999 Edition), 29.415 (1999 Edition), 109.015, 238.445, 409.021, 419B.408, 419C.600, 656.234, 657.780, 659.010 and 659.121 by sections 4 and 22 to 49, chapter 798, Oregon Laws 1993, apply to current support, arrears and interest on arrears, independently or combined, whether arrears are owed to an obligee, the state or a foreign jurisdiction.

 

          SECTION 74. ORS 52.600 is amended to read:

          52.600. (1) Upon the docketing of a judgment by a justice court, the judgment may be enforced by the justice court in the manner provided in this section.

          (2) Enforcement proceedings on a judgment docketed by a justice court may include:

          (a) Writ of execution proceedings for personal property under ORS 23.030 to 23.105 and 23.410 to 23.600.

          (b) Supplementary proceedings under ORS 23.710 to 23.730.

          (c) [Garnishee] Garnishment proceedings under [ORS 29.282 to 29.335] sections 1 to 65 of this 2001 Act.

          (3) In addition to the enforcement proceedings specified in subsection (2) of this section, a docketed justice court judgment may be enforced by the court that rendered the judgment through the issuance of a writ of execution on real property under ORS 23.030 to 23.105 and 23.410 to 23.600. A writ of execution on real property may be issued by a justice court only after the judgment has been transcribed or recorded in the manner provided by ORS 52.635. As required under ORS 23.030, upon issuance of a writ of execution, the party requesting the writ must record a certified copy of the writ or an abstract of the writ in the County Clerk Lien Record of the county in which the real property is located.

          (4) ORCP 70 A applies to civil judgments rendered by justice courts. ORS 137.071 and 137.073 apply to judgments rendered by justice courts in actions and proceedings resulting from a person being accused and tried for the commission of an offense.

          (5) Except as provided in subsection (6) of this section, the provisions of this section apply to all judgments docketed by justice courts, including judgments imposed in violation proceedings and other criminal proceedings.

          (6) The provisions of this section and ORS 52.635 do not apply to proceedings for enforcement of ordinances governing the parking of vehicles. Ordinances governing the parking of vehicles shall be enforced as provided by other law.

 

          SECTION 75. ORS 205.126 is amended to read:

          205.126. (1) At any time after recording an order or warrant in the County Clerk Lien Record, a claimant or an attorney for an agency or claimant may file in the circuit court for the county where the order or warrant is recorded, a copy of the original order or warrant certified by the agency to be a true copy of original, and an affidavit of the claimant or attorney verifying that the order or warrant was recorded in the County Clerk Lien Record for that county, the date that the order or warrant was recorded and the date on which any notice of renewal was recorded under subsection (2) of this section. Subject to any other requirements that may apply to the enforcement remedy sought by the agency or claimant, proceedings may thereafter be commenced by the agency or claimant for the enforcement of the order or warrant, in the same manner as provided for the enforcement of judgments issued by a court. Enforcement proceedings may include:

          (a) Writ of execution proceedings under ORS 23.030 to 23.105 and 23.410 to 23.600.

          (b) Supplementary proceedings under ORS 23.710 to 23.730.

          (c) [Garnishee] Garnishment proceedings under [ORS 29.282 to 29.335] sections 1 to 65 of this 2001 Act.

          [(d) A writ of garnishment issued by the clerk of the court on behalf of a claimant pursuant to ORS 29.137 (1).]

          (2) At any time within 10 years after the recording of an order or warrant, an agency or claimant, acting with or without the assistance of an attorney, may renew an order or warrant by recording a notice of renewal in the County Clerk Lien Record. A notice of renewal recorded within the time specified by this subsection has the attributes and effect of a renewal of judgment noted in the register and judgment docket, as provided in ORS 18.360, from the date that the notice is recorded. A notice of renewal recorded under this section must state:

          (a) The name of the agency that issued the warrant or order or the name of the claimant in whose favor an order of the Construction Contractors Board or State Landscape Contractors Board has been given;

          (b) The name of all persons against whom a monetary obligation is imposed under the order or warrant; and

          (c) The date of recording and the recording number, the book and page number for the recording, or the volume and page number for the recording.

