Chapter 0085

Chapter 85 Oregon Laws 2003

AN ACT

HB 2274

Relating to civil procedure; creating new provisions; and amending ORS 12.085, 18.600, 18.607, 18.645, 18.650, 18.652, 18.655, 18.658, 18.665, 18.690, 18.692, 18.700, 18.705, 18.710, 18.730, 18.745, 18.790, 18.830, 18.835, 18.838, 18.840, 18.845, 18.850 and 18.900 and ORCP 85 C.

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

SECTION 1. ORS 12.085 is amended to read:

12.085. (1) Except as provided in subsection (2) of this section, proceedings against a garnishee under ORS 18.775 to 18.782 must be commenced within one year [from] after the delivery of the writ of garnishment.

(2) If the writ of garnishment is delivered to a person in the person’s capacity as a personal representative of an estate, proceedings against the garnishee under ORS 18.775 to 18.782 must be commenced within one year after the entry of a decree of final distribution for the estate.

SECTION 2. ORS 18.600 is amended to read:

18.600. As used in ORS 18.600 to 18.850:

(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 ORS 18.605.

(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 ORS 18.615, but does not include:

(a) Any property that is not subject to garnishment under ORS 18.618; and

(b) Any property that is applied as a setoff under ORS 18.620 or 18.795.

(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 ORS 18.635 (2); or

(b) The issuer, if the writ is issued under ORS 18.635 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 chapter 107, 108, 109, 110, 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] 174.109.

(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.

SECTION 3. ORS 18.607 is amended to read:

18.607. (1) Except as otherwise provided by law, a writ of garnishment must be in substantially the form provided by ORS 18.830. 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 ORS 18.832, 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.

(d) The date on which judgment was entered against the debtor or the debt otherwise became subject to garnishment under ORS 18.605.

(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] 174.109, 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 ORS 18.832.

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

(h) All addresses required in the writ of garnishment form provided by ORS 18.830.

(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.

(5) A single writ may be issued for two or more debtors if those debtors are jointly liable on all or part of the debt.

SECTION 4. ORS 18.645 is amended to read:

18.645. (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 ORS 18.600 to 18.850, the provisions of ORS 18.600 to 18.850 apply to all writs issued under this section.

(2) Notwithstanding ORS 18.607, a writ of garnishment issued under this section need not contain the name of the court whose authority is invoked.

(3) Notwithstanding ORS 18.690, 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 ORS 18.730, payments under a writ issued under this section must be delivered to the Department of Justice.

[(4)] (5) Notwithstanding ORS 18.730, the [issuer of a writ under this section] Department of Justice must hold any payments received from the garnishee under a writ issued pursuant to this section:

(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)] (6) 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 ORS 18.600 to 18.850 to reflect the provisions of this section.

SECTION 5. ORS 18.650 is amended to read:

18.650. (1) All of the following items must be delivered to a garnishee:

(a) The original writ of garnishment in substantially the form provided by ORS 18.830 [and] or 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 ORS 18.835.

(d) A wage exemption calculation form in substantially the form provided by ORS 18.840.

(e) Any search fee required by ORS 18.790.

(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 6. ORS 18.652 is amended to read:

18.652. (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 original writ delivered to the garnishee or upon [a true] the copy of the writ 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 7. ORS 18.655 is amended to read:

18.655. (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 ORS 18.650 (1) 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 ORS 18.650 (1) 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] 174.109, the writ may be delivered to the board, department, institution, commission or officer charged with approving a claim for the property, or to such person or place as may be designated by the public body.

(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 8. ORS 18.658 is amended to read:

18.658. (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.

(d) A challenge to garnishment form in substantially the form provided by ORS 18.850, with the names and addresses of the garnishor and garnishee entered by the garnishor.

(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.

SECTION 9. ORS 18.665 is amended to read:

18.665. (1) Upon receiving a writ of garnishment, the garnishee shall determine whether a garnishee response is required under ORS 18.680 and 18.682. The garnishee has no duty to determine whether the garnishor, sheriff or other person has complied with the requirements of ORS 18.600 to 18.850, 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 ORS 18.615. 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 ORS 18.600 to 18.850, and thereafter make delivery of the property in the manner required by ORS 18.600 to 18.850.

(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.

(3) If a single writ is issued for two or more joint debtors under ORS 18.607 (5) and the garnishable property in the garnishee’s possession, control or custody exceeds the amount necessary to satisfy the garnishment, the garnishee must hold and deliver as much of the property as is necessary to satisfy the garnishment but may select, in the sole discretion of the garnishee, the property to hold and deliver without regard to which of the joint debtors owns the property.

SECTION 10. ORS 18.690 is amended to read:

18.690. (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 of garnishment 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 ORS 18.605, and the garnishee will not make payments or deliver property under the writ pursuant to ORS 18.618 (2); 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 ORS 18.680, delivery of a garnishee response under this section is accomplished upon mailing or upon personal delivery of the response.

