Chapter 576 Oregon Laws 2003

 

AN ACT

 

HB 2646

 

Relating to judgments; creating new provisions; amending ORS 1.010, 1.655, 3.070, 3.260, 3.315, 3.425, 5.090, 5.120, 5.125, 7.010, 7.140, 7.160, 7.211, 9.330, 9.380, 9.536, 9.655, 9.735, 12.085, 18.325, 18.355, 18.365, 18.370, 18.420, 18.580, 18.600, 18.605, 18.607, 18.609, 18.610, 18.635, 18.638, 18.640, 18.645, 18.668, 18.672, 18.690, 18.700, 18.702, 18.705, 18.708, 18.710, 18.712, 18.718, 18.725, 18.730, 18.738, 18.740, 18.742, 18.752, 18.755, 18.770, 18.800, 18.810, 18.830, 18.832, 18.835, 18.838, 18.845, 18.910, 19.005, 19.205, 19.215, 19.270, 19.275, 19.345, 19.355, 19.415, 19.425, 19.445, 19.450, 20.077, 20.160, 21.020, 21.111, 21.325, 21.605, 21.607, 21.660, 23.160, 23.242, 23.280, 23.290, 23.300, 23.410, 23.445, 23.490, 23.530, 23.570, 24.115, 24.125, 24.129, 24.290, 24.305, 25.020, 25.025, 25.070, 25.080, 25.083, 25.100, 25.110, 25.167, 25.245, 25.255, 25.287, 25.670, 25.690, 25.710, 28.010, 28.050, 28.060, 28.070, 28.080, 28.150, 30.390, 33.125, 33.420, 33.460, 33.510, 33.720, 34.330, 34.360, 34.362, 34.600, 34.610, 34.710, 34.720, 35.265, 36.350, 36.425, 46.485, 46.488, 46.570, 52.600, 52.635, 58.377, 59.115, 59.127, 59.131, 59.265, 59.305, 59.895, 59.910, 60.671, 62.365, 62.695, 62.704, 63.621, 63.671, 65.671, 65.757, 65.870, 70.330, 72.7160, 72A.5210, 87.146, 87.342, 87.435, 87.445, 87.450, 87.455, 87.460, 87.470, 87.475, 87.480, 87.490, 87.585, 88.010, 88.020, 88.050, 88.060, 88.070, 88.080, 88.090, 88.100, 88.710, 93.190, 93.643, 93.730, 93.810, 94.816, 97.580, 97.890, 97.900, 97.920, 105.140, 105.240, 105.245, 105.260, 105.265, 105.270, 105.285, 105.360, 105.405, 105.580, 105.624, 105.755, 105.760, 105.860, 105.865, 105.890, 105.905, 106.030, 106.190, 107.005, 107.015, 107.025, 107.036, 107.065, 107.085, 107.095, 107.104, 107.105, 107.108, 107.115, 107.135, 107.159, 107.169, 107.174, 107.179, 107.400, 107.407, 107.412, 107.415, 107.425, 107.431, 107.445, 107.449, 107.455, 107.465, 107.475, 107.500, 107.765, 107.820, 107.835, 108.120, 109.015, 109.041, 109.053, 109.070, 109.096, 109.100, 109.119, 109.155, 109.165, 109.305, 109.307, 109.309, 109.311, 109.322, 109.324, 109.326, 109.335, 109.342, 109.346, 109.350, 109.353, 109.360, 109.381, 109.400, 109.410, 109.672, 109.704, 109.737, 114.135, 116.083, 116.093, 116.113, 116.203, 116.213, 116.253, 118.350, 118.830, 128.001, 128.005, 128.720, 135.280, 137.010, 137.071, 137.107, 137.270, 137.452, 138.083, 138.640, 138.650, 147.355, 153.820, 156.220, 161.327, 161.665, 161.715, 166.725, 167.162, 169.340, 180.360, 180.380, 183.485, 183.500, 205.125, 205.126, 205.515, 206.110, 221.346, 221.351, 221.785, 223.565, 223.593, 223.645, 225.300, 226.600, 226.620, 237.600, 238.462, 238.465, 243.507, 261.330, 261.615, 264.220, 267.225, 267.385, 273.880, 305.440, 305.589, 311.615, 311.630, 311.691, 312.060, 312.070, 312.080, 312.090, 312.100, 312.110, 312.120, 312.122, 312.125, 312.130, 312.170, 312.190, 312.210, 312.220, 312.230, 312.240, 312.300, 312.360, 314.423, 316.567, 319.182, 319.742, 320.080, 321.570, 323.390, 323.610, 324.190, 327.480, 332.030, 334.095, 341.335, 358.925, 358.928, 373.060, 407.135, 407.215, 407.295, 411.650, 416.400, 416.422, 416.425, 416.427, 416.429, 416.440, 416.443, 417.060, 418.032, 419A.004, 419B.328, 419B.402, 419B.406, 419B.529, 419B.552, 419B.555, 419B.558, 419C.450, 419C.592, 419C.597, 432.230, 432.235, 432.408, 432.415, 453.065, 465.235, 465.325, 465.327, 471.650, 471.655, 475A.110, 517.100, 517.320, 523.420, 543.550, 545.253, 545.502, 545.504, 545.577, 545.579, 545.637, 545.639, 545.659, 545.663, 547.055, 547.215, 547.220, 547.235, 547.240, 547.245, 547.250, 547.255, 547.260, 548.110, 548.120, 548.350, 548.510, 548.945, 548.955, 552.710, 553.560, 553.570, 558.345, 583.106, 608.310, 616.295, 618.516, 645.220, 646.189, 646.632, 648.081, 656.440, 656.566, 657.396, 657.545, 657.557, 657.642, 658.415, 658.735, 663.205, 663.210, 663.220, 663.230, 673.732, 674.850, 679.165, 689.135, 696.585, 697.063, 708A.175, 709.170, 709.350, 709.430, 711.250, 711.554, 716.790, 722.068, 731.112, 731.258, 731.988, 732.529, 733.610, 734.440, 734.510, 743.601, 744.013, 756.600, 756.610, 756.990, 758.465, 759.565, 759.990, 772.030, 802.179, 809.410, 823.991 and 825.504 and section 14, chapter 666, Oregon Laws 2001, sections 35 and 37, chapter 780, Oregon Laws 2001, section 7, chapter 402, Oregon Laws 2003 (Enrolled Senate Bill 245), section 2, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645), and section 19, chapter 598, Oregon Laws 2003 (Enrolled House Bill 2279), and ORCP 32 F, 32 M, 47 H, 63 E, 67 A, 67 B, 67 G, 68 C, 72 D, 81 A, 84 A, 84 B and 84 C; and repealing ORS 7.040, 18.315, 18.320, 18.335, 18.350, 18.360, 18.400, 18.405, 18.410, 23.005, 23.030, 23.040, 23.050, 23.060, 23.070, 23.320, 23.330, 23.340, 23.350, 23.425, 23.710, 23.720, 23.730, 25.700, 107.126, 107.142, 137.073 and 137.180 and ORCP 70.

 

 

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

 

DEFINITIONS

 

          SECTION 1. Definitions. As used in sections 1 to 44 of this 2003 Act:

          (1) “Action” means any proceeding commenced in a court in which the court may render a judgment.

          (2) “Child support award” means a money award or agency order that requires the payment of child support in installments and that is entered under ORS 108.010 to 108.550, 416.310 to 416.340, 416.400 to 416.470, 416.510 to 416.990, 419B.400 or 419C.590 or ORS chapter 25, 107, 109 or 110.

          (3) “Civil action” means any action that is not a criminal action.

          (4) “Claim” includes a charge in a criminal action.

          (5) “Court administrator” means a trial court administrator in a circuit court that has a trial court administrator and the clerk of the court in all other courts.

          (6) “Criminal action” has the meaning given in ORS 131.005.

          (7) “Execution” means enforcement of the money award portion of a judgment or enforcement of a judgment requiring delivery of the possession or sale of specific real or personal property, by means of writs of execution, writs of garnishment and other statutory or common law writs or remedies that may be available under the law.

          (8) “General judgment” means the judgment entered by a court that decides all claims in the action except:

          (a) A claim previously decided by a limited judgment; and

          (b) A claim that may be decided by a supplemental judgment.

          (9) “Judgment” means the concluding decision of a court on one or more claims in one or more actions, as reflected in a judgment document.

          (10) “Judgment document” means a writing in the form provided by section 4 of this 2003 Act that incorporates a court’s judgment.

          (11) “Judgment lien” means the effect of a judgment on real property as described in section 14 (2) and (3) of this 2003 Act for the county in which the judgment is entered, and as described in section 15 (2) and (3) of this 2003 Act for a county in which the judgment is recorded under section 15 of this 2003 Act. “Judgment lien” includes any support arrearage lien attaching to real property under section 14 (3) or 15 (3) of this 2003 Act.

          (12) “Judgment remedy” means:

          (a) The ability of a judgment creditor to enforce a judgment through execution; and

          (b) Any judgment lien arising under section 14 or 15 of this 2003 Act.

          (13) “Limited judgment” means a judgment rendered before entry of a general judgment in an action that disposes of at least one but fewer than all claims in the action and that is rendered pursuant to a statute or other source of law that specifically authorizes disposition of fewer than all claims in the action. “Limited judgment” includes:

          (a) A judgment entered under ORCP 67B or 67G;

          (b) A judgment entered before the conclusion of an action in a circuit court for the partition of real property, defining the rights of the parties to the action and directing sale or partition; and

          (c) An interlocutory judgment foreclosing an interest in real property.

          (14) “Money award” means a judgment or portion of a judgment that requires the payment of money.

          (15) “Supplemental judgment” means a judgment that by law may be rendered after a general judgment has been entered in the action and that affects a substantial right of a party.

          (16) “Support arrearage lien” means a lien that attaches to real property under the provisions of section 14 (3) or 15 (3) of this 2003 Act.

          (17) “Support award” means a money award or agency order that requires the payment of child or spousal support in installments.

 

          SECTION 1a. (1) References in the statutes of this state to decrees include judgments, and references in the statutes of this state to judgments include decrees.

          (2) References in the statutes of this state to judgments of other states include decrees of other states, and references in the statutes of this state to decrees of other states include judgments of other states.

 

APPLICATION

 

          SECTION 2. Courts subject to sections 1 to 44 of this 2003 Act. Except as specifically provided by sections 1 to 44 of this 2003 Act, the provisions of sections 1 to 44 of this 2003 Act apply to circuit courts, municipal courts and justice courts and to county courts performing judicial functions.

 

FORM OF JUDGMENT DOCUMENT

 

          SECTION 3. Preparation of judgment document. (1) In a civil action, the court may designate one of the parties to prepare a proposed judgment document. If the court does not designate a party to prepare a proposed judgment document, the prevailing party shall prepare a proposed judgment document. If more than one party has prevailed in the action, the prevailing parties may agree to designate one of the prevailing parties to prepare a proposed judgment document. Nothing in this subsection prevents any party to a civil action from preparing and submitting a proposed judgment document to the court.

          (2) In criminal actions and juvenile proceedings under ORS chapters 419B and 419C, the judge shall ensure that a judgment document complying with sections 4 and 6 of this 2003 Act is created and filed.

 

          SECTION 4. Form of judgment document generally. (1) A judgment document must be plainly titled as a judgment.

          (2) The title of a judgment document must indicate whether the judgment is a limited judgment, a general judgment or a supplemental judgment. This subsection does not apply to:

          (a) Justice courts, municipal courts and county courts performing judicial functions.

          (b) Judgments in criminal actions.

          (c) Judgments in juvenile proceedings under ORS chapters 419B and 419C.

          (3) A judgment document must be separate from any other document in the action. The judgment document may have attached affidavits, certificates, motions, stipulations and exhibits as necessary or proper in support of the judgment.

          (4) A judgment document must include:

          (a) The name of the court rendering the judgment and the file number or other identifier used by the court for the action or actions decided by the judgment;

          (b) The names of any parties in whose favor the judgment is given and the names of any parties against whom the judgment is given; and

          (c) The signature of the judge rendering the judgment, or the signature of the court administrator if the court administrator is authorized by law to sign the judgment document, and the date the judgment document is signed.

          (5) This section does not apply to any foreign judgment filed with a court under ORS 24.115 or 110.405.

 

          SECTION 5. Judgment in civil action that includes money award. (1) As a condition of creating a judgment lien, the judgment document for a judgment in a civil action that includes a money award must contain a separate section clearly labeled as a money award. Any judgment in a civil action that includes a money award, but does not contain a separate section clearly labeled as a money award, does not create a judgment lien but may be enforced by any other judgment remedy.

          (2) As a condition of creating a judgment lien, the judgment document for a judgment in a civil action that includes a money award must include all of the following:

          (a) The name and address of each judgment creditor and the name, address and telephone number of any attorney who represents one or more of the judgment creditors.

          (b)(A) The name of each judgment debtor and, to the extent known by the judgment creditor:

          (i) Address;

          (ii) Date of birth;

          (iii) Social Security number or tax identification number;

          (iv) Driver license number and the state of issuance; and

          (v) Name of any attorney for each judgment debtor.

          (B) A public body, as defined in ORS 174.109, shall not include the Social Security number or driver license number of a judgment debtor if disclosure of the Social Security number or driver license number violates federal law or any law of this state.

          (c) The name of any person or public body, as defined in ORS 174.109, other than the judgment creditor’s attorney, that is known by the judgment creditor to be entitled to any portion of the money award.

          (d) The amount of the money award.

          (e) Any interest owed as of the date the judgment is entered in the register, either as a specific amount or as accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

          (f) Information about interest that accrues on the judgment after entry in the register, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

          (g) For monetary obligations that are payable on a periodic basis, any accrued arrearages, required further payments per period and payment dates.

          (h) If the judgment requires the payment of costs and disbursements or attorney fees, a statement indicating that the award is made, any specific amounts awarded, a clear identification of the specific claims for which any attorney fees are awarded and the amount of attorney fees awarded for each claim.

          (3) The information required by subsection (2) of this section must be set forth in the money award section of the judgment document in the same order as the requirements appear in subsection (2) of this section.

          (4) The separate section required by subsection (2) of this section must be placed immediately above the judge’s or court administrator’s signature. The separate section must be clearly labeled at its beginning as a money award. If the judgment includes a support award, the label of the separate section must so indicate. Except for information described in ORS 24.290, the separate section of the judgment document may not contain any provision except the information required by this section.

          (5) The requirements of this section are not jurisdictional for purposes of appellate review.

          (6) The provisions of this section do not apply to foreign judgments that are filed with a court under ORS 24.115 or 110.405. If a foreign judgment is filed with the court under ORS 24.115, the separate statement required by ORS 24.125 must be filed with the foreign judgment as a condition of the judgment creating a judgment lien.

 

          SECTION 6. Judgment in criminal action that contains money award. (1) If a judgment document in a criminal action contains a money award, whether by reason of a fine, restitution, forfeiture of security under ORS 135.280, a fee, an assessment, costs and disbursements or any other monetary obligation, and the judgment is for conviction of a felony or misdemeanor, the court administrator shall note in the register that the judgment creates a judgment lien if the judgment document complies with this section. If the judgment is for conviction of a violation as described in ORS 153.008, the court administrator shall note in the register that the judgment creates a judgment lien only if the court has ordered that the judgment create a judgment lien.

          (2) As a condition of creating a judgment lien, the judgment document for a judgment in a criminal action that includes a money award must contain a separate section setting forth the money award, must meet the requirements of section 4 of this 2003 Act and must contain the following information:

          (a) A listing of the specific amounts awarded as fines, assessments, costs, restitution and any other monetary obligations imposed in the sentence as part of the money award. If the court is unable to determine the full amount of restitution at the time of sentencing, the court may include the amount that can be determined or may establish a maximum amount.

          (b) If restitution or a compensatory fine is ordered, the name and address of the person to whom the court should disburse payments, unless the victim requests that this information be exempt from disclosure in the public record.

          (c) A statement that, subject to amendment of a judgment under ORS 137.107, money required to be paid as a condition of probation remains payable after revocation of probation only if the amount is included in the money award portion of the judgment document, even if the amount is referred to in other parts of the judgment document.

          (d) Unless immediate payment is required, the specific terms of payment imposed or allowed by the court.

          (e) If payment of all or part of a monetary obligation is suspended, a statement specifying the nature and amount of the suspended obligations.

          (3) The requirements of this section and section 4 of this 2003 Act do not apply to a judgment document if the action was commenced by the issuance of a uniform citation adopted under ORS 1.525 and the court has used the space on the citation for the entry of a judgment. The exemption provided by this subsection does not apply if any indictment, information or complaint other than a uniform citation is filed in the action.

          (4) A judgment in a criminal action that contains a money award is a judgment in favor of the state and may be enforced only by the state.

 

          SECTION 7. Duty of judge with respect to form of judgment document. (1) A judge rendering a judgment shall file with the court administrator a judgment document that incorporates the judgment. The judge must sign the judgment document unless the court administrator is authorized by law to sign the judgment document. Before signing a judgment document, the judge shall ensure that all requirements imposed by law for entry of the judgment have been fulfilled, including the making of any written findings of fact or conclusions of law. If a proposed judgment document submitted under section 3 of this 2003 Act does not comply with the requirements of sections 4, 5 and 6 of this 2003 Act, the judge may not sign the judgment document. Unless the judgment is exempt under section 4 (2) of this 2003 Act, the judge shall ensure that the title of the judgment document indicates whether the judgment is a limited judgment, general judgment or supplemental judgment. If the judgment is a limited judgment rendered under the provisions of ORCP 67 B, the judge must determine that there is no just reason for delay, but the judgment document need not reflect that determination if the title of the judgment document indicates that the judgment is a limited judgment.

          (2) A court administrator that signs a judgment under authority granted by law has the same duties as a judge under the provisions of this section.

          (3) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 8. Duty of court administrator with respect to form of judgment. (1) Except as provided in subsection (2) of this section, the court administrator shall note in the register that a judgment document has been filed if the judgment document is signed by a judge of the court, or by the court administrator if the court administrator is authorized by law to sign the judgment document, and filed with the court administrator, whether or not the judgment document complies with the requirements of sections 4, 5 and 6 of this 2003 Act.

          (2) If the title of a document filed with the court administrator indicates that the document is a decree, or indicates that the document is a judgment but fails to indicate whether the judgment is a limited judgment, general judgment or supplemental judgment, the court administrator may not note in the register that a judgment document has been filed, and shall return the document to the judge, unless the judgment is exempt under section 4 (2) of this 2003 Act.

          (3) The court administrator may rely on a judgment document for entry of information in the register. The court administrator is not liable for entering any information in the register that reflects information contained in a judgment document, whether or not the information in the judgment is correct or properly presented.

          (4) The court administrator may rely on the presence or absence of a separate section in the judgment document required by section 5 or 6 of this 2003 Act in determining whether a judgment contains a money award. The court administrator shall enter information in the register, and in the separate record required by section 9 of this 2003 Act, only from the separate section unless otherwise ordered by the court.

          (5) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

ENTRY OF JUDGMENTS IN REGISTER

 

          SECTION 9. Entry of judgments in circuit courts generally.(1) A judgment is entered in circuit court when a court administrator notes in the register that a judgment document has been filed with the court administrator.

          (2) Subject to section 8 (2) of this 2003 Act, when a judge files a judgment document with the court administrator, the court administrator shall note in the register:

          (a) That the judgment document has been filed and the day, hour and minute that the judgment is entered.

          (b) Whether the judgment is a limited judgment, a general judgment or a supplemental judgment.

          (c) Whether the judgment includes a money award.

          (d) Whether the judgment creates a judgment lien under section 14 of this 2003 Act.

          (3) If the court administrator notes in the register that a judgment creates a judgment lien, the court administrator shall note in a separate record maintained by the court administrator:

          (a) The name of all judgment debtors.

          (b) The name of all judgment creditors.

          (c) The amount of the money award.

          (d) Whether the money award is a support award.

          (4) If the court administrator makes a notation of judgment in the separate record required by subsection (3) of this section, the court administrator shall thereafter also note in the separate record:

          (a) The date on which any appeal is filed.

          (b) Whether a supersedeas undertaking, as defined in ORS 19.005, is filed.

          (c) The date of any decision on appeal.

          (d) Any execution issued by the court and the return on any execution.

          (e) Any satisfaction of the judgment, when entered.

          (f) Other such information as may be deemed necessary by court order or court rule.

          (5) The court administrator shall enter a judgment in the register within 24 hours after the judgment document is filed with court administrator, excluding Saturdays and legal holidays. If the court administrator is not able to enter the judgment within the time prescribed in this subsection, or fails to do so, the court administrator shall enter the judgment as soon as practicable thereafter.

          (6) Except as provided in section 8 of this 2003 Act, and in ORCP 69 B (1) for judgments by default, the court administrator shall be subject to the direction of the court in entering judgments in the register.

          (7) The court administrator shall not delay entry of judgment under ORCP 68 for taxation of attorney fees or costs and disbursements.

          (8) Administrative orders entered in the register under ORS 416.440 have the effect provided for in that section.

          (9) The State Court Administrator shall ensure that the register, and the separate record required by subsection (3) of this section, be established and maintained in a uniform manner in the circuit courts.

          (10) References in Oregon Revised Statutes to docketing of a judgment are equivalent to entry of a judgment as described in subsection (1) of this section.

          (11) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 9a. (1) Notwithstanding any other provision of sections 1 to 44 of this 2003 Act or any other law, a court administrator need not make any entry in the register or in the separate record maintained under section 9 of this 2003 Act that is different from the entries made by the court administrator before the effective date of this 2003 Act until such time as funding is available to make such modifications as may be necessary to accommodate those entries in the computer systems utilized by the circuit courts.

          (2) All references to the docket in computer records and documents of the circuit courts shall be construed to be references to the separate record maintained under section 9 of this 2003 Act, without regard to whether those records or documents are created before, on or after the effective date of this 2003 Act. Subject to availability of funding, the circuit courts shall makes such changes in their computer systems and other document-generating systems as soon as possible after the effective date of this 2003 Act to eliminate references to the docket.

          (3) All references to decrees in computer records and documents of the circuit courts shall be construed to be references to judgments, without regard to whether those records or documents are created before, on or after the effective date of this 2003 Act. Subject to availability of funding, the circuit courts shall makes such changes in their computer systems and other document-generating systems as soon as possible after the effective date of this 2003 Act to eliminate references to decrees.

          (4) All references to money judgments in computer records and documents of the circuit courts shall be construed to be references to money awards, without regard to whether those records or documents are created before, on or after the effective date of this 2003 Act. Subject to availability of funding, the circuit courts shall makes such changes in their computer systems and other document-generating systems as soon as possible after the effective date of this 2003 Act to eliminate references to money judgments.

 

          SECTION 10. Notice to attorneys of entry of judgment in civil actions in circuit court. (1) Upon entering a judgment in a civil action, or entry of any corrected judgment under section 12 of this 2003 Act, the court administrator shall mail the notice described in subsection (2) of this section to the attorneys of record for each party that is not in default for failure to appear. If a party does not have an attorney of record, and is not in default for failure to appear, the court administrator shall mail the notice to the party. The court administrator shall note in the register that the notice required by this section was mailed as required by this section.

          (2) The notice required by this section must reflect:

          (a) The date the judgment was entered.

          (b) Whether the judgment was entered as a limited judgment, a general judgment or a supplemental judgment.

          (c) Whether the court administrator noted in the register that the judgment contained a money award.

          (d) Whether the court administrator noted in the register that the judgment creates a judgment lien.

          (3) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

          (4) This section does not apply to judgments in juvenile proceedings under ORS chapter 419B or 419C, civil commitment proceedings, probate proceedings, adoptions or guardianship or conservatorship proceedings under ORS chapter 125.

 

          SECTION 10a. Notwithstanding any other provision of sections 1 to 44 of this 2003 Act or any other law, a court administrator need not mail notice of judgment in the form provided by section 10 of this 2003 Act and may continue to use the form of notice used by the court administrator before the effective date of this 2003 Act until such time as funding is available to allow use of notices of judgments in the form provided by section 10 of this 2003 Act.

 

          SECTION 11. Effect of entry of judgment. (1) Upon entry of a judgment, the judgment:

          (a) Becomes the exclusive statement of the court’s decision in the case and governs the rights and obligations of the parties that are subject to the judgment;

          (b) May be enforced in the manner provided by law;

          (c) May be appealed in the manner provided by law;

          (d) Acts as official notice of the court’s decision; and

          (e) May be set aside or modified only by the court rendering the judgment or by another court or tribunal with the same or greater authority than the court rendering the judgment.

          (2) A general judgment incorporates a previous written decision of the court that decides one or more claims in the case and that:

          (a) Is not a judgment;

          (b) Is consistent with the terms of the general judgment and any limited judgments in the case; and

          (c) Reflects an express determination by the court that the decision be final as to the claim or claims resolved.

          (3) Upon entry of a general judgment, any claim in the action that is not decided by the general judgment or by a previous limited judgment, that has not been incorporated into the general judgment under subsection (2) of this section, or that cannot be decided by a supplemental judgment, is dismissed with prejudice unless the judgment provides that the dismissal is without prejudice.

          (4) Subsection (3) of this section does not affect the right of any party to assign error on appeal to any decision of a court made by order during an action.

          (5) Subsection (3) of this section does not apply to a general judgment of dismissal. Except as otherwise provided by law, by the Oregon Rules of Civil Procedure or by the terms of the judgment, a general judgment of dismissal is without prejudice as to any claim or charge in the action.

          (6) If a document labeled as a decree is filed with the court administrator, or a judgment document is filed with the court administrator that does not indicate whether the judgment is a limited, general or supplemental judgment, and the court administrator fails to comply with section 8 of this 2003 Act and makes an entry in the register indicating that a judgment has been filed with court administrator, the document has the effect of a general judgment entered in circuit court.

 

CORRECTIONS TO JUDGMENTS

 

          SECTION 12. Corrections to civil judgments. (1) A court may correct the terms of a civil judgment previously entered as provided in ORCP 71. The court may make the correction by signing a corrected judgment document and filing the document with the court administrator. The title of the judgment document must reflect that the judgment is a corrected limited judgment, corrected general judgment or a corrected supplemental judgment.

          (2) Unless a correction to a judgment affects a substantial right of a party, the time for appeal of the judgment commences upon entry of the original judgment.

          (3) If the correction of a judgment affects a substantial right of a party, and the corrected judgment is entered before the time for appealing the original judgment has expired, the time for appeal of the judgment commences upon entry of the corrected judgment. If the correction affects a substantial right of a party, and the corrected judgment is entered after the time for appealing the original judgment has expired, the time for appeal of the corrected portions of the judgment and all other portions of the judgment affected by the correction commences upon entry of the corrected judgment.

          (4) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

          (5) This section does not apply to juvenile proceedings under ORS chapter 419B.

 

          SECTION 13. Correction of designation of judgment as general judgment. (1) Upon motion of any party, the court may enter a corrected judgment under section 12 of this 2003 Act that changes the designation of a judgment from a general judgment to a limited judgment if the moving party establishes that:

          (a) Except by operation of section 11 (3) of this 2003 Act, the judgment does not decide all claims in the action other than claims previously decided by a limited judgment or claims that could be decided by a supplemental judgment; and

          (b) The judgment was inadvertently designated as a general judgment under circumstances that indicate that the moving party did not reasonably understand that the claims that were not expressly decided by the judgment would be dismissed.

          (2) A motion under subsection (1) of this section must be filed within the time provided by ORCP 71 B.

          (3) Upon motion of any party, the court shall enter a corrected judgment under section 12 of this 2003 Act that changes to a limited judgment any document that has the effect of a general judgment under the provisions of section 11 (6) of this 2003 Act unless all claims in the action are decided by the terms of the document, by previous limited judgments entered in the action or by written decisions of the court that are incorporated in a general judgment under the provisions of section 11 (2) of this 2003 Act.

          (4) Notwithstanding section 12 of this 2003 Act, the time for appeal of the judgment corrected under this section commences from the entry of the corrected judgment. A motion may be filed under this section while an appeal is pending as provided in ORCP 71 B(2).

          (5) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

JUDGMENT LIENS

 

          SECTION 14. Judgment liens in circuit courts. (1) If a judgment document filed with a court administrator under section 9 (2) of this 2003 Act includes a money award and complies with section 5 or 6 of this 2003 Act, the court administrator shall note in the register of a circuit court that the judgment creates a judgment lien unless:

          (a) The judgment is entered in the small claims department of a circuit court in an amount of less than $3,000, exclusive of costs, and the judgment creditor has not created a judgment lien for the judgment as provided in ORS 46.488;

          (b) The judgment is entered in a criminal action for conviction of a violation, and the court does not order under section 6 (1) of this 2003 Act that the judgment creates a judgment lien;

          (c) The judgment is entered under ORS 153.820; or

          (d) The judgment does not create a lien by operation of other law.

          (2) Except as provided in this section, if the court administrator notes in the register that a judgment creates a judgment lien, the judgment has the following effect in the county in which the judgment is entered:

          (a) When the judgment is entered, the judgment lien attaches to all real property of the judgment debtor in the county at that time; and

          (b) The judgment lien attaches to all real property that the judgment debtor acquires in the county at any time after the judgment is entered and before the judgment lien expires.

          (3) Except as provided in this section, if the court administrator notes in the register that a judgment creates a judgment lien and the judgment contains a support award, the support award portion of the judgment has the following effect in the county in which the judgment is entered:

          (a) When an installment becomes due under the terms of the support award and is not paid, a support arrearage lien for the unpaid installment attaches to all real property of the judgment debtor in the county at that time; and

          (b) When an installment becomes due under the terms of the support award and is not paid, a support arrearage lien attaches to all real property that the judgment debtor thereafter acquires in the county for the purpose of enforcing the unpaid installment, and remains attached to that property until satisfaction is made for the installment or the judgment lien arising from support award portion of the judgment expires.

          (4) Real property may be conveyed or encumbered free of a judgment lien created by the support award portion of a judgment, but the conveyance or encumbrance is subject to any support arrearage lien that attached to the real property under this section or section 15 of this 2003 Act.

          (5) A judgment lien does not attach to any real property of a judgment debtor acquired after the debt giving rise to the judgment is discharged under federal bankruptcy laws. Debts are presumed to have not been discharged in bankruptcy until the judgment debtor establishes that the debt has been discharged.

          (6) A court administrator may rely on the judgment document to determine whether a judgment creates a judgment lien.

          (7) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 15. Establishing judgment lien in other counties. (1) At any time after a judgment that creates a judgment lien is entered under section 14 of this 2003 Act and before the expiration of the judgment remedies for the judgment, a judgment creditor may create a judgment lien for the judgment in any other county of this state by recording the judgment in the County Clerk Lien Record for that county. The judgment may be recorded by recording a certified copy of the judgment document or a lien record abstract for the judgment.

          (2) Except as provided in this section, a judgment recorded under this section has the following effect in the county in which the judgment is recorded:

          (a) When the judgment is recorded, the judgment lien attaches to all real property of the judgment debtor in the county at that time; and

          (b) The judgment lien attaches to all real property that the judgment debtor acquires in the county at any time after the judgment is recorded and before the judgment lien expires.

          (3) Except as provided in this section, if a judgment recorded under this section contains a support award, the support award portion of the judgment has the following effect in the county in which the judgment is recorded:

          (a) When the judgment is recorded, a support arrearage lien attaches to all real property of the judgment debtor in the county at that time for any unpaid installment that became due under the terms of the support award before the judgment was recorded.

          (b) A support arrearage lien for any unpaid installment that became due under the terms of the support award before the judgment was recorded attaches to all real property that the judgment debtor acquires in the county at any time after the judgment is recorded and before full satisfaction is made for the installment or the judgment lien of the support award portion of the judgment expires.

          (c) If an installment becomes due under the terms of the support award and is not paid after the judgment is recorded, a support arrearage lien for the installment attaches to all real property of the judgment debtor in the county at the time the installment becomes due and attaches to all real property that the judgment debtor thereafter acquires in the county until full satisfaction is made for the installment or the judgment lien of the support award portion of the judgment expires.

          (4)(a) If a certificate of extension is filed under section 19 of this 2003 Act, and the certificate is filed before the judgment is recorded under this section, a judgment creditor may record a certified copy of the certificate or a lien record abstract for the certificate with the judgment. The recording shall act to extend the judgment lien of a judgment, and any support arrearage lien, in the county for the time provided in sections 18 to 22 of this 2003 Act.

          (b) If a certificate of extension is filed under section 19 of this 2003 Act, and the certificate is filed after the judgment is recorded under this section, a judgment creditor may record a certified copy of the certificate or a lien record abstract for the certificate in the County Clerk Lien Record in any county in which the judgment has been recorded under subsection (1) of this section. If the recording is made before the time that the judgment lien for the judgment would otherwise have expired under sections 18 to 22 of this 2003 Act, the recording extends the judgment lien of the judgment, without loss of priority, for the time provided in sections 18 to 22 of this 2003 Act. If the recording is made after the time that the judgment lien for the judgment would otherwise have expired under sections 18 to 22 of this 2003 Act, the recording extends the judgment lien of the judgment for the time provided in section 18 to 22 of this 2003 Act, but the lien is subordinate to all other interests that are of record on the date the certificate or lien record abstract is recorded.

          (5) When the judgment lien of a judgment expires in the county in which the judgment was originally entered, the judgment lien and any support arrearage lien created under this section expires in the other county or counties in which the judgment has been recorded.

          (6) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 16. Appeal; motion to eliminate lien. A judgment debtor who appeals a judgment may move the trial court for elimination of the judgment lien created by the judgment. A court may grant a motion under this section if the judgment debtor files a supersedeas undertaking, as defined in ORS 19.005, and provides such additional security as may be required by the court to ensure that adequate amounts will be available to satisfy the judgment if affirmed on appeal. If the court grants the motion, the court administrator shall note in the register, and in the separate record required under section 9 of this 2003 Act, that the judgment lien has been eliminated.

 

          SECTION 17. Judgment lien based on judgment for child support or spousal support entered in another state. (1) At any time after a judgment for unpaid child support or unpaid spousal support becomes effective in another state and before the expiration or satisfaction of that judgment under the other state’s law, a judgment creditor under the judgment may record a certified copy of the judgment or a lien record abstract for the judgment in the County Clerk Lien Record for any county in this state.

          (2) If a judgment of another state described in subsection (1) of this section is extended or renewed under the laws of the state that rendered the judgment, a judgment creditor under the judgment may record a certified copy of the extension or renewal in the County Clerk Lien Record for any county in this state or may record a lien record abstract for extension or renewal in the County Clerk Lien Record for any county in this state.

          (3) Upon recording a judgment, lien record abstract, extension or renewal under this section, the judgment creates a judgment lien as described in section 15 (3) of this 2003 Act.

          (4) When the judgment expires in the state in which the judgment was originally entered, the judgment lien and any support arrearage lien created under this section expire in every county in which the judgment has been recorded under this section.

          (5) Liens arising by operation of law in another state against real property for amounts of overdue payments under a support order, as defined in ORS 110.303, shall be accorded full faith and credit if the state agency, party or other entity seeking to enforce the lien follows the applicable procedures for recording and service of notice of claim of lien as required by this section. A state agency, party or other entity may not file an action to enforce a lien described in this section until the underlying judgment has been filed in Oregon as provided in ORS 110.303 to 110.452.