          (3) For the purposes of this section:

          (a) “Agency” means any state officer, board, commission, corporation, institution, department or other state body that has authority to record an order or warrant in the County Clerk Lien Record.

          (b) “Claimant” means a person in favor of which a board order has been recorded under the provisions of ORS 671.707 or 701.150.

 

          SECTION 76. ORS 221.346 is amended to read:

          221.346. (1) Subject to the requirements of ORS 221.344, enforcement proceedings on a judgment docketed by a municipal court may include:

          (a) Writ of execution proceedings for personal property under ORS 23.030 to 23.105 and 23.410 to 23.600.

          (b) Supplementary proceedings under ORS 23.710 to 23.730.

          (c) [Garnishee] Garnishment proceedings under [ORS 29.282 to 29.335] sections 1 to 65 of this 2001 Act.

          (2) In addition to the enforcement proceedings specified in subsection (1) of this section, a docketed municipal court judgment may be enforced by the court that rendered the judgment through the issuance of a writ of execution on real property under ORS 23.030 to 23.105 and 23.410 to 23.600. A writ of execution on real property may be issued by a municipal court only after a certified copy of the judgment or a lien record abstract for the judgment is recorded in the County Clerk Lien Record for the county in which the municipal court is located. As required under ORS 23.030, upon issuance of a writ of execution, the party requesting the writ must record a certified copy of the writ or an abstract of the writ in the County Clerk Lien Record of the county in which the real property is located.

          (3) ORCP 70 A applies to civil judgments rendered by municipal courts that are enforced pursuant to this section. ORS 137.071 and 137.073 apply to judgments enforced pursuant to this section that are rendered in actions and proceedings resulting from a person being accused and tried for the commission of an offense.

          (4) The provisions of this section apply to all judgments docketed in municipal courts, including judgments imposed in violation proceedings and other criminal proceedings.

 

          SECTION 77. ORS 310.635 is amended to read:

          310.635. (1) A taxpayer who is eligible for elderly rental assistance shall be granted the rental assistance either in the amount determined under subsection (2) of this section or by using the schedule for renters set forth in subsection (3) of this section, whichever is greater. A taxpayer is eligible for elderly rental assistance under this section if:

          (a) The taxpayer is 58 years of age or older before the close of the calendar year immediately preceding the year in which the rental assistance is claimed;

          (b) The household income of the taxpayer is less than $10,000;

          (c) The gross rent of the taxpayer is in excess of 20 percent of household income; and

          (d) The taxpayer files a claim with the Department of Revenue as required by ORS 310.657.

          (2) A taxpayer eligible for elderly rental assistance under this section shall be paid by the department an amount equal to the positive difference between the taxpayer’s gross rent, not to exceed $2,100, and 20 percent of household income.

          (3) The schedule for renters referred to in subsection (1) of this section is:

______________________________________________________________________________

 

                                    Maximum

                                   Refundable

                                        Rent

    Household             Constituting

       Income               Property Tax

 

$              0 -    499    $         250

            500 -    999               245

         1,000 - 1,499               238

         1,500 - 1,999               228

         2,000 - 2,499               217

         2,500 - 2,999               205

         3,000 - 3,499               192

         3,500 - 3,999               179

         4,000 - 4,499               165

         4,500 - 4,999               151

         5,000 - 5,499               136

         5,500 - 5,999               121

         6,000 - 6,499               106

         6,500 - 6,999                 91

         7,000 - 7,499                 77

         7,500 - 7,999                 63

         8,000 - 8,499                 50

         8,500 - 8,999                 38

         9,000 - 9,499                 27

         9,500 - 9,999                 18

______________________________________________________________________________

 

          (4) The elderly rental assistance payments required by subsection (2) of this section shall be made by the department during the month of October.