SECTION 11. ORS 18.692 is amended to read:

18.692. (1) The garnishee shall prepare a supplemental garnishee response [in substantially the form provided by subsection (2) of this section,] and deliver the supplemental garnishee 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 ORS 18.605; or

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

(2) The supplemental garnishee response required under [subsection (1) of] this section must be in substantially the [following] form[:] provided in the instructions to garnishee form set forth in ORS 18.838.

[____________________________________________________________________________]

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

[____________________________________________________________________________]

SECTION 12. ORS 18.700 is amended to read:

18.700. (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 ORS 18.850, 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 ORS 18.705 and 18.708 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.

(5) A challenge to a garnishment may be used only for the purposes specified in this section and ORS 18.725.

SECTION 13. ORS 18.705 is amended to read:

18.705. (1) Except as provided in subsection [(2)] (4) of this section, upon receiving notice of a challenge to a garnishment under ORS 18.702, a garnishor who is a creditor 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.

(2) Except as provided in subsection (4) of this section, if the garnishor is not a creditor, upon receiving notice of a challenge to a garnishment under ORS 18.702, the garnishor must promptly send to the court specified in the writ of garnishment all amounts received under the writ that have not been delivered to the creditor and that the debtor has claimed to be exempt or not subject to garnishment. The creditor must promptly send to the court specified in the writ all amounts that the creditor has received under the writ and that the debtor has claimed to be exempt or not subject to garnishment.

(3) [The payment] Payments made to the court under this section 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 ORS 18.710, 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 or creditor appear and show cause why the garnishor or creditor should not be held in contempt. In addition to contempt proceedings, the court may require the garnishor or creditor 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)] (4) [Subsection (1) of] This section does not apply if the garnishor or creditor is not [required by law or] allowed by law to disburse the payment to the court.

[(3)] (5) The receipt of a challenge to a garnishment does not affect the requirement under ORS 18.755 (1) that the garnishor mail or deliver a written request for sale of property, and pay the fees determined by the sheriff under ORS 18.755 (3), 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 14. ORS 18.710 is amended to read:

18.710. (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] garnishor, garnishee and debtor at the addresses provided in the challenge to garnishment form. The hearing shall be held as soon as possible. The garnishor shall provide a copy of the writ of garnishment to the court on or before the date set for the hearing.

(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 15. ORS 18.730 is amended to read:

18.730. (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 ORS 18.645 and 18.745, 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 ORS 18.702, 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 ORS 18.708.

(4) Notwithstanding subsection (1) of this section, if a creditor is a state agency as defined by ORS 183.025, the garnishor may require that checks issued for payments under a writ be made payable to the garnishor or to such other person as designated by the garnishor. A state agency may modify the forms provided in ORS 18.600 to 18.850 to reflect the provisions of this subsection.

SECTION 16. ORS 18.745 is amended to read:

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

SECTION 16a. ORS 18.790 is amended to read:

18.790. (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 ORS 18.900. A separate search fee must be delivered to the financial institution for each debtor if the writ is issued for more than one debtor under ORS 18.607 (5). 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 ORS 18.900 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 17. ORS 18.830 is amended to read:

18.830. 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 only 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 (check one):

_ The clerk of the court

_ The attorney for the Creditor

_ Other authorized issuer:

Name and title _____

Statutory 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 18. ORS 18.835 is amended to read:

18.835. 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

__________

Telephone number __________

Fax number (if available) _______

Signature

__________

Address

______________________________________________________________________________

SECTION 19. ORS 18.838 is amended to read:

18.838. 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] or 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 ORS 18.600 to 18.850.

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 ORS 18.620. 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] Garnishor at the address indicated on the writ under Important Addresses.

(b) Send a copy of your Garnishee Response to the [Garnishor] clerk of the court 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 ORS 18.620.

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. If you have not delivered all property that is subject to garnishment under this writ when you discover that a bankruptcy petition has been filed, 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. If you have not delivered all property that is subject to garnishment under this writ when you receive an order to withhold income that has priority, you must mail the following notice to the Garnishor and to the Debtor.

______________________________________________________________________________

[NOTICE OF BANKRUPTCY FILING]

[OR RECEIPT OF ORDER]

[TO WITHHOLD INCOME]

SUPPLEMENTAL GARNISHEE RESPONSE

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.

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 ORS 18.790 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 ORS 18.795. 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 ORS 18.790.

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 ORS 18.792.

______________________________________________________________________________

SECTION 20. ORS 18.840 is amended to read:

18.840. A wage exemption calculation form must be [served on] delivered to 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 for this pay period pursuant

to a support order under support

withholding process or under another

writ with priority............................. $__

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.

If you receive more than one writ of garnishment. If you receive more than one writ of garnishment for the same debtor, the writs have priority based on the date on which you receive them. If the full amount of wages subject to garnishment for a given pay period is paid on the first writ, you should not make any payment on subsequently received writs until the first writ expires. In some cases, it may be necessary to make payments on two or more writs for the same pay period.