          (6) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

EXPIRATION AND EXTENSION

OF JUDGMENT REMEDIES

 

          SECTION 18. Expiration of judgment remedies in circuit court.(1) Judgment remedies for a judgment expire upon full satisfaction of the money award portion of the judgment.

          (2) If a judgment lien arises out of a support award under section 14 (3) or 15 (3) of this 2003 Act, a support arrearage lien attaching to real property under the judgment lien expires upon satisfaction of the unpaid installment that gave rise to the support arrearage lien.

          (3) Except as provided in sections 18 to 22 of this 2003 Act, judgment remedies for a judgment in a civil action expire 10 years after the entry of the judgment.

          (4) Judgment remedies for a judgment in a criminal action expire 20 years after the entry of the judgment.

          (5) Except as provided in section 22 of this 2003 Act, judgment remedies for the child support award portion of a judgment, and any lump sum money award for unpaid child support installments, expire 25 years after the entry of the judgment that first establishes the support obligation.

          (6)(a) Except as provided by paragraph (b) of this subsection and section 21 of this 2003 Act, judgment remedies for any unpaid installment under the spousal support award portion of a judgment, including any installment arrearage lien arising under the judgment, expire 25 years after the entry of the judgment that first establishes the support obligation, or 10 years after an installment comes due under the judgment and is not paid, whichever is later.

          (b) The judgment lien for the spousal support award portion of a judgment that is entered on or after the effective date of this 2003 Act, including any installment arrearage lien arising under the judgment, expires 25 years after the entry of the judgment that first establishes the support obligation unless a certificate of extension is filed under section 20 of this 2003 Act.

          (7)(a) If a money award in a judgment under ORS 107.105 (1)(f) provides for a future payment of money, and the future payment does not become due for 10 or more years after the judgment is entered, judgment remedies for the portion of the judgment providing for future payment expire 10 years after the date on which the future payment becomes due. At any time before the judgment remedies for a money award described in this subsection expire, judgment remedies for the portion of the judgment providing for a future payment may be extended as provided in section 19 of this 2003 Act.

          (b) This subsection does not apply to support awards.

          (8) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 19. Extension of judgment remedies. (1) Judgment remedies for a judgment may be extended by filing a certificate of extension in the court that entered the judgment. The court administrator shall enter the certificate in the register of the court and in the separate record maintained under section 9 of this 2003 Act. Except as provided in sections 18 to 22 of this 2003 Act, a judgment creditor may file a certificate of extension only if:

          (a) Judgment remedies for the judgment have not expired under section 18 of this 2003 Act; and

          (b) A full satisfaction document for the money award portion of the judgment has not been filed.

          (2) Notwithstanding subsection (1) of this section, if the judgment debtor has been discharged from debt under federal bankruptcy laws, a certificate of extension may not be filed except as provided in this subsection. Judgments are presumed to have not been discharged in bankruptcy until the judgment debtor establishes that the judgment has been discharged. If the judgment debtor is discharged from a debt, a certificate of extension may be filed if:

          (a) The debtor owned real property and the judgment lien attached to that property before the filing of the bankruptcy petition;

          (b) The judgment lien was not avoided by action of the bankruptcy court;

          (c) The judgment lien has not been discharged under ORS 18.420; and

          (d) The certificate of extension includes a legal description of the real property and a statement that the extension affects only the lien on the real property described in the certificate.

          (3) A certificate of extension must be signed by the judgment creditor, or by an attorney who represents the judgment creditor.

          (4) Subject to sections 21 and 22 of this 2003 Act, if a certificate of extension is filed after the date on which the judgment remedies for the judgment expire under section 18 of this 2003 Act, the certificate has no effect.

          (5) The judgment remedies for a judgment that are extended under the provisions of this section expire 10 years after the certificate of extension is filed. Judgment remedies for a judgment may be extended only once under the provisions of this section.

          (6) A certified copy of a certificate of extension, or a lien record abstract for the certificate, may be recorded in any county in which the judgment was recorded under section 15 of this 2003 Act, with the effect provided by section 15 (4) of this 2003 Act.

          (7) Except as provided in sections 20, 21 and 22 of this 2003 Act, the judgment remedies for the support award portion of a judgment, and any lump sum money award for unpaid child support installments, may not be extended under this section.

          (8) The judgment remedies for a judgment in a criminal action may not be extended under this section.

          (9) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 20. Extension of judgment lien of spousal support award. (1) If a judgment that is entered on or after the effective date of this 2003 Act includes a spousal support award, a judgment creditor may file a certificate of extension under section 19 of this 2003 Act at any time more than 15 years after the entry of the judgment that first establishes the support obligation and before the judgment lien for the spousal support award portion of a judgment expires under section 18 (6)(b) of this 2003 Act. If a certificate of extension is filed under this subsection:

          (a) The judgment lien for the spousal support award portion of the judgment expires 10 years after the certificate of extension is filed; and

          (b) Any installment arrearage lien that arises under the judgment, whether before or after the filing of the certificate, expires 10 years after the installment comes due and is not paid or when the judgment lien for the spousal support award portion of the judgment expires under paragraph (a) of this subsection, whichever is first.

          (2) Notwithstanding section 19 (5) of this 2003 Act, certificates of extension under section 19 of this 2003 Act may continue to be filed in the manner provided by subsection (1) of this section and with like effect for as long as the judgment lien for the spousal support award portion of a judgment has not expired and any installments remain to be paid under the judgment.

 

          SECTION 21. Spousal support judgments entered before effective date of this 2003 Act. (1) The judgment lien for the spousal support award portion of a judgment that is entered before the effective date of this 2003 Act, including any installment arrearage liens that arise under the judgment, expires 10 years after the entry of the judgment that first establishes the support obligation unless a certificate of extension is filed under section 19 of this 2003 Act, or the judgment was renewed in the manner provided by the statutes in effect immediately before the effective date of this 2003 Act, within 10 years after the judgment was entered.

          (2) Section 18 (6) of this 2003 Act does not operate to revive the judgment lien of any judgment that expired before the effective date of this 2003 Act under the statutes in effect immediately before the effective date of this 2003 Act.

          (3) This section and section 18 (6) of this 2003 Act do not limit the time during which judgment remedies are available for any judgment entered before the effective date of this 2003 Act, and those judgments may continue to be enforced for the time provided by the law in effect immediately before the effective date of this 2003 Act, subject to any requirement for renewal of those judgments.

 

          SECTION 22. Child support awards entered before January 1, 1994. (1) The judgment lien of the child support award portion of a judgment entered before January 1, 1994, and any installment arrearage lien that arose under the judgment lien, expires 10 years after the entry of the judgment that established the support obligation unless the judgment was renewed in the manner provided by the statutes in effect immediately before the effective date of this 2003 Act within 10 years after the judgment was entered.

          (2) Section 18 (5) of this 2003 Act does not operate to revive the judgment lien of any judgment that expired before the effective date of this 2003 Act.

          (3) This section and section 18 (5) of this 2003 Act do not limit the time during which judgment remedies are available for any judgment entered before January 1, 1994, and those judgments may continue to be enforced for the time provided by the law in effect immediately before the effective date of this 2003 Act, subject to any requirement for renewal of those judgments.

 

RELEASE OF LIEN

 

          SECTION 23. Release of lien. (1) A judgment creditor may provide a release of lien document to a judgment debtor or to any other person with an interest in real property to which a judgment lien has attached. The release of lien document may be for all real property in a county or for a single piece of real property in a county. A release of lien document may be signed by the judgment creditor, or by any attorney who represents the creditor. The signature of the judgment creditor or attorney signing a release of lien document must be witnessed by a notary public.

          (2) A release of lien document may be filed with the court administrator at any time after a judgment lien attaches under section 14 of this 2003 Act. The court administrator shall note in the register and in the separate record maintained under section 9 of this 2003 Act that the release of lien document has been filed, and also shall note whether the release is for all real property in a county or only for a single piece of real property in a county.

          (3) A release of lien document may be recorded in any County Clerk Lien Record in which the judgment was recorded under section 15 of this 2003 Act.

          (4) Upon filing or recording under this section, a release of lien document operates to eliminate any judgment lien arising from the entry or recording of the judgment to the extent reflected in the document. The filing of a release of lien document does not constitute a full or partial satisfaction of the judgment.

          (5) The court administrator may not charge a fee for filing a release of lien document.

          (6) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

ASSIGNMENT OF JUDGMENT

 

          SECTION 24. Assignment of judgment. (1) A judgment creditor may assign all or part of the creditor’s rights under a judgment. An assignment of judgment document must be signed by the judgment creditor, or by an attorney who represents the judgment creditor. The signature of the judgment creditor or attorney signing the document must be acknowledged by a notary public. The document may be:

          (a) Filed with the court administrator for the court in which the judgment was entered, and upon such filing shall be entered in the register and in the separate record maintained under section 9 of this 2003 Act; or

          (b) Recorded in any County Clerk Lien Record in which the judgment was recorded under section 15 of this 2003 Act.

          (2) Upon filing or recording under this section, an assignment of judgment document operates to assign the judgment creditor’s rights under the judgment to the extent reflected in the document.

          (3) If this or another state is assigned or subrogated to the support rights of a person under ORS 418.032, 418.042, 419B.406 or 419C.597 or similar statutes of another state, an assignment of judgment document bearing the signature of the Administrator of the Division of Child Support of the Department of Justice or the authorized representative of the administrator may be filed or recorded in the same manner as an assignment of judgment document under subsection (1) of this section and shall have the same effect as an assignment of judgment document signed by the judgment creditor.

          (4) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

SATISFACTION OF MONEY AWARDS

 

          SECTION 25. Satisfaction of money awards generally. (1) A satisfaction document may be for full or partial satisfaction of a money award. The title of the document must indicate whether the money award has been partially or fully satisfied. A satisfaction document must be signed by the judgment creditor or by an attorney who represents the judgment creditor. The signature of the judgment creditor or attorney signing a satisfaction document must be witnessed by a notary public.

          (2) When the money award portion of a judgment has been fully satisfied, the judgment creditor must:

          (a) File a satisfaction document for the full amount of the money award portion of the judgment in the county in which the judgment was entered; and

          (b) Deliver to the judgment debtor a satisfaction document for the full amount of the money award portion of the judgment for every county in which the judgment has been recorded under section 15 of this 2003 Act.

          (3) Upon request by a judgment debtor or any person with an interest in real property subject to a judgment lien, a judgment creditor must provide to the judgment debtor a satisfaction document for all amounts credited against a money award as of the date that the satisfaction document is signed.

          (4) A satisfaction document may be filed with the court administrator at any time after entry of a judgment. The court administrator may not charge a fee for filing a satisfaction document. The court administrator shall note in the register and in the separate record maintained under section 9 of this 2003 Act that the satisfaction document has been filed, and shall note if the document indicates that the money award has been fully satisfied.

          (5) Upon payment of all required fees, the court administrator shall issue a certified copy of any satisfaction document filed with the court administrator and entered in the court register. The certified copy may be recorded in any County Clerk Lien Record in which the judgment was recorded under section 15 of this 2003 Act.

          (6) A satisfaction document for a support award that is paid to the Department of Justice may be filed with the court administrator only as provided in section 26 of this 2003 Act.

          (7) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

          SECTION 26. Satisfaction of support awards payable to Department of Justice. (1) If a support award is paid to the Department of Justice, the judgment creditor may receive credit for satisfaction of the judgment only in the manner provided by this section. The department may provide judgment creditors with forms and instructions for satisfaction of support awards under this section.

          (2) Any satisfaction document for a support award described in subsection (1) of this section must be mailed to or delivered to the Department of Justice, and not to the court administrator. The department shall credit the amounts reflected in the satisfaction document to the support award pay records maintained by the department. Except as provided in subsection (3) of this section, the department shall not credit amounts against the support award pay records to the extent that the judgment is assigned or subrogated to this or another state. The Department of Justice shall thereafter promptly forward the satisfaction document to the court administrator for the court in which the money award was entered, together with a certificate from the department stating the amounts reflected as paid in the support award pay records maintained by the department. The court administrator shall note in the register as paid only the amount stated in the certificate, and not the amount shown on the satisfaction document.

          (3) If a support award has been assigned to this state, the Department of Justice may satisfy the support award to the extent of the assignment. The department may credit the amounts reflected in the satisfaction document to the support award pay records maintained by the department and file the satisfaction document with the court administrator for the court in which the money award was entered, together with a certificate from the department stating the amounts reflected as paid in the support award pay records. The court administrator shall note in the register and in the separate record maintained under section 9 of this 2003 Act the amount of satisfaction shown on the certificate, and not the amount shown on the satisfaction document.

          (4) Unless a judgment requires that payments under a support award be paid to the Department of Justice or enforcement services are provided pursuant to ORS 25.080, all satisfaction documents for a support award must be filed with the court administrator.

 

          SECTION 27. Alternate method for satisfaction of support awards payable to Department of Justice. (1) In addition to or in lieu of the certificate and satisfaction document provided for in section 26 of this 2003 Act, the Department of Justice may execute and file a satisfaction document for a support award requiring payment to the department if:

          (a) The judgment debtor provides a sworn affidavit indicating that the money award has been paid in full;

          (b) The department certifies that the department has a complete pay record for the payments under the support award; and

          (c) The department certifies that there are no arrearages.

          (2) The Department of Justice shall be considered to have a complete pay record for the purposes of subsection (1) of this section if the department has kept the pay record for the support award from the date that the first payment was to be made under the support award, or if the judgment creditor or an entity providing enforcement services under ORS 25.080 establishes arrearages for the time period the pay record was not kept by the department.

          (3) The signature of a person signing a satisfaction document filed under this section need not be acknowledged by a notary public.

          (4) If a satisfaction document under this section is for any payment made to the Department of Justice for amounts that have not been assigned by the judgment creditor to the state, the department shall give notice to the judgment creditor in the manner provided by ORS 25.085. The notice must inform the judgment creditor that the department will execute and file the satisfaction of judgment unless the department receives a request for a hearing within 30 days after the date the notice was mailed. If a judgment creditor requests a hearing, the Department of Justice shall conduct the hearing as a contested case under ORS 183.310 to 183.550 before a hearing officer appointed by the department.

 

          SECTION 28. Motion to satisfy money award. (1) A judgment debtor or person with an interest in real property against which a judgment lien exists may move the court for an order declaring that a money award has been satisfied or for a determination of the amount necessary to satisfy the money award, when the person cannot otherwise obtain a satisfaction document from a judgment creditor.

          (2) Motions under this section shall be filed in the action in which the judgment was entered. All proceedings on the motion shall be conducted as part of the action in which the judgment was entered. An appearance fee may not be charged for filing a motion under this section.

          (3) A motion under this section must include the following information, to the extent known to the person making the motion:

          (a) The date of entry and principal amount of the money award.

          (b) The rate of interest and the date the interest commenced to accrue.

          (c) The date or dates and amounts of any payments on the money award.

          (d) Any amount that the person believes remains to be paid on the money award, including any supporting mathematical calculations.

          (e) Any other information necessary or helpful to the court in making its determination.

          (4) A person making a motion under this section must serve the motion on the judgment creditor. If the person making the motion is not the judgment debtor, the person also must serve the motion and supporting affidavit on the judgment debtor. If an assignment of judgment document has been filed with the court under section 24 of this 2003 Act, the motion must be served on the person named as the assignee of the judgment. Service on the judgment creditor and judgment debtor under this subsection may be made as provided in ORCP 9 if the motion is filed within one year after entry of the judgment. If the motion is filed more than one year after entry of the judgment, or service is to be made on an assignee of the judgment, the motion may either be personally served as provided in ORCP 7, or be served by certified mail, return receipt requested with signed receipt. The court may waive service on any person under this subsection if the person making the motion files an affidavit with the court stating that the person cannot be found after diligent effort by the person making the motion. The party making the motion shall file proof of service with the court.

          (5) A person served with a motion under this section must file a response within 21 days after service is made, or within such time as may be allowed by the court. The response must specifically identify those assertions in the motion that the person contests. The response must contain any information or mathematical calculations necessary to support the contentions of the responding party.

          (6) The court shall hear the motion not less than seven days after notice of hearing is given to the person filing the motion and to the parties served with the motion. The court shall hear and determine the issues in a summary fashion without a jury. The court shall give the parties a reasonable opportunity to present evidence relevant to any factual issues.

          (7) If the court determines that the person making the motion is entitled to relief, the court shall issue an order providing that the money award has been satisfied in full or, if the money award has not been satisfied in full, the specific amount that will satisfy the judgment on a specific date or within a period of time specified in the order.

          (8) If the court finds that the judgment creditor willfully failed to provide a satisfaction document under section 25 of this 2003 Act, the court may render a supplemental judgment awarding reasonable attorney fees to the person making the motion. The supplemental judgment may provide that the demanding party may satisfy the judgment by paying such amounts the court determines to be necessary to satisfy the judgment less that sum of money the court awards as attorney fees.

          (9) If the court finds that the money award has been satisfied, or if the amount specified by the court is paid to the court administrator within the time specified by the court, the court administrator shall note in the register and in the separate record maintained under section 9 of this 2003 Act that the money award has been satisfied in full. The court administrator shall deliver any money paid to the court administrator to the party or parties specified in the court’s order.

          (10) Upon request of the judgment debtor or person making the motion, the court administrator shall issue a certificate indicating that the money award has been satisfied. The certificate may be recorded in any County Clerk Lien Record in which the judgment was recorded under section 15 of this 2003 Act. Recording of the certificate eliminates any judgment lien that was created by the recording of the judgment.

          (11) At least five days before filing a motion under this section, the person must serve by personal delivery or first class mail a copy of the motion on the Administrator of the Division of Child Support of the Department of Justice, or on the branch office of the Department of Justice providing support services to the county in which the motion will be made, if:

          (a) The motion relates to satisfaction of a support award; and

          (b) Child support rights, as defined in ORS 25.010, for the judgment creditor have been assigned to the state.

          (12) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

ENFORCEMENT OF JUDGMENTS

(Generally)

 

          SECTION 29. Execution. (1) Except as provided in this section, and subject to the terms of the judgment, a judgment may be enforced by execution upon entry of the judgment. The ability to enforce a judgment by execution expires as provided in sections 18 to 22 of this 2003 Act.

          (2) Any portion of a money award that by the terms of the judgment is to be paid on some date after the date that the judgment is entered may be enforced by execution when payment becomes due under the terms of the money award and is not paid.

          (3) Except as provided in section 30 of this 2003 Act or by other law, a judgment may be enforced only by the court in which the judgment is entered or, if the judgment is a foreign judgment, the court in which the judgment is first filed under ORS 24.115 or 110.405.

          (4) Nothing in sections 29 to 44 of this 2003 Act affects the ability of a judgment creditor to enforce a judgment by means other than execution.

 

          SECTION 30. Enforcement of judgment by circuit court for county where debtor resides. (1) The circuit court for the county where a judgment debtor resides may enforce a circuit court judgment entered in another circuit court if a transcript of the original judgment is filed with the court. The circuit court for the county where a judgment debtor resides may issue a writ of execution against real property under the provisions of this section only if a certified copy of the original judgment, or a lien record abstract in the form provided by ORS 18.325, is recorded in the County Clerk Lien Record for that county, in addition to the filing of a transcript of the original judgment with the circuit court for that county. In no event shall the court administrator be liable for issuing a writ of execution, writ of garnishment or other execution for a judgment transcribed pursuant to this section.

          (2) A judgment creditor who files a transcript of a judgment under subsection (1) of this section must give written notice of the filing to the circuit court in which the judgment was originally entered.

          (3) At the time a transcript of a judgment is filed under this section, the judgment creditor or the attorney for the judgment creditor must make and file with the court administrator a statement containing the information required for a money award under section 5 (2) of this 2003 Act and an affidavit setting forth:

          (a) The name and last-known address of the judgment creditor;

          (b) The name and last-known address of the judgment debtor;

          (c) A statement that the judgment creditor has a good faith belief that the judgment debtor resides in the county in which the transcript of the judgment is filed;

          (d) A statement that the judgment has not been satisfied and that execution on the judgment has not been stayed; and

          (e) A statement that written notice of the filing has been given to the circuit court in which the judgment was originally entered.

          (4) The circuit court in which a transcript of a judgment is filed under this section is the only court with authority to issue a writ of execution, writ of garnishment or other execution on the transcribed judgment until the judgment creditor files an affidavit with the circuit court certifying that the judgment debtor no longer resides in that county. A copy of the affidavit must be filed by the judgment creditor in the court in which the judgment was originally entered. After the filing of an affidavit under this subsection, only the circuit court in which the judgment was originally entered may issue a writ of execution, writ of garnishment or other execution on the judgment.

          (5) When a transcribed judgment is filed with a circuit court under this section, the court administrator shall enter the transcribed judgment in the register but shall not note in the register that the judgment creates a judgment lien. The files and records of the court in which the judgment was originally entered remain the official record of the proceeding, and files and records maintained by a court in which a transcribed judgment has been filed are auxiliary to the files and records of the court in which the judgment was originally entered. Satisfaction documents under section 25 of this 2003 Act and certificates of extension under sections 18 to 22 of this 2003 Act may be filed only in the court in which the judgment was originally entered.

          (6) This section does not apply to justice courts, municipal courts or county courts performing judicial functions.

 

(Proceedings in support of execution)

 

          SECTION 31. Debtor examination. (1) At any time after a judgment is entered, a judgment creditor may upon motion obtain an order requiring the judgment debtor to appear before the court or a referee appointed by the court at the time and place specified in the order, and requiring the judgment debtor to answer under oath questions concerning any property or interest in property that the judgment debtor may have or claim. The motion must be supported by one of the following:

          (a) Proof of service of a notice of demand to pay the judgment within 10 days. The notice of demand must be served in the same manner as a summons or by any form of mail addressed to the judgment debtor and requesting a receipt. Service by mail under this paragraph is effective on the date of mailing.

          (b) A return of a writ of execution showing that the judgment has not been satisfied.

          (c) A garnishee response to a writ of garnishment that does not fully satisfy the judgment.

          (2) Only the following courts may issue an order under this section:

          (a) The court in which the original judgment was entered.

          (b) Any circuit court for the county in which the judgment debtor resides and in which the judgment has been recorded under section 15 of this 2003 Act.

          (c) Any circuit court for the county in which the principal place of employment of the judgment debtor is located and in which the judgment has been recorded under section 15 of this 2003 Act.

          (3) If a motion under this section is filed in the court specified by subsection (2)(b) or (c) of this section, a certified copy of the judgment or a certified copy of the recording made in the County Clerk Lien Record of the county must be filed with the motion unless a transcript of the judgment has been filed with the court under section 30 of this 2003 Act.

          (4) Except as provided in this section, a judgment debtor may not be required to attend in a county other than the county in which the judgment debtor resides or may be found at the time of service of the order requiring the appearance, unless the place where the judgment debtor is to appear is not more than 100 miles from the residence of the judgment debtor.

          (5) If the judgment debtor resides more than 100 miles from the place of examination, the judgment debtor shall be required to appear and shall be paid mileage at the time of the hearing as provided for witnesses in ORS 44.415.

          (6) Upon motion and good cause shown, the court may order that proceedings under this section be conducted at a time or place other than the time or place specified in the original order.

          (7) The court may at any time enter an order restraining the judgment debtor from selling, transferring or in any manner disposing of any property of the judgment debtor that is subject to execution pending an examination under this section.

 

          SECTION 32. Conduct of debtor examination. (1) A judgment debtor may be examined on oath concerning the judgment debtor’s property in a debtor’s examination. Upon request by the judgment creditor, the proceedings shall be reduced to writing and filed with the court administrator. The judgment creditor and judgment debtor may subpoena and examine witnesses.

          (2) If it appears that the judgment debtor has any property that may be applied against the judgment, the court may order that the property be seized for application against the judgment.

 

          SECTION 33. Written interrogatories. (1) At any time after a judgment is entered, a judgment creditor may serve written interrogatories relating to the judgment debtor’s property and financial affairs on a judgment debtor. The interrogatories may be personally served in the manner provided for summons or may be served by any form of mail addressed to the judgment debtor and requesting a receipt. Service by mail under this paragraph is effective on the date of mailing. The interrogatories shall notify the judgment debtor that the judgment debtor’s failure to answer the interrogatories truthfully shall subject the judgment debtor to the penalties for false swearing as provided in ORS 162.075 and for contempt of court as provided in ORS 33.015 to 33.155.

          (2) Within 20 days after receipt of the interrogatories, the judgment debtor must answer all questions under oath and return the original interrogatories to the judgment creditor.

          (3) Failure of the judgment debtor to comply with the provisions of this section is contempt of court, and the judgment creditor may commence proceedings under the provisions of ORS 33.015 to 33.155.

 

(Writs of execution)

 

          SECTION 34. Writs of execution generally. (1) Except as otherwise provided by law, upon request of a judgment creditor or other prevailing party under a judgment, the court shall issue a writ of execution for any judgment that includes a money award or that requires the delivery of specific real or personal property. Except as provided by sections 30 and 36 of this 2003 Act, writs of execution may be issued only by the court administrator for the court in which the judgment was entered. A writ of execution may be issued:

          (a) For application of real property of the judgment debtor against a money award.

          (b) For application of personal property of the judgment debtor against a money award, other than personal property that is in the possession of other persons.

          (c) For the delivery of the possession of specific real or personal property pursuant to the terms of the judgment.

          (2) If a writ of execution is issued for application of real or personal property of a judgment debtor against a money award, the writ may be issued to the sheriff of any county in this state where property of the judgment debtor is located. If the writ of execution is issued for the delivery of the possession of specific real or personal property, the writ must be issued to the sheriff of the county where all or part of the property is situated. More than one writ of execution may be issued at the same time to different counties.

 

          SECTION 35. Issuance of writs of execution by court; contents. (1) The court administrator shall issue writs of execution. The writ must be directed to the sheriff and must contain the name of the court, the names of the parties to the action, and the title of the action. The writ must describe the judgment and, if the writ of execution is issued for application of property of the judgment debtor against a money award, the writ must state the amount due on the money award when the writ is issued.

          (2) If the judgment requires that specific real or personal property of the judgment debtor be sold, the writ must particularly describe the property and direct the sheriff to sell the specified property and apply the proceeds as directed by the judgment.

          (3) If the judgment requires the delivery of the possession of real or personal property, the writ must direct the sheriff to deliver the possession of the property. The writ must particularly describe the property and specify the party to whom the property is to be delivered.

          (4) If the judgment does not require that specific real or personal property of the judgment debtor be sold or delivered, the writ may direct the sheriff to sell the real or personal property specified by the judgment creditor in instructions given to the sheriff. The judgment creditor must provide the sheriff with instructions that particularly describe the personal property to be seized and indicate where the property may be found. The judgment creditor must provide the sheriff with instructions that particularly describe any real property to be sold.

          (5) Upon issuance of a writ of execution to the sheriff of any county, the judgment creditor must record a certified copy of the writ or a lien record abstract of the writ in the County Clerk Lien Record for the county if the writ of execution or the accompanying instructions to the sheriff require the sale of real property. The recorded documents must contain a legal description of the real property. The recording of the writ or lien record abstract in any county in which a judgment lien does not exist under section 14 or 15 of this 2003 Act, or in a county in which a notice of pendency under ORS 93.740 has not been previously recorded, has the same effect as recording a notice of pendency under ORS 93.740.

          (6) A single writ of execution may be issued for the purposes specified in subsections (2), (3) and (4) of this section.

          (7) When issuing a writ of execution, the court administrator may rely on the information provided by the person seeking issuance of the writ and is not liable for any errors or omissions in that information.

 

          SECTION 36. Issuance of writs of execution for certain judgments awarding child support. (1) If support enforcement services are being provided under ORS 25.080, the administrator as defined in ORS 25.010 may issue a writ of execution for the support award portion of the judgment for which support enforcement services are being provided. A copy of the writ of execution must be filed with the circuit court of the county in which the judgment was entered or recorded. A writ of execution issued under this section must be executed by the sheriff in the same manner as a writ issued by the court administrator under section 35 of this 2003 Act.

          (2) The Department of Justice shall adopt an appropriate form for writs of execution under this section. The form must be substantially as set forth for writs of execution issued under section 35 of this 2003 Act.

 

          SECTION 37. Sheriff’s duties. (1) A sheriff shall comply with the directions to the sheriff in a writ of execution. If the writ directs the sale or delivery of personal property, the sheriff shall promptly seize the property. If the writ directs the sale of real property or a mobile home, the sheriff shall give notice of an execution sale under ORS 23.450.

          (2) If personal property of the judgment debtor was attached under ORCP 84, the sheriff shall apply the attached property against the judgment in the manner provided by ORCP 84 E, and make a return on the writ with any money that was attached and the proceeds of any other property that was sold.

          (3) When property has been sold by the sheriff at an execution sale, the sheriff shall pay the proceeds of the sale to the court administrator. The proceeds must be paid by the date on which the writ must be returned. If any property remains in the custody of the sheriff after satisfaction of the money award, the sheriff shall release the property to the judgment debtor.

 

          SECTION 38. Return on writ of execution. Upon receipt of a writ of execution, the sheriff shall indorse upon the writ of execution the time when the sheriff received the writ. The sheriff shall make a return on the writ of execution to the court administrator within 60 days after the sheriff receives the writ. The person that requested issuance of the writ may authorize the sheriff to continue execution under the writ and delay making a return on the writ for an additional period of time not to exceed 90 days.

 

          SECTION 39. Notice to judgment debtor. (1) Upon seizing any personal property of a judgment debtor under section 37 of this 2003 Act, or upon giving notice of an execution sale of any real property or mobile home under ORS 23.450, 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 judgment debtor:

          (a) A copy of the writ of execution; and

          (b) A challenge to execution form as provided by section 42 of this 2003 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 has 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.

 

CHALLENGES TO WRITS OF EXECUTION

 

          SECTION 40. Challenge to writ of execution. (1) Except as provided in subsection (2) of this section, a judgment debtor may use a challenge to execution form only to claim such exemptions under a writ of execution as are permitted by law.

          (2) A judgment debtor may not use a challenge to execution form to challenge execution on residential real property or a mobile home of the debtor if the judgment creditor has obtained an order under ORS 23.445 authorizing the sale or if the judgment directs the sale or delivery of specific property.

          (3) Any person other than a judgment debtor who has an interest in any personal property seized by a sheriff under section 37 of this 2003 Act, or in any real property or a mobile home for which a notice of an execution sale has been given under ORS 23.450, may assert that interest by delivering a challenge to execution in the manner provided by subsection (4) of this section.

          (4) A person may make a challenge to a execution by completing the challenge to execution form provided in section 42 of this 2003 Act, or a substantially similar form, and by delivering, in person or by first class mail, the original of the completed form to the court administrator for the court identified in the writ of execution and a copy of the challenge to the person who requested issuance of the writ.

          (5) A challenge to execution against personal property must be delivered in the manner provided by subsection (4) of this section within 30 days after the property is seized under section 37 of this 2003 Act, or before the property is sold on execution, whichever is first.

          (6) A judgment debtor must deliver a challenge to execution against real property or a mobile home in the manner provided in subsection (4) of this section within 30 days after mailing of the notice required by ORS 23.450, or before the property is sold on execution, whichever is first.

 

          SECTION 41. Notice of challenge to execution. Without unreasonable delay, a court administrator who has received a challenge to execution under section 40 of this 2003 Act shall provide written notice of the challenge to all sheriffs for counties to which writs of execution have been issued and no return made, and to the person that requested issuance of the writ. The notice may include the notice of hearing required by section 43 of this 2003 Act.

 

          SECTION 42. Challenge to execution form. (1) The challenge to execution form described in this section does not expand or restrict the law relating to exempt property. A determination as to whether property is exempt from attachment or execution 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.

          (2) A challenge to execution form must be in substantially the following form:

____________________________________________________________________________

 

_____COURT

COUNTY OF _____

 

_________                          )   CHALLENGE TO

Plaintiff,                              )   EXECUTION

                                            )

                          vs.              )   Case No. ___

                                            )

_________                          )

Defendant.                          )

 

          THIS FORM MAY BE USED BY THE DEBTOR ONLY TO CLAIM SUCH EXEMPTIONS FROM EXECUTION AS ARE PERMITTED BY LAW.

 

          THIS FORM MAY BE USED BY PERSONS OTHER THAN THE DEBTOR ONLY TO CLAIM AN INTEREST IN THE PROPERTY THAT IS TO BE SOLD ON EXECUTION.

 

          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:

______________________________________________________________________________

 

______________________________________________________________________________

 

          I/We believe this property is exempt from execution because (the Notice of Exempt Property at the end of this form describes most types of property that you can claim as exempt from execution):

______________________________________________________________________________

 

______________________________________________________________________________

 

          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)

 

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 Execution form that you received with this notice.

          (2) Mail or deliver the Challenge to Execution form to the court administrator at the address shown on the writ of execution.

          You should be prepared to explain your exemption in court. If you have any questions about the execution or the debt, you should see an attorney.

 

          YOU MAY USE THE CHALLENGE TO EXECUTION FORM ONLY TO CLAIM SUCH EXEMPTIONS FROM EXECUTION AS ARE PERMITTED BY LAW.

 

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

 

          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 44 of this 2003 Act.

 

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 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.

          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.

______________________________________________________________________________

 

          SECTION 43. Hearing on challenge to execution. (1) A challenge to execution shall be adjudicated in a summary manner at a hearing before the court with authority over the writ of execution. Upon receipt of a challenge to execution, the court administrator shall immediately set a hearing date and send notice of the hearing to the judgment debtor and the judgment creditor. The hearing shall be held as soon as possible. The sheriff may not sell any property that is described in the challenge to execution until the court has issued a decision on the challenge, and the time for making a return on the writ is suspended until the decision is made or the sale completed, whichever is later. The sheriff shall not delay sale if the judgment debtor has filed the challenge to execution in violation of section 40 (2) of this 2003 Act.

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

          (3) The judgment debtor has the burden to prove timely delivery of a challenge to execution under section 40 of this 2003 Act.

 

          SECTION 44. Sanctions. A court may impose sanctions against any person who files a challenge to execution in bad faith. The sanctions a court may impose under this section are a penalty of not more than $100 and responsibility for attorney fees under ORS 20.105.

 

          SECTION 45. Applicability. (1) Except as provided by this section or by sections 1 to 44 of this 2003 Act, sections 1 to 44 of this 2003 Act apply only to judgments entered on or after the effective date of this 2003 Act. Nothing in this 2003 Act affects the validity, lien effect or enforceability of any judgment or decree entered before the effective date of this 2003 Act. Nothing in this 2003 Act affects the validity, lien effect or enforceability of any order or warrant docketed or recorded before the effective date of this 2003 Act. Except as provided by this section or sections 1 to 44 of this 2003 Act, any judgment or decree entered before the effective date of this 2003 Act, and any order or warrant docketed or recorded before the effective date of this 2003 Act, shall continue to be governed by the law in effect on the day immediately preceding the effective date of this 2003 Act.