          (5) The elderly rental assistance granted under this section applies to gross rent paid in the calendar year for which the claim is filed.

          (6)(a) Only one taxpayer per household per year shall be granted elderly rental assistance under this section.

          (b) Neither a person who is, as of December 31 of the year for which elderly rental assistance is claimed, a tenant-stockholder of a cooperative housing corporation nor a resident of a nonprofit home for the elderly owned or being purchased by a corporation described in ORS 307.375 shall be granted elderly rental assistance.

          (c) No elderly rental assistance shall be granted under this section for less than $5, after offsets for all amounts owed to the state.

          (d) No elderly rental assistance shall be granted under this section for any period during which the taxpayer’s needs were included in a payment made by the Adult and Family Services Division pursuant to ORS 418.172. However, if it is determined that the taxpayer’s needs were included in a payment made by the Adult and Family Services Division under ORS 418.172 and the taxpayer is eligible for the period for elderly rental assistance in an amount greater than the payment, the department shall grant elderly rental assistance in the amount of the difference.

          (7) Elderly rental assistance[,] allowed pursuant to this section[,] is not subject to [the] garnishment [provisions of ORS 29.125 to 29.395] under sections 1 to 65 of this 2001 Act, except by a government entity.

 

          SECTION 78. ORS 652.610 is amended to read:

          652.610. (1) All persons, firms, partnerships, associations, cooperative associations, corporations, municipal corporations, the state and its political subdivisions, except the federal government and its agencies, employing, in this state, during any calendar month one or more persons, and withholding for any purpose, any sum of money from the wages, salary or commission earned by an employee, shall provide such employee on regular paydays with a statement sufficiently itemized to show the amount and purpose of such deductions made during the respective period of service which said payment covers.

          (2) The itemized statement shall be furnished to the employee at the time payment of wages, salary or commission is made, and may be attached to or be a part of the check, draft, voucher or other instrument by which payment is made, or may be delivered separately from such instrument.

          (3) No employer may withhold, deduct or divert any portion of an employee’s wages unless:

          (a) The employer is required to do so by law;

          (b) The deductions are authorized in writing by the employee, are for the employee’s benefit, and are recorded in the employer’s books;

          (c) The employee has voluntarily signed an authorization for a deduction for any other item, provided that the ultimate recipient of the money withheld is not the employer, and that such deduction is recorded in the employer’s books;

          (d) The deduction is authorized by a collective bargaining agreement to which the employer is a party; or

          (e) The deduction is made from the payment of wages upon termination of employment and is authorized pursuant to a written agreement between the employee and employer for the repayment of a loan made to the employee by the employer, if all of the following conditions are met:

          (A) The employee has voluntarily signed the agreement;

          (B) The loan was paid to the employee in cash or other medium permitted by ORS 652.110;

          (C) The loan was made solely for the employee’s benefit and was not used, either directly or indirectly, for any purpose required by the employer or connected with the employee’s employment with the employer;

          (D) The amount of the deduction at termination of employment does not exceed the amount permitted to be garnished under ORS 23.185 [(1)(a) or (d)]; and

          (E) The deduction is recorded in the employer’s books.

          (4) Nothing in this section shall be construed as prohibiting the withholding of amounts authorized in writing by the employee to be contributed by the employee to charitable organizations, including contributions made pursuant to ORS 243.666 and 663.110; nor shall this section prohibit deductions by check-off dues to labor organizations or service fees, where such is not otherwise prohibited by law; nor shall this section diminish or enlarge the right of any person to assert and enforce a lawful setoff or counterclaim or to attach, take, reach or apply an employee’s compensation on due legal process.

 

          SECTION 79. ORCP 84 D is amended to read:

          D Writ of attachment.