Example 4. You have received two writs of garnishment for Debtor A. You pay Debtor A on a monthly basis. The first writ expires on October 16. The second writ will not expire until November 15. You will need to prepare two wage exemption calculation forms for Debtor A’s October wages and make payments under both writs. The wage exemption calculation form for the first writ will be for the wages attributable to October 1 to October 15 as described in Example 2. The wage exemption calculation form for the second writ will be for all wages for the month of October, but the amounts withheld under the first writ must be subtracted on Line 8 to determine the October wages subject to garnishment under the second writ.

______________________________________________________________________________

SECTION 21. ORS 18.845 is amended to read:

18.845. 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

AND INSTRUCTIONS FOR

CHALLENGE TO GARNISHMENT

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 23.186. 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) Amounts paid to you as an earned income tax credit under federal tax law.

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

(31) Equitable interests in property.

(32) 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.

YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR THE FOLLOWING PURPOSES:

(1) To claim such exemptions from garnishment as are permitted by law.

(2) To assert that property is not garnishable property under ORS 18.618.

(3) To assert that the amount specified in the writ of garnishment as being subject to garnishment is greater than the total amount owed.

YOU MAY NOT USE THE CHALLENGE TO GARNISHMENT FORM TO CHALLENGE THE VALIDITY OF THE DEBT.

IF YOU [CLAIM AN EXEMPTION] FILE A CHALLENGE TO A GARNISHMENTIN 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 ORS 18.715.

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 ORS 18.705 and 18.708.

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SECTION 22. ORS 18.850 is amended to read:

18.850. A challenge to garnishment form must be in substantially the following form:

______________________________________________________________________________

_____COURT

COUNTY OF _____

____ ) CHALLENGE TO

Plaintiff, ) GARNISHMENT

)

vs. ) Case No. ___

)

____ )

Defendant. )

THIS FORM MAY BE USED BY THE DEBTOR ONLY FOR THE FOLLOWING PURPOSES:

(1) To claim such exemptions from garnishment as are permitted by law.

(2) To assert that property is not garnishable property under ORS 18.618.

(3) To assert that the amount specified in the writ of garnishment as being subject to garnishment is greater than the total amount owed.

THIS FORM MAY BE USED BY PERSONS OTHER THAN THE DEBTOR ONLYTO CLAIM AN INTEREST IN THE PROPERTY THAT IS GARNISHED.

THIS FORM MAY NOT BE USED TO CHALLENGE THE VALIDITY OF THE DEBT.

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):

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I/We claim that the total amount owed is:

______________________________________________________________________________

________ ________

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)

TO BE COMPLETED BY GARNISHOR:

Name of Garnishor ________

Address of Garnishor ________

__________________

Name of Garnishee ________

Address of Garnishee ________

__________________

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SECTION 23. ORS 18.900 is amended to read:

18.900. (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;

(d) Any garnishee’s search fee payable as provided in ORS 18.790.

(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 ORS 18.800 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 ORS 18.652, 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 ORS 18.652.

(5) Notwithstanding any provision of ORS 18.600 to 18.850, a debt calculation form need not be prepared or delivered for any notice of garnishment.

(6) Notwithstanding ORS 18.792, 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 ORS 18.790, 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 ORS 18.902 and 18.905, all provisions of ORS 18.600 to 18.850 apply to notices of garnishment. The state agency or county tax collector shall modify the forms provided in ORS 18.600 to 18.850 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 and other documents issued by state agencies and county tax collectors under this section and ORS 18.902 and 18.905. 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 ORS 18.600 to 18.850, and with the provisions of this section and ORS 18.902 and 18.905, with respect to the form of notices of garnishment.

SECTION 24. ORCP 85 C is amended to read:

C Custody and delivery of property. Upon receipt of the order of provisional process issued by the court as provided in Rule 83, the sheriff shall forthwith take the property described in the order, if it be in the possession of the defendant or another person, and retain it in the sheriff’s custody. If any part of the property is concealed in a building or other enclosure, the sheriff shall demand delivery of the property. If the property is not delivered, the sheriff shall break open the building or enclosure and take the property into possession. The sheriff shall keep [it] the property in a secure place[,] and deliver it to the party entitled thereto upon receiving the lawful fees for taking, and the necessary expenses for keeping the same. The court may waive the payment of such fees and expenses upon a showing of indigency.

SECTION 25. The amendments to ORS 12.085, 18.645, 18.650, 18.652, 18.655, 18.658, 18.690, 18.692, 18.705, 18.710, 18.730, 18.745, 18.790, 18.830, 18.835, 18.838, 18.840, 18.845, 18.850 and 18.900 by sections 1, 4 to 8, 10, 11 and 13 to 23 of this 2003 Act apply only to writs of garnishment issued on or after the effective date of this 2003 Act.

Approved by the Governor May 24, 2003

Filed in the office of Secretary of State May 27, 2003

Effective date January 1, 2004

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