          (2) Section 12 of this 2003 Act applies to any corrected judgment entered on or after the effective date of this 2003 Act, without regard to whether the original judgment is entered before, on or after the effective date of this 2003 Act.

          (3) A judgment creditor may create a judgment lien for a judgment in a county other than the county in which a judgment is entered in the manner provided by section 15 of this 2003 Act without regard to whether the judgment is entered before, on or after the effective date of this 2003 Act.

          (4) Section 17 of this 2003 Act applies to all judgments, whether entered before, on or after the effective date of this 2003 Act.

          (5) Except as provided in sections 21 and 22 of this 2003 Act, sections 18 and 19 of this 2003 Act apply to all judgments, whether entered before, on or after the effective date of this 2003 Act. Notwithstanding section 19 of this 2003 Act, any order of renewal entered before the effective date of this 2003 Act may be recorded in the manner provided by section 19 (6) of this 2003 Act with the effect provided by section 15 (4) of this 2003 Act.

          (6) Section 23 of this 2003 Act applies to the release of any judgment lien after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (7) Section 24 of this 2003 Act applies to the assignment of any judgment after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (8) Section 25 of this 2003 Act applies to any satisfaction of judgment filed with a court on or after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (9) Sections 26 and 27 of this 2003 Act apply to all judgments, whether entered before, on or after the effective date of this 2003 Act.

          (10) Section 28 of this 2003 Act applies to any motion for an order declaring that a money award has been satisfied, or to determine the amount necessary to satisfy a money award, filed with a court on or after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (11) Sections 29 and 30 of this 2003 Act apply to execution on any judgment, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (12) Sections 31 and 32 of this 2003 Act apply to any motion for a debtor examination made on or after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (13) Section 33 of this 2003 Act applies to any written interrogatories served on or after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

          (14) Sections 34 to 44 of this 2003 Act apply to any writ of execution issued on or after the effective date of this 2003 Act, without regard to whether the judgment was entered before, on or after the effective date of this 2003 Act.

 

          SECTION 45a. ORS 18.370 is amended to read:

          18.370. A conveyance of real property, or any portion thereof, or interest therein, shall be void as against the lien of a judgment, unless [such] the conveyance [be] is recorded at the time [of docketing such] the judgment [or the recording of a certified copy of the judgment or a lien record abstract as the case may be] is entered, or at the time the judgment is recorded under section 15 of this 2003 Act.

 

WRITS OF GARNISHMENT

 

          SECTION 46. ORS 18.600, 18.602, 18.605, 18.607, 18.609, 18.610, 18.615, 18.618, 18.620, 18.625, 18.627, 18.635, 18.638, 18.640, 18.645, 18.650, 18.652, 18.655, 18.658, 18.665, 18.668, 18.670, 18.672, 18.680, 18.682, 18.685, 18.688, 18.690, 18.692, 18.700, 18.702, 18.705, 18.708, 18.710, 18.712, 18.715, 18.718, 18.725, 18.730, 18.732, 18.735, 18.738, 18.740, 18.742, 18.745, 18.750, 18.752, 18.755, 18.758, 18.760, 18.770, 18.775, 18.778, 18.780, 18.782, 18.790, 18.792, 18.795, 18.798, 18.800, 18.810, 18.830, 18.832, 18.835, 18.838, 18.840, 18.842, 18.845 and 18.850 are added to and made a part of sections 29 to 44 of this 2003 Act.

 

          SECTION 47. 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 administrator 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 administrator.

          (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.

          (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 48. 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.

          (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 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, 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 administrator, 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 administrator, the person issuing the writ must sign the certification described in subsection (3) of this section.

 

          SECTION 49. ORS 18.609 is amended to read:

          18.609. (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 ORS 18.625.

          (2) If the [clerk of the] court administrator is issuing a writ of garnishment, the date of issuance for the writ is the date the [clerk] court administrator 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 ORS 18.607 (4).

 

          SECTION 50. ORS 18.635 is amended to read:

          18.635. (1) A writ of garnishment may be issued only by a person specified in this section.

          (2) The [clerk of a] court administrator may issue a writ pursuant to ORS 18.638 and 18.640 only:

          (a) For the enforcement of a judgment that requires the payment of money and that has been entered in the register of [the] a circuit court or docketed in the docket of [the] a justice or municipal 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 circuit court of this state or docketed in the docket of a justice or municipal 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 ORS 18.645.

 

          SECTION 51. ORS 18.638 is amended to read:

          18.638. (1) Unless there are grounds for denying issuance of a writ of garnishment under ORS 18.640, the [clerk of the] court administrator shall issue writs of garnishment upon proper application and payment of all required fees. A writ of garnishment issued by the [clerk] court administrator 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 administrator may not fill in or complete a writ of garnishment on behalf of a creditor.

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

 

          SECTION 52. ORS 18.640 is amended to read:

          18.640. (1) The [clerk of the] court administrator shall refuse to issue a writ of garnishment that is not substantially in the form required by ORS 18.830.

          (2) The [clerk of the] court administrator 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 of the court administrator 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] court administrator, 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 administrator 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.

 

          SECTION 53. 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 administrator.

          (4) Notwithstanding ORS 18.730, 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 ORS 18.600 to 18.850 to reflect the provisions of this section.

 

          SECTION 53a. If House Bill 2114 becomes law, section 53 of this 2003 Act (amending ORS 18.645) is repealed and ORS 18.645, as amended by section 1, chapter 373, Oregon Laws 2003 (Enrolled House Bill 2114), 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) A single writ of garnishment may be issued under this section for two or more judgments for past due support owed by the same judgment debtor. A separate debt calculation form for each of the judgments must be prepared as provided by ORS 18.832. The writ must reflect the captions of all cases for which the writ is issued. The writ also must reflect, as the amount subject to garnishment under the writ, the sum of the amounts due under all of the judgments subject to the writ. Notwithstanding ORS 18.700 (2), the debtor may file a challenge to a writ issued under this subsection with the [clerk of] court administrator for any court in which one of the judgments subject to the writ was entered. Upon receipt of a notice of a challenge to a garnishment under this subsection, the issuer of the writ shall file with the [clerk of the] court administrator a response to the challenge, attaching copies of the writ and garnishee response, copies of all judgments for which the writ is issued and the debt calculation forms for those judgments, and any supporting documentation necessary or helpful to the court in making a determination on the challenge. The Department of Justice shall adopt rules governing the distribution to judgment creditors of amounts received by the administrator under a writ issued under this subsection.

          (4) 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 administrator.

          (5) Notwithstanding ORS 18.730, 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.

          (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 54. ORS 18.668 is amended to read:

          18.668. (1) Notwithstanding any provision of ORS 18.600 to 18.850, a garnishee may pay to the garnishor or to the [clerk of the] court administrator any money that the garnishee reasonably believes may have been garnished and may deliver to the sheriff in the manner provided by ORS 18.600 to 18.850 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 administrator under subsection (1) of this section, or delivers garnished property to the sheriff in the manner provided by ORS 18.600 to 18.850, 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 administrator shall provide the garnishee with a receipt for any property delivered to the sheriff or payment made to the [clerk] court administrator.

 

          SECTION 55. ORS 18.672 is amended to read:

          18.672. 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 ORS 18.600 to 18.850, 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 administrator for 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] judgment 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 ORS 18.600 to 18.850.

 

          SECTION 56. 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 administrator for 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 administrator 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 57. 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:]

          (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, in person or by first class mail, the original of the completed form to the court administrator for the court specified in the writ of garnishment as the court with authority over the writ and a copy of the completed form to the garnishor. 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 administrator shall retain all payments sent to the [clerk] court administrator under ORS 18.705 and 18.708 until such time as the court enters a decision on the challenge. The [clerk] court administrator shall reject any payment that is received after the challenge is made and that is not payable to the court, and the court administrator 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 58. ORS 18.702 is amended to read:

          18.702. (1) Without unreasonable delay, a [clerk of the] court administrator who has received a challenge to a garnishment under ORS 18.700 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 ORS 18.705 and 18.708. The notice may include the notice of hearing under ORS 18.710.

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

          (a) The garnishor.

          (b) The garnishee, unless the [clerk] court administrator 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] court administrator under ORS 18.755 (5).

 

          SECTION 59. ORS 18.705, as amended by section 2, chapter 304, Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:

          18.705. (1) Except as provided in subsection (2) of this section, upon receiving notice of a challenge to a garnishment under ORS 18.702, 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 ORS 18.710, the [clerk of the] court administrator 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 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 to the [clerk of the] court administrator for the court specified in the writ of garnishment as having authority over the writ. The garnishor must note upon the request for sale that a challenge to the garnishment has been made by the debtor.

 

          SECTION 60. ORS 18.708 is amended to read:

          18.708. (1) Upon receiving notice of a challenge to a garnishment under ORS 18.702, 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 administrator. 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 ORS 18.775 to 18.782.

          (2) Upon receiving notice of a challenge under ORS 18.702, a garnishee who holds any property described in ORS 18.750 must hold the garnished property for the period specified in ORS 18.752 (1). If the sheriff informs the garnishee before the end of the period specified in ORS 18.752 (1) 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 61. 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 administrator 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 62. ORS 18.712 is amended to read:

          18.712. (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 administrator shall mail to the debtor from any payments made to the [clerk] court administrator 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 ORS 18.750 and a request for sale of the property has been made by the garnishor under ORS 18.755, the [clerk] court administrator 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 63. ORS 18.718 is amended to read:

          18.718. (1) Notwithstanding ORS 18.700 (2), 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 administrator for 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 administrator copies of the writ of garnishment, the debt calculation form and the garnishee response delivered to the debtor under ORS 18.658.

          (2) When a challenge to a garnishment is filed under this section, the [clerk of the] court administrator shall enter the filing in the court register and the court shall decide the challenge in the manner provided by ORS 18.710.

          (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 administrator 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.

 

          SECTION 64. ORS 18.725 is amended to read:

          18.725. 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 administrator for the court specified in the writ of garnishment an application in substantially the form set forth in ORS 18.850 for a challenge to a garnishment. The provisions of ORS 18.700 to 18.715 apply to an application made under this section.

 

          SECTION 65. 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 administrator 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 administrator in the manner provided by ORS 18.708.

 

          SECTION 66. ORS 18.738 is amended to read:

          18.738. (1) The [clerk of the] court administrator is not liable for accepting any amount of payment under a writ of garnishment, including any payment that is sent to the [clerk] court administrator in error or any payment that exceeds the amount required to satisfy the garnishment.

          (2) The [clerk of the] court administrator 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 ORS 18.690 or has provided a statement to the [clerk] court administrator 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 67. ORS 18.740 is amended to read:

          18.740. (1) If a garnishee erroneously sends a payment to the court that should have been sent to the garnishor, the [clerk of the] court administrator 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] court administrator 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 administrator is not liable for interest on money erroneously sent to the court if the [clerk] court administrator transmits the money to the garnishor in a timely manner.

 

          SECTION 68. ORS 18.742 is amended to read:

          18.742. (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 administrator 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] court administrator holds money pending a decision on a challenge to the garnishment.

 

          SECTION 69. ORS 18.755, as amended by section 4, chapter 304, Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:

          18.755. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in ORS 18.750, 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 to the [clerk of the] court administrator for the court specified in the writ of garnishment as having authority over the writ. A copy of the writ 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 ORS 18.750 may be conducted under ORS 18.750 to 18.760 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 ORS 18.750. The sheriff shall conduct such investigation as may be necessary to determine the difficulty of conducting any sale of the property under ORS 18.758, including any costs that the sheriff may incur in taking into possession any of the property described in ORS 18.750 (3). The sheriff shall determine whether the property described in ORS 18.750 (3) 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 ORS 18.750 (2)(a) to (c) until the garnishee receives further instructions with respect to disposition of the property; and

          (b) Deliver all property described in ORS 18.750 (2)(d) 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 administrator for the court with authority over the writ.

 

          SECTION 69a. ORS 18.752, as amended by section 3, chapter 304, Oregon Laws 2003 (Enrolled House Bill 2821), is amended to read:

          18.752. (1) If a garnishee indicates in the garnishee response that the garnishee holds any property described in ORS 18.750, 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 to the [clerk of the] court administrator for the court specified in the writ of garnishment as having authority over the writ, 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 ORS 18.755 (4).

          (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 had not been delivered to the garnishee.

 

          SECTION 70. ORS 18.770 is amended to read:

          18.770. (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 ORS 18.842. 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 ORS 18.755; and

          (b) The [clerk of the] court administrator for 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 ORS 18.755 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 ORS 18.758 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.

 

          SECTION 71. ORS 18.800 is amended to read:

          18.800. (1) Except as provided in this section, the provisions of ORS 18.600 to 18.850 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 ORS 18.690, 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 administrator for the court identified as having authority over the writ.

          (3) Notwithstanding ORS 18.700, 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 ORS 18.700 (2).

          (4) A person issuing a writ of garnishment described in subsection (1) of this section shall modify the forms provided in ORS 18.600 to 18.850 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 administrator for 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 administrator 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 administrator, 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 ORS 18.645.

 

          SECTION 72. ORS 18.810 is amended to read:

          18.810. (1) Notwithstanding any other provision of ORS 18.600 to 18.850, 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 ORS 18.730, 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 administrator for the court specified in the writ as the court with authority over the writ. The [clerk] court administrator shall hold the money pending [final] entry of a judgment against the debtor unless the court finds, upon a challenge to the garnishment made by the debtor under ORS 18.700, that all or part of the money is exempt from execution or not subject to garnishment. If [final] judgment is [rendered] entered in favor of the debtor, the [court shall order the clerk] judgment must direct the court administrator to pay the money to the debtor. If [final] judgment is [rendered] entered in favor of the creditor, the [court shall order the clerk] judgment must direct the court administrator 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 ORS 18.750 to 18.760, 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 ORS 18.750 before [final] a judgment is entered in the proceedings, unless the court finds, upon a challenge made by the debtor under ORS 18.700, that all or part of the property is exempt from execution or is not subject to garnishment. If [final] judgment is [rendered] entered in favor of the debtor, the [court shall order] judgment must direct the sheriff to deliver the property to the debtor. If [final] judgment is [rendered] entered in favor of the creditor, the [court shall order] judgment must direct the sheriff to sell the property in the manner provided by ORS 18.758.

          (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 administrator 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.

 

          SECTION 73. 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 employees 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 administrator, 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 administrator

__  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 administrator is issuing this writ, the date of issuance is the date the [clerk] court administrator 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 Administrator)

 

_______ 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 administrator 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 administrator. 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 administrator. The writ must be stamped by the [clerk] court administrator. The [clerk] court administrator 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 administrator this ___ day of ___________, 2___.

 

[CLERK OF THE] COURT ADMINISTRATOR

 

By ____________________

______________________________________________________________________________

 

          SECTION 74. ORS 18.832 is amended to read:

          18.832. (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 ORS 18.658.

          (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 ADMINISTRATOR 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 administrator.)

 

_______________

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 75. 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 administrator 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 76. ORS 18.838, as amended by section 19, chapter 85, Oregon Laws 2003 (Enrolled House Bill 2274), 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 or a copy of the writ.

 

          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 Garnishor at the address indicated on the writ under Important Addresses.

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

______________________________________________________________________________

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.

 

__  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 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 77. 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

 

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 administrator 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 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.

______________________________________________________________________________

 

          SECTION 77a. The amendments to ORS 18.830, 18.832, 18.835, 18.838 and 18.845 by sections 73, 74, 75, 76 and 77 of this 2003 Act apply only to writs of garnishment issued on or after the effective date of this 2003 Act. Any writ of garnishment issued before the effective date of this 2003 Act shall continue to be governed by the law in effect on the day immediately preceding the effective date of this 2003 Act.

 

WRITS OF EXECUTION

 

          SECTION 78. ORS 23.310, 23.410, 23.440, 23.445, 23.450, 23.460, 23.470, 23.480, 23.490, 23.500, 23.510, 23.515, 23.520, 23.530, 23.540, 23.550, 23.560, 23.570, 23.580, 23.590 and 23.600 are added to and made a part of sections 29 to 44 of this 2003 Act.

 

          SECTION 79. ORS 23.410 is amended to read:

          23.410. When the writ of execution is against the property of the judgment debtor, it shall be executed by the sheriff, as follows:

          (1) If the property has been attached, the sheriff shall indorse on the execution, and pay to the [clerk] court administrator forthwith the amount, if any, of the proceeds of sales of perishable property or debts due the defendant received by the sheriff, sufficient to satisfy the judgment.

          (2) If the judgment is not then satisfied, and property has been attached and remains in the custody of the sheriff, the sheriff shall sell the same or sufficient thereof to satisfy the judgment.

          (3) If then any portion of the judgment remains unsatisfied, or if no property has been attached, or the same has been discharged, the sheriff shall levy on the property of the judgment debtor sufficient to satisfy the judgment.

          (4) Property shall be levied on in like manner and with like effect as similar property is attached.

          (5) Until a levy, property shall not be affected by the execution. When property has been sold or debts received by the sheriff on execution, the sheriff shall pay the proceeds thereof, or sufficient to satisfy the judgment, to the [clerk] court administrator by the day which the writ is returnable.

          (6) When property has been attached, and it is probable that such property will not be sufficient to satisfy the judgment, the execution may be levied on other property of the judgment debtor, without delay. If, after satisfying the judgment, any property or the proceeds thereof remain in the custody of the sheriff, the sheriff shall deliver the same to the judgment debtor.

 

          SECTION 80. ORS 23.490 is amended to read:

          23.490. Whenever real property is sold on execution, the provisions of this section shall apply to the subsequent proceedings, as follows:

          (1) The plaintiff in the writ of execution is entitled, on motion therefor, to have an order confirming the sale at any time after the expiration of 10 days from the date of filing the return of sale, unless the judgment debtor, or in case of the death of the judgment debtor, the representative of the judgment debtor, files with the [clerk] court administrator within 10 days after the return of the execution, the objections of the judgment debtor or representative thereto.

          (2) If such objections are filed, the court or judge thereof shall, notwithstanding, allow the order confirming the sale, unless on the hearing of the motion it satisfactorily appears that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In the latter case, the court or judge shall disallow the motion, and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received of that date.

          (3) Upon the return of the execution, the sheriff shall pay the proceeds of the sale to the [clerk] court administrator, who shall then apply the same, or so much thereof as may be necessary, in satisfaction of the judgment. If an order of resale is afterwards made, and the property sells for a greater amount to any person, other than the former purchaser, the [clerk] court administrator shall first repay to such purchaser the amount of the bid of the purchaser, out of the proceeds of the latter sale. Upon a resale, the bid of the purchaser at the former sale shall be deemed to be renewed and continue in force, and no bid shall be taken except for a greater amount.

          (4) An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons, in any other action, suit or proceeding.

          (5) If, after the satisfaction of the judgment, there are any proceeds of the sale remaining, the [clerk] court administrator shall pay such proceeds to the judgment debtor or the representative of the judgment debtor, at any time before the order is made upon the motion to confirm the sale, provided such party files with the [clerk] court administrator a waiver of all objections to the proceedings concerning the sale. If the sale is confirmed, such proceeds shall be paid to such party, of course; otherwise they shall remain in the custody of the [clerk] court administrator until the sale of the property has been disposed of.

 

          SECTION 81. ORS 23.570 is amended to read:

          23.570. The mode of redeeming shall be as provided in this section:

          (1) The person seeking to redeem shall give the purchaser or redemptioner not less than two days’ nor more than 30 days’ notice of an intention to apply to the sheriff for that purpose; if with reasonable diligence personal service of such notice cannot be made within the state, then proof thereof by affidavit filed with the sheriff shall be equivalent to such personal service. At the time and place specified in the notice, which place shall be the office of the sheriff at the courthouse, such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate, as in the case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. The redemptioner shall file the certificate of redemption with the [clerk of the] court administrator for the court out of which execution issued. The [clerk] court administrator shall note the filing of the certificate of redemption in the court register and shall place the certificate in the case file.

          (2) A party seeking to redeem shall submit to the sheriff the evidence of the right thereto as follows:

          (a) Proof that the notice required by this section was given to the purchaser or redemptioner or waived.

          (b) If the party is a lien creditor, a copy [of the docket] of the judgment [or decree] under which the party claims the right to redeem, certified to by the [clerk of the] court administrator for the court where such judgment [or decree is docketed] was entered, or if the party seeks to redeem upon a mortgage, the certificate of the record thereof.

          (c) A copy of any assignment necessary to establish the claim, verified by the affidavit of the party or agent; an affidavit by the party or agent showing the amount then actually due on the judgment[, decree] or mortgage.

          (3) If the redemptioner or purchaser has a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the like evidence thereof and of the amount due thereon, or the same may be disregarded.

          (4) When two or more persons apply to the sheriff to redeem at the same time, the sheriff shall allow the person having the prior lien to redeem first, and so on. The sheriff shall immediately pay the money over to the person from whom the property is redeemed, if the person attends at the redemption; or if not, at any time thereafter when demanded. When a sheriff wrongfully refuses to allow any person to redeem, the right of the person thereto shall not be prejudiced thereby, and upon submission of the evidence and the tender of the money to the sheriff as provided in this section the sheriff may be required by order of the court or judge thereof to allow such redemption.

 

EXEMPTIONS

 

          SECTION 82. ORS 23.105, 23.160, 23.164, 23.166, 23.168, 23.170, 23.175, 23.186, 23.190, 23.200, 23.210, 23.220, 23.230, 23.240, 23.242, 23.250, 23.260, 23.280, 23.290, 23.300 and 23.305 are added to and made a part of sections 29 to 44 of this 2003 Act.

 

          SECTION 83. 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.

          (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.

          (m) Veterans’ benefits and loans.

          (n) The debtor’s right to receive an earned income tax credit under the federal tax laws and any moneys that are traceable to a payment of an earned income tax credit under the federal tax laws.

          (o) 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] claimed 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] seizing the property 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] A sale may not 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 ORS 18.600, 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 ORS 18.600, the lesser of 75 percent of the payment or $7,500 is exempt.

 

MISCELLANEOUS ADDITIONS

TO ORS CHAPTER 18

 

          SECTION 84. ORS 18.325, 18.355, 18.365, 18.370 and 18.420 are added to and made a part of sections 1 to 44 of this 2003 Act.

 

APPEALS

 

          SECTION 85. ORS 19.205 is amended to read:

          19.205. [(1) A judgment or decree may be reviewed on appeal as prescribed in this chapter.]

          [(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:]

          [(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.]

          [(b) An interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition.]

          [(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree.]

          [(d) An order setting aside a judgment and granting a new trial.]

          [(e) A final judgment or decree entered in accordance with ORCP 67 B.]

          (1) Unless otherwise provided by law, a limited judgment, general judgment or supplemental judgment, as those terms are defined by section 1 of this 2003 Act, may be appealed as provided in this chapter. A judgment corrected under ORCP 71 may be appealed only as provided in sections 12 and 13 of this 2003 Act.

          (2) An order in an action that affects a substantial right, and that effectively determines the action so as to prevent a judgment in the action, may be appealed in the same manner as provided in this chapter for judgments.

          (3) An order that is made in the action after a general judgment is entered and that affects a substantial right, including an order granting a new trial, may be appealed in the same manner as provided in this chapter for judgments.

          [(3)] (4) No appeal to the Court of Appeals shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings that the amount in controversy exceeds $250.

          [(4)] (5) An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment[, decree] or order entered in an action [or suit], unless [such] appeal is expressly prohibited by the law authorizing [such] the special statutory proceeding.

          (6) Nothing in sections 1 to 44 of this 2003 Act affects the authority of an appellate court to dismiss an appeal or to remand a proceeding to the trial court under ORS 19.270 (4) based on the appellate court’s determination that the appeal has not been taken from an appealable judgment or order.

 

          SECTION 86. ORS 19.270 is amended to read:

          19.270. (1) The Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed as provided in ORS 19.240, 19.250 and 19.255. The trial court may exercise those powers in connection with the appeal as are conferred by law, and retains jurisdiction in the matter for the following purposes:

          (a) Deciding requests for attorney fees, costs and disbursements or expenses pursuant to ORCP 68 or other provision of law.

          (b) Enforcing the judgment, subject to any stay of the judgment.

          (2) The following requirements of ORS 19.240, 19.250 and 19.255 are jurisdictional and may not be waived or extended:

          (a) Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.240 (2)(a), within the time limits prescribed by ORS 19.255.

          (b) Filing of the original of the notice of appeal with the Court of Appeals as provided in ORS 19.240 (3), within the time limits prescribed by ORS 19.255.

          (3) After the Supreme Court or the Court of Appeals has acquired jurisdiction of the cause, the omission of a party to perform any of the acts required in connection with an appeal, or to perform such acts within the time required, shall be cause for dismissal of the appeal. In the event of such omission, the court, on motion of a party or on its own motion may dismiss the appeal. An appeal dismissed on a party’s motion or on the court’s own motion may be reinstated upon showing of good cause.

          (4) Notwithstanding the filing of a notice of appeal, the trial court [shall have] has jurisdiction, with leave of the appellate court, to enter an appealable judgment if the appellate court determines that:

          (a) At the time of the filing of the notice of appeal the trial court intended to enter an appealable judgment; and

          (b) The judgment from which the appeal is taken is defective in form or was entered at a time when the trial court did not have jurisdiction of the cause under subsection (1) of this section, or the trial court had not yet entered an appealable judgment.

          (5) Notwithstanding the filing of a notice of appeal, the trial court has jurisdiction:

          (a) To enter an order or supplemental judgment under ORCP 71 or ORS 19.275, 107.105 (4) or 107.452; and

          (b) To enter an order or supplemental judgment for the purpose of implementing a settlement as allowed by ORS 19.410 (3).

          (6) Jurisdiction of the appellate court over a cause ends when a copy of the appellate judgment is mailed by the State Court Administrator to the court from which the appeal was taken pursuant to ORS 19.450, except that the appellate court may:

          (a) Recall the appellate judgment as justice may require;

          (b) Stay enforcement of the appellate judgment to allow the filing of a petition for writ of certiorari to the Supreme Court of the United States; and

          (c) Stay enforcement of the appellate judgment pending disposition of the matter by the Supreme Court of the United States or for such other time as the Oregon appellate court may deem appropriate.

          (7) After jurisdiction of the appellate court ends, all orders which may be necessary to carry the appellate judgment into effect shall be made by the court from which the appeal was taken.

 

          SECTION 87. ORS 19.275 is amended to read:

          19.275. (1) Any motion that requires a showing of a change of circumstances before the court may modify a judgment [or decree], including a motion to reconsider the spousal or child support provisions of a [decree] judgment pursuant to ORS 107.135, may be filed with the trial court while an appeal from the judgment [or decree] is pending before an appellate court. The filing of a motion under this subsection does not affect the right of the appellant to pursue the appeal of the judgment [or decree].

          (2) The trial court in its discretion may proceed to hear and decide a motion under this section or may hold the motion in abeyance pending disposition of the appeal.

          [(3) Pursuant to the provisions of ORS 19.205 (2)(c), the court’s final decision on a motion under this section shall be deemed a judgment separate from the decree or judgment sought to be modified and may be appealed separately from the decree or judgment sought to be modified. The appellate court in its discretion may consolidate an appeal from a judgment under this section with the pending appeal of the other judgment or decree, may direct that both appeals be heard at the same time or may allow the appeals to proceed independently of one another.]

          (3) Pursuant to the provisions of ORS 19.205, the court’s final decision on a motion under this section is a supplemental judgment. The appellate court in its discretion may consolidate an appeal from a supplemental judgment under this section with the pending appeal of the general judgment in the case, may direct that both appeals be heard at the same time or may allow the appeals to proceed independently.

 

          SECTION 88. ORS 19.415 is amended to read:

          19.415. (1) Upon an appeal from a judgment in an action at law, the scope of review shall be as provided in section 3, Article VII (Amended) of the Oregon Constitution.

          (2) No judgment shall be reversed or modified except for error substantially affecting the rights of a party.

          (3) Upon an appeal from a [decree] judgment in a case that constituted a suit in equity under common law, the Court of Appeals shall try the cause anew upon the record.

          (4) When the Court of Appeals has tried a cause anew upon the record, the Supreme Court may limit its review of the decision of the Court of Appeals to questions of law.

 

          SECTION 89. ORS 19.450 is amended to read:

          19.450. (1) As used in this section:

          (a) “Decision” means a memorandum opinion, an opinion indicating the author or an order denying or dismissing an appeal issued by the Court of Appeals or the Supreme Court. The decision shall state the court’s disposition of the judgment being appealed, and may provide for final disposition of the cause. The decision shall designate the prevailing party or parties, state whether a party or parties will be allowed costs and disbursements, and if so, by whom the costs and disbursements will be paid.

          (b) “Appellate judgment” means the decision of the Court of Appeals or Supreme Court, or such portion of the decision as may be specified by the rule of the Supreme Court, together with an award of attorney fees or allowance of costs and disbursements, if any.

          (2) As to appeals from circuit and tax [court] courts, the appellate judgment is effective when a copy of the appellate judgment is entered in the court’s register and mailed by the State Court Administrator to the court from which the appeal was taken. When the State Court Administrator mails a copy of the appellate judgment to the court from which the appeal was taken, the administrator also shall mail a copy to the parties to the appeal.

          (3) If a new trial is ordered, upon the receipt of the appellate judgment by the trial court administrator for the court below, the trial court administrator shall enter the appellate court’s decision in the register of the court below and thereafter the cause shall be deemed pending for trial in such court, according to the directions of the court which rendered the decision. If a new trial is not ordered, upon the receipt of the appellate judgment by the trial court administrator, a judgment shall be entered in the register [and docketed] according to the directions of the court which rendered the decision, in like manner and with like effect as if the same was given in the court below.

          (4) A party entitled to enforce an undertaking may obtain judgment against a surety by filing a request with the State Court Administrator and serving a copy of the request on the other parties and the surety. The request must identify the surety against whom judgment is to be entered and the amount of the judgment sought to be imposed against the surety. Unless otherwise directed by the appellate court, upon receiving the request the State Court Administrator shall include in the appellate judgment a [money] judgment against the surety in the amount specified.

          (5) If the appellate judgment terminating an appeal contains a [money] judgment against a surety for an undertaking, the trial court administrator shall enter [and docket] the judgment against the surety in like manner and with like effect as if the judgment was given in the court below.

          (6) Except as provided in [ORS 18.350] section 16 of this 2003 Act, an appeal [shall] does not discharge the lien of a judgment and unless the [same] judgment is reversed, the lien [thereof shall be merged] of the judgment merges with and [continue] continues in the affirmed or modified judgment given on appeal, from the time of the entry [and docketing] of the [same] judgment in the court below. The lien of any judgment created by recording a certified copy of the judgment or a lien record abstract [shall continue as a lien] continues in force in the same manner as the original judgment lien as provided in this subsection.

 

          SECTION 90. ORCP 67 B is amended to read:

          B Judgment for less than all claims or parties in action. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may [direct the entry of a final] render a limited judgment as to one or more but fewer than all of the claims or parties [only upon an express determination]. A judge may render a limited judgment under this section only if the judge determines that there is no just reason for delay. [and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.]

 

          SECTION 90a. The amendments to ORS 19.205, 19.270, 19.275, 19.415 and 19.450 by sections 85 to 89 of this 2003 Act apply only to the appeal of judgments entered on or after the effective date of this 2003 Act. Any appeal of a judgment entered before the effective date of this 2003 Act shall continue to be governed by the law in effect on the day immediately preceding the effective date of this 2003 Act.

 

LIEN EFFECT

OF SMALL CLAIMS JUDGMENTS

 

          SECTION 91. ORS 46.485 is amended to read:

          46.485. (1) In addition to any other award, the prevailing party shall be entitled to a judgment for the small claims filing fees and service expenses paid by the party and the prevailing party fee provided for in ORS 20.190 (1)(c) or (2)(b). The prevailing party may also be awarded prevailing party fees under ORS 20.190 (3). The award shall be paid or the property delivered upon such terms and conditions as the judge may prescribe.

          (2) The court may allow to the defendant a setoff not to exceed the amount of plaintiff’s claim, but in such case the court shall cause to be entered in the record the amount of the setoff allowed.

          (3) No attachment shall issue on any cause in the small claims department.

          (4) A judgment in the small claims department is conclusive upon the parties and no appeal may be taken from the judgment.

          (5) The clerk of the court shall keep a record of all actions, proceedings and judgments in the small claims department.

          (6) A judgment in the small claims department is a judgment of the circuit court. The clerk shall enter such judgment in the register of the circuit court in the manner provided by section 9 of this 2003 Act. A judgment in the small claims department may [be docketed as provided in ORS 46.488. Money judgments shall be subject to ORCP 70 A(2) and B. Execution and other process on execution provided by law may issue on judgments in the small claims department as in other cases in the circuit court.] create a lien as provided by ORS 46.488. Judgments that include money awards, as defined by section 1 of this 2003 Act, are subject to section 5 of this 2003 Act.

 

          SECTION 92. ORS 46.488 is amended to read:

          46.488. [(1) A judgment entered in the small claims department of a circuit court may be docketed in the docket of the circuit court only as provided in subsection (2) of this section if the judgment is in an amount of $10 or more and less than $3,000, exclusive of costs or disbursements. A judgment entered in the small claims department in an amount of $3,000 or more shall be docketed in the docket of the circuit court in the same manner as other judgments in circuit court, and shall become a lien upon all real property of the judgment debtor in the manner described by ORS 18.350.]

          (1) A judgment creditor may not create a judgment lien for a judgment entered in the small claims department of a circuit court if the money award is less than $10, exclusive of costs and disbursements. A judgment creditor may create a judgment lien for a judgment entered in the small claims department of a circuit court in an amount of $10 or more and less than $3,000, exclusive of costs and disbursements, only as provided in subsection (3) of this section.

          (2) If a judgment is rendered in the small claims department in an amount of $3,000 or more, the clerk shall note in the register of the circuit court that the judgment creates a judgment lien if the judgment otherwise complies with the requirements of sections 1 to 44 of this 2003 Act for creating a judgment lien. A judgment creditor may create a lien for the judgment in other counties in the manner provided by section 15 of this 2003 Act.

          [(2)] (3) When a judgment is entered in the small claims department in an amount of $10 or more and less than $3,000, exclusive of costs or disbursements, [the] a judgment creditor may at any time before expiration of judgment remedies for the judgment under [ORS 18.360 cause the judgment to be docketed] section 18 of this 2003 Act create a judgment lien for the judgment by paying to the clerk of the court that entered the judgment the fees established by ORS 21.325 (1) and (2) and requesting [the filing and docketing of the certified transcript of judgment. Upon receipt of the fees and request for docketing, the clerk shall docket the judgment in the judgment docket of the circuit court. Upon docketing, the judgment shall become a lien on real property of the judgment debtor in the county in which the judgment is docketed. In any other county, the judgment may become a lien on real property of the judgment debtor in the county if a certified copy of the judgment, or a lien record abstract for the docketed judgment in the form prescribed by ORS 18.325, is recorded in the County Clerk Lien Record. The judgment becomes a lien on real property of the judgment debtor in the other county on the date that the copy of the judgment or lien record abstract is so recorded.] that the clerk of the court note in the register, and in the separate record maintained under section 9 of this 2003 Act, that the judgment creates a judgment lien. Upon receipt of the fees and request for creating a judgment lien, the clerk shall note in the register that the judgment creates a judgment lien. Upon entry of the notation in the register, the judgment creates a lien as described in section 14 of this 2003 Act, and a judgment creditor may create a lien for the judgment in other counties in the manner provided by section 15 of this 2003 Act.