          D(1) Issuance; contents; to whom directed; issuance of several writs. If directed by an order authorizing provisional process under Rule 83, the clerk shall issue a writ of attachment. The writ shall be directed to the sheriff of any county in which property of the defendant may be, and shall require the sheriff to attach and safely keep all the property of the defendant within the county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, the amount of which shall be stated in conformity with the complaint, together with costs and expenses. Several writs may be issued at the same time to the sheriffs of different counties.

          D(2) Manner of executing writ. The sheriff to whom the writ is directed and delivered shall note upon the writ the date of such delivery, and shall execute the writ without delay, as follows:

D(2)(a) Personal property not in possession of third party. Tangible personal property not in the possession of a third person shall be attached by taking it into the sheriff’s custody. If any property attached is perishable, or livestock, where the cost of keeping is great, the sheriff shall sell the same in the manner in which property is sold on execution. The proceeds thereof and other property attached shall be retained by the sheriff to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment. Plaintiff’s lien shall attach when the property is taken into the sheriff’s custody.

          D(2)(b) Other personal property. Tangible and intangible personal property in the possession, control or custody of or debts or other monetary obligations owing by a third person shall be attached by writs of garnishment issued by the clerk of a court or by an attorney as provided in [ORS 29.125 to 29.375 and 29.401 to 29.415] sections 1 to 65 of this 2001 Act.

          D(3) Notice to defendant. After taking property into custody under subsection (2)(a) of this section, the sheriff shall promptly mail or deliver to the defendant, at the last-known address of the defendant, a copy of the writ of attachment, a copy of the claim of lien filed pursuant to section C of this rule, if any, a notice of exemptions form provided by section 64 of this 2001 Act, and a challenge to garnishment form provided by section 65 of this 2001 Act. The sheriff may meet the requirements of this subsection by mailing the documents to the last-known address of the defendant as provided by the plaintiff. The sheriff may withhold execution of the writ until the plaintiff provides such address or a statement that the plaintiff has no knowledge of the defendant’s address. The sheriff shall have no duty under this subsection if the plaintiff provides a statement that the plaintiff has no knowledge of the defendant’s address.

          [D(3)] D(4) Return of writ; inventory. When the writ of attachment has been fully executed or discharged, the sheriff shall return the same, with the sheriff’s proceedings indorsed thereon, to the clerk of the court where the action was commenced, and the sheriff shall make a full inventory of the property attached and return the same with the writ.

          [D(4)] D(5) Indemnity to sheriff. Whenever a writ of attachment is delivered to the sheriff, if the sheriff has actual notice of any third party claim to the personal property to be levied on or is in doubt as to ownership of the property, or of encumbrances thereon, or damage to the property held that may result by reason of its perishable character, such sheriff may require the plaintiff to file with the sheriff a surety bond, indemnifying the sheriff and the sheriff’s bondsmen against any loss or damage by reason of the illegality of any holding or sale on execution, or by reason of damage to any personal property held under attachment. Unless a lesser amount is acceptable to the sheriff, the bond shall be in double the amount of the estimated value of the property to be seized.

 

          SECTION 80. Section 8, chapter 745, Oregon Laws 1999, is amended to read:

          Sec. 8. (1) Except as provided in subsection (2) of this section, the amendments to ORS 23.160, 23.170, 29.225 (1999 Edition), 238.445, 412.115, 412.610 and 657.855 by sections 1 to 7, chapter 745, Oregon Laws 1999, [of this 1999 Act] apply to all judgments, whether issued before, on or after [the effective date of this 1999 Act] October 23, 1999.

          (2) The amendments to ORS 23.160, 23.170, 29.225 (1999 Edition), 238.445, 412.115, 412.610 and 657.855 by sections 1 to 7, chapter 745, Oregon Laws 1999, [of this 1999 Act] do not apply to any execution issued before [the effective date of this 1999 Act] October 23, 1999.