 

JUSTICE AND MUNICIPAL COURTS

 

          SECTION 93. ORS 18.355 is amended to read:

          18.355. (1) Subject to the requirements of this section and ORS 221.344, from the time that [an original or renewed] a judgment of a justice or municipal court is transcribed or recorded as provided in ORS 52.635 or 221.351, the judgment creates a judgment lien as described in section 15 of this 2003 Act. [is a lien upon all the real property of the judgment debtor within the county where the judgment is transcribed or recorded, and upon any real property that the judgment debtor may thereafter acquire in that county during the time prescribed in ORS 18.365. The judgment is not a lien upon any real property of the judgment debtor acquired after the effective date of the discharge of the judgment under federal bankruptcy laws. All transcribed or recorded judgments of justice and municipal courts are presumed to be in force until the judgment debtor has established that the judgment has been discharged.]

          (2) [A judgment lien based on a justice or municipal court judgment expires if an appeal is taken from any judgment and a supersedeas undertaking, as defined in ORS 19.005, is filed by the judgment debtor.] The judgment lien of a judgment entered in a justice or municipal court may be eliminated as provided in section 16 of this 2003 Act if an appeal is taken from the judgment. The clerk of the justice or municipal court shall note the [expiration] elimination of the lien in the judgment docket. [The lien expires when the time expires for the filing of objections to the undertaking, or upon approval of the undertaking by the court, whichever is later.]

          (3) When the lien of a justice or municipal court judgment ceases in the county in which the judgment was originally recorded or transcribed, the lien shall cease in every other county in which a certified copy of the judgment or a lien record abstract has been recorded. When the judgment has been fully satisfied, it is the responsibility of the judgment creditor to file a full satisfaction in any circuit court to which the judgment has been transcribed under ORS 52.635, and to record the satisfaction in the County Clerk Lien Record for the county in which the court is located if a certified copy of the judgment or a lien record abstract for the judgment was recorded in that County Clerk Lien Record. Upon satisfaction in full of the judgment, the judgment creditor shall deliver to the judgment debtor an executed satisfaction of the judgment for any other county where a certified copy of the judgment or a lien record abstract has been recorded. The county clerk shall charge a fee as provided in ORS 205.320 for filing a satisfaction of judgment.

 

          SECTION 94. ORS 18.365 is amended to read:

          18.365. [(1) Except as provided in this section, whenever a period of 10 years elapses after the entry of a judgment by a justice or municipal court, the judgment and any lien arising out of recording the judgment expires.]

          [(2) Upon motion of the judgment creditor, the justice or municipal court that rendered the judgment may renew the judgment. The motion must be made before the expiration of the judgment under subsection (1) of this section. The clerk of the court that rendered the judgment must note in the judgment docket for the court that the judgment has been renewed. The renewed judgment and any lien created by the judgment expire 10 years after the docketing of the renewed judgment. If the judgment is renewed, the judgment creditor or the agent of the judgment creditor may cause to be recorded in the County Clerk Lien Record a certified copy of the renewed judgment, or a lien record abstract in the form provided by ORS 18.325, in the same manner as provided in ORS 52.635 and 221.351 for original judgments. If the judgment is a civil judgment entered by a justice court, the renewed judgment may be transcribed to the circuit court for the county in which the justice court is located in the same manner as provided in ORS 52.635 for original judgments. Execution may issue upon the renewed judgment until the judgment expires or is fully satisfied.]

          [(3) Notwithstanding subsection (1) of this section, a judgment in a criminal action, as defined in ORS 131.005, and any lien created by the recording of the judgment expire 20 years after entry of the judgment and may not be renewed.]

          (1) Judgment remedies for a judgment in justice and municipal courts expire upon full satisfaction of the money award portion of the judgment.

          (2) Except as provided in this section, judgment remedies for a judgment in a civil action expire 10 years after the entry of the judgment.

          (3) Judgment remedies for a judgment in a criminal action expire 20 years after the entry of the judgment.

          (4) Judgment remedies for a judgment in justice or municipal court may be extended by filing a certificate of extension in the court that entered the judgment. The clerk shall enter the certificate in the docket of the court. A judgment creditor may file a certificate of extension only if:

          (a) Judgment remedies for the judgment have not expired; and

          (b) A full satisfaction document for the money award portion of the judgment has not been filed.

          (5) Notwithstanding subsection (4) of this section, if the judgment debtor has been discharged from debt under federal bankruptcy laws, a certificate of extension may not be filed except as provided in this subsection. Judgments are presumed to have not been discharged in bankruptcy until the judgment debtor establishes that the judgment has been discharged. If the judgment debtor is discharged from a debt, a certificate of extension may be filed if:

          (a) The debtor owned real property and the judgment lien attached to that property before the filing of the bankruptcy petition;

          (b) The judgment lien was not avoided by action of the bankruptcy court;

          (c) The judgment lien has not been discharged under ORS 18.420; and

          (d) The certificate of extension includes a legal description of the real property and a statement that the extension affects only the lien on the real property described in the certificate.

          (6) If a certificate of extension is filed under this section after the date on which the judgment remedies for the judgment expire, the certificate has no effect.

          (7) The judgment remedies for a judgment that are extended under the provisions of this section expire 10 years after the certificate of extension is filed. Judgment remedies for a judgment may be extended only once under the provisions of this section.

          (8) A certified copy of a certificate of extension, or a lien record abstract for the certificate, may be recorded in any county in which the judgment was transcribed or recorded as provided in ORS 52.635 or 221.351, with the effect provided by section 15 (4) of this 2003 Act.

          (9) The judgment remedies for a judgment in a criminal action may not be extended under this section.

 

          SECTION 95. 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] sections 29 to 44 of this 2003 Act.

          [(b) Supplementary proceedings under ORS 23.710 to 23.730.]

          (b) Proceedings in support of execution under sections 31, 32 and 33 of this 2003 Act.

          (c) Garnishment proceedings under ORS 18.600 to 18.850.

          (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] sections 29 to 44 of this 2003 Act. 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.]

          (4) ORS 137.071 and sections 4, 5 and 6 of this 2003 Act apply to judgments rendered in justice courts.

          (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 96. ORS 52.635 is amended to read:

          52.635. (1) After a judgment that includes a money award is docketed in a justice court, a certified copy of the judgment or a lien record abstract for the judgment may be recorded in the County Clerk Lien Record for the county that contains the justice court that rendered the judgment. The certified copy or lien record abstract may be recorded by the judgment creditor or by the agent of the judgment creditor at any time after the judgment is rendered and before the judgment expires under ORS 18.365 or is fully satisfied. From the time the certified copy of the judgment or the lien record abstract is recorded in the County Clerk Lien Record, the judgment is a lien upon the real property of the defendant in the county.

          (2) In lieu of recording a certified copy of a judgment or a lien record abstract for a judgment under subsection (1) of this section, a judgment that includes a money award rendered by a justice court in a civil action may be transcribed to the circuit court for the county that contains the justice court that rendered the judgment. The judgment may be transcribed by the filing of a certified transcript of the judgment with the clerk of the circuit court. The transcript must contain a copy of all the docket entries made in the case and the judgment as rendered by the justice court, certified to be a true and correct transcript from the original entries by the justice court. Upon filing of the certified transcript, the clerk shall [docket] enter the transcribed judgment in the [judgment docket] register of the circuit court and in the separate record maintained under section 9 of this 2003 Act. [From the time the judgment is docketed in the circuit court, the judgment shall be a lien upon the real property of the defendant in that county.] The clerk shall note in the register that the transcribed judgment creates a judgment lien. A judgment in a criminal action may not be transcribed to circuit court under the provisions of this subsection.

          (3) A certified copy of a judgment docketed in a justice court, or a lien record abstract for the judgment, may be recorded in any County Clerk Lien Record. The judgment or lien record abstract may be recorded in a county other than the county that contains the justice court that rendered the judgment without transcribing the justice court judgment to the circuit court for the county that contains the justice court that rendered the judgment, or recording a certified copy of the judgment or a lien record abstract for the judgment in the County Clerk Lien Record for the county that contains the justice court. If the judgment has been transcribed to circuit court, or a certified copy of the judgment or a lien record abstract for the judgment has been recorded in any County Clerk Lien Record, a lien record abstract for the judgment in the form provided by ORS 18.325 may be recorded in the County Clerk Lien Record for any other county. From the time the certified copy of the judgment or lien record abstract for the judgment is recorded in the County Clerk Lien Record of another county, the judgment is a lien upon the real property of the defendant in that county.

          (4) A certified copy of a [justice court judgment renewed] certificate of extension filed under ORS 18.365, or a lien record abstract for the [renewed judgment] certificate of extension, may be transcribed to circuit court or recorded in a County Clerk Lien Record in the same manner as provided for [original] judgments under this section and with like effect.

          (5) The transcribing of a justice court judgment to circuit court under this section, or the recording of a certified copy of a justice court judgment or a lien record abstract under this section, does not extend the lien of the judgment more than 10 years from the original entry of the judgment in the justice court.

          (6) The fee for filing a transcript with the clerk of the circuit court under subsection (2) of this section shall be as provided in ORS 21.325 (2). The fee for recording a certified copy of a justice court judgment or a lien record abstract under this section shall be as provided in ORS 205.320.

          (7) A justice court and circuit court may enter into an agreement to allow for electronic transcription of justice court judgments under this section. A justice court and county clerk may enter into an agreement to allow for electronic recording of judgments and lien record abstracts under this section.

 

          SECTION 97. ORS 156.220 is amended to read:

          156.220. Except as provided in section 6 (3) of this 2003 Act, any judgment rendered by a justice court on an offense that imposes a monetary obligation must [comply with ORS 137.071 and 137.073] contain the separate section required by section 6 (2) of this 2003 Act.

 

          SECTION 98. 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] sections 29 to 44 of this 2003 Act.

          [(b) Supplementary proceedings under ORS 23.710 to 23.730.]

          (b) Proceedings in support of execution under sections 31, 32 and 33 of this 2003 Act.

          (c) Garnishment proceedings under ORS 18.600 to 18.850.

          (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] sections 29 to 44 of this 2003 Act. 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.]

          (3) ORS 137.071 and sections 4, 5 and 6 of this 2003 Act apply to judgments rendered in municipal courts.

          (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 99. ORS 221.351 is amended to read:

          221.351. (1) Subject to the requirements of ORS 221.344, a lien on real property of a judgment debtor may be acquired under a judgment docketed in a municipal court in the manner provided in this section. A lien on real property of a judgment debtor may be acquired under the provisions of this section only if:

          (a) The judgment when docketed in the municipal court exceeds $3,000; or

          (b) Two or more judgments against the same debtor are docketed in a municipal court in favor of a single judgment creditor and the total amount owing to the judgment creditor, determined by adding the amount of each individual judgment as of the date the judgment is docketed, is greater than $3,000.

          (2) After a judgment is docketed in a municipal court, a certified copy of the judgment or a lien record abstract for the judgment may be recorded in the County Clerk Lien Record for the county that contains the municipal court that rendered the judgment. The judgment must be in an amount in excess of $3,000 as required by subsection (1) of this section, or be in excess of $3,000 when added to one or more other judgments in favor of a single judgment creditor as provided in subsection (1) of this section. The certified copy or lien record abstract may be recorded by the judgment creditor or by the agent of the judgment creditor at any time after the judgment is rendered and before the judgment expires under ORS 18.365 or is fully satisfied. From the time the judgment is recorded in the County Clerk Lien Record, the judgment is a lien upon the real property of the defendant in the county.

          (3) A certified copy of a docketed municipal court judgment or a lien record abstract for the judgment may be recorded in any County Clerk Lien Record. The judgment must be in an amount in excess of $3,000 as required by subsection (1) of this section, or be in excess of $3,000 when added to one or more other judgments in favor of a single judgment creditor as provided in subsection (1) of this section. A certified copy of the judgment or a lien record abstract for the judgment need not be recorded in the county that contains the court that rendered the judgment before a certified copy or a lien record abstract is recorded in any other county. If a certified copy of the judgment or a lien record abstract for the judgment has been recorded in any County Clerk Lien Record, a lien record abstract for the judgment in the form provided by ORS 18.325 may be recorded in the County Clerk Lien Record for any other county. From the time the certified copy or lien record abstract is recorded in the County Clerk Lien Record of another county, the judgment is a lien upon the real property of the defendant in that county.

          (4) A certified copy of a [municipal court judgment renewed] certificate of extension filed under ORS 18.365, or a lien record abstract for the [renewed judgment] certificate of extension, may be recorded in a County Clerk Lien Record in the same manner as provided for [original] judgments under this section and with like effect. The judgment must meet the requirements of subsection (1) of this section.

          (5) The recording of a certified copy of a municipal court judgment or a lien record abstract under this section does not extend the lien of the judgment more than 10 years from the original entry of the judgment in the municipal court.

          (6) The fee for recording a certified copy of a municipal court judgment or a lien record abstract under this section shall be as provided in ORS 205.320.

          (7) A municipal court and county clerk may enter into an agreement to allow for electronic recording of judgments and lien record abstracts under this section.

 

DOMESTIC RELATIONS

 

          SECTION 100. Section 101 of this 2003 Act is added to and made a part of ORS chapter 107.

 

          SECTION 101. A judgment entered under this chapter may be altered or modified only by the entry of a supplemental judgment under sections 1 to 44 of this 2003 Act.

 

          SECTION 102. ORS 107.005 is amended to read:

          107.005. (1) A marriage may be declared void from the beginning for any of the causes specified in ORS 106.020; and, whether so declared or not, shall be deemed and held to be void in any action, suit or proceeding in which it may come into question.

          (2) When either husband or wife claims or pretends that the marriage is void or voidable under the provisions of ORS 106.020, it may at the suit of the other be declared valid or that it was void from the beginning or that it is void from the time of the [decree] judgment.

          (3) A marriage once declared valid by the [decree] judgment of a court having jurisdiction thereof, in a suit for that purpose, cannot afterward be questioned for the same cause directly or otherwise.

 

          SECTION 103. ORS 107.015 is amended to read:

          107.015. A judgment for the annulment or dissolution of a marriage may be [decreed] rendered for the following causes:

          (1) When either party to the marriage was incapable of making such contract or consenting thereto for want of legal age or sufficient understanding;

          (2) When the consent of either party was obtained by force or fraud;

 

provided that in the situations described in subsection (1) or (2) of this section the contract was not afterward ratified.

 

          SECTION 104. ORS 107.025 is amended to read:

          107.025. (1) A judgment for the dissolution of a marriage or a permanent or unlimited separation may be [decreed] rendered when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.

          (2) A judgment for separation may be [decreed] rendered when:

          (a) Irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage;

          (b) The parties make and file with the court an agreement suspending for a period not less than one year their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or

          (c) Irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest.

 

          SECTION 105. ORS 107.036 is amended to read:

          107.036. (1) The doctrines of fault and of in pari delicto are abolished in suits for the annulment or dissolution of a marriage or for separation.

          (2) The court shall not receive evidence of specific acts of misconduct, excepting where child custody is an issue and such evidence is relevant to that issue, or excepting at a hearing when the court finds such evidence necessary to prove irreconcilable differences.

          (3) In dividing, awarding and distributing the real and personal property (or both) of the parties (or either of them) between the parties, or in making such property or any of it subject to a trust, and in fixing the amount and duration of the contribution one party is to make to the support of the other, the court shall not consider the fault, if any, of either of the parties in causing grounds for the annulment or dissolution of the marriage or for separation.

          (4) Where satisfactory proof of grounds for the annulment or dissolution of a marriage or for separation has been made, the court shall [not award a decree to either party but shall only decree] render a judgment for the annulment or dissolution of the marriage or for separation. A [decree] judgment of separation shall state the duration of the separation.

 

          SECTION 106. ORS 107.085 is amended to read:

          107.085. (1) A suit for marital annulment, dissolution or separation shall be entitled: “IN THE MATTER OF THE MARRIAGE OF (names of parties): PETITION FOR (ultimate relief sought).” The moving party shall be designated as the “Petitioner” and the other party the “Respondent.” Nothing in this section shall preclude both parties from acting as “Copetitioners.”

          (2) The petition shall state the following:

          (a) The names, social security numbers, if known, and dates of birth of all of the children born or adopted during the marriage, and a reference to and expected date of birth of any children conceived during the marriage but not yet born;

          (b) The names, social security numbers, if known, and dates of birth of all children born to the parties prior to the marriage; and

          (c) To the extent known, whether there is pending in this or any other state a domestic relations suit, as defined in ORS 107.510, or any type of support proceeding involving dependents of the same marriage, including one brought under ORS 108.110, 416.400 to 416.470 or this section.

          (3) At or prior to the hearing of a suit for marital annulment, dissolution or separation, the moving party or the party attending the hearing shall file with the court a written statement setting forth the full names and any former names of the parties, the residence, mailing or contact addresses of the parties, the ages of both parties, their wage earner social security account numbers, the date and place of the marriage of the parties, and the names and ages of the children born to or adopted by the parties. This information shall be incorporated in and made a part of the [decree] judgment.

          (4) If real property is involved, the petitioner may have a notice of pendency of the action recorded at the time the petition is filed, as provided in ORS 93.740.

 

          SECTION 107. ORS 107.095 is amended to read:

          107.095. (1) After the commencement of a suit for marital annulment, dissolution or separation and until a [decree] general judgment therein, the court may provide as follows:

          (a) That a party pay to the clerk of the court such amount of money as may be necessary to enable the other party to prosecute or defend the suit, including costs of expert witnesses, and also such amount of money to the Department of Justice, court clerk or court administrator, whichever is appropriate, as may be necessary to support and maintain the other party.

          (b) For the care, custody, support and maintenance, by one party or jointly, of the minor children as described in ORS 107.105 (1)(a) and for the parenting time rights as described in ORS 107.105 (1)(b) of the parent not having custody of such children.

          (c) For the restraint of a party from molesting or interfering in any manner with the other party or the minor children.

          (d) That if minor children reside in the family home and the court considers it necessary for their best interest to do so, the court may require either party to move out of the home for such period of time and under such conditions as the court may determine, whether the home is rented, owned or being purchased by one party or both parties.

          (e) Restraining and enjoining either party or both from encumbering or disposing of any of the real or personal property of either or both of the parties, except as ordered by the court.

          (f) For the temporary use, possession and control of the real or personal property of the parties or either of them and the payment of installment liens and encumbrances thereon.

          (g) That even if no minor children reside in the family home, the court may require one party to move out of the home for such period of time and under such conditions as the court determines, whether the home is rented, owned or being purchased by one party or both parties if that party assaults or threatens to assault the other.

          [(2) In case default is made in the payment of any moneys falling due under the terms of an order pending suit, any such delinquent amount shall be entered and docketed as a judgment, and execution or garnishment may issue thereon to enforce payment thereof in the same manner and with like effect as upon a final decree. The remedy provided in this subsection shall be deemed cumulative and not exclusive.]

          (2) A limited judgment under sections 1 to 44 of this 2003 Act may be entered in an action for dissolution or annulment of a marriage providing for a support award, as defined by section 1 of this 2003 Act, or other money award, as defined by section 1 of this 2003 Act. Notwithstanding ORS 19.255, a limited judgment entered under this subsection may not be appealed. Any decision of the court in a limited judgment subject to this subsection may be appealed as otherwise provided by law upon entry of a general judgment.

          (3) The court shall not require an undertaking in case of the issuance of an order under subsection (1)(c), (d), (e), (f) or (g) of this section.

          (4) In a suit for annulment or dissolution of marriage or for separation, wherein the parties are copetitioners or the respondent is found by the court to be in default or the respondent having appeared has waived further appearance or the parties stipulate to the entry of a [decree] judgment, the court may, when the cause is otherwise ready for hearing on the merits, in lieu of such hearing, enter a [decree] judgment of annulment or dissolution or for separation based upon a current affidavit of the petitioner or copetitioners, setting forth a prima facie case, and covering such additional matters as the court may require. If child support or custody of minor children is involved, then the affidavit also shall include:

          (a) The gross monthly income of each party, to the best of the affiant’s knowledge; and

          (b) The name of the party with whom the children currently reside and the length of time they have so resided.

          (5) When a court orders relief under subsection (1)(c) or (d) of this section, the court may include in its order an expiration date for the order to allow entry of the order into the Law Enforcement Data System and the databases of the National Crime Information Center of the United States Department of Justice as provided in ORS 107.720. If the person being restrained was provided notice and an opportunity to be heard, the court shall also include in the order, when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) or (g)(8) to affect the person’s ability to possess firearms and ammunition or engage in activities involving firearms.

 

          SECTION 108. ORS 107.104 is amended to read:

          107.104. (1) It is the policy of this state:

          (a) To encourage the settlement of suits for marital annulment, dissolution or separation; and

          (b) For courts to enforce the terms of settlements described in subsection (2) of this section to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (2) In a suit for marital annulment, dissolution or separation, the court may enforce the terms set forth in a stipulated [decree] judgment signed by the parties, a [decree] judgment resulting from a settlement on the record or a [decree] judgment incorporating a marital settlement agreement:

          (a) As contract terms using contract remedies;

          (b) By imposing any remedy available to enforce a [decree] judgment, including but not limited to contempt; or

          (c) By any combination of the provisions of paragraphs (a) and (b) of this subsection.

          (3) A party may seek to enforce an agreement and obtain remedies described in subsection (2) of this section by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under subsection (2)(b) of this section is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (4) Nothing in subsection (2) or (3) of this section limits a party’s ability, in a separate proceeding, to file a motion to set aside, alter or modify a [decree] judgment under ORS 107.135 or to seek enforcement of an ancillary agreement to the [decree] judgment.

 

          SECTION 109. ORS 107.105 is amended to read:

          107.105. (1) Whenever the court [grants a decree] renders a judgment of marital annulment, dissolution or separation, [it may further decree as follows] the court may provide in the judgment:

          (a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage, and for minor children born to the parties prior to the marriage, as the court may deem just and proper under ORS 107.137. The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.

          (b) For parenting time rights of the parent not having custody of such children, and for visitation rights pursuant to a petition filed under ORS 109.119. When a parenting plan has been developed as required by ORS 107.102, the court shall review the parenting plan and, if approved, incorporate the parenting plan into the court’s final order. When incorporated into a final order, the parenting plan is determinative of parenting time rights. If the parents have been unable to develop a parenting plan or if either of the parents requests the court to develop a detailed parenting plan, the court shall develop the parenting plan in the best interest of the child, ensuring the noncustodial parent sufficient access to the child to provide for appropriate quality parenting time and assuring the safety of the parties, if implicated. The court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child. The court shall recognize the value of close contact with both parents and encourage, when practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties. If the court awards parenting time to a noncustodial parent who has committed abuse, the court shall make adequate provision for the safety of the child and the other parent in accordance with the provisions of ORS 107.718 (4).

          (c) For the support of the children of the marriage by the parties. In ordering child support, the formula established by ORS 25.270 to 25.287 shall apply. The court may at any time require an accounting from the custodial parent with reference to the use of the money received as child support. The court is not required to order support for any minor child who has become self-supporting, emancipated or married, or who has ceased to attend school after becoming 18 years of age.

          (d) For spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both. The court may approve an agreement for the entry of an order for the support of a party. In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision. The court may order:

          (A) Transitional spousal support as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein. The factors to be considered by the court in awarding transitional spousal support include but are not limited to:

          (i) The duration of the marriage;

          (ii) A party’s training and employment skills;

          (iii) A party’s work experience;

          (iv) The financial needs and resources of each party;

          (v) The tax consequences to each party;

          (vi) A party’s custodial and child support responsibilities; and

          (vii) Any other factors the court deems just and equitable.

          (B) Compensatory spousal support when there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party and when an order for compensatory spousal support is otherwise just and equitable in all of the circumstances. The factors to be considered by the court in awarding compensatory spousal support include but are not limited to:

          (i) The amount, duration and nature of the contribution;

          (ii) The duration of the marriage;

          (iii) The relative earning capacity of the parties;

          (iv) The extent to which the marital estate has already benefited from the contribution;

          (v) The tax consequences to each party; and

          (vi) Any other factors the court deems just and equitable.

          (C) Spousal maintenance as a contribution by one spouse to the support of the other for either a specified or an indefinite period. The factors to be considered by the court in awarding spousal maintenance include but are not limited to:

          (i) The duration of the marriage;

          (ii) The age of the parties;

          (iii) The health of the parties, including their physical, mental and emotional condition;

          (iv) The standard of living established during the marriage;

          (v) The relative income and earning capacity of the parties, recognizing that the wage earner’s continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;

          (vi) A party’s training and employment skills;

          (vii) A party’s work experience;

          (viii) The financial needs and resources of each party;

          (ix) The tax consequences to each party;

          (x) A party’s custodial and child support responsibilities; and

          (xi) Any other factors the court deems just and equitable.

          (e) For the delivery to one party of such party’s personal property in the possession or control of the other at the time of the giving of the [decree] judgment.

          (f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. A retirement plan or pension or an interest therein shall be considered as property. The court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held. Subsequent to the filing of a petition for annulment or dissolution of marriage or separation, the rights of the parties in the marital assets shall be considered a species of coownership, and a transfer of marital assets under a [decree] judgment of annulment or dissolution of marriage or of separation entered on or after October 4, 1977, shall be considered a partitioning of jointly owned property. The court shall require full disclosure of all assets by the parties in arriving at a just property division. In arriving at a just and proper division of property, the court shall consider reasonable costs of sale of assets, taxes and any other costs reasonably anticipated by the parties. If a spouse has been awarded spousal support in lieu of a share of property, the court shall so state on the record, and shall order the obligor to provide for and maintain life insurance in an amount commensurate with the obligation and designating the obligee as beneficiary for the duration of the obligation. If the obligor dies prior to the termination of such support and such insurance is not in force, the court may modify the method of payment of spousal support under the [decree] judgment or order of support from installments to a lump sum payment to the obligee from the estate of the obligor in an amount commensurate with the present value of the spousal support at the time of death. The obligee or attorney of the obligee shall cause a certified copy of the [decree] judgment to be delivered to the life insurance company or companies. If the obligee or the attorney of the obligee delivers a true copy of the [decree] judgment to the life insurance company or companies, identifying the policies involved and requesting such notification under this section, the company or companies shall notify the obligee, as beneficiary of the insurance policy, whenever the policyholder takes any action that will change the beneficiary or reduce the benefits of the policy. Either party may request notification by the insurer when premium payments have not been made. If the obligor is ordered to provide for and maintain life insurance, the obligor shall provide to the obligee a true copy of the policy. The obligor shall also provide to the obligee written notice of any action that will reduce the benefits or change the designation of the beneficiaries under the policy.

          (g) For the creation of trusts as follows:

          (A) For the appointment of one or more trustees to hold, control and manage for the benefit of the children of the parties, of the marriage or otherwise, such of the real or personal property of either or both of the parties, as the court may order to be allocated or appropriated to their support and welfare; and to collect, receive, expend, manage or invest any sum of money [decreed] awarded for the support and welfare of minor children of the parties.

          (B) For the appointment of one or more trustees to hold, manage and control such amount of money or such real or personal property of either or both of the parties, as may be set aside, allocated or appropriated for the support of a party.

          (C) For the establishment of the terms of the trust and provisions for the disposition or distribution of such money or property to or between the parties, their successors, heirs and assigns after the purpose of the trust has been accomplished. Upon petition of a party or a person having an interest in the trust showing a change of circumstances warranting a change in the terms of the trust, the court may make and direct reasonable modifications in its terms.

          (h) To change the name of either spouse to a name the spouse held before the marriage. The court shall [decree] order a change if it is requested by the affected party.

          [(i) For a judgment against one party in favor of the other for any sums of money found to be then remaining unpaid upon any enforceable order or orders theretofore duly made and entered in the proceedings under any of the provisions of ORS 107.095, and for a judgment against one party in favor of the other or in favor of the other’s attorney for any further sums as additional attorney fees or additional costs and expenses of suit or defense as the court finds reasonably and necessarily incurred by such party; or, in the absence of any such order or orders pendente lite, a like judgment for such amount of money as the court finds was reasonably necessary to enable such party to prosecute or defend the suit. The decree may include a judgment for any arrearage in any sum ordered while litigation was pending, but if such a judgment is not included in the decree, such arrearages shall not be deemed satisfied.]

          (i) For a money award for any sums of money found to be then remaining unpaid upon any order or limited judgment entered under ORS 107.095. If a limited judgment was entered under ORS 107.095, the limited judgment shall continue to be enforceable for any amounts not paid under the limited judgment unless those amounts are included in the money award made by the general judgment.

          (j) For an award of reasonable attorney fees in favor of a party or in favor of a party’s attorney.

          (2) In determining the proper amount of support and the proper division of property under subsection (1)(c), (d) and (f) of this section, the court may consider evidence of the tax consequences on the parties of its proposed [decree] judgment.

          (3) Upon the filing of the [decree] judgment, the property division ordered shall be deemed effective for all purposes. This transfer by [decree] judgment, which shall effect solely owned property transferred to the other spouse as well as commonly owned property in the same manner as would a declaration of a resulting trust in favor of the spouse to whom the property is awarded, shall not be deemed a taxable sale or exchange.

          (4) If an appeal is taken from a [decree] judgment of annulment or dissolution of marriage or of separation or from any part of a [decree] judgment rendered in pursuance of the provisions of ORS 107.005 to 107.085, 107.095, 107.105, 107.115 to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540 and 107.610, the court [making such decree] rendering the judgment may provide in a [separate order] supplemental judgment for any relief provided for in ORS 107.095 and shall provide that the [order] relief granted in the judgment is to be in effect only during the pendency of the appeal. A [temporary order] supplemental judgment under this subsection may be enforced as provided in ORS 33.015 to 33.155 and sections 1 to 44 of this 2003 Act. [On motion of a party the Court of Appeals may review the trial court’s disposition of a request for a temporary order. A motion under this subsection must be filed with the Court of Appeals within 14 days after the entry of the temporary order. The Court of Appeals may modify the trial court’s order only if the Court of Appeals finds an abuse of discretion by the trial court. Upon such finding, the Court of Appeals may enter a temporary order, affirm, modify or vacate the trial court’s order, remand the order to the trial court for reconsideration or impose terms and conditions on the order.] A supplemental judgment under this subsection may be appealed in the same manner as provided for supplemental judgments modifying a domestic relations judgment under ORS 19.275.

          (5) If an appeal is taken from the [decree] judgment or other appealable order in a suit for annulment or dissolution of a marriage or for separation, and the appellate court awards costs and disbursements to a party, it may also award to that party, as part of the costs, such additional sum of money as it may adjudge reasonable as an attorney fee on the appeal.

          (6) If, as a result of a suit for the annulment or dissolution of a marriage or for separation, the parties to such suit become owners of an undivided interest in any real or personal property, or both, either party may maintain supplemental proceedings by filing a petition in such suit for the partition of such real or personal property, or both, within two years from the entry of [said decree] the judgment, showing among other things that the original parties to [such decree] the judgment and their joint or several creditors having a lien upon any such real or personal property, if any there be, constitute the sole and only necessary parties to such supplemental proceedings. The procedure in the supplemental proceedings, so far as applicable, shall be the procedure provided in ORS 105.405, for the partition of real property, and the court granting [such decree] the judgment shall have in the first instance and retain jurisdiction in equity therefor.

 

          SECTION 110. ORS 107.108 is amended to read:

          107.108. (1) In addition to any other authority of the court, the court may enter an order against either parent, or both of them, to provide for the support or maintenance of a child attending school:

          (a) After the commencement of a suit for annulment or dissolution of a marriage or for separation from bed and board and before the [decree] judgment therein;

          (b) In a [decree] judgment of annulment or dissolution of a marriage or of separation from bed and board; and

          (c) During the pendency of an appeal taken from all or part of a [decree] judgment rendered in pursuance of ORS 107.005 to 107.085, 107.095 to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540, 107.610 or this section.

          (2) An order providing for temporary support pursuant to subsection (1)(c) of this section may be modified at any time by the court making the [decree] judgment appealed from, shall provide that the support money be paid in monthly installments, and shall further provide that it is to be in effect only during the pendency of the appeal. No appeal lies from any such temporary order.

          (3) If the court provides for the support and maintenance of a child attending school pursuant to this section, the child is a party for purposes of matters related to that provision.

          (4) When the court orders support under this section or the administrator or a hearings officer orders support for a child attending school under ORS 416.400 to 416.470, the court, administrator or hearings officer shall order that the support be distributed to the child unless good cause is found for the distribution of the payment to be made in some other manner. When there are multiple children for whom support is ordered, the amount paid directly to a child under this subsection is a prorated share based on the number of children for whom support is ordered unless otherwise ordered by the court, administrator or hearings officer. The Department of Human Services shall adopt rules to define good cause and circumstances under which the administrator or hearings officer may allocate support by other than a prorated share and to determine how support is to be allocated in those circumstances.

          (5) A child for whom support has been ordered under this section:

          (a) Must maintain the equivalent of a C average or better.

          (b) Shall notify a parent paying support when the child ceases to be a child attending school.

          (c) Shall submit to the Department of Human Services and the parent paying support, on a form developed by the department, all information necessary to establish eligibility to receive support under this section, including grades earned and the courses in which the child is enrolled. The child shall submit the information required by this paragraph within the first month of each term or semester.

          (6) If the child fails to comply with any of the requirements imposed on the child by this section and upon written notice from the obligor, the distribution of the support directly to the child ceases and may not be reinstated unless the parent paying support elects to continue to pay the support, in spite of the child’s failure to comply with the requirements of this section, and notifies the Department of Human Services of the election in writing. If the underlying support order is for the support of more than one child, the parent shall pay the amount previously paid directly to the child to the recipient of the rest of the support until such time as the support order is modified. A child’s failure to comply with the requirements imposed by this section is a substantial change of circumstances for purposes of modification of a support order.

          (7) Orders entered into prior to October 4, 1997, may be modified to include the provisions of subsections (4) to (6) of this section. However, the fact that an order entered, or agreement entered into, prior to October 4, 1997, does not contain any of the provisions of subsections (4) to (6) of this section does not constitute a substantial change of circumstances for purposes of modifying a child support order.

          (8) As used in this section, “child attending school” means a child of the parties who is unmarried, is 18 years of age or older and under 21 years of age and is a student regularly attending school, community college, college or university, or regularly attending a course of professional or technical training designed to fit the child for gainful employment. A child enrolled in an educational course load of less than one-half that determined by the educational facility to constitute “full-time” enrollment is not a “child attending school.”

 

          SECTION 111. ORS 107.115 is amended to read:

          107.115. (1) A [decree] judgment of annulment or dissolution of a marriage restores the parties [thereto] to the status of unmarried persons, unless a party is married to another person. [Such decree shall give] The judgment gives the court jurisdiction to award, to be effective immediately, the relief provided by ORS 107.105. [However, any judgment or award provided for in the decree shall become effective as a lien upon real property only upon docketing in the county where the decree is originally entered as provided in ORS 18.320 and 18.360. In all other counties, the judgment or award shall become a lien only upon recording a certified copy of the judgment or lien record abstract or a certified copy of the decree in the County Clerk Lien Record. The decree] The judgment shall revoke a will pursuant to the provisions of ORS 112.315.