 

NOTICE OF GARNISHMENT

 

          SECTION 81. Notices of garnishment generally. (1) Any state agency authorized to issue warrants to collect taxes and debts owed to the State of Oregon, including but not limited to warrants issued pursuant to ORS 179.655, 267.385, 293.250, 314.430, 316.207, 320.080, 321.570, 323.390, 657.642 and 825.504, or any county tax collector authorized to issue warrants to collect taxes and debts owed to the county pursuant to ORS 311.625, may garnish property of a debtor in the possession, control or custody of a person other than the debtor by delivering to the person all of the following:

          (a) A notice of garnishment;

          (b) A warrant, or a true copy of a warrant;

          (c) The items specified in section 16 (1)(b) to (d) of this 2001 Act; and

          (d) Any garnishee’s search fee payable as provided in section 55 of this 2001 Act.

          (2) A notice of garnishment may be issued by any person designated by the state agency or by the county tax collector. A warrant need not be recorded in the County Clerk Lien Record as a condition of issuing a notice of garnishment under the provisions of this section. The provisions of section 57 of this 2001 Act do not apply to a notice of garnishment.

          (3) If any of the items described in subsection (1) of this section are not delivered to the garnishee, a notice of garnishment shall not be effective to garnish any property of the debtor, and the garnishee shall not be required to respond to the garnishment and may proceed to deal with any property of the debtor as though the notice of garnishment had not been issued.

          (4) Notwithstanding section 17 of this 2001 Act, a notice of garnishment and the other items required by subsection (1) of this section may be delivered in person by any employee of the state agency or of the county tax collector authorized by the agency or the county to deliver the notice of garnishment, or by certified mail, return receipt requested. The employee need not be covered by the errors and omissions insurance required in section 17 of this 2001 Act.

          (5) Notwithstanding any provision of sections 1 to 65 of this 2001 Act, a debt calculation form need not be prepared or delivered for any notice of garnishment.

          (6) Notwithstanding section 56 of this 2001 Act, the duty of a garnishee to deliver any property of the debtor that may be contained in a safe deposit box that is in the garnishee’s possession, control or custody at the time of delivery of the notice of garnishment to the garnishee is conditioned upon the state agency or the county tax collector first paying to the garnishee, in addition to the search fee provided for in section 55 of this 2001 Act, all reasonable costs incurred by the garnishee in gaining entry to the safe deposit box. The costs shall be paid to the garnishee by the state agency or the county tax collector at least five days before the date the state agency or the county tax collector takes possession of the property in the safe deposit box. If the state agency or the county tax collector fails to pay such costs to the garnishee within 20 days after the delivery of the garnishee response, the garnishment shall not be effective to garnish any property of the debtor that may be contained in the safe deposit box and the garnishee may proceed to deal with the safe deposit box and its contents as though the notice of garnishment had not been issued. Nothing in this subsection limits the rights of a state agency or county tax collector to reach the contents of any safe deposit box in any manner otherwise provided by law.

          (7) Except as provided in this section and sections 82 and 83 of this 2001 Act, all provisions of sections 1 to 65 of this 2001 Act apply to notices of garnishment. The state agency or county tax collector shall modify the forms provided in sections 1 to 65 of this 2001 Act as necessary to allow use of those forms for notices of garnishment. The form of the notice of garnishment must clearly indicate that the document is a notice of garnishment and must reflect the date of all warrants on which the notice of garnishment is based.

          (8) The Attorney General may adopt model forms for notices of garnishment issued by state agencies and county tax collectors. There is a presumption, as described in ORS 40.120, that any state agency or county tax collector that uses a model form adopted by the Attorney General under this subsection has complied with the requirements of sections 1 to 65 of this 2001 Act, and with the provisions of this section and sections 82 and 83 of this 2001 Act, with respect to the form of notices of garnishment.

 

          SECTION 82. Notices of garnishment issued by state agencies.(1) Notwithstanding section 4 of this 2001 Act, 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 section 63 of this 2001 Act if a notice of garnishment is issued for a debt due for a state tax that is subject to the provisions of section 69b (6) of this 2001 Act.