          (2) The marriage relationship is terminated when the court signs the judgment of dissolution of marriage.

          (3)(a) The Court of Appeals or Supreme Court shall continue to have jurisdiction of an appeal pending at the time of the death of either party. The appeal may be continued by the personal representative of the deceased party. The attorney of record on the appeal, for the deceased party, may be allowed a reasonable attorney fee, to be paid from the decedent’s estate. However, costs on appeal may not be awarded to either party.

          (b) The Court of Appeals or Supreme Court shall have the power to determine finally all matters presented on such appeal. Before making final disposition, the Court of Appeals or Supreme Court may refer the proceeding back to the trial court for such additional findings of fact as are required.

 

          SECTION 112. ORS 107.135, as amended by section 4, chapter 116, Oregon Laws 2003 (Enrolled House Bill 2277), is amended to read:

          107.135. (1) The court may at any time after a [decree] judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required pursuant to subsection (9) of this section:

          (a) Set aside, alter or modify so much of the [decree] judgment as may provide for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108, including any provisions for health or life insurance, or for the support of a party or for life insurance under ORS 107.820 or 107.830;

          (b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the [decree] judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the [decree] judgment;

          (c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married;

          (d) Notwithstanding section 84 (2), chapter 827, Oregon Laws 1973, and after service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108; and

          (e) Set aside, alter or modify so much of the [decree] judgment as may provide for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph:

          (A) When the person with the enhanced earning capacity makes a good faith career change that results in less income;

          (B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person’s control; or

          (C) Under such other circumstances as the court deems just and proper.

          (2) When a party moves to set aside, alter or modify the child support provisions of the [decree] judgment:

          (a) The party shall state in the motion, to the extent known:

          (A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving children of the marriage, including one brought under ORS 25.287, 107.431, 109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110; and

          (B) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.303, involving children of the marriage, other than the [decree] judgment the party is moving to set aside, alter or modify.

          (b) The party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the [decree] judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and paragraph (a) of this subsection.

          (3) In a proceeding under this section to reconsider the spousal or child support provisions of the [decree] judgment, the following provisions apply:

          (a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.

          (b) If the [decree] judgment provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, social security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.

          (c) If social security is considered in lieu of spousal support or partial spousal support, the court shall determine the amount of social security the party is eligible to collect. The court shall take into consideration any pension, retirement or other funds available to either party to effect an equitable distribution between the parties and shall also take into consideration any reduction of entitlement caused by taking early retirement.

          (4) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a [decree] judgment, the following provisions apply:

          (a) The court or administrator, as defined in ORS 25.010, shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:

          (A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.

          (B) Retirement benefits available to the obligor and to the obligee.

          (C) Other benefits to which the obligor is entitled, such as travel benefits, recreational benefits and medical benefits, contrasted with benefits to which the obligee is similarly entitled.

          (D) Social Security benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before March 1, 1999.

          (E) Veterans’ benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before October 23, 1999.

          (b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor’s financial status resulting from the obligor’s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation. In any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

          (c) The court shall consider the following factors in deciding whether the actions of the obligor were not in “good faith”:

          (A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

          (B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

          (C) Extent of the obligor’s dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

          (D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

          (E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligor’s ability to meet the preexisting obligation of spousal support.

          (5) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment order.

          (6) Any modification of spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was filed or to any date thereafter.

          (7) The [decree] judgment is [a final judgment] final as to any installment or payment of money that has accrued up to the time either party makes a motion to set aside, alter or modify the [decree] judgment, and the court does not have the power to set aside, alter or modify such [decree] judgment, or any portion thereof, that provides for any payment of money, either for minor children or the support of a party, that has accrued prior to the filing of such motion. However:

          (a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent; and

          (b) The court or the administrator, as defined in ORS 25.010, may allow, as provided in the rules of the Child Support Program, a credit against child support arrearages for any Social Security or Veterans’ benefits paid retroactively to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement.

          (8) In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party.

          (9) Whenever a motion to establish, modify or terminate child support or satisfy or alter support arrearages is filed and the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice or on the branch office providing support services to the county in which the motion is filed.

          (10)(a) Except as provided in ORS 109.701 to 109.834, the courts of Oregon, having once acquired personal and subject matter jurisdiction in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

          (b) The courts of Oregon, in a proceeding to establish, enforce or modify a child support order, shall recognize the provisions of the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. 1738B).

          (11) In a proceeding under this section to reconsider provisions in a [decree] judgment relating to custody or parenting time, the court may consider repeated and unreasonable denial of, or interference with, parenting time to be a substantial change of circumstances.

          (12) Within 30 days after service of notice under subsection (1) of this section, the party served shall file a written response with the court.

          (13)(a) It is the policy of this state:

          (A) To encourage the settlement of cases brought under this section; and

          (B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (b) In a proceeding under subsection (1) of this section, the court may enforce the terms set forth in a stipulated order or judgment signed by the parties, an order or judgment resulting from a settlement on the record or an order or judgment incorporating a settlement agreement:

          (A) As contract terms using contract remedies;

          (B) By imposing any remedy available to enforce an order or judgment, including but not limited to contempt; or

          (C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

          (c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (d) Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in a separate proceeding, to file a motion to modify an order or judgment under subsection (1) of this section or to seek enforcement of an ancillary agreement to the order or judgment.

 

          SECTION 112a. If House Bill 2111 becomes law, ORS 107.135, as amended by section 4, chapter 116, Oregon Laws 2003 (Enrolled House Bill 2277), and section 112 of this 2003 Act, is amended to read:

          107.135. (1) The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required [pursuant to] under subsection (9) of this section:

          (a) Set aside, alter or modify [so much] any portion of the judgment [as may provide] that provides for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108, including any [provisions for] health or life insurance provisions, [or] for the support of a party or for life insurance under ORS 107.820 or 107.830;

          (b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the judgment;

          (c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married;

          (d) Notwithstanding section 84 (2), chapter 827, Oregon Laws 1973, and after service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108; and

          (e) Set aside, alter or modify [so much] any portion of the judgment [as may provide] that provides for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph:

          (A) When the person with the enhanced earning capacity makes a good faith career change that results in less income;

          (B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person’s control; or

          (C) Under such other circumstances as the court deems just and proper.

          (2) When a party moves to set aside, alter or modify the child support provisions of the judgment:

          (a) The party shall state in the motion, to the extent known:

          (A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving children of the marriage, including one brought under ORS 25.287, 107.431, 109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110; and

          (B) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.303, involving children of the marriage, other than the judgment the party is moving to set aside, alter or modify.

          (b) The party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and paragraph (a) of this subsection.

          (3) In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply:

          (a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.

          (b) If the judgment provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, social security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.

          (c) If social security is considered in lieu of spousal support or partial spousal support, the court shall determine the amount of social security the party is eligible to collect. The court shall take into consideration any pension, retirement or other funds available to either party to effect an equitable distribution between the parties and shall also take into consideration any reduction of entitlement caused by taking early retirement.

          (4) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a judgment, the following provisions apply:

          (a) The court or administrator, as defined in ORS 25.010, shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:

          (A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.

          (B) Retirement benefits available to the obligor and to the obligee.

          (C) Other benefits to which the obligor is entitled, such as travel benefits, recreational benefits and medical benefits, contrasted with benefits to which the obligee is similarly entitled.

          (D) Social Security benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before March 1, 1999.

          (E) Veterans’ benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before October 23, 1999.

          (b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor’s financial status resulting from the obligor’s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation. In any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

          (c) The court shall consider the following factors in deciding whether the actions of the obligor were not in “good faith”:

          (A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

          (B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

          (C) Extent of the obligor’s dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

          (D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

          (E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligor’s ability to meet the preexisting obligation of spousal support.

          (5) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment order.

          (6) Any modification of spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was [filed] served or to any date thereafter.

          (7) The judgment is final as to any installment or payment of money that has accrued up to the time [either party makes] the nonmoving party, other than the state, is served with a motion to set aside, alter or modify the judgment. [, and] The court [does not have the power to] may not set aside, alter or modify [such judgment, or] any portion [thereof,] of the judgment that provides for any payment of money, either for minor children or for the support of a party, that has accrued [prior to the filing of such motion] before the motion is served. However:

          (a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or judgment, during which the [obligated parent] obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child [with the knowledge and consent of the custodial parent]; and

          (b) The court [or the administrator, as defined in ORS 25.010,] may allow, as provided in the rules of the Child Support Program, a credit against child support arrearages for any Social Security or Veterans’ benefits paid retroactively to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement.

          (8) In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party.

          (9) Whenever a motion to establish, modify or terminate child support or satisfy or alter support arrearages is filed and the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice or on the branch office providing support services to the county in which the motion is filed.

          (10)(a) Except as provided in ORS 109.701 to 109.834, the courts of Oregon, having once acquired personal and subject matter jurisdiction in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

          (b) The courts of Oregon, in a proceeding to establish, enforce or modify a child support order, shall recognize the provisions of the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. 1738B).

          (11) In a proceeding under this section to reconsider provisions in a judgment relating to custody or parenting time, the court may consider repeated and unreasonable denial of, or interference with, parenting time to be a substantial change of circumstances.

          (12) Within 30 days after service of notice under subsection (1) of this section, the party served shall file a written response with the court.

          (13)(a) It is the policy of this state:

          (A) To encourage the settlement of cases brought under this section; and

          (B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (b) In a proceeding under subsection (1) of this section, the court may enforce the terms set forth in a stipulated order or judgment signed by the parties, an order or judgment resulting from a settlement on the record or an order or judgment incorporating a settlement agreement:

          (A) As contract terms using contract remedies;

          (B) By imposing any remedy available to enforce an order or judgment, including but not limited to contempt; or

          (C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

          (c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (d) Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in a separate proceeding, to file a motion to modify an order or judgment under subsection (1) of this section or to seek enforcement of an ancillary agreement to the order or judgment.

 

          SECTION 112b. If House Bill 2111 becomes law, ORS 107.135, as amended by section 1, chapter 419, Oregon Laws 2003 (Enrolled House Bill 2111), is amended to read:

          107.135. (1) The court may at any time after a [decree] judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required under subsection [(8)] (9) of this section:

          (a) Set aside, alter or modify any portion of the [decree] judgment that provides for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108, including any health or life insurance provisions, for the support of a party or for life insurance under ORS 107.820 or 107.830;

          (b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the [decree] judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the [decree] judgment;

          (c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married;

          (d) Notwithstanding section 84 (2), chapter 827, Oregon Laws 1973, and after service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108; and

          (e) Set aside, alter or modify [so much] any portion of the [decree] judgment [as may provide] that provides for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph:

          (A) When the person with the enhanced earning capacity makes a good faith career change that results in less income;

          (B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person’s control; or

          (C) Under such other circumstances as the court deems just and proper.

          (2) When a party moves to set aside, alter or modify the child support provisions of the judgment:

          (a) The party shall state in the motion, to the extent known:

          (A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving children of the marriage, including one brought under ORS 25.287, 107.431, 109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110; and

          (B) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.303, involving children of the marriage, other than the judgment the party is moving to set aside, alter or modify.

          (b) The party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and paragraph (a) of this subsection.

          [(2)] (3) In a proceeding under this section to reconsider the spousal or child support provisions of the [decree] judgment, the following provisions apply:

          (a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse.

          (b) If the [decree] judgment provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, social security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.

          (c) If social security is considered in lieu of spousal support or partial spousal support, the court shall determine the amount of social security the party is eligible to collect. The court shall take into consideration any pension, retirement or other funds available to either party to effect an equitable distribution between the parties and shall also take into consideration any reduction of entitlement caused by taking early retirement.

          [(3)] (4) In considering under this section whether a change in circumstances exists sufficient for the court to reconsider spousal or child support provisions of a [decree] judgment, the following provisions apply:

          (a) The court or administrator, as defined in ORS 25.010, shall consider income opportunities and benefits of the respective parties from all sources, including but not limited to:

          (A) The reasonable opportunity of each party, the obligor and obligee respectively, to acquire future income and assets.

          (B) Retirement benefits available to the obligor and to the obligee.

          (C) Other benefits to which the obligor is entitled, such as travel benefits, recreational benefits and medical benefits, contrasted with benefits to which the obligee is similarly entitled.

          (D) Social Security benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before March 1, 1999.

          (E) Veterans’ benefits received on behalf of a child due to a parent’s disability or retirement if the benefits:

          (i) Were not previously considered in the child support order; or

          (ii) Were considered in an action initiated before October 23, 1999.

          (b) If the motion for modification is one made by the obligor to reduce or terminate support, and if the obligee opposes the motion, the court shall not find a change in circumstances sufficient for reconsideration of support provisions, if the motion is based upon a reduction of the obligor’s financial status resulting from the obligor’s taking voluntary retirement, partial voluntary retirement or any other voluntary reduction of income or self-imposed curtailment of earning capacity, if it is shown that such action of the obligor was not taken in good faith but was for the primary purpose of avoiding the support obligation. In any subsequent motion for modification, the court shall deny the motion if the sole basis of the motion for modification is the termination of voluntarily taken retirement benefits and the obligor previously has been found not to have acted in good faith.

          (c) The court shall consider the following factors in deciding whether the actions of the obligor were not in “good faith”:

          (A) Timing of the voluntary retirement or other reduction in financial status to coincide with court action in which the obligee seeks or is granted an increase in spousal support.

          (B) Whether all or most of the income producing assets and property were awarded to the obligor, and spousal support in lieu of such property was awarded to the obligee.

          (C) Extent of the obligor’s dissipation of funds and assets prior to the voluntary retirement or soon after filing for the change of circumstances based on retirement.

          (D) If earned income is reduced and absent dissipation of funds or large gifts, whether the obligor has funds and assets from which the spousal support could have been paid.

          (E) Whether the obligor has given gifts of substantial value to others, including a current spouse, to the detriment of the obligor’s ability to meet the preexisting obligation of spousal support.

          [(4)] (5) Upon terminating a duty of spousal support, a court shall make specific findings of the basis for the termination and shall include the findings in the judgment order.

          [(5)] (6) Any modification of spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was served or to any date thereafter.

          [(6)] (7) The [decree] judgment is [a final judgment] final as to any installment or payment of money that has accrued up to the time the nonmoving party, other than the state, is served with a motion to set aside, alter or modify the [decree] judgment. The court may not set aside, alter or modify any portion of the [decree] judgment that provides for any payment of money, either for minor children or for the support of a party, that has accrued before the motion is served. However:

          (a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child; and

          (b) The court may allow, as provided in the rules of the Child Support Program, a credit against child support arrearages for any Social Security or veterans’ benefits paid retroactively to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement.

          [(7)] (8) In a proceeding under subsection (1) of this section, the court may assess against either party a reasonable attorney fee and costs for the benefit of the other party. If a party is found to have acted in bad faith, the court shall order that party to pay a reasonable attorney fee and costs of the defending party.

          [(8)] (9) Whenever a motion to establish, modify or terminate child support or satisfy or alter support arrearages is filed and the child support rights of one of the parties or of a child of both of the parties have been assigned to the state, a true copy of the motion shall be served by mail or personal delivery on the Administrator of the Division of Child Support of the Department of Justice or on the branch office providing support services to the county in which the motion is filed.

          [(9)(a)] (10)(a) Except as provided in ORS 109.701 to 109.834, the courts of Oregon, having once acquired personal and subject matter jurisdiction in a domestic relations action, retain such jurisdiction regardless of any change of domicile.

          (b) The courts of Oregon, in a proceeding to establish, enforce or modify a child support order, shall recognize the provisions of the federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. 1738B).

          [(10)] (11) In a proceeding under this section to reconsider provisions in a [decree] judgment relating to custody or parenting time, the court may consider repeated and unreasonable denial of, or interference with, parenting time to be a substantial change of circumstances.

          [(11)] (12) Within 30 days after service of notice under subsection (1) of this section, the party served shall file a written response with the court.

          [(12)(a)] (13)(a) It is the policy of this state:

          (A) To encourage the settlement of cases brought under this section; and

          (B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (b) In a proceeding under subsection (1) of this section, the court may enforce the terms set forth in a stipulated order or judgment signed by the parties, an order or judgment resulting from a settlement on the record or an order or judgment incorporating a settlement agreement:

          (A) As contract terms using contract remedies;

          (B) By imposing any remedy available to enforce an order or judgment, including but not limited to contempt; or

          (C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

          (c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (d) Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in a separate proceeding, to file a motion to modify an order or judgment under subsection (1) of this section or to seek enforcement of an ancillary agreement to the order or judgment.

 

          SECTION 113. ORS 107.159 is amended to read:

          107.159. (1) In any court order or [decree] judgment granting custody of a minor child and parenting time or visitation rights relating to the child, except for an order under ORS 107.700 to 107.732, the court shall include in its order a provision requiring that neither parent may move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court.

          (2) Notwithstanding subsection (1) of this section, a parent is not required to give notice of a change of residence if the court, upon ex parte or other motion of the parent and for good cause, enters an order suspending the requirement.

 

          SECTION 114. ORS 107.169 is amended to read:

          107.169. (1) As used in this chapter, “joint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.

          (2) The existence of an order of joint custody shall not, by itself, determine the responsibility of each parent to provide for the support of the child.

          (3) The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.

          (4) When parents have agreed to joint custody in an order or a [decree] judgment, the court may not overrule that agreement by ordering sole custody to one parent.

          (5) Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.

 

          SECTION 115. ORS 107.174 is amended to read:

          107.174. (1) Except as otherwise provided in this subsection, the court shall order modification under ORS 107.135 of so much of a [decree] judgment as relates to the parenting time with a minor child, if the parents submit to the court a notarized stipulation signed by both of the parents and requesting such modification together with a form of order. The content and form of such stipulation and order shall be as prescribed by the State Court Administrator. At its discretion, the court may order the matter set for a hearing and require the parties to appear personally before the court.

          (2) This section shall not apply when the child to whom a duty of support is owed is in another state which has enacted the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and a court in that state would have subject matter and personal jurisdiction under that Act to determine custody and parenting time rights.

 

          SECTION 116. ORS 107.179 is amended to read:

          107.179. (1) When either party to a child custody issue, other than one involving temporary custody, whether the issue arises from a case of marital annulment, dissolution or separation, or from a determination of paternity, requests the court to grant joint custody of the minor children of the parties under ORS 107.105, the court, if the other party objects to the request for joint custody, shall proceed under this section. The request under this subsection must be made, in the petition or the response, or otherwise not less than 30 days before the date of trial in the case, except for good cause shown. The court in such circumstances, except as provided in subsection (3) of this section, shall direct the parties to participate in mediation in an effort to resolve their differences concerning custody. The court may order such participation in mediation within a mediation program established by the court or as conducted by any mediator approved by the court. Unless the court or the county provides a mediation service available to the parties, the court may order that the costs of the mediation be paid by one or both of the parties, as the court finds equitable upon consideration of the relative ability of the parties to pay those costs. If, after 90 days, the parties do not arrive at a resolution of their differences, the court shall proceed to determine custody.

          (2) At its discretion, the court may:

          (a) Order mediation under this section prior to trial and postpone trial of the case pending the outcome of the mediation, in which case the issue of custody shall be tried only upon failure to resolve the issue of custody by mediation;

          (b) Order mediation under this section prior to trial and proceed to try the case as to issues other than custody while the parties are at the same time engaged in the mediation, in which case the issue of custody shall be tried separately upon failure to resolve the issue of custody by mediation; or

          (c) Complete the trial of the case on all issues and order mediation under this section upon the conclusion of the trial, postponing entry of the [decree] judgment pending outcome of the mediation, in which case the court may enter a [temporary decree] limited judgment as to issues other than custody upon completion of the trial or may postpone entry of any [decree] judgment until the expiration of the mediation period or agreement of the parties as to custody.

          (3) If either party objects to mediation on the grounds that to participate in mediation would subject the party to severe emotional distress and moves the court to waive mediation, the court shall hold a hearing on the motion. If the court finds it likely that participation in mediation will subject the party to severe emotional distress, the court may waive the requirement of mediation.

          (4) Communications made by or to a mediator or between parties as a part of mediation ordered under this section are privileged and are not admissible as evidence in any civil or criminal proceeding.

 

          SECTION 117. ORS 107.400 is amended to read:

          107.400. At any time prior to the entry of a [decree] judgment, upon motion of a party and due notice to the other party in the manner provided by law for service of summons, the court may allow an amendment of pleadings to change the relief sought from annulment to dissolution or separation, from dissolution to annulment or separation, or from separation to annulment or dissolution.

 

          SECTION 118. ORS 107.407 is amended to read:

          107.407. If an individual has paid an amount of money in installments for more than 10 years for the support of a former spouse under a [court decree] judgment of annulment or dissolution of marriage that ordered such payment, and when the former spouse has not made a reasonable effort during that period of time to become financially self-supporting and independent of the support provided under the [decree] judgment, the individual paying the support may petition the court that issued the [decree] judgment to set aside so much of the [decree] judgment as may provide for the support of the former spouse. The petition shall not be granted if spousal support was granted in the [decree] judgment in lieu of a share of property in order to provide the other spouse with a tax benefit.

 

          SECTION 119. ORS 107.412 is amended to read:

          107.412. (1) Upon petition of an individual and after service of notice on the other party in the manner provided by law for service of a summons, the court shall conduct a proceeding to determine whether so much of its [decree] judgment as provides for the support of a party shall be set aside.

          (2) Except as provided in subsections (3) and (4) of this section, if the court finds that the party receiving support has not made a reasonable effort during the previous 10 years to become financially self-supporting and independent of the support provided under the [decree] judgment, the court shall order that support terminated. In making its finding under this subsection, the court shall consider the following matters:

          (a) The age of the party receiving support;

          (b) The health, work experience and earning capacity of the party;

          (c) The ages, health and dependency conditions of the minor children of the party; and

          (d) Efforts made by the party during the previous 10 years to improve opportunities for gainful or improved employment including, but not limited to, attendance at any school, community college or university or attendance at courses of professional or technical training.

          (3) A court does not have power under ORS 107.407 and this section to set aside any payment of money for the support of a party that has accrued prior to the filing of the petition under subsection (1) of this section.

          (4) ORS 107.407 and this section do not affect a [decree] judgment, or any portion of it, that provides for the payment of money for the support of minor children or for the support of a party who is 60 years of age or older when the proceeding under subsection (1) of this section is held.

          (5) In a proceeding held under subsection (1) of this section, the court may assess against either party a reasonable attorney fee for the benefit of the other party.

 

          SECTION 120. ORS 107.415 is amended to read:

          107.415. (1) If a party is required by a [decree] judgment of a court in a domestic relations suit, as defined in ORS 107.510, to contribute to the support, nurture or education of a minor child while the other party has custody thereof, the custodial parent shall notify the party contributing such money when the minor child receives income from the gainful employment of the child, or is married or enters the military service.

          (2) Any custodial parent who does not provide notice, as required by subsection (1) of this section may be required by the court to make restitution to the contributing party of any money paid, as required by the [decree] judgment. The court may enter a supplemental judgment or satisfy all or part of [any accrued judgment] the support award to accomplish the restitution.

 

          SECTION 121. ORS 107.425 is amended to read:

          107.425. (1) In suits or proceedings described in subsection (4) of this section in which there are minor children involved, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability and financial worth of the parties for the purpose of protecting the children’s future interest. The court may defer the entry of a [final] general judgment until the court is satisfied that its judgment in such suit or proceeding will properly protect the welfare of such children. The investigative findings shall be offered as and subject to all rules of evidence. Costs of the investigation may be charged against one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for indigent defense services.

          (2) The court, on its own motion or on the motion of a party, may order an independent physical, psychological, psychiatric or mental health examination of a party or the children and may require any party and the children to be interviewed, evaluated and tested by an expert or panel of experts. The court may also authorize the expert or panel of experts to interview other persons and to request other persons to make available to the expert or panel of experts records deemed by the court or the expert or panel of experts to be relevant to the evaluation. The court may order the parties to authorize the disclosure of such records. In the event the parties are unable to stipulate to the selection of an expert or panel of experts to conduct the examination or evaluation, the court shall appoint a qualified expert or panel of experts. The court shall direct one or more of the parties to pay for the examination or evaluation in the absence of an agreement between the parties as to the responsibility for payment but shall not direct that the expenses be charged against funds appropriated for indigent defense services. If more than one party is directed to pay, the court may determine the amount that each party will pay based on financial ability.

          (3)(a) In addition to an investigation, examination or evaluation under subsections (1) and (2) of this section, the court may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist parents in creating and implementing parenting plans. The services provided to the court and to parents under this section may include:

          (A) Gathering information;

          (B) Monitoring compliance with court orders;

          (C) Providing the parents, their attorneys, if any, and the court with recommendations for new or modified parenting time provisions; and

          (D) Providing parents with problem solving, conflict management and parenting time coordination services or other services approved by the court.

          (b) Services provided under this section may require the provider to possess and utilize mediation skills, but the services are not comprised exclusively of mediation services under ORS 107.755 to 107.785. If only mediation services are provided, the provisions of ORS 107.755 to 107.785 apply.

          (c) The court may order one or more of the parties to pay for services provided under this subsection, if the parties are unable to agree on their respective responsibilities for payment. The court may not order that expenses be charged against funds appropriated for indigent defense services.

          (d) The presiding judge of each judicial district shall establish qualifications for the appointment and training of individuals and panels and the designation of programs under this section. In establishing qualifications, a presiding judge shall take into consideration any guidelines recommended by the statewide family law advisory committee.

          (4) The provisions of this section apply when:

          (a) A person files a domestic relations suit, as defined in ORS 107.510;

          (b) A motion to modify an existing [decree] judgment in a domestic relations suit is before the court;

          (c) A parent of a child born out of wedlock initiates a civil proceeding to determine custody or support under ORS 109.103;

          (d) A person petitions or files a motion for intervention under ORS 109.119;

          (e) A person or state agency files a petition under ORS 109.125 to establish paternity and paternity is established; or

          (f) A habeas corpus proceeding is before the court.

          (5) Application of the provisions of subsection (1), (2) or (3) of this section to the proceedings under subsection (4) of this section does not prevent initiation, entry or enforcement of an order of support.

          (6) The court, on its own motion or on the motion of a party, may appoint counsel for the children. However, if requested to do so by one or more of the children, the court shall appoint counsel for the child or children. A reasonable fee for an attorney so appointed may be charged against one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for indigent defense services.

          (7) Prior to the entry of an order, the court on its own motion or on the motion of a party may take testimony from or confer with the child or children of the marriage and may exclude from the conference the parents and other persons if the court finds that such action would be likely to be in the best interests of the child or children. However, the court shall permit an attorney for each party to attend the conference and question the child, and the conference shall be reported.

 

          SECTION 122. ORS 107.425, as amended by section 6c, chapter 873, Oregon Laws 2001, is amended to read:

          107.425. (1) In suits or proceedings described in subsection (4) of this section in which there are minor children involved, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability and financial worth of the parties for the purpose of protecting the children’s future interest. The court may defer the entry of a [final] general judgment until the court is satisfied that its judgment in such suit or proceeding will properly protect the welfare of such children. The investigative findings shall be offered as and subject to all rules of evidence. Costs of the investigation may be charged against one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for public defense services.

          (2) The court, on its own motion or on the motion of a party, may order an independent physical, psychological, psychiatric or mental health examination of a party or the children and may require any party and the children to be interviewed, evaluated and tested by an expert or panel of experts. The court may also authorize the expert or panel of experts to interview other persons and to request other persons to make available to the expert or panel of experts records deemed by the court or the expert or panel of experts to be relevant to the evaluation. The court may order the parties to authorize the disclosure of such records. In the event the parties are unable to stipulate to the selection of an expert or panel of experts to conduct the examination or evaluation, the court shall appoint a qualified expert or panel of experts. The court shall direct one or more of the parties to pay for the examination or evaluation in the absence of an agreement between the parties as to the responsibility for payment but shall not direct that the expenses be charged against funds appropriated for public defense services. If more than one party is directed to pay, the court may determine the amount that each party will pay based on financial ability.

          (3)(a) In addition to an investigation, examination or evaluation under subsections (1) and (2) of this section, the court may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist parents in creating and implementing parenting plans. The services provided to the court and to parents under this section may include:

          (A) Gathering information;

          (B) Monitoring compliance with court orders;

          (C) Providing the parents, their attorneys, if any, and the court with recommendations for new or modified parenting time provisions; and

          (D) Providing parents with problem solving, conflict management and parenting time coordination services or other services approved by the court.

          (b) Services provided under this section may require the provider to possess and utilize mediation skills, but the services are not comprised exclusively of mediation services under ORS 107.755 to 107.785. If only mediation services are provided, the provisions of ORS 107.755 to 107.785 apply.

          (c) The court may order one or more of the parties to pay for services provided under this subsection, if the parties are unable to agree on their respective responsibilities for payment. The court may not order that expenses be charged against funds appropriated for public defense services.

          (d) The presiding judge of each judicial district shall establish qualifications for the appointment and training of individuals and panels and the designation of programs under this section. In establishing qualifications, a presiding judge shall take into consideration any guidelines recommended by the statewide family law advisory committee.

          (4) The provisions of this section apply when:

          (a) A person files a domestic relations suit, as defined in ORS 107.510;

          (b) A motion to modify an existing [decree] judgment in a domestic relations suit is before the court;

          (c) A parent of a child born out of wedlock initiates a civil proceeding to determine custody or support under ORS 109.103;

          (d) A person petitions or files a motion for intervention under ORS 109.119;

          (e) A person or state agency files a petition under ORS 109.125 to establish paternity and paternity is established; or

          (f) A habeas corpus proceeding is before the court.

          (5) Application of the provisions of subsection (1), (2) or (3) of this section to the proceedings under subsection (4) of this section does not prevent initiation, entry or enforcement of an order of support.

          (6) The court, on its own motion or on the motion of a party, may appoint counsel for the children. However, if requested to do so by one or more of the children, the court shall appoint counsel for the child or children. A reasonable fee for an attorney so appointed may be charged against one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for public defense services.

          (7) Prior to the entry of an order, the court on its own motion or on the motion of a party may take testimony from or confer with the child or children of the marriage and may exclude from the conference the parents and other persons if the court finds that such action would be likely to be in the best interests of the child or children. However, the court shall permit an attorney for each party to attend the conference and question the child, and the conference shall be reported.

 

          SECTION 123. ORS 107.431, as amended by section 5, chapter 116, Oregon Laws 2003 (Enrolled House Bill 2277), is amended to read:

          107.431. (1) At any time after a [decree] judgment of annulment or dissolution of a marriage or a separation is granted, the court may set aside, alter or modify so much of the [decree] judgment relating to parenting time with a minor child as it deems just and proper or may terminate or modify that part of the order or [decree] judgment requiring payment of money for the support of the minor child with whom parenting time is being denied after:

          (a) Motion to set aside, alter or modify is made by the parent having parenting time rights;

          (b) Service of notice on the parent or other person having custody of the minor child is made in the manner provided by law for service of a summons;

          (c) Service of notice on the Administrator of the Division of Child Support of the Department of Justice when the child support rights of one of the parties or of a child of both of the parties have been assigned to the state. As an alternative to the service of notice on the administrator, service may be made upon the branch office of the division which provides service to the county in which the motion was filed. Service may be accomplished by personal delivery or first class mail; and

          (d) A showing that the parent or other person having custody of the child or a person acting in that parent or other person’s behalf has interfered with or denied without good cause the exercise of the parent’s parenting time rights.

          (2) When a party moves to set aside, alter or modify the child support provisions of the [decree] judgment:

          (a) The party shall state in the motion, to the extent known:

          (A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving the child, including a proceeding brought under ORS 25.287, 107.135, 109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110; and

          (B) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.303, involving the child, other than the [decree] judgment the party is moving to set aside, alter or modify.

          (b) The party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the [decree] judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and paragraph (a) of this subsection.

          (3) The court may request the appearance of the administrator in any proceeding under this section in which it finds that the child support rights of one of the parties or of a child of both of the parties have been assigned to the state.

          (4) This section does not apply when the child to whom a duty of support is owed is in another state that has enacted the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and a court in that state would have subject matter and personal jurisdiction under that Act to determine custody and parenting time rights.

 

          SECTION 124. ORS 107.445 is amended to read:

          107.445. In any proceeding brought under ORS 107.095, 108.110 and 108.120, and in any contempt proceeding in any suit for marital annulment, dissolution or separation, the court may [make an order] render a judgment awarding to a party, or directly to the party’s attorney, a sum of money determined to be reasonable as an attorney fee at trial and on appeal therein. When a district attorney initiates or prosecutes a proceeding pursuant to ORS 33.015 to 33.155 for enforcement of a restraining order issued under ORS 107.716, 107.718, 124.015 or 124.020 or for enforcement of a support order, the court may [order] enter a judgment for a reasonable attorney fee to be paid by the respondent to the county in which the district attorney holds office. [The order shall be entered and docketed as a judgment, and execution may issue thereon in the same manner and with like effect as upon a final decree.] A judgment so [ordered or decreed] entered is enforceable by the party or attorney in whose favor the [order is issued] judgment is given against property of the other party or against any property held jointly or in common between the parties.

 

          SECTION 125. ORS 107.449 is amended to read:

          107.449. (1) Upon motion of a party to a proceeding under ORS 107.135 (1) that is not otherwise covered under the provisions of ORS 25.100 (1), based upon convenience of the parties, the court that has entered the original judgment [or decree] may order that the matter be transferred to an auxiliary circuit court where either party resides for the purpose of hearing the matter.

          (2) Upon entry of an order under this section and payment by the moving party of the copying and certification costs, the clerk of the court that ordered the transfer shall transmit certified copies of the files, records and prepared transcripts of testimony in the original proceeding to the clerk of the court receiving the matter. Upon receipt of such certified copies, the circuit court of the county to which such certified copies have been transmitted shall have jurisdiction the same as if it were the court that made and entered the original order or [decree] judgment.

          (3) The only court having jurisdiction to modify any provision of the original order or [decree] judgment is the court having original jurisdiction of the cause in which such order or [decree] judgment was entered or the circuit court of the county in which either party resides if that court has received the certified copies referred to in subsection (2) of this section. The provisions of ORS 25.100 (2) to (4) shall apply to all records maintained and orders issued in the auxiliary proceeding.

 

          SECTION 126. ORS 107.455 is amended to read:

          107.455. The provisions of law pertaining to separation are not intended to and shall not repeal or affect any existing law pertaining to the granting of a [decree] judgment of dissolution of marriage. The entry of a [decree] judgment of separation under ORS 107.475 shall not be a bar to a suit for dissolution by either party. [No] A decree or judgment of dissolution of marriage granted by a court of this or any other state upon constructive service of summons [shall] does not affect an award of support or maintenance in a [decree] judgment of separation made pursuant to ORS 107.095 or 107.105.

 

          SECTION 127. ORS 107.465 is amended to read:

          107.465. (1) Upon motion of a party for an order to show cause why a [decree] judgment of separation should not be converted to a [decree] judgment of dissolution and after service of notice to the other party at least 30 days before the scheduled hearing, the court may, within two years after the entry of a [decree] judgment of separation, convert a [decree] judgment of separation into a [decree] judgment of dissolution of the marriage. The other party may file a written consent to conversion and waiver of the hearing at any time before the hearing. [Any] A supplemental [decree] judgment of dissolution [shall] entered under this section does not set aside, alter or modify any part of the [decree] judgment of separation that has created or granted rights that have vested.

          (2) Nothing in this section is intended to prevent either party to a [decree] judgment of separation from commencing at any time in the manner required by law a suit for dissolution of the marriage.

 

          SECTION 128. ORS 107.475 is amended to read:

          107.475. The court shall determine and fix in its [decree] judgment the duration of the separation. At the expiration of such time, the [decree] judgment shall have no further effect. However, no rights created or granted in the [decree] judgment which have vested shall be affected by its termination. Upon motion of a party and service upon the other party of notice in the manner provided by law for service of summons, the court may renew or extend the duration. When the [decree] judgment is for unlimited separation, a party may by motion alleging that the cause for separation no longer exists and after due service of notice upon the other party in the manner provided by law for service of summons, apply for an order modifying or vacating the [decree] judgment, subject to the provisions of ORS 107.135.

 

          SECTION 129. ORS 107.500 is amended to read:

          107.500. Each circuit court shall make available with appropriate forms an instructional brochure prescribed by the State Court Administrator and describing the procedures set forth in this section and ORS 107.485 and 107.490. The content of the forms used pursuant to this section and ORS 107.485 and 107.490 shall be substantially as follows:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF _________

 

In the Matter of            )

the Marriage of             )

                                    )   No.______

___________,             )

Petitioner,                     )   PETITION FOR

                                    )   SUMMARY

                                    )   DISSOLUTION

and                               )   OF MARRIAGE

                                    )

___________,             )

Respondent.                 )

                                    )

 

          1. (________, Petitioner,) (________, Respondent,) has been a resident of Oregon continuously for the past six months before filing this petition.

          2. Statistical Facts:

          a. Date of marriage:

          ____________________

          b. Place of marriage:

          ____________________

          c. Wife’s address:

          ____________________

          d. Wife’s maiden name:

          ____________________

          e. Wife’s former legal names:

          ____________________

          f. Wife’s age:

          ____________________

          g. Wife’s social security number:

          ____________________

          h. Husband’s address:

          ____________________

          i. Husband’s former legal names:

          ____________________

          j. Husband’s age:

          ____________________

          k. Husband’s social security number:

          ____________________

          3. My spouse and I have not been married more than 10 years.

          4. Petitioner does not know of any pending (not yet decided by a judge) domestic relations suits involving this marriage in this or any other state.

          5. There are no minor children born to the parties or born during the marriage. There are no adopted minor children. The wife is not now pregnant.

          6. Petitioner requests a dissolution because irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.

          7. The personal property of the parties is not worth more than $30,000. Petitioner requests that the Court divide the property as follows:

          (a) The wife should be awarded the following personal property:

          _________________________________________________________________________

          _________________________________________________________________________

          _________________________________________________________________________

          _________________________________________________________________________

          Additional pages have been attached and labeled “7a. continued.”

          (b) The husband should be awarded the following personal property:

          _________________________________________________________________________

          _________________________________________________________________________

          _________________________________________________________________________

          _________________________________________________________________________

          Additional pages have been attached and labeled “7b. continued.”

          (c) The husband and wife should each sign any documents necessary to remove his or her name as owner of personal property awarded to the other party.

          8. Neither the husband nor the wife own any real property.

          9. The debts incurred by the husband and wife together or separately from the date of the marriage are not greater than $15,000.

          Petitioner requests the following division of debts:

          (a) The wife be required to pay the debts listed below. The husband is awarded a judgment against the wife in the sum of $_______. The wife can satisfy this judgment by paying off the following debts:

 

Name of Creditor             Amount Owed

_____________              __________

_____________              __________

_____________              __________

_____________              __________

 

          (b) The husband be required to pay the debts listed below. The wife is awarded a judgment against the husband in the sum of $_______. The husband can satisfy the judgment by paying off the following debts:

 

Name of Creditor             Amount Owed

_____________              __________

_____________              __________

_____________              __________

_____________              __________

 

          10. I relinquish all rights I may have to spousal support and waive any right to pendente lite orders (temporary orders) except those pursuant to ORS 107.700 to 107.732 (the Family Abuse Prevention Act) or 124.005 to 124.040 (the Elderly and Disabled Person Abuse Prevention Act).

          (Complete only if petitioner is paying fees and wants reimbursement from spouse or if fees are being deferred for the petitioner.)

          11. (a) If petitioner has paid court costs and service fees, petitioner requests that costs and fees paid by petitioner be repaid by respondent spouse, ________, and that a judgment in the amount of such costs and fees be entered in favor of petitioner, ________, in the amount of $_______.

          (b) If fees are being deferred for petitioner:

          Petitioner requests that judgment be entered against

 

(_____________, Petitioner)

 

(_____________, Respondent) in favor of the state in the amount of $_______.

          12. Petitioner requests that:

 

wife’s legal name be restored to

 

___________________

 

husband’s legal name be restored to

 

___________________

 

                    _________________

                    (Petitioner’s signature)

                    Address:

                    _________________

                    _________________

                    _________________

                    Telephone:____________

 

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ______

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   SUMMONS FOR SUMMARY

                                )   DISSOLUTION

                                )   Marriage Dissolution Suit

and                           )

                                )

___________,         )

Respondent.             )

                                )

 

      TO:      Name of Respondent

                  ___________________

                  Address of Respondent

                  ___________________

                  __________, Oregon

 

          YOU HAVE BEEN SUED. The court may decide against you without your being heard unless you respond within 30 days of the day you received these papers. Read the information below.

          NOTICE TO RESPONDENT:

          READ THESE PAPERS CAREFULLY

          Your spouse has filed a petition with the court to end your marriage and asking to divide your property and debts, if any. You must “appear” in this case or the court will grant your spouse’s requests. To “appear,” you must file with the court a legal paper called a “motion” or “answer.” The “motion” or “answer” must be given to the Court Clerk or Administrator at: (location) _________within 30 days of the day you received these papers, along with the required filing fee. The “motion” or “answer” must be in proper form and you must show that your spouse has been served with a copy of it.

 

                    _________________

                    Name of Petitioner

                    _________________

                    Address of Petitioner

                    _________________

                    City/State/Zip Code

 

          Important Information about Respondent (A recent photo may be attached in addition to the requested information.)

Height:_______________

Weight:_______________

Race:_______________

Date of Birth:____________

Automobile license number and description:

___________________________

Other identifying information:

___________________________

Best time and place to locate:

___________________________

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ______

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   AFFIDAVIT OF PROOF

                                )   OF SERVICE

                                )

and                           )

                                )

___________,         )

Respondent.             )

                                )

 

STATE OF OREGON       )

                                          )     ss.

County of                           )

 

          I, ___________________, swear/affirm under oath that:

          I am a resident of the State of Oregon. I am a competent person over 18 years of age. I am not an attorney for or a party to this case, or an officer, director or employee of any party to this case. On the ___ day of ________, 2____, I served the Summons and Petition in this case personally upon the above named respondent in ________ County by delivering to the respondent a copy of those papers, each of which was certified to be a true copy of each original.

 

________________________

Signature of ____________

          SUBSCRIBED AND SWORN TO before me this ___ day of ________, 2___.

 

                                                _______________________

                                                NOTARY PUBLIC FOR OREGON

                                                My Commission Expires: ________

 

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ___________

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   MOTION AND ORDER FOR

                                )   WAIVER OF FEES

                                )

and                           )

                                )

___________,         )

Respondent.             )

                                )

 

          Petitioner moves the Court for an order waiving payment of filing fees, service fees, and other costs.

 

                    _______________

                    Petitioner

 

POINTS AND AUTHORITIES

          ORS 21.605; the Court shall waive all fees and costs if the Court finds that the party is unable to pay such fees and costs.

ORDER

          IT IS SO ORDERED.

          DATED: This ____ day of _______, 2____.

 

                    ____________________

                    COURT

 

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ___________

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   AFFIDAVIT FOR

                                )   WAIVER OF

and                           )   FEES AND COSTS

                                )

___________,         )

Respondent.             )

                                )

 

STATE OF OREGON       )

                                          )     ss.

County of                           )

 

          I, ______________, being first duly sworn upon oath, depose and declare that I am the petitioner for a [Decree] Judgment of Summary Dissolution and am unable to pay necessary filing fees, service fees and court costs. My total monthly income from all sources is $_____. I have $_____ as assets and $_____ as savings. I support ___ people. My monthly expenses are $___ housing, $___ food, $___ utilities, $___ transportation, $___ laundry, cleaning and personal requirements, $___ medical expenses, $___ clothing, $___ telephone, $___ total installment payments, $___ other expenses, for total monthly expenses of $_____.

 

______________________

Signature of ____________

          SUBSCRIBED AND SWORN TO before me this _____ day of ________, 2___.

 

                    _______________________

                    NOTARY PUBLIC FOR OREGON

                    My Commission Expires _________

 

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ___________

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   PETITIONER’S

                                )   AFFIDAVIT, MOTION

                                )   AND ORDER FOR

and                           )   DEFAULT [DECREE] JUDGMENT

                                )   OF DISSOLUTION

                                )

___________,         )

Respondent.             )

                                )

 

STATE OF OREGON       )

                                          )     ss.

County of                           )

 

          I, ___, swear/affirm under oath that:

          I am the Petitioner. The Respondent is not now nor was at the time of the commencement of this suit in the military service of the United States; nor is the Respondent a legally mentally incapacitated person; nor is the Respondent under 18 years of age.

          The Respondent was served with Summons and Petition for Dissolution on the ___ day of ________, 2___, in ________ County, Oregon, and has failed to answer or appear.

 

                    _________________

                    Petitioner

 

          SUBSCRIBED AND SWORN TO before me this __ day of ________, 2___.

 

                    _______________________

                    NOTARY PUBLIC FOR OREGON

                    My Commission Expires ________

 

          Petitioner moves the Court for an Order entering the default of Respondent.

 

                    _________________

                    Petitioner

                    _________________

                    Address of Petitioner

                    _________________

                    City, State Zip

 

ORDER

          IT IS SO ORDERED.

          DATED: This ____ day of ________, 2____.

 

                    ____________________

                    CIRCUIT COURT JUDGE

 

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ___________

 

In the Matter of        )

the Marriage of         )

                                )   No.______

___________,         )

Petitioner,                 )   [DECREE] JUDGMENT OF

                                )   SUMMARY DISSOLUTION

                                )

and                           )

                                )

___________,         )

Respondent.             )

                                )

 

          Statistical Facts:

          a. Date of marriage:

          ____________________

          b. Place of marriage:

          ____________________

          c. Wife’s address:

          ____________________

          d. Wife’s maiden name:

          ____________________

          e. Wife’s former legal names:

          ____________________

          f. Wife’s age:

          ____________________

          g. Wife’s social security number:

          ____________________

          h. Husband’s address:

          ____________________

          i. Husband’s former legal names:

          ____________________

          j. Husband’s age:

          ____________________

          k. Husband’s social security number:

          ____________________

          This matter came before the Court for default. Petitioner appeared (in person) (by affidavit), and Respondent did not appear. THE COURT HAS BEEN FULLY ADVISED, AND [THEREFORE IT IS HEREBY DECREED THAT] JUDGMENT IS RENDERED AS FOLLOWS:

          1. Dissolution: This marriage is dissolved and shall terminate on ____________.

          2. Prior Wills: Any will previously executed by either spouse with provisions in favor of the other spouse is revoked with respect to those provisions, unless the will expresses a different intent.

          3. Division of Property: (a) The wife is awarded and shall own by herself the following personal property:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

          Additional pages have been attached as C-1.

          (b) The husband is awarded and shall own by himself the following personal property:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

          Additional pages have been attached as C-2.

          (c) Husband and wife each shall sign any documents necessary to remove his or her name as owner of personal property awarded to the other. If either fails to sign the necessary documents, a certified copy of the [Decree] Judgment shall serve as a conveyance of the property.

          4. Payment of Debts: (a) The wife shall pay the debts listed below. The husband is awarded a judgment against the wife in the sum of $_______. The wife can satisfy this judgment by paying the following debts:

 

Name of Creditor             Amount Owed

_____________              __________

_____________              __________

_____________              __________

_____________              __________

Additional pages have been added as D-1.

 

          (b) The husband shall pay the debts listed below. The wife is awarded a judgment against the husband in the sum of $_______. The husband can satisfy the judgment by paying the following debts:

 

Name of Creditor             Amount Owed

_____________              __________

_____________              __________

_____________              __________

_____________              __________

 

Additional pages have been added as D-2.

          5. The wife shall have her former legal name restored. The restored name is: [_____]

____________________.

          The husband shall have his former legal name restored. The restored name is: [_____]

____________________.

          6. A judgment against (the husband) (the wife) for court costs and service fees in the amount of $____ is awarded to (the husband) (the wife) (this state if fees were waived or deferred).

          DATED: This ____ day of _______, 2____.

 

                    ____________________

                    CIRCUIT COURT JUDGE

 

______________________________________________________________________________

 

          SECTION 130. ORS 107.765 is amended to read:

          107.765. (1) In a domestic relations suit, where it appears on the face of one or more pleadings, appearances, petitions or motions, including any form of application for the setting aside, alteration or modification of an order or [decree] judgment, that custody, parenting time or visitation of a child is contested, the court may, when appropriate, refer the matter for mediation of the contested issues prior to or concurrent with the setting of the matter for hearing. The purpose of the mediation is to assist the parties in reaching a workable settlement of the contested issues instead of litigating those issues before the court. Unless the court provides for the mediation of financial issues under ORS 107.755 (4), the mediator shall not consider issues of property division or spousal or child support, in connection with the mediation of a dispute concerning child custody, parenting time or visitation, or otherwise, without the written approval of both parties or their counsel.

          (2) The mediator shall report to the court and to counsel for the parties the outcome of the mediation at the conclusion of the mediation proceeding. The mediator shall report in writing to the court and to counsel for the parties any agreement reached by the parties as a result of the mediation, and the agreement shall be incorporated in a proposed order or [decree] judgment provision prepared for the court. If the parties do not reach an agreement, the mediator shall report only that fact to the court and to counsel for the parties, but shall not make a recommendation to the court without the written consent of the parties or their counsel.

 

          SECTION 131. ORS 107.820 is amended to read:

          107.820. A court order for the payment of spousal or child support whether issued prior to, on or following November 1, 1981, constitutes an insurable interest in the party awarded the right to receive the support. In any case of marital annulment, dissolution or separation, the issue of life insurance shall be determined as follows:

          (1) When the [decree] judgment creates an obligation of spousal or child support or awards a share of a pension or retirement plan, the [court] judgment may also [order] require that the obligated party to maintain any existing insurance policies on the life of the obligated spouse and in which the dependent spouse is named as beneficiary. The [court may order] judgment may require that the policies be maintained until the obligation is fulfilled. The premiums may be paid by the obligated spouse, and the court may consider the cost of premiums when determining the obligation. Any life insurance policies on the life of the obligated spouse owned by parties outside of the marriage or purchased and held for purposes clearly outside the marriage relationship are exempt from this subsection.

          (2) If the party ordered to pay support or a share of a pension or retirement plan has no life insurance policy naming as beneficiary the party ordered to receive either support or a share of a pension or retirement plan, or if an existing policy is inadequate to cover the obligation, the court in [its decree] a judgment may order that the party ordered to pay shall purchase a life insurance policy naming as beneficiary the party ordered to receive the support or a share of a pension or retirement plan and that the obligated party shall pay premiums on the policy and keep the policy in force until the obligation ends. The obligated spouse has the option of obtaining a nonreducing term life insurance policy or any other type of policy in lieu of using existing policies.

          (3) Additionally, the party awarded the right to receive support or a share of a pension or retirement plan may purchase a life insurance policy on the life of the obligated party. In such case the court shall order the obligated party to undergo a physical examination. All rights of policy ownership, including those regarding the extent of coverage, shall be in the party purchasing the policy under this subsection who shall also be responsible for paying the premiums. The provisions of this subsection may be exercised at the time of annulment, dissolution or separation, or at any later time while the obligation continues.

          (4) Upon motion of either party, the court shall order a party to renew a life insurance policy allowed to lapse for any reason during the pendency of the suit.

          (5) A party who is the beneficiary of any policy under this section upon which the other party is obligated to pay premiums, is entitled, in the event of default by the paying party, to pay the premiums on the policy and to obtain a supplemental judgment for reimbursement of any money so expended. A default in the payment of premiums by the party obligated by the [decree] judgment or order is a contempt of the court.

          (6) Life insurance retained or purchased by an obligor under subsection (1) or (2) of this section for the purpose of protecting the support, pension or retirement plan obligation shall not be reduced by loans or any other means of reduction until the obligation has been fulfilled. The obligee or the attorney of the obligee shall cause a certified copy of the [decree] judgment to be delivered to the life insurance company or companies. If the obligee or the attorney of the obligee delivers a true copy of the [decree] judgment to the life insurance company or companies, identifying the policies involved and requesting such notification under this section, the company or companies shall notify the obligee, as beneficiary of the insurance policy, whenever the policyholder takes any action that will change the beneficiary or reduce the benefits of the policy. Either party may request notification by the insurer when premium payments have not been made. If the obligor is ordered to provide for and maintain life insurance, the obligor shall provide to the obligee a true copy of the policy. The obligor shall also provide to the obligee written notice of any action that will reduce the benefits or change the designation of the beneficiaries under the policy.

 

          SECTION 132. ORS 107.835 is amended to read:

          107.835. (1) When any court enters a [decree] judgment, order or modification of any [decree] judgment or order under ORS chapter 25, 107, 108, 109, 110 or 416, the court shall allow any party to the [decree] judgment or order to include in the [decree] judgment or order a waiver of personal service in a subsequent contempt proceeding. The content of the waiver shall be substantially as follows:

______________________________________________________________________________

          In order to maintain the confidentiality of my residential address, I hereby waive my right to personal service if I am subsequently charged with contempt. I am giving the following contact address for service of process and select the following method of substituted service:

 

 

 

        ( ) Mailing address:_____ ________

        ( ) Business address:____ _________

        ( ) Specified agent:_____ ________

                        Signed:_____ ________

 

______________________________________________________________________________

 

          (2) Any time after a party has waived personal service under subsection (1) of this section, the party may file an amended waiver in substantially the same form designating a different method of substituted service or a different address for substituted service. The party must give notice of the amendment to all other parties.

 

          SECTION 133. ORS 108.120 is amended to read:

          108.120. (1) After the hearing of the petition for an order of support, the court shall make an order granting or denying it and fixing, if allowed, the terms and amount of the support.

          (2) The court has the same power to compel the attendance of witnesses or the production of testimony as in actions and suits, to make such [decree] judgment or orders as are equitable in view of the circumstances of both parties and to punish violations thereof as other contempts are punished.

          (3) The [decree] judgment or order is [a final judgment] final as to any installment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the [decree] judgment or order, and the court does not have the power to set aside, alter or modify such [decree] judgment or order, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion. However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent.

 

          SECTION 133a. If House Bill 2111 becomes law, section 133 of this 2003 Act (amending ORS 108.120) is repealed and ORS 108.120, as amended by section 2, chapter 419, Oregon Laws 2003 (Enrolled House Bill 2111), is amended to read:

          108.120. (1) After the hearing of the petition for an order of support the court shall make an order granting or denying it and fixing, if allowed, the terms and amount of the support.

          (2) The court has the same power to compel the attendance of witnesses or the production of testimony as in actions and suits, to make such [decree] judgment or orders as are equitable in view of the circumstances of both parties and to punish violations thereof as other contempts are punished.

          (3) The [decree] judgment or order is [a final judgment] final as to any installment or payment of money that has accrued up to the time the nonmoving party, other than the state, is served with a motion to set aside, alter or modify the [decree] judgment or order. The court may not set aside, alter or modify any portion of the [decree] judgment or order that provides for any payment of money, either for minor children or for the support of a party, that has accrued before the motion is served. However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child.

 

          SECTION 134. ORS 109.041 is amended to read:

          109.041. (1) The effect of a [decree] judgment of adoption heretofore or hereafter granted by a court of this state shall be that the relationship, rights and obligations between an adopted person and the descendants of the adopted person and

          (a) The adoptive parents of the adopted person, their descendants and kindred, and

          (b) The natural parents of the adopted person, their descendants and kindred

 

shall be the same to all legal intents and purposes after the entry of such [decree] judgment as if the adopted person had been born in lawful wedlock to the adoptive parents and had not been born to the natural parents.

          (2) [Where] When a person has been or shall be adopted in this state by a stepparent, this section shall leave unchanged the relationship, rights and obligations between such adopted person and descendants of the adopted person and natural parent of the adopted person, who is the spouse of the person who adopted the person, and the descendants and kindred of such natural parent.

 

          SECTION 135. ORS 109.053 is amended to read:

          109.053. (1) The expenses of the family and the education of minor children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them. However, with regard to stepchildren, the obligation shall cease upon entry of a [decree] judgment of dissolution.

          (2) As used in this section, “stepchild” means a child under the age of 18, or a child attending school as defined in ORS 107.108 who is in the custody of one biological or adoptive parent who is married to and not legally separated from a person other than the second biological or adoptive parent of such child.

          (3) Notwithstanding subsection (1) of this section, the legal duty of a parent to provide support for a child, as otherwise required by law, shall not be affected.

 

          SECTION 136. ORS 109.070 is amended to read:

          109.070. (1) The paternity of a person may be established as follows:

          (a) The child of a wife cohabiting with her husband who was not impotent or sterile at the time of the conception of the child shall be conclusively presumed to be the child of her husband, whether or not the marriage of the husband and wife may be void.

          (b) A child born in wedlock, there being no [decree] judgment of separation from bed or board, shall be presumed to be the child of the mother’s husband, whether or not the marriage of the husband and wife may be void. This shall be a disputable presumption.

          (c) By the marriage of the parents of a child after birth of the child.

          (d) By filiation proceedings.

          (e) By filing with the State Registrar of the Center for Health Statistics the voluntary acknowledgment of paternity form as provided for by ORS 432.287. Except as otherwise provided in subsection (2) of this section, this filing establishes paternity for all purposes.

          (f) By having established paternity through a voluntary acknowledgment of paternity process in another state.

          (g) By paternity being established or declared by other provision of law.

          (2)(a) A party to a voluntary acknowledgment of paternity may rescind the acknowledgment within the earlier of:

          (A) Sixty days after filing the voluntary acknowledgment of paternity; or

          (B) The date of a proceeding relating to the child, including a proceeding to establish a support order, in which the party wishing to rescind the acknowledgment is also a party to the proceeding. For the purposes of this subparagraph, the date of a proceeding is the date on which an order is entered in the proceeding.

          (b)(A) A signed voluntary acknowledgment of paternity filed in this state may be challenged:

          (i) At any time after the 60-day period on the basis of fraud, duress or material mistake of fact. The party bringing the challenge has the burden of proof.

          (ii) Within one year after the voluntary acknowledgment has been filed, unless the provisions of paragraph (c) of this subsection apply. No challenge to the voluntary acknowledgment may be allowed more than one year after the voluntary acknowledgment has been filed, unless the provisions of sub-subparagraph (i) of this subparagraph apply.

          (B) Legal responsibilities arising from the voluntary acknowledgment of paternity, including child support obligations, may not be suspended during the challenge, except for good cause.

          (c) No later than one year after a voluntary acknowledgment of paternity form is filed in this state and if genetic parentage tests have not been previously completed, a party to the acknowledgment or the state, if child support enforcement services are being provided under ORS 25.080, may apply to the court or to the administrator, as defined in ORS 25.010, for an order requiring that the parties and the child submit to genetic parentage tests.

          (d) If the results of the tests exclude the male party as a possible father of the child, a party or the state, if child support enforcement services are being provided under ORS 25.080, may apply to the court for an order of nonpaternity. Upon receipt of an order of nonpaternity, the Director of Human Services shall correct any records maintained by the State Registrar of the Center for Health Statistics that indicate that the male party is the parent of the child.

          (e) The state child support program shall pay any costs for genetic parentage tests subject to recovery from the party who requested the tests.

 

          SECTION 137. ORS 109.096 is amended to read:

          109.096. (1) When the paternity of a child has not been established under ORS 109.070, the putative father shall be entitled to reasonable notice in adoption, juvenile court, or other court proceedings concerning the custody of the child if the petitioner knows, or by the exercise of ordinary diligence should have known:

          (a) That the child resided with the putative father at any time during the 60 days immediately preceding the initiation of the proceeding, or at any time since the child’s birth if the child is less than 60 days old when the proceeding is initiated; or

          (b) That the putative father repeatedly has contributed or tried to contribute to the support of the child during the year immediately preceding the initiation of the proceeding, or during the period since the child’s birth if the child is less than one year old when the proceeding is initiated.

          (2) Except as provided in subsection (3) or (4) of this section, a verified statement of the mother of the child or of the petitioner, or an affidavit of another person with knowledge of the facts, filed in the proceeding and asserting that the child has not resided with the putative father, as provided in subsection (1)(a) of this section, and that the putative father has not contributed or tried to contribute to the support of the child, as provided in subsection (1)(b) of this section, shall be sufficient proof to enable the court to grant the relief sought without notice to the putative father.

          (3) The putative father shall be entitled to reasonable notice in a proceeding for the adoption of the child if notice of the initiation of filiation proceedings as required by ORS 109.225 was on file with the Center for Health Statistics of the Department of Human Services prior to the child’s being placed in the physical custody of a person or persons for the purpose of adoption by them. If the notice of the initiation of filiation proceedings was not on file at the time of the placement, the putative father shall be barred from contesting the adoption proceeding.

          (4) Except as otherwise provided in subsection (3) of this section, the putative father shall be entitled to reasonable notice in juvenile court or other court proceedings if notice of the initiation of filiation proceedings as required by ORS 109.225 was on file with the Center for Health Statistics prior to the initiation of the juvenile court or other court proceedings.

          (5) Notice under this section shall not be required to be given to a putative father who was a party to filiation proceedings under ORS 109.125 which either were dismissed or resulted in a finding that he was not the father of the child.

          (6) The notice required under this section shall be given in the manner provided in ORS 109.330.

          (7) No notice given under this section need disclose the name of the mother of the child.

          (8) A putative father has the primary responsibility to protect his rights, and nothing in this section shall be used to set aside an act of a permanent nature including, but not limited to, adoption or termination of parental rights, unless the father establishes within one year after the entry of the final [decree] judgment or order fraud on the part of a petitioner in the proceeding with respect to matters specified in subsections (1) to (5) of this section.

 

          SECTION 138. ORS 109.119 is amended to read:

          109.119. (1) Any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, guardianship or wardship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.

          (2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

          (b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.

          (c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.

          (3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

          (b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.

          (4)(a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

          (A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

          (B) Circumstances detrimental to the child exist if relief is denied;

          (C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

          (D) Granting relief would not substantially interfere with the custodial relationship; or

          (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

          (b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

          (A) The legal parent is unwilling or unable to care adequately for the child;

          (B) The petitioner or intervenor is or recently has been the child’s primary caretaker;

          (C) Circumstances detrimental to the child exist if relief is denied;

          (D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

          (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

          (5) In addition to the other rights granted under this section, a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for [post decree] post-judgment modification of a [decree] judgment relating to child custody.

          (6)(a) A motion for intervention filed under this section shall comply with ORCP 33 and state the grounds for relief under this section.

          (b)(A) A motion for intervention filed under ORS 419B.875 by a person other than a grandparent may be denied or a petition may be dismissed on the motion of any party or on the court’s own motion if the petition does not state a prima facie case of emotional ties creating a child-parent relationship or ongoing personal relationship or does not allege facts that the intervention is in the best interest of the child.

          (B) A motion for intervention filed under ORS 419B.875 by a grandparent may be granted upon a finding by clear and convincing evidence that the intervention is in the best interests of the child.

          (c) Costs for the representation of an intervenor under this section or ORS 419B.875 may not be charged against funds appropriated for indigent defense services.

          (7) In a proceeding under this section, the court may:

          (a) Cause an investigation, examination or evaluation to be made under ORS 107.425 or may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist the parties in creating and implementing parenting plans under ORS 107.425 (3).

          (b) Assess against a party reasonable attorney fees and costs for the benefit of another party.

          (8) As used in this section:

          (a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

          (b) “Circumstances detrimental to the child” includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child.

          (c) “Grandparent” means the legal parent of the child’s legal parent.

          (d) “Legal parent” means a parent as defined in ORS 419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.

          (e) “Ongoing personal relationship” means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.

 

          SECTION 139. ORS 109.119, as amended by section 1e, chapter 873, Oregon Laws 2001, is amended to read:

          109.119. (1) Any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, guardianship or wardship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.

          (2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

          (b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.

          (c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.

          (3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

          (b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.

          (4)(a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

          (A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

          (B) Circumstances detrimental to the child exist if relief is denied;

          (C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

          (D) Granting relief would not substantially interfere with the custodial relationship; or

          (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

          (b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

          (A) The legal parent is unwilling or unable to care adequately for the child;

          (B) The petitioner or intervenor is or recently has been the child’s primary caretaker;

          (C) Circumstances detrimental to the child exist if relief is denied;

          (D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

          (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

          (5) In addition to the other rights granted under this section, a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for [post decree] post-judgment modification of a [decree] judgment relating to child custody.

          (6)(a) A motion for intervention filed under this section shall comply with ORCP 33 and state the grounds for relief under this section.

          (b)(A) A motion for intervention filed under ORS 419B.875 by a person other than a grandparent may be denied or a petition may be dismissed on the motion of any party or on the court’s own motion if the petition does not state a prima facie case of emotional ties creating a child-parent relationship or ongoing personal relationship or does not allege facts that the intervention is in the best interest of the child.

          (B) A motion for intervention filed under ORS 419B.875 by a grandparent may be granted upon a finding by clear and convincing evidence that the intervention is in the best interests of the child.

          (c) Costs for the representation of an intervenor under this section or ORS 419B.875 may not be charged against funds appropriated for public defense services.

          (7) In a proceeding under this section, the court may:

          (a) Cause an investigation, examination or evaluation to be made under ORS 107.425 or may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist the parties in creating and implementing parenting plans under ORS 107.425 (3).

          (b) Assess against a party reasonable attorney fees and costs for the benefit of another party.

          (8) As used in this section:

          (a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

          (b) “Circumstances detrimental to the child” includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child.

          (c) “Grandparent” means the legal parent of the child’s legal parent.

          (d) “Legal parent” means a parent as defined in ORS 419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.

          (e) “Ongoing personal relationship” means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.

 

          SECTION 140. ORS 109.155 is amended to read:

          109.155. (1) The court, in a private hearing, shall first determine the issue of paternity. If the respondent admits the paternity, such admission shall be reduced to writing, verified by the respondent and filed with the court. If the paternity is denied, corroborating evidence, in addition to the testimony of the parent or expectant parent, shall be required.

          (2) If the court finds, from a preponderance of the evidence, that the petitioner or the respondent is the father of the child who has been, or who may be born out of wedlock, the court shall then proceed to a determination of the appropriate relief to be granted. The court may approve any settlement agreement reached between the parties and incorporate the same into any [decree] judgment rendered, and it may order such investigation or the production of such evidence as it deems appropriate to establish a proper basis for relief.

          (3) The court, in its discretion, may postpone the hearing from time to time to facilitate any investigation or the production of such evidence as it deems appropriate.

          (4) The court shall have the power to order either parent to pay such sum as it deems appropriate for the past and future support and maintenance of the child during its minority and while the child is attending school, as defined in ORS 107.108, and the reasonable and necessary expenses incurred or to be incurred in connection with prenatal care, expenses attendant with the birth and postnatal care. The court may grant the prevailing party reasonable costs of suit, which may include expert witness fees, and reasonable attorney fees at trial and on appeal. The provisions of ORS 107.108 apply to an order entered under this section for the support of a child attending school.

          (5) An affidavit certifying the authenticity of documents substantiating expenses set forth in subsection (4) of this section is prima facie evidence to establish the authenticity of such documents.

          (6)(a) It is the policy of this state:

          (A) To encourage the settlement of cases brought under this section; and

          (B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (b) In a proceeding under this section, the court may enforce the terms set forth in a stipulated [decree] judgment of paternity signed by the parties, a [decree] judgment of paternity resulting from a settlement on the record or a [decree] judgment of paternity incorporating a settlement agreement:

          (A) As contract terms using contract remedies;

          (B) By imposing any remedy available to enforce a [decree] judgment, including but not limited to contempt; or

          (C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

          (c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (d) Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in a separate proceeding, to file a motion to set aside, alter or modify a [decree] judgment under ORS 109.165 or to seek enforcement of an ancillary agreement to the [decree] judgment.

 

          SECTION 141. ORS 109.165, as amended by section 10, chapter 116, Oregon Laws 2003 (Enrolled House Bill 2277), is amended to read:

          109.165. (1) Upon motion of either party, the court may set aside, alter or modify so much of the [decree] judgment as may provide for the support of the minor child or child attending school, as defined in ORS 107.108. As to any installment or payment of money that has accrued up to the time either party files a motion to set aside, alter or modify the [decree] judgment, the [decree] judgment is final and the court does not have power to change it. However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent. A child attending school is a party for purposes of this section.

          (2) The moving party shall state in the motion, to the extent known:

          (a) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving the child, including a proceeding brought under ORS 25.287, 109.100, 125.025, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110; and

          (b) Whether there exists in this state or any other jurisdiction a support order, as defined in ORS 110.303, involving the child, other than the [decree] judgment the party is moving to set aside, alter or modify.

          (3) The moving party shall include with the motion a certificate regarding any pending support proceeding and any existing support order other than the [decree] judgment the party is moving to set aside, alter or modify. The party shall use a certificate that is in a form established by court rule and include information required by court rule and subsection (2) of this section.

          (4)(a) It is the policy of this state:

          (A) To encourage the settlement of cases brought under this section; and

          (B) For courts to enforce the terms of settlements described in paragraph (b) of this subsection to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

          (b) In a proceeding under subsection (1) of this section, the court may enforce the terms set forth in a stipulated order or judgment signed by the parties, an order or judgment resulting from a settlement on the record or an order or judgment incorporating a settlement agreement:

          (A) As contract terms using contract remedies;

          (B) By imposing any remedy available to enforce an order or judgment, including but not limited to contempt; or

          (C) By any combination of the provisions of subparagraphs (A) and (B) of this paragraph.

          (c) A party may seek to enforce an agreement and obtain remedies described in paragraph (b) of this subsection by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under paragraph (b)(B) of this subsection is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.

          (d) Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in a separate proceeding, to file a motion to modify an order or judgment under subsection (1) of this section or to seek enforcement of an ancillary agreement to the order or judgment.

 

          SECTION 142. ORS 109.305 is amended to read:

          109.305. (1) The rule that statutes in derogation of common law are to be strictly construed does not apply to the adoption laws of this state.