          (3) Notwithstanding section 10 of this 2001 Act, 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 section 28 of this 2001 Act, 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 section 30 of this 2001 Act, 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 section 30 (2) of this 2001 Act. 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 Hearing Officer Panel established under chapter 849, Oregon Laws 1999. 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 23.175, garnished under a special notice of garnishment are not subject to a claim of exemption under section 69b of this 2001 Act. 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 section 81 (1) of this 2001 Act, a wage exemption calculation form shall not be delivered to the garnishee with a special notice of garnishment.

 

          SECTION 82a. Section 82 of this 2001 Act is amended to read:

          Sec. 82. (1) Notwithstanding section 4 of this 2001 Act, 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 section 63 of this 2001 Act if a notice of garnishment is issued for a debt due for a state tax that is subject to the provisions of section 69b (6) of this 2001 Act.

          (3) Notwithstanding section 10 of this 2001 Act, 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 section 28 of this 2001 Act, 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 section 30 of this 2001 Act, 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 section 30 (2) of this 2001 Act. 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 Hearing Officer Panel established under chapter 849, Oregon Laws 1999. The hearing shall be conducted] conduct a hearing 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 23.175, garnished under a special notice of garnishment are not subject to a claim of exemption under section 69b of this 2001 Act. 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 section 81 (1) of this 2001 Act, a wage exemption calculation form shall not be delivered to the garnishee with a special notice of garnishment.

 

          SECTION 82b. The amendments to section 82 of this 2001 Act by section 82a of this 2001 Act become operative January 1, 2004.

 

          SECTION 83. Notice of garnishment issued by county tax collector. (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 section 7 of this 2001 Act, 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 section 28 of this 2001 Act, 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 section 30 of this 2001 Act, 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 section 30 (2) of this 2001 Act.

          (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.

 

REPEALS

 

          SECTION 84. ORS 29.087, 29.115, 29.125, 29.135, 29.137, 29.138, 29.139, 29.142, 29.145, 29.147, 29.155, 29.165, 29.185, 29.195, 29.205, 29.215, 29.225, 29.235, 29.237, 29.245, 29.255, 29.265, 29.275, 29.282, 29.285, 29.295, 29.305, 29.315, 29.325, 29.335, 29.343, 29.345, 29.355, 29.357, 29.365, 29.369, 29.371, 29.373, 29.375, 29.377, 29.395, 29.401, 29.405, 29.411 and 29.415 are repealed.

 

APPLICABILITY

 

          SECTION 85. (1) Sections 1 to 65 of this 2001 Act, the amendments to statutory sections and Oregon Rules of Civil Procedure by sections 66 to 69 and 70 to 80 of this 2001 Act and the repeal of statutory sections, other than ORS 29.375, by section 84 of this 2001 Act apply only to writs of garnishment issued on or after the effective date of this 2001 Act. Any writ of garnishment issued before the effective date of this 2001 Act shall continue to be governed by the law in effect immediately before the effective date of this 2001 Act.

          (2) Sections 81 to 83 of this 2001 Act and the repeal of ORS 29.375 by section 84 of this 2001 Act apply only to notices of garnishment issued on or after the effective date of this 2001 Act. Any notice of garnishment issued before the effective date of this 2001 Act shall continue to be governed by the law in effect immediately before the effective date of this 2001 Act.

          (3) The repeal of ORS 23.185 by section 69a of this 2001 Act and the enactment in lieu thereof of section 69b of this 2001 Act apply only to execution issued on or after the effective date of this 2001 Act.

 

UNIT AND SECTION CAPTIONS

 

          SECTION 86. The unit and section captions used in this 2001 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 2001 Act.

 

Approved by the Governor May 30, 2001

 

Filed in the office of Secretary of State May 30, 2001

 

Effective date January 1, 2002

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