          (2) Nothing in the adoption laws of this state shall be construed to prevent the adoptive parents, the birth parents and the child from entering into a written agreement, approved by the court, to permit continuing contact between the birth relatives and the child or the adoptive parents. As used in this subsection, “birth relatives” includes birth parents, grandparents, siblings and other members of the child’s birth family.

          (3) Failure to comply with the terms of an agreement made under subsection (2) of this section is not grounds for setting aside an adoption [decree] judgment or revocation of a written consent to an adoption.

          (4)(a) An agreement made under subsection (2) of this section may be enforced by a civil action. However, before a court may enter an order requiring compliance with the agreement, the court must find that the party seeking enforcement participated, or attempted to participate, in good faith in mediating the dispute giving rise to the action prior to filing the civil action.

          (b) The court may modify an agreement made under subsection (2) of this section if the court finds that the modification is necessary to serve the best interests of the adopted child, that the party seeking modification participated, or attempted to participate, in good faith in mediation prior to seeking modification of the agreement and that:

          (A) The modification is agreed to by all parties to the original agreement; or

          (B) Exceptional circumstances have arisen since the parties entered into the agreement that justify modification of the agreement.

 

          SECTION 143. ORS 109.307 is amended to read:

          109.307. (1) Not earlier than provided in ORS 109.309 and not later than six months from the date on which the petition for leave to adopt another is filed under ORS 109.309, the court before which the petition is pending shall hold a hearing and shall:

          (a) Enter a [final decree] judgment under ORS 109.350;

          (b) Continue the guardianship or legal custodial status of the child;

          (c) Waive the child to a court having jurisdiction under ORS 419B.100 or 419C.005; or

          (d) Take such other action as the court considers necessary.

          (2) The court before which the petition is pending, on its own motion, may take testimony from or confer with the child to be adopted and may exclude from the conference the parents or guardians of the child, the proposed adoptive parents and other persons if the court finds that such action would be likely to be in the best interests of the child. However, the court shall permit an attorney for each party to attend the conference, and the conference shall be reported.

          (3) The clerk of the court before which petitions for leave to adopt another are pending shall periodically notify the court and the Department of Human Services of all such petitions which have been pending before the court for more than six months without final disposition pursuant to subsection (1) of this section.

          (4) The clerk of the court before which a petition is filed for leave to adopt a minor child shall provide to the Director of Human Services a copy of the court’s order of disposition of the petition.

 

          SECTION 144. ORS 109.309 is amended to read:

          109.309. (1) Any person may petition the circuit court for leave to adopt another person and, if desired, for a change of the other person’s name. One petitioner, the child, one parent or the person consenting to the adoption as required under ORS 109.312 (1) must be a resident of this state. As used in this subsection, “resident” means a person who has resided in this state continuously for a period of six months prior to the date of the petition.

          (2) When the petition is for the adoption of a minor child, the adoption shall be governed by the Uniform Child Custody Jurisdiction and Enforcement Act, ORS 109.701 to 109.834.

          (3) The petition to adopt a person 18 years of age or older may be filed in the county where the petitioner, the person to be adopted or the person who consents to the adoption resides.

          (4) In a petition to adopt a minor child, venue shall lie in the Oregon county with which the child has the most significant connection or in the Oregon county in which the licensed adoption agency is located.

          (5)(a) When the petition is for the adoption of a minor child, the petitioner shall also file at the time of filing the petition:

          (A) A written statement containing the full names and permanent addresses of:

          (i) The petitioners;

          (ii) All persons whose consent to the adoption is required under ORS 109.312 when such names are either known or may be readily ascertained by the petitioners; and

          (iii) The Oregon licensed adoption agency, if any, or the relative or person that privately placed the child for adoption.

          (B) The documents demonstrating consent under ORS 109.312 to the adoption of the minor child.

          (C) Written evidence documenting a current home study that has been approved by either the Department of Human Services or an Oregon licensed adoption agency submitted for the purpose of demonstrating that the petitioners meet the minimum standards for adoptive homes as set forth in the department’s administrative rules.

          (b) A relative who qualifies under the department administrative rules for a waiver of the department’s home study requirements described in paragraph (a)(C) of this subsection may file the request for waiver along with the petition for adoption.

          (c) The department, upon request by the petitioner, may waive the home study requirements described in paragraph (a)(C) of this subsection in an adoption in which one of the child’s biological or adoptive parents retains parental rights. The department shall waive post-placement reports in an adoption in which one of the child’s biological or adoptive parents retains parental rights.

          (6)(a) The petitioner shall cause copies of the documents required to be filed with the court under subsection (5) of this section to be served upon the Director of Human Services, by either registered or certified mail with return receipt or personal service, within 30 days after the documents have been filed with the court.

          (b) In the case of an adoption described in subsection (5)(c) of this section, the petition shall also be served by either registered or certified mail with return receipt or personal service:

          (A) On all persons whose consent to the adoption is required under ORS 109.312 unless the person’s written consent is filed with the court; and

          (B) On the parents of the party whose parental rights would be terminated, if the names and addresses are known or may be readily ascertained by the petitioners. Service required by this subparagraph may be waived by the court for good cause.

          (c) The court shall not rule upon the petition until at least 90 days after the date that the documents were served upon the director. However, the department may waive the 90-day period.

          (7)(a) Within 90 days of the service on the director, the department shall investigate and file for the consideration of the judge before whom the petition for adoption is pending a placement report containing information regarding the status of the child and evidence concerning the suitability of the proposed adoption. The department may designate an Oregon licensed adoption agency to investigate and report to the court. If the department designates an Oregon licensed adoption agency to investigate and report to the court, the department shall make the designation and provide all necessary information and materials to the Oregon licensed adoption agency no later than 30 days after the service on the director. However, the department may waive the placement report requirement.

          (b) Upon receipt of a written request by the petitioner’s attorney, the department shall furnish to that attorney copies of any information that the department has filed with the court.

          (c) The department may charge the petitioner a fee for investigating a proposed non-agency adoption and preparing the home study report described in subsection (5)(a)(C) of this section and the placement report described in paragraph (a) of this subsection. The petitioner shall report the fee amount to the court. The court granting the adoption shall make a finding as to whether the fee is necessary and reasonable. Any fee charged shall not exceed reasonable costs for investigation, home study and placement report preparation. The department shall prescribe by rule the procedure for computing the investigation, home study and placement report preparation fee. The rules shall provide a waiver of either part or all of the fee based upon the petitioner’s ability to pay.

          (8) The amounts of any fees collected under subsection (7) of this section are continuously appropriated to the department for use in preparing the home study and placement reports required under subsections (5)(a)(C) and (7)(a) of this section.

          (9)(a) Except as provided in paragraph (b) of this subsection, a court shall not grant a [decree] judgment for the adoption of a minor child unless the petitioners have filed with the court the documents described in subsections (5) and (7)(a) of this section.

          (b) A person shall not be required to file a home study or a placement report with the court when the department has granted the person a waiver under department rules.

          (10) The adoption shall comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.), if applicable. Every adoption petition involving the Indian Child Welfare Act shall include the following:

          (a) A statement of the efforts to notify the appropriate Indian tribe or tribes of the adoption; and

          (b) A statement of the efforts to comply with the placement preferences of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) or the placement preferences of the appropriate Indian tribe.

 

          SECTION 145. ORS 109.311 is amended to read:

          109.311. (1) Each adoption petition filed pursuant to ORS 109.309 seeking adoption of a minor child shall be accompanied by a written disclosure statement containing an itemized accounting of all moneys paid or estimated to be paid by the petitioner for fees, costs and expenses related to the adoption, including all legal, medical, living and travel expenses. The form of the disclosure statement shall be prescribed by the Department of Human Services after consultation with approved Oregon licensed adoption agencies.

          (2) [No court shall grant a decree] A court may not grant a judgment for an adoption of a minor child in the absence of a placement report by the department or an Oregon licensed adoption agency unless the filing of such report has been waived by the department. [No court shall grant a decree] A court may not grant a judgment for an adoption of a minor child in the absence of a written disclosure statement as described in subsection (1) of this section or in the absence of a verified statement by the petitioner that, to the best of the petitioner’s knowledge, no charges, except those reported in the disclosure statement, have been or will be paid in connection with the adoption.

          (3) [No person shall] A person may not charge, accept or pay or offer to charge, accept or pay a fee for locating a minor child for adoption or for locating another person to adopt a minor child, except that Oregon licensed adoption agencies licensed under ORS chapter 418 may charge reasonable fees for services provided by them.

          (4)(a) It is unlawful for any person to advertise:

          (A) A child offered or wanted for adoption; or

          (B) That the person is able to place, locate, dispose of or receive a child for adoption.

          (b) The provisions of paragraph (a) of this subsection do not apply to:

          (A) The department or a licensed Oregon adoption agency or an agent, employee or person with whom the department or adoption agency has a contract authorizing such actions; or

          (B) A person who has completed a home study as required by ORS 109.309 (5)(a)(C) and has received a favorable recommendation regarding the fitness of the person to be an adoptive parent or the person’s attorney or uncompensated agent. A written declaration by the person who prepared the home study is sufficient verification of compliance with this subparagraph. The person’s attorney must be licensed to practice in Oregon.

          (c) Nothing in this subsection prohibits an attorney licensed to practice in Oregon from advertising the attorney’s availability to provide services related to the adoption of children.

          (d) As used in this subsection, unless the context requires otherwise, “advertise” means to communicate by newspaper, radio, television, handbills, placards or other print, broadcast or electronic medium that originates within this state.

 

          SECTION 146. ORS 109.322 is amended to read:

          109.322. If either parent has been adjudged mentally ill or mentally deficient and remains so at the time of the adoption proceedings, or is imprisoned in a state or federal prison under a sentence for a term of not less than three years and has actually served three years, there shall be served upon such parent, if the parent has not consented in writing to the adoption, a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be [decreed] ordered. In the case of a person adjudged mentally ill or mentally deficient, the citation shall also be served upon the guardian of the person or, if the parent has no guardian of the person, the court shall appoint a guardian ad litem to appear for the person in the adoption proceedings. Upon hearing being had, if the court finds that the welfare of the child will be best promoted through the adoption of the child, the consent of the mentally ill, mentally deficient or imprisoned parent is not required, and the court shall have authority to proceed regardless of the objection of such parent. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318.

 

          SECTION 147. ORS 109.324 is amended to read:

          109.324. If either parent is believed to have willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption and such parent does not consent in writing to the adoption, there shall be served upon such parent a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be [decreed] ordered. Upon hearing being had, if the court finds that such parent has willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent. In determining whether the parent has willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318.

 

          SECTION 148. ORS 109.326 is amended to read:

          109.326. (1) If the mother of a child was married at the time of the conception or birth of the child, and it has been determined pursuant to ORS 109.070 or judicially determined that her husband at such time or times was not the father of the child, the husband’s authorization or waiver [shall] may not be required in adoption, juvenile court or other proceedings concerning the custody of the child.

          (2) If paternity of the child has not been determined, a determination of nonpaternity may be made by any court having adoption, divorce or juvenile court jurisdiction. The testimony or affidavit of the mother or the husband or another person with knowledge of the facts filed in the proceeding shall constitute competent evidence before the court making the determination.

          (3) Before making the determination of nonpaternity, citation to show cause why such husband’s parental rights should not be terminated shall be served on him in the manner provided by ORS 109.330 if:

          (a) There has been a determination by any court of competent jurisdiction that the husband is the father of the child;

          (b) The child resided with the husband at any time since the child’s birth; or

          (c) The husband repeatedly has contributed or tried to contribute to the support of the child.

          (4) There shall be sufficient proof to enable the court to grant the relief sought without notice to the husband provided that the affidavit of the mother of the child, of the husband or of another person with knowledge of the facts filed in the proceeding states or the court finds from other competent evidence:

          (a) That the mother of the child was not cohabiting with her husband at the time of conception of the child and that the husband is not the father of the child;

          (b) That the husband has not been judicially determined to be the father;

          (c) That the child has not resided with the husband; and

          (d) That the husband has not contributed or tried to contribute to the support of the child.

          (5) Notwithstanding the provision of ORS 109.070 (1)(b), notice to the husband pursuant to ORS 109.330 shall not be required and the husband’s consent, authorization or waiver shall not be required in adoption proceedings concerning the child unless the husband has met the requirements for notice in subsection (3)(a), (b) or (c) of this section.

          (6) A husband who was not cohabiting with the mother at the time of the child’s conception has the primary responsibility to protect the husband’s rights.

          (7) Nothing in this section shall be used to set aside an act of a permanent nature, including but not limited to adoption or termination of parental rights, unless the father establishes within one year after the entry of the final [decree] judgment or order fraud on the part of the petitioner with respect to the matters specified in subsection (4)(a), (b), (c) or (d) of this section.

 

          SECTION 149. ORS 109.335 is amended to read:

          109.335. Notwithstanding the provisions of ORS chapter 125 that relate to the appointment of a guardian, when a petition is filed pursuant to ORS 109.309 for leave to adopt a minor child and the required consent thereto has been filed, the court before which the petition is pending may on its own motion enter an order appointing the petitioner or some other suitable person guardian of the minor child pending further order of the court or entry of a [decree] judgment under ORS 109.350.

 

          SECTION 150. ORS 109.342 is amended to read:

          109.342. (1) [After January 1, 1980, before any final decree] Before any judgment of adoption of a minor is entered, the court shall be provided a medical history of the child and of the biological parents as complete as possible under the circumstances.

          (2) When possible, the medical history shall include, but need not be limited to:

          (a) A medical history of the adoptee from birth up to the time of adoption, including disease, disability, congenital or birth defects, and records of medical examinations of the child, if any;

          (b) Physical characteristics of the biological parents, including age at the time of the adoptee’s birth, height, weight, and color of eyes, hair and skin;

          (c) A gynecologic and obstetric history of the biological mother;

          (d) A record of potentially inheritable genetic or physical traits or tendencies of the biological parents or their families; and

          (e) Any other useful or unusual biological information that the biological parents are willing to provide.

          (3) The names of the biological parents shall not be included in the medical history.

          (4) The court shall give the history to the adoptive parents at the time the [decree] judgment is entered and shall give the history to the adoptee, upon request, after the adoptee attains the age of majority.

          (5) Subsection (1) of this section does not apply when a person is adopted by a stepparent.

          (6) The Department of Human Services shall prescribe a form for the compilation of the medical history.

 

          SECTION 151. ORS 109.346 is amended to read:

          109.346. (1) Except as provided in subsection (5) of this section, a birth parent consenting to an adoption shall receive notice of the birth parent’s right to payment for three adoption-related counseling sessions prior to surrender or relinquishment of the child for adoption and three sessions of adoption-related counseling after surrender or relinquishment of the child for adoption.

          (2) Notice of the right to adoption-related counseling shall be in writing and shall be provided to the consenting birth parent by either the attorney for the birth parent, the agency representative taking the birth parent’s consent or the attorney for the prospective adoptive parent. Before entry of a [final decree] judgment of adoption, the agency or attorney providing the written notice shall submit verification to the court that the notice was given to the consenting birth parent.

          (3) The prospective adoptive parent shall pay all uninsured costs of the adoption-related counseling required by this section, provided the counseling is received within one year of the date of surrender or relinquishment of the child for adoption.

          (4) Adoption-related counseling under this section, unless otherwise agreed to by the prospective adoptive parent and the consenting birth parent, shall be provided by:

          (a) A social worker employed by an Oregon licensed adoption agency other than the social worker assigned to the prospective adoptive parent;

          (b) A social worker, counselor or therapist who is working under the supervision of a licensed clinical social worker or a licensed professional counselor and who is knowledgeable about birth parent, adoption and grief and loss issues; or

          (c) A social worker, counselor or therapist who:

          (A) Has a graduate degree in social work, counseling or psychology; and

          (B) Is knowledgeable about birth parent, adoption and grief and loss issues.

          (5) The requirements of this section do not apply to:

          (a) An adoption in which a birth parent relinquishes parental rights to the Department of Human Services;

          (b) An adoption in which one parent retains parental rights;

          (c) An adoption in which the child is born in a foreign country and adopted under the laws of that country or readopted in Oregon;

          (d) An adoption in which the child is born in a foreign country and subsequently adopted in Oregon and in which the identity or whereabouts of the child’s birth parents are unknown; or

          (e) An adoption of an adult.

          (6) Failure to provide the notice required by this section or failure to pay the uninsured costs of adoption-related counseling required by this section is not grounds for setting aside an adoption [decree] judgment or for revocation of a written consent to an adoption or a certificate of irrevocability.

 

          SECTION 152. ORS 109.350 is amended to read:

          109.350. If, upon a petition for adoption duly presented and consented to, the court is satisfied as to the identity and relations of the persons, that the petitioner is of sufficient ability to bring up the child and furnish suitable nurture and education, having reference to the degree and condition of the parents, that, if applicable, the requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) have been met, and that it is fit and proper that such adoption be effected, a [decree] judgment shall be made setting forth the facts, and ordering that from the date of the [decree] judgment the child, to all legal intents and purposes, is the child of the petitioner. In an adoption subject to the Indian Child Welfare Act (25 U.S.C. 1901 et seq.), the state court shall provide to the United States Secretary of the Interior a copy of the [decree] judgment together with the other information required by the Indian Child Welfare Act (25 U.S.C. 1901 et seq.).

 

          SECTION 153. ORS 109.353 is amended to read:

          109.353. Before a [final decree] judgment of adoption is entered, the agency or organization facilitating the adoption, or the attorney for the adoptive parents in an independent adoption, shall submit verification to the court that the parents of the child and the petitioners have been advised of the voluntary adoption registry established under ORS 109.450 and have been given information on how to access those services. The court may waive this requirement upon a finding of good cause.

 

          SECTION 154. ORS 109.360 is amended to read:

          109.360. If in a petition for the adoption of a child a change of the child’s name is requested, the court, upon [decreeing] entering a judgment granting the adoption, may also [decree] provide in the judgment for the change of name without the notices required by ORS 33.420.

 

          SECTION 155. ORS 109.381 is amended to read:

          109.381. (1) A [decree] judgment of a court of this state granting an adoption, and the proceedings in such adoption matter, shall in all respects be entitled to the same presumptions and be as conclusive as if rendered by a court of record acting in all respects as a court of general jurisdiction and not by a court of special or inferior jurisdiction, and jurisdiction over the persons and the cause shall be presumed to exist.

          (2) Except for such right of appeal as may be provided by law, [decrees] judgments of adoption shall be binding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to an adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a [decree] judgment of adoption entered by a court of competent jurisdiction of this or any other state.

          (3) After the expiration of one year from the entry of a [decree] judgment of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child’s natural parents and all other persons who might claim to have any right to, or over the child, have abandoned the child and consented to the entry of such [decree] judgment of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the [decree] judgment of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a [decree] judgment of adoption as may be provided by law.

          (4) The provisions of this section shall apply to all adoption proceedings instituted in this state after August 5, 1959. This section shall also apply, after the expiration of one year from August 5, 1959, to all adoption proceedings instituted in this state before August 5, 1959.

 

          SECTION 156. ORS 109.400 is amended to read:

          109.400. (1) When a petition for adoption is filed with a court, the petitioner or the attorney thereof shall file with the petition an adoption report form as provided in ORS 432.415.

          (2) Notwithstanding ORS 7.211, if the court enters a [decree] judgment of adoption, the clerk of the court shall review the personal particulars filled in on the form, shall fill in the remaining blanks on the form, shall certify the form and mail it to the State Registrar of the Center for Health Statistics as the adoption report as required under ORS 432.415.

 

          SECTION 157. ORS 109.410 is amended to read:

          109.410. (1) The clerk of the court having custody of the adoption file shall issue upon request a certificate of adoption to the adopted person, the adoptive parents or parent, their attorney of record, in the proceeding, or to any child-placing agency which gave consent to the adoption. The certificate shall be substantially in the following form:

______________________________________________________________________________

CERTIFICATE OF ADOPTION

IN THE __________ COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF

____________

 

In the Matter of the Adoption of:

 

____________________________

 

File No. ___________

Name after Adoption

 

This is to certify that on the ___day of _________, 2__, a [Decree] Judgment of Adoption was granted by the Honorable Judge ________ [decreeing] granting the adoption of the above-named person by ___________.

          The adopted person, above named, was born in the City of _______, County of_____, State of __________, on the _ day of _______, 2___.

          Dated at __________, Oregon, this ___ day of _______, 2___.

 

          (Title of the Clerk of the Court)

          (SEAL) By _______________

                  Deputy

______________________________________________________________________________

 

          (2) The certificate of adoption may be issued by the judge who granted the adoption, instead of by the clerk of the court.

          (3) The certificate of adoption shall not state the former name of the person adopted, unless the name was not changed by the [decree] judgment, and shall not state the name of either biological parent of the person adopted. However, if the adoption was by the adopted person’s stepparent, the name of the adopting stepparent’s spouse may be set forth in the certificate if requested.

          (4)(a) For the issuance of one certificate of adoption for any person who was adopted after October 3, 1979, a fee of not more than $1 may be charged and collected by the clerk of the court.

          (b) For additional certificates or for certificates of adoption for persons adopted prior to October 3, 1979, a fee of not more than $1 for each certificate may be charged and collected by the clerk of the court.

          (5) No certificate of adoption shall be issued to any person other than the persons described in subsection (1) of this section without order of the court.

          (6) For all purposes, the certificate of adoption shall constitute legal proof of the facts set forth therein, shall have the same force and effect and the same presumptions of validity as the [decree] judgment of adoption, and shall be entitled to full faith and credit.

 

          SECTION 158. ORS 109.672 is amended to read:

          109.672. (1) No person licensed, certified or registered to practice a health care profession or health care facility shall be liable for damages in any civil action arising out of the failure of the person or facility to obtain the consent of a parent to the giving of medical care or treatment to a minor child of the parent if consent to the care has been given by the other parent of the child.

          (2) The immunity provided by subsection (1) of this section shall apply regardless of whether:

          (a) The parents are married, unmarried or separated at the time of consent or treatment.

          (b) The consenting parent is, or is not, a custodial parent of the minor.

          (c) The giving of consent by only one parent is, or is not, in conformance with the terms of any agreement between the parents, any custody order or any [decree] judgment of dissolution or separation.

          (3) The immunity created by subsection (1) of this section shall not apply if the parental rights of the parent who gives consent have been terminated pursuant to ORS 419B.500 to 419B.524.

          (4) For the purposes of this section, “health care facility” means a facility as defined in ORS 442.015 or any other entity providing medical service.

 

          SECTION 159. ORS 109.704 is amended to read:

          109.704. As used in ORS 109.701 to 109.834:

          (1) “Abandoned” means left without provision for reasonable and necessary care or supervision.

          (2) “Child” means an individual who has not attained 18 years of age.

          (3) “Child custody determination” means a judgment[, decree] or other order of a court providing for the legal custody, physical custody, parenting time or visitation with respect to a child. “Child custody determination” includes a permanent, temporary, initial and modification order. “Child custody determination” does not include an order relating to child support or other monetary obligation of an individual.

          (4) “Child custody proceeding” means a proceeding in which legal custody, physical custody, parenting time or visitation with respect to a child is an issue. “Child custody proceeding” includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence in which the issue may appear. “Child custody proceeding” does not include a proceeding involving juvenile delinquency, contractual emancipation or enforcement under ORS 109.774 to 109.827.

          (5) “Commencement” means the filing of the first pleading in a proceeding.

          (6) “Court” means an entity authorized under the law of a state to establish, enforce or modify a child custody determination.

          (7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, “home state” means the state in which the child lived from birth with any of the persons mentioned. Any temporary absence of any of the mentioned persons is part of the period.

          (8) “Initial determination” means the first child custody determination concerning a particular child.

          (9) “Issuing court” means the court that makes a child custody determination for which enforcement is sought under ORS 109.701 to 109.834.

          (10) “Issuing state” means the state in which a child custody determination is made.

          (11) “Modification” means a child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

          (12) “Person” means an individual, corporation, public corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or a governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

          (13) “Person acting as a parent” means a person, other than a parent, who:

          (a) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

          (b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

          (14) “Physical custody” means the physical care and supervision of a child.

          (15) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

          (16) “Tribe” means an Indian tribe or band, or Alaskan Native village, that is recognized by federal law or formally acknowledged by a state.

          (17) “Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

 

          SECTION 160. ORS 109.737 is amended to read:

          109.737. (1) A court of this state may request the appropriate court of another state to:

          (a) Hold an evidentiary hearing;

          (b) Order a person to produce or give evidence pursuant to procedures of that state;

          (c) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;

          (d) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented and any evaluation prepared in compliance with the request; and

          (e) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

          (2) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (1) of this section.

          (3) Travel and other necessary and reasonable expenses incurred under subsections (1) and (2) of this section may be assessed against the parties according to the law of this state.

          (4) A court of this state shall preserve the pleadings, orders, [decrees,] judgments, records of hearings, evaluations and other pertinent records with respect to a child custody proceeding for the time required by the retention schedule adopted under ORS 8.125 (11). The retention schedule shall require retention at least until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

 

JUDGMENTS IN CRIMINAL ACTIONS

 

          SECTION 161. ORS 135.280 is amended to read:

          135.280. (1) Upon failure of a person to comply with any condition of a release agreement or personal recognizance, the court having jurisdiction may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty upon a personal recognizance, conditional or security release.

          (2) A warrant issued under subsection (1) of this section by a municipal judge may be executed by any peace officer authorized to execute arrest warrants.

          (3) If the defendant does not comply with the conditions of the release agreement, the court having jurisdiction shall enter an order declaring the entire security amount to be forfeited. Notice of the order of forfeiture shall be given forthwith by personal service, by mail or by such other means as are reasonably calculated to bring to the attention of the defendant and, if applicable, of the sureties the order of forfeiture. If, within 30 days after the court declares the forfeiture, the defendant does not appear or satisfy the court having jurisdiction that appearance and surrender by the defendant was, or still is, impossible and without fault of the defendant, the court shall enter [a money judgment as provided by ORS 137.180] judgment for the state, or appropriate political subdivision thereof, against the defendant and, if applicable, the sureties for the entire security amount set under ORS 135.265 and the costs of the proceedings. At any time before or after entry of the judgment, the defendant or the sureties may apply to the court for a remission of the forfeiture or to modify or set aside the judgment. The court, upon good cause shown, may remit the forfeiture or any part thereof or may modify or set aside the judgment as in other criminal cases, except the portion of the security amount that the court ordered to be applied to child support under subsection (4) of this section, as the court considers reasonable under the circumstances of the case. The court shall adopt procedures to ensure that the amount deposited under ORS 135.265 is available for a reasonable period of time for disposition under subsection (4) of this section.

          (4) After entry of a [money] judgment for the state, the court, upon a motion filed under ORS 25.715, may order that a portion of the security amount be applied to any unsatisfied child support [judgment] award owed by the defendant and to provide security for child support payments in accordance with ORS 25.230. The portion of the security amount that may be applied to the child support [judgment] award:

          (a) Is limited to the amount deposited under ORS 135.265;

          (b) May not exceed the percentage of the amount designated for distribution to the General Fund had the deposit been transferred to the Criminal Fine and Assessment Account as provided in subsection (5) of this section; and

          (c) Does not reduce the money award in the judgment entered under subsection (3) of this section that is owed to the state.

          (5) When judgment is entered in favor of the state, or any political subdivision of the state, on any security given for a release, the judgment may be enforced as a judgment in a civil action. If entered in circuit court, the judgment shall be [docketed in the criminal action as a money judgment in the circuit court judgment docket] entered in the register, and the clerk of the court shall note in the register that the judgment creates a judgment lien. The district attorney, county counsel or city attorney may have execution issued on the judgment and deliver same to the sheriff to be executed by levy on the deposit or security amount made in accordance with ORS 135.265, or may collect the judgment as otherwise provided by law. The proceeds of any execution or collection shall be used to satisfy the judgment and costs and paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or paid over as directed by the State Court Administrator for deposit in the Criminal Fine and Assessment Account created under ORS 137.300, if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The provisions of this section shall not apply to base fine amounts deposited upon appearance under ORS 153.061.

          (6) When the judgment of forfeiture is entered, the security deposit or deposit with the clerk is, by virtue of the judgment alone and without requiring further execution, forfeited to and may be kept by the state or its appropriate political subdivision. Except as provided in subsection (4) of this section, the clerk shall reduce, by the value of the deposit so forfeited, the debt remaining on the judgment and shall cause the amount on deposit to be transferred to the revenue account of the state or political subdivision thereof entitled to receive the proceeds of execution under this section.

          (7) The stocks, bonds, personal property and real property shall be sold in the same manner as in execution sales in civil actions and the proceeds of such sale shall be used to satisfy all court costs, prior encumbrances, if any, and from the balance a sufficient amount to satisfy the judgment shall be paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or deposited in the General Fund available for general governmental expenses if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The balance shall be returned to the owner. The real property sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions.

 

          SECTION 162. ORS 137.071, as amended by section 88, chapter 962, Oregon Laws 2001, and section 2, chapter 300, Oregon Laws 2003 (Enrolled House Bill 2729), is amended to read:

          137.071. (1) [This section establishes requirements for judgments in actions and proceedings resulting from a person being accused and tried for the commission of an offense.] The judge in a criminal action shall [assure] ensure that the creation and filing of a judgment [that] document complies with this section [in such action or proceedings]. On appeal, the appellate court may give leave as provided in ORS 19.270 for entry of a judgment document that complies with this section but may not reverse or set aside a judgment, determination or disposition on the sole ground that the judgment document fails to comply with this section. [No particular form of words is required, but every judgment in a criminal action or proceeding must comply with all the following:]

          [(1) It must be in writing, plainly titled as a judgment and set forth in a separate document.]

          [(2) It must clearly identify the court and file number or other identifier used by the court for that case.]

          [(3) It must clearly identify the defendant.]

          [(4) It must clearly identify all of the following:]

          [(a) The attorney for the state;]

          [(b) The attorney, if any, for the defendant;]

          (2) A judgment document in a criminal action must comply with section 4 of this 2003 Act. In addition, a judgment document in a criminal action must:

          [(c)] (a) Indicate whether the defendant was determined to be financially eligible for purposes of appointed counsel in the [case;] action.

          [(d)] (b) Indicate whether the court appointed counsel for the defendant in the [case; and] action.

          [(e)] (c) If there is no attorney for the defendant, indicate whether the defendant knowingly waived any right to an attorney after having been informed of that right.

          [(5)] (d) [It must] Include the identity of the recorder or reporter for the proceeding or action who is to be served under ORS 138.081.

          [(6)] (e) [It must] Include any information specifically required by statute or by court rule.

          [(7)] (f) [It must] Specify clearly the court’s determination for each charge in the information, indictment or complaint.

          [(8)] (g) [It must] Specify clearly the court’s disposition, including all legal consequences the court establishes or imposes. If the determination is one of conviction, [it] the judgment document must include any suspension of sentence, forfeiture, imprisonment, cancellation of license, removal from office, monetary obligation, probation, conditions of probation, discharge, restitution, community service and all other sentences and legal consequences imposed by the court. Nothing in this [subsection] paragraph requires the judgment document to specify any consequences that may result from the determination but are not established or imposed by the court.

          (h) Include the identities of the attorney for the state and the attorney, if any, for the defendant.

          [(9) Any money judgment must comply with this subsection and subsection (10) of this section. A judgment that does not comply with this subsection and subsection (10) of this section is subject to not being docketed in the judgment docket as provided under ORS 137.180 until it is amended to become a money judgment and to so comply. A money judgment must include all the following:]

          [(a) The identity of the judgment creditor.]

          [(b) The identity of the judgment debtor.]

          [(c) If restitution or compensatory fine is ordered, the name and address of the person to whom the court should disburse payments, unless the victim requests that this information be exempt from disclosure in the public record.]

          [(d) The amount of the money judgment. The following apply to the amount of the money judgment:]

          [(A)(i) Except as otherwise provided in sub-subparagraph (ii) of this subparagraph, this paragraph requires both the total amount of the money judgment, excluding any amount that is suspended, and a listing of amounts and identification for the fines, assessments, costs, restitution and any other monetary obligations imposed in the sentence as part of the money judgment.]

          [(ii) When the court is unable to determine the full amount of restitution at the time of sentencing, the court may include the amount that can be determined or establish a maximum amount based on a recommendation by the district attorney subject to modification under ORS 137.107.]

          [(B) Except as provided in ORS 137.107, money required to be paid as a condition of probation:]

          [(i) Is a money judgment that survives and remains payable after revocation of probation if the amount is included in the money judgment section.]

          [(ii) Is not a money judgment or docketable in the judgment docket and does not survive revocation of probation if not included in the money judgment section, even if the amount is included in another part of the judgment, unless the money judgment is amended under ORS 137.107.]

          [(e) If other than immediate payment is permitted, the specific terms of payment imposed or allowed by the court.]

          [(f) A statement specifying whether all or any part of any monetary obligation is suspended. This paragraph does not require a response that no monetary obligation was suspended if that is the case. In those instances where there is no statement that any monetary obligation is suspended, it shall be deemed that no monetary obligation or any part is suspended.]

          [(10) The requirements of subsection (9) of this section must be presented in the following manner:]

          [(a) The information must be presented in a separate, discrete section immediately above the judge’s signature.]

          [(b) The separate section must be clearly labeled at its beginning as a money judgment.]

          [(c) The information required under subsection (9) of this section must be presented in the same order as set forth in that subsection.]

          [(d) The separate section must contain no other provisions except what is specifically required by this subsection and subsection (9) of this section and shall not include requirements to pay money that are not part of the money judgment.]

          [(11) It must be signed by the judge rendering the judgment and dated as of the date of signature.]

          (3) A judgment document in a criminal action that includes a money award, as defined in section 1 of this 2003 Act, must comply with section 6 of this 2003 Act.

          (4) The requirements of this section do not apply to a judgment document if the action was commenced by the issuance of a uniform citation adopted under ORS 1.525 and the court has used the space on the citation for the entry of a judgment. The exemption provided by this subsection does not apply if any indictment, information or complaint other than a uniform citation is filed in the action.

 

          SECTION 163. ORS 137.107 is amended to read:

          137.107. At any time after entry of a judgment upon conviction of a crime, the court may amend that part of the judgment relating to restitution if, in the original judgment, the court included language imposing, recommending or requiring restitution but failed to conform the judgment to the requirements of [ORS 137.071] section 6 of this 2003 Act or any other law governing the form of judgments in effect before the effective date of this 2003 Act.

 

          SECTION 164. ORS 137.452 is amended to read:

          137.452. When a person is convicted of an offense and sentenced to pay any monetary obligation, the following provisions apply to obtaining a satisfaction of the money award portion of the judgment [imposing the monetary obligation] or a release of a [money] judgment lien from a specific parcel of real property when the money award portion of the judgment is not satisfied:

          (1) The Attorney General, by rule, may do any of the following:

          (a) Authorize the Attorney General’s office, a district attorney’s office, any state agency within the executive branch of government or any specific individual or group within any of these to:

          (A) Issue satisfactions of [money] the money award portions of judgments; or

          (B) Release a [money] judgment lien from a specific parcel of real property when either the [money] judgment lien does not attach to any equity in the real property or the amount of equity in the real property to which the judgment lien attaches, less costs of sale or other reasonable expenses, is paid upon the [money] judgment.

          (b) Establish procedures and requirements that any person described under paragraph (a) of this subsection must follow to issue satisfactions or releases.

          (2) Authorization of a person under subsection (1) of this section is permissive and such person is not required to issue satisfactions or releases if authorized. However, if a person is authorized under subsection (1) of this section and does issue satisfactions or releases, the person must comply with the procedures and requirements established by the Attorney General by rule.

          (3) If the Attorney General establishes a program under subsection (1) of this section, the Attorney General’s office shall issue satisfactions and releases under the program unless the Attorney General determines that there are sufficient other agencies authorized under subsection (1) of this section who are actually participating in the program to provide reasonable access to satisfactions and releases on a statewide basis.

          [(4)(a) Except as provided in paragraph (b) of this subsection, when the entries in the register, the judgment docket and the financial accounting records for the court show conclusively that a monetary obligation imposed in a criminal action has been paid in full, the clerk of the court may note upon the judgment docket that the judgment has been paid in full. Notation upon the judgment docket under this subsection constitutes a satisfaction of the judgment. The clerk of the court is not civilly liable for any act or omission in making the notation on the judgment docket in the manner authorized by this paragraph.]

          (4)(a) Except as provided in paragraph (b) of this subsection, when the entries in the register and the financial accounting records for the court show conclusively that a monetary obligation imposed in a criminal action has been paid in full, the clerk of the court may note in the register that the money award portion of the judgment has been paid in full. Notation in the register under this paragraph constitutes a satisfaction of the money award portion of the judgment. The clerk of the court is not civilly liable for any act or omission in making the notation in the register in the manner authorized by this paragraph.

          (b) When a monetary obligation imposed in a criminal action is paid by a negotiable instrument, the clerk of the court shall proceed as provided in paragraph (a) of this subsection only after the expiration of 21 days from the date the negotiable instrument is received by the court. The clerk may proceed as provided in paragraph (a) of this subsection before the expiration of the 21-day period if the judgment debtor or any other interested person makes a request that the clerk proceed and provides information that establishes to the satisfaction of the clerk that the instrument has been honored.

          (c) This subsection does not authorize the clerk of a court to compromise, settle or partially satisfy a monetary obligation imposed in a criminal action, or to release part of any property subject to a judgment lien.

          (5) Any satisfaction issued by a person authorized under this section may be entered in the same manner and has the same effect on the money award portion of a judgment as a satisfaction issued for the money award portions of a judgment from a civil action or proceeding.

          (6) The release of judgment liens on specific parcels of real property by the Attorney General or by a person authorized by the Attorney General under subsection (1) of this section is discretionary. The money award portion of the judgment shall remain a lien against all real property not specifically released.

 

          SECTION 165. ORS 138.083 is amended to read:

          138.083. (1) The sentencing court shall retain authority irrespective of any notice of appeal after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court may correct the judgment either on the motion of one of the parties or on the court’s own motion after written notice to all the parties. If a sentencing court enters an amended judgment under this section, the court shall immediately forward a copy of the amended judgment to the appellate court. Any modification of the appeal necessitated by the amended judgment shall be made in the manner specified by rules adopted by the appellate court.

          (2) [Notwithstanding ORS 137.071,] A judgment that orders payment of restitution but does not specify the amount of restitution imposed is final for the purpose of appealing from the judgment. Notwithstanding the filing of a notice of appeal, the sentencing court retains authority to determine the amount of restitution and to [amend the] enter a supplemental judgment to specify the amount and terms of restitution. Any modification of the appeal necessitated by the [amended] supplemental judgment may be made in the manner specified by rules adopted by the appellate court.

 

ORCP 70 AND MONEY JUDGMENTS

 

          SECTION 166. ORS 5.125 is amended to read:

          5.125. In the county court there shall be charged and collected in advance by the county clerk as clerk of the court, for the benefit of the county, the following fees, and no more, for the following purposes and services:

          [(1) Making transcription from judgment docket in the format provided in ORCP 70 A, $4.]

          [(2) Filing and docketing transcript of judgment in the format provided in ORCP 70 A, $4.]

          (1) Making transcription from the judgment docket, $4.

          (2) Filing and entering transcript of judgment, $4.

          (3) Filing and docketing copy of foreign judgment and affidavit filed as provided in ORS 24.115 and 24.125, $25.

          (4) Issuing writs of execution or writs of garnishment, $3 for each writ.

          (5) Preparing clerk’s certificate of satisfaction of judgment, $3.75.

          (6) For any service not enumerated in this section, the fees provided or established under ORS 205.320.

 

          SECTION 167. ORS 20.077 is amended to read:

          20.077. (1) In any action or suit in which one or more claims are asserted for which an award of attorney fees is either authorized or required, the prevailing party on each claim shall be determined as provided in this section. The provisions of this section apply to all proceedings in the action or suit, including arbitration, trial and appeal.

          (2) For the purposes of making an award of attorney fees on a claim, the prevailing party is the party who receives a favorable [final] judgment, decree or arbitration award on the claim. If more than one claim is made in an action or suit for which an award of attorney fees is either authorized or required, the court or arbitrator shall:

          (a) Identify each party that prevails on a claim for which attorney fees could be awarded;

          (b) Decide whether to award attorney fees on claims for which the court or arbitrator is authorized to award attorney fees, and the amount of the award;

          (c) Decide the amount of the award of attorney fees on claims for which the court or arbitrator is required to award attorney fees; and

          (d) Enter a judgment that complies with the requirements of [ORCP 70 A] sections 4 and 5 of this 2003 Act.

          (3) Notwithstanding subsection (2) of this section, upon appeal of a judgment [or decree] in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment [or decree].

          (4) This section does not create a claim to an award of attorney fees in any action or suit in which the court or arbitrator is not otherwise authorized or required to make an award of attorney fees by contract or other law.

 

          SECTION 168. ORS 24.125 is amended to read:

          24.125. (1) At the time of the filing of the foreign judgment, the judgment creditor or the creditor’s lawyer shall make and file with the clerk of the court an affidavit setting forth the names and last-known post-office addresses of the judgment debtor and the judgment creditor, together with a separate statement containing the information required to be contained in a judgment under [ORCP 70 A(2)(a)] section 5 of this 2003 Act.

          (2) Promptly after filing the foreign judgment and the affidavit, the judgment creditor must mail notice of the filing of the foreign judgment to the judgment debtor. The notice shall include the name and post-office address of the judgment creditor and the judgment creditor’s lawyer, if any, in this state. The judgment creditor must file with the court proof of mailing the notice.

          (3) No execution or other process for enforcement of a foreign judgment filed pursuant to ORS 24.105 to 24.125, 24.135 and 24.155 to 24.175, except a judgment, decree or order of a court of the United States, shall issue until five days after the date the judgment, affidavit and separate statement required in subsection (1) of this section are filed.

 

          SECTION 169. ORS 36.350 is amended to read:

          36.350. (1) The award of the arbitrators, together with the written agreement to submit, shall be delivered to the clerk of the circuit court selected to render judgment on the award. After charging and collecting a fee of $35 therefor, the clerk shall enter the same of record in the office of the clerk. A copy of the award, signed by the arbitrators, or a majority of them, shall also be served upon or delivered to each of the parties interested in the award, and proof of such service or delivery shall be filed with the clerk. If no exceptions are filed against the same within 20 days after such service, judgment shall be entered as upon the verdict of a jury, and execution may issue thereon, and the same proceedings may be had upon the award with like effect as upon a verdict in a civil action.

          (2) If the award of the arbitrators requires the payment of money, including but not limited to payment of costs or attorney fees, the award must be accompanied by a separate statement that contains the information required by [ORCP 70 A(2)(a) for money] section 5 of this 2003 Act for judgments that include money awards.

 

          SECTION 169a. If House Bill 2279 becomes law, section 169 of this 2003 Act (amending ORS 36.350) is repealed and section 19, chapter 598, Oregon Laws 2003 (Enrolled House Bill 2279), is amended to read:

          Sec. 19. (1) An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by any arbitrator who concurs with the award. If the award requires the payment of money, including but not limited to payment of costs or attorney fees, the award must be accompanied by a separate statement that contains the information required by [ORCP 70 A(2)(a) for money] section 5 of this 2003 Act for judgments that include money awards. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding.

          (2) An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitration proceeding may agree in a record to extend the time. The court or the parties may extend the time within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

 

          SECTION 170. ORS 36.425 is amended to read:

          36.425. (1) At the conclusion of arbitration under ORS 36.400 to 36.425 of a civil action, the arbitrator shall file the decision and award with the clerk of the court that referred the action to arbitration, together with proof of service of a copy of the decision and award upon each party. If the decision and award require the payment of money, including payment of costs or attorney fees, the decision and award must [contain all of the information required in a money judgment under ORCP 70 A(2)(a) and] be substantially in the form prescribed by [ORCP 70 A(2)(b)] section 5 of this 2003 Act.

          (2)(a) Within 20 days after the filing of a decision and award with the clerk of the court under subsection (1) of this section, a party against whom relief is granted by the decision and award or a party whose claim for relief was greater than the relief granted to the party by the decision and award, but no other party, may file with the clerk a written notice of appeal and request for a trial de novo of the action in the court on all issues of law and fact. A copy of the notice of appeal and request for a trial de novo must be served on all other parties to the proceeding. After the filing of the written notice a trial de novo of the action shall be held. If the action is triable by right to a jury and a jury is demanded by a party having the right of trial by jury, the trial de novo shall include a jury.

          (b) If a party files a written notice under paragraph (a) of this subsection, a trial fee or jury trial fee, as applicable, shall be collected as provided in ORS 21.270.

          (c) A party filing a written notice under paragraph (a) of this subsection shall deposit with the clerk of the court the sum of $150. If the position under the arbitration decision and award of the party filing the written notice is not improved as a result of a judgment in the action on the trial de novo, the clerk shall dispose of the sum deposited in the same manner as a fee collected by the clerk. If the position of the party is improved as a result of a judgment, the clerk shall return the sum deposited to the party. If the court finds that the party filing the written notice is then unable to pay all or any part of the sum to be deposited, the court may waive in whole or in part, defer in whole or in part, or both, the sum. If the sum or any part thereof is so deferred and the position of the party is not improved as a result of a judgment, the deferred amount shall be paid by the party according to the terms of the deferral.

          [(3) If a written notice is not filed under subsection (2)(a) of this section within the 20 days prescribed, the clerk of the court shall enter the arbitration decision and award as a final judgment of the court, which shall have the same force and effect as a final judgment of the court in the civil action and may not be appealed.]

          (3) If a written notice is not filed under subsection (2)(a) of this section within the 20 days prescribed, the court shall cause to be prepared and entered a judgment based on the arbitration decision and award. A judgment entered under this subsection may not be appealed.

          (4) Notwithstanding any other provision of law or the Oregon Rules of Civil Procedure:

          (a) If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under the provisions of ORS 36.405 (1)(a), the party is entitled to attorney fees by law or contract, and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements incurred by the party before the filing of the decision and award of the arbitrator, and shall be taxed the reasonable attorney fees and costs and disbursements incurred by the other parties to the action on the trial de novo after the filing of the decision and award of the arbitrator.

          (b) If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under ORS 36.405 (1)(a), the party is not entitled to attorney fees by law or contract, and the position of the party is not improved after judgment on the trial de novo, pursuant to subsection (5) of this section the party shall be taxed the reasonable attorney fees and costs and disbursements of the other parties to the action on the trial de novo incurred by the other parties after the filing of the decision and award of the arbitrator.

          (c) If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under ORS 36.405 (1)(b), and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements and shall be taxed the costs and disbursements incurred by the other parties after the filing of the decision and award of the arbitrator.

          (5) If a party is entitled to an award of attorney fees under subsection (4) of this section, but is also entitled to an award of attorney fees under contract or another provision of law, the court shall award reasonable attorney fees pursuant to the contract or other provision of law. If a party is entitled to an award of attorney fees solely by reason of subsection (4) of this section, the court shall award reasonable attorney fees not to exceed the following amounts:

          (a) Twenty percent of the judgment, if the defendant requests the trial de novo but the position of the defendant is not improved after the trial de novo; or

          (b) Ten percent of the amount claimed in the complaint, if the plaintiff requests the trial de novo but the position of the plaintiff is not improved after the trial de novo.

          (6) Within seven days after the filing of a decision and award under subsection (1) of this section, a party may file with the court and serve on the other parties to the arbitration written exceptions directed solely to the award or denial of attorney fees or costs. Exceptions under this subsection may be directed to the legal grounds for an award or denial of attorney fees or costs, or to the amount of the award. Any party opposing the exceptions must file a written response with the court and serve a copy of the response on the party filing the exceptions. Filing and service of the response must be made within seven days after the service of the exceptions on the responding party. A judge of the court shall decide the issue and enter a decision on the award of attorney fees and costs. If the judge fails to enter a decision on the award within 20 days after the filing of the exceptions, the award of attorney fees and costs shall be considered affirmed. The filing of exceptions under this subsection does not constitute an appeal under subsection (2) of this section and does not affect the finality of the award in any way other than as specifically provided in this subsection.

          (7) For the purpose of determining whether the position of a party has improved after a trial de novo under the provisions of this section, the court shall not consider any money [judgment] award or other relief granted on claims asserted by amendments to the pleadings made after the filing of the decision and award of the arbitrator.

 

          SECTION 171. ORS 46.570 is amended to read:

          46.570. (1) In the small claims department of circuit court there shall be charged and collected in civil cases by the clerk of the court the following fees for the following purposes and services:

          (a) Plaintiff filing a claim, $24 when the amount or value claimed does not exceed $1,500, and $50 when the amount or value claimed exceeds $1,500; and defendant demanding a hearing, $17 when the amount or value claimed by plaintiff does not exceed $1,500, and $37 when the amount or value claimed by plaintiff exceeds $1,500.

          [(b) Transcript of judgment in the format provided in ORCP 70 A from small claims department, $6.]

          (b) Transcription of judgment from small claims department, $6.

          (c) Transfer of cause to circuit court on counterclaim, $11.

          (2) Except as otherwise provided in this section, fees provided for in this section shall be collected in advance. A paper or pleading shall be filed by the clerk only if the required fee is paid or if a request for a fee waiver or deferral is granted by the court.

 

          SECTION 172. ORS 153.820 is amended to read:

          153.820. (1) A court may use the procedure provided in this section only in a county with a population of more than 500,000.

          (2) The court may proceed to make a determination without a hearing on a citation for a parking violation if:

          (a) None of the registered owners of the vehicle appears within the time allowed at the court specified in the citation;

          (b) Notice of the citation and the provisions of this section are mailed to the registered owner or owners of the vehicle at the address or addresses reflected in the records of the Department of Transportation; and

          (c) No request for hearing or other appearance is filed with the court within 60 days after the mailing date of the notice required by paragraph (b) of this subsection.

          (3) The court may proceed to make a determination without a hearing on a citation for a parking violation if at least one of the registered owners of the vehicle appears within the time allowed at the court specified in the citation and requests a hearing, but thereafter fails to appear at the time, date and court set for any subsequent hearing in the matter. If a determination is made under the provisions of this subsection, the court shall mail notice of any sentence and judgment to the registered owner or owners of the vehicle at the address or addresses reflected in the records of the Department of Transportation.

          (4) A determination under this section shall be on the citation and on any evidence that the court may, in its discretion, determine to be appropriate.

          (5) Upon making a determination under this section, the court may enter judgment and, if the determination is one of conviction, may impose a sentence of a fine within the limits established for the parking violation along with a money [judgment] award for costs, assessments and other amounts authorized by law.

          (6) A sentence to pay a fine under this section does not prevent:

          (a) Taking any other action against the person as permitted by law for the person’s failure to comply, including, but not limited to, sentencing the person further as permitted by law after the person is brought to hearing.

          (b) Following any procedures established by law when the person fails to appear.

          (7) On motion and upon such terms as are just, the court may relieve a person from a judgment entered under this section upon a showing that the failure of the person to appear was due to mistake, inadvertence, surprise or excusable neglect. The motion must be made within a reasonable time, and in no event more than one year after entry of judgment in the matter.

          (8) [No] A judgment may be entered under this section [unless] only if the citation issued to the person contains a statement notifying the person that a [money] judgment may be entered against the person up to the maximum amount of fines, assessments and other costs allowed by law for the parking violation if the person fails to appear at the time, date and court specified in the citation or fails to appear at subsequently scheduled hearings in the matter.

          (9) Notwithstanding any other provision of law, a judgment entered under this section does not [become a lien on real property of the judgment debtor] create a judgment lien and cannot [be made a lien on real property by docketing of the judgment or] become a judgment lien by any [other] means.

 

          SECTION 173. ORCP 32 M is amended to read:

          M Form of judgment. The judgment in an action ordered maintained as a class action, whether or not favorable to the class, shall specify or describe those found to be members of the class or who, as a condition of exclusion, have agreed to be bound by the judgment. If a [money] judgment that includes a money award is entered in favor of a class, the judgment must, [it shall] when possible, identify by name each member of the class and the amount to be recovered thereby.

 

ELIMINATION OF JUDGMENT DOCKET

 

          SECTION 174. ORS 7.010 is amended to read:

          7.010. (1) The records of the circuit [and county] courts include a register[, judgment docket] and jury register.

          (2) The record of the Supreme Court and the Court of Appeals is a register.

          (3) All references in this chapter to the clerk or court administrator relate to the office of the clerk or court administrator of the appropriate trial or appellate court.

          (4) Minimum record retention schedules and standards for all records of the state courts and the administrative offices of the state courts may be prescribed by the State Court Administrator pursuant to ORS 8.125. The State Court Administrator shall ensure that the minimum record retention schedules and standards prescribed under ORS 8.125 conform with policies and standards established by the State Archivist under ORS 192.105, 357.825 and 357.835 (1) for public records valued for legal, administrative or research purposes.

 

          SECTION 174a. The records of the county courts include a register and a judgment docket.

 

          SECTION 175. ORS 9.536 is amended to read:

          9.536. (1) Upon the conclusion of a hearing, the disciplinary board shall file with the State Court Administrator a written decision in the matter. If the decision of the disciplinary board finds the accused attorney has not committed the alleged wrongdoing or determines that the accused attorney should be disciplined by way of reprimand or suspension from the practice of law up to a period of six months, the Oregon State Bar or the accused, as the case may be, may seek review by the Supreme Court. Such review shall be a matter of right upon the request of either party. Otherwise, the decision of the disciplinary board shall be final. The procedure for seeking discretionary review and on review shall be as provided in the rules of procedure.

          (2) If the decision of the disciplinary board is to suspend the accused attorney from the practice of law for a period of longer than six months or to disbar the accused attorney, the matter shall be reviewed by the Supreme Court. The procedure on review shall be as provided in the rules of procedure.

          (3) When a matter is before the Supreme Court for review, the court shall consider the matter de novo and may adopt, modify or reject the decision of the disciplinary board in whole or in part and thereupon enter an appropriate order.

          (4) The Supreme Court, or the disciplinary board in cases where its decision has become final, may award judgment in any bar proceeding for all or part of a party’s actual and necessary costs and disbursements incurred. The procedures for recovery of such costs and disbursements shall be the same as in civil cases.

          (5) The State Court Administrator shall enter any judgment for costs and disbursements in the records of the Supreme Court and shall forward a certified copy of the judgment to the clerk of the circuit court of the county in which the member or applicant resides or maintains an office for the practice of law or other business. If a judgment for costs and disbursements is entered against the bar, the State Court Administrator shall forward a certified copy of the judgment to the clerk of the circuit court of the county in which the bar maintains its principal place of business. On receipt of a certified copy of the judgment, the clerk of the circuit court shall file it and cause it to be entered in the circuit court register [and docketed in the judgment docket]. Such judgment shall thereafter have the same force and effect, may be enforced by execution in the same manner, may be [renewed] extended in the same manner and, upon payment, shall be satisfied in the same manner as other judgments entered in circuit court.

 

          SECTION 176. ORS 18.605 is amended to read:

          18.605. (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 circuit court or docketed in the docket of a justice, county or municipal 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 ORS 18.600 to 18.850:

          (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] a circuit court or[, if the court does not have a register,] after the judgment is docketed in the docket of [the] a justice, county or municipal 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 docket or 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 177. ORS 21.325 is amended to read:

          21.325. In the circuit court there shall be charged and collected in advance by the clerk of the court the following fees for the following purposes and services:

          [(1) Making transcription from judgment docket in the format provided in ORCP 70 A, $6.]

          [(2) Filing and docketing transcript of judgment in the format provided in ORCP 70 A, $6.]

          (1) Making transcription of a judgment entered in the register, $6.

          (2) Filing and entering transcript of judgment, $6.

          (3) Filing [and docketing] copy of foreign judgment and affidavit filed as provided in ORS 24.115 and 24.125 or copy of child custody determination of another state filed as provided in ORS 109.787, $35.

          (4) Issuing writs of execution or writs of garnishment, $4 for each writ.

          (5) Preparing [clerk’s certificate of satisfaction of judgment] a certified copy of a satisfaction document under section 25 (5) of this 2003 Act, $5.

          (6) Issuing an order under [ORS 23.710] section 31 of this 2003 Act requiring a judgment debtor to appear when the order is issued by any court other than the court in which the original judgment was entered, $4.

          (7) Issuing notices of restitution as provided in ORS 105.151, $3 for each notice.

          (8) For any service the clerk may be required or authorized to perform and for which no fee is provided by law, such fees as the Chief Justice of the Supreme Court may establish or authorize, except that a fee may not be charged for location or inspection of court records.

 

          SECTION 178. ORS 21.605 is amended to read:

          21.605. (1)(a) The Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals, a judge of a circuit or county court, the judge of the Oregon Tax Court or a justice of the peace may waive in whole or in part, defer in whole or in part, or both, all fees and court costs payable by a party to a particular civil action or proceeding in the court of the justice or judge, upon application by the party, if the justice or judge finds that the party is unable to pay all or any part of the fees and costs. Waiver or deferral of an inmate’s fees and court costs is subject to ORS 30.642 to 30.650.

          (b) No fee shall be required for filing an application under paragraph (a) of this subsection.

          (c) In the judgment or other final written disposition of the action or proceeding the court shall note the dollar amount of the fees and costs not waived and then unpaid, and that amount shall be a judgment in favor of the public body to which the fees and costs are owed. Failure of the court to perform the duty imposed by this paragraph does not otherwise affect the validity of the judgment or other final written disposition.

          (d) The judgment or other final written disposition of the action or proceeding may also contain an order for the payment of the amount of the fees and costs not waived and then unpaid not later than a date certain or on the happening of one or more events. A default in payment by the person so ordered to pay shall subject the person to a contempt proceeding.

          (e) A judgment or other final written disposition rendered under this subsection may be filed[,] and entered [and docketed] as a judgment in any county in this state.

          (2) If fees and court costs payable by a party to a civil action or proceeding have been waived or deferred under subsection (1) of this section, that party shall not be required to pay any fees or costs so waived or deferred except as provided in subsection (1) of this section and ORS 30.642 to 30.650, and any pleading, petition, application, request, motion, claim, demand, exception or other paper or appearance presented by that party for filing or acceptance in the action or proceeding shall be filed or accepted without the payment of any such fees or costs.

          (3)(a) In a civil action or proceeding, the court to which an appeal is taken may waive in whole or in part, defer in whole or in part, or partially waive and partially defer the expense of preparing a transcript on appeal, if:

          (A) The party requesting the transcript is unable to pay the expense of preparing the transcript; and

          (B) The party requesting the transcript makes a prima facie showing that the transcript is necessary to prosecute the appeal and would reveal reversible error in the action or proceeding.

          (b) In any civil action or proceeding in which the court waives or defers any part of the expense of preparing a transcript on appeal, the court shall authorize preparation of only so much of the transcript as is necessary to prosecute the appeal.

          (c) To the extent that the court waives or defers any part of the expense of preparing a transcript on appeal, the State Court Administrator shall pay the expense out of funds appropriated for that purpose.

          (d) If the court defers payment of any part of the expense of preparing a transcript, and any part of the deferred expense remains unpaid at the conclusion of the appeal, the court may enter judgment against the party for the unpaid amounts in the manner provided by subsection (1) of this section.

          (e) If costs on appeal are awarded to a party who has obtained a waiver or deferral under this subsection, any portion of the costs awarded for the expense of preparing the transcript on appeal shall be ordered paid to the State Court Administrator to the extent that the waived or deferred expense was paid by the State Court Administrator.

          (f) Waiver or deferral of an inmate’s expenses under this subsection is subject to ORS 30.642 to 30.650.

          (4) In any case in which fees and court costs have been waived or deferred under this section, a judgment or other final written disposition shall be rendered as in other cases, but the state shall not be liable for the payment of any fees or costs awarded against a party whose fees or costs have been waived or deferred.

          (5) In the exercise of the authority granted by ORS 1.002, the Chief Justice of the Supreme Court may provide by rule standards and practices for waiver or deferral of fees, court costs and expense under this section.

 

          SECTION 179. ORS 21.607 is amended to read:

          21.607. (1) Notwithstanding ORS 82.010, judgments resulting from the deferral of fees and court costs under the provisions of ORS 21.605 bear no interest.

          (2) If a judge of a circuit or county court defers payment of any fees or court costs under the provisions of ORS 21.605, and the amount of those deferred fees or court costs is subsequently paid in full, the trial court administrator for the court shall note [upon the judgment docket] in the register or docket that the deferred fees and costs have been paid in full. Notation [on the judgment docket] in the register or docket that deferred fees and costs have been paid in full constitutes a satisfaction of the judgment for those fees and costs.

          (3) If the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court defers payment of any fees or court costs under the provisions of ORS 21.605, including deferral of the cost of preparing the transcript on appeal, and the amount of those deferred fees or court costs is subsequently paid in full, the State Court Administrator shall note upon the register of the court that the deferred fees and costs have been paid in full. Notation [on] in the register that deferred fees and costs have been paid in full constitutes a satisfaction of the judgment for those fees and costs.

          (4) Upon notation [on the judgment docket or] in the register or docket that deferred fees and costs have been paid in full, a certified copy of the notation may be filed with any circuit court or County Clerk Lien Record in which the judgment was filed under the provisions of ORS 21.605. Upon filing of the certified copy, the trial court administrator for the court, or the county clerk if the judgment was filed in the County Clerk Lien Record, shall cause the certified copy to be [docketed in the judgment docket] entered in the register or docket of the court or recorded in the County Clerk Lien Record.

          (5) Judgments resulting from the deferral of fees and court costs under the provisions of ORS 21.605 may not be compromised, settled or adjusted by a trial court administrator or the State Court Administrator.

 

          SECTION 180. ORS 24.115 is amended to read:

          24.115. (1) A copy of any foreign judgment authenticated in accordance with the Act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court.

          (2) A certified copy of any foreign judgment authenticated in accordance with the Act of Congress or the statutes of this state shall be recorded in the County Clerk Lien Record of any county other than the county in which the judgment is originally [docketed] filed, in order to become a lien upon the real property of the judgment debtor in that county as provided in [ORS 18.320 and 18.350] section 15 of this 2003 Act.

          (3) A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of the circuit court in which the foreign judgment is filed, and may be enforced or satisfied in like manner.

 

          SECTION 181. ORS 24.290 is amended to read:

          24.290. (1) Except as provided in subsection (3) of this section, a judgment or award on a foreign-money claim must be stated in an amount of the money of the claim.

          (2) A judgment or award on a foreign-money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate, except that any payment made through a court pursuant to [ORS 18.410] section 28 of this 2003 Act must be made in United States dollars. When a payment is made to the court, the judgment debtor shall simultaneously file with the court an affidavit or certificate executed in good faith by its counsel or a bank officer stating the rate of exchange used and how it was obtained and setting forth the calculation and the amount of the money of the claim that will be satisfied by the payment. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. [The court clerk shall record every payment that is made pursuant to ORS 18.410 in the appropriate court records and shall pay the money over to the person entitled thereto.]

          (3) Assessed costs, disbursements and attorney fees must be entered in United States dollars.

          (4) Each payment in United States dollars must be accepted and credited on a judgment or award on a foreign-money claim in the amount of the foreign money that could be purchased by the dollars at a bank-offered spot rate of exchange at or near the close of business on the conversion date for that payment.

          (5) A judgment or award made in an action or distribution proceeding on both a defense, setoff, recoupment or counterclaim and the adverse party’s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and specify the rates of exchange used.

          (6) A judgment or award substantially complies with subsection (1) of this section when it is plainly titled as a judgment, it complies with the requirements of [ORCP 70 A(1)] section 4 of this 2003 Act and it includes all of the following:

          (a) The names of the judgment creditor, the judgment creditor’s attorney and the judgment debtor.

          (b) The amount of the judgment in the foreign money of the claim, the type of foreign money and the foreign state, as defined by ORS 24.200 (1), utilizing the money that the claim is denominated in.

          (c) The interest owed to the date of the judgment, either as a specific amount in the foreign money or as accrual information, including the rate or rates of interest as determined by ORS 24.300, the balance or balances upon which the interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

          (d) Post-judgment interest accrual information, including the rate or rates of interest as determined by ORS 24.300, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

          (e) For judgments that accrued on a periodic basis, any accrued arrearages, required further payments per period in the foreign money and accrual dates.

          (f) A statement that the judgment debtor has the option to pay the judgment or award, including the interest owed on the date of judgment and the post-judgment interest, unless the parties have agreed otherwise as according to ORS 24.270, in the amount of United States dollars that will purchase that foreign money on the conversion date at a bank-offered spot rate at or near the close of business on the banking day before the day of payment.

          (g) A statement that, if the judgment debtor pays the judgment through a court [pursuant to ORS 18.410] under section 28 of this 2003 Act, [then] the payment must be in United States dollars as provided in subsection (2) of this section.

          (h) The amount of assessed costs, disbursements and attorney fees in United States dollars, if they are awarded, and any specific amounts awarded. This paragraph does not require inclusion of specific amounts where such will be determined later under ORCP 68 C.

          (i) The terms of any agreement made by the parties, before the entry of the judgment, to vary the effect of ORS 24.260 to 24.335 [and ORCP 70 A].

          (7) If a contract claim is of the type covered by ORS 24.280 (1) or (2), the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank-offered spot rate.

          (8) When a judgment is given on a foreign-money claim in circuit court, the clerk shall enter the judgment in the register [and shall docket the money judgment portion of the judgment in the judgment docket] and shall note that the judgment creates a judgment lien. The judgment shall have the same force and effect as any other judgment obtained in the circuit court.

          (9) A judgment or award may be discharged by payment.

          (10) A party seeking enforcement of a judgment entered as provided in this section shall file with each request or application an affidavit or certificate executed in good faith by its counsel or a bank officer, stating the rate of exchange used and how it was obtained and setting forth the calculation and the amount of United States dollars that would satisfy the judgment on the date of the affidavit or certificate by applying said rate of exchange. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. The computation contained in the affidavit or certificate shall remain in effect for 60 days following the filing of the affidavit or certificate and may be recomputed before the expiration of 60 days by the filing of additional affidavits or certificates provided that recomputation shall not affect any payment obtained before the filing of the recomputation.

 

          SECTION 182. ORS 24.305 is amended to read:

          24.305. (1) If an action is brought to enforce a judgment of another jurisdiction expressed in a foreign money and the judgment is recognized in this state as enforceable, the enforcing judgment must be entered as provided in ORS 24.290, whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars.

          (2) A foreign judgment may be entered in the register [and docketed in the judgment docket] in accordance with any rule or statute of this state providing a procedure for its recognition and enforcement.

          (3) A satisfaction or partial payment made upon the foreign judgment, on proof thereof, shall operate to the same extent as a satisfaction of the judgment in this state, except as to costs authorized by ORS 24.140, notwithstanding the entry of judgment in this state.

          (4) A judgment entered on a foreign-money claim only in United States dollars in another state must be enforced in this state in United States dollars only.

 

          SECTION 183. ORS 25.287 is amended to read:

          25.287. (1)(a) The entity providing support enforcement services under ORS 25.080 may initiate proceedings to modify a support obligation to ensure that the support obligation is in accordance with the formula established under ORS 25.270 to 25.287.

          (b) Proceedings under this subsection may occur only after two years have elapsed from the later of the following:

          (A) The date the original support obligation took effect;

          (B) The date any previous modification of the support obligation took effect; or

          (C) The date of any previous review and determination under this subsection that resulted in no modification of the support obligation.

          (c) For purposes of paragraph (b) of this subsection, a support obligation or modification takes effect on the first date on which the obligor is to pay the established or modified support amount.

          (d) The only issues at proceedings under this subsection are whether two years have elapsed, as described in paragraph (b) of this subsection, and whether the support obligation is in substantial compliance with the formula established under ORS 25.270 to 25.287.

          (e) Upon review, if the administrator determines that a support obligation does not qualify for modification under this section, a party may appeal the determination. A hearing on the appeal shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999. Appeal of the order of the hearing officer may be taken to the circuit court of the county in which the support obligation has been entered[, docketed] or registered for a hearing de novo. The appeal to the court shall be by petition for review filed within 60 days after entry of the order of the hearing officer [has been docketed].

          (f) If the court, the administrator or the hearing officer finds that more than two years have elapsed, as described in paragraph (b) of this subsection, the court, the administrator or the hearing officer shall modify the support order to bring the support obligation into substantial compliance with the formula established under ORS 25.270 to 25.287, regardless of whether there has been a substantial change in circumstances since the support obligation was last established, modified or reviewed. Proceedings by the administrator or hearing officer under this subsection shall be conducted according to the provisions of ORS 416.425 and 416.427.

          (g) The provisions of this subsection apply to any support obligation established by a support order under ORS chapter 24, 107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.

          (2) The administrator, court or hearing officer may use the provisions of subsection (1) of this section when a support order was entered in another state and registered in Oregon, the provisions of ORS chapter 110 apply and more than two years have elapsed as provided in subsection (1)(b) of this section.

          (3) Notwithstanding the provisions of this section, proceedings may be initiated at any time to modify a support obligation based upon a substantial change of circumstances under any other provision of law.

          (4) The obligee is a party to any action to modify a support obligation under this section.

 

          SECTION 184. ORS 25.287, as amended by section 8, chapter 455, Oregon Laws 2001, is amended to read:

          25.287. (1)(a) The entity providing support enforcement services under ORS 25.080 may initiate proceedings to modify a support obligation to ensure that the support obligation is in accordance with the formula established under ORS 25.270 to 25.287.

          (b) Proceedings under this subsection may occur only after two years have elapsed from the later of the following:

          (A) The date the original support obligation took effect;

          (B) The date any previous modification of the support obligation took effect; or

          (C) The date of any previous review and determination under this subsection that resulted in no modification of the support obligation.

          (c) For purposes of paragraph (b) of this subsection, a support obligation or modification takes effect on the first date on which the obligor is to pay the established or modified support amount.

          (d) The only issues at proceedings under this subsection are whether two years have elapsed, as described in paragraph (b) of this subsection, and whether the support obligation is in substantial compliance with the formula established under ORS 25.270 to 25.287.

          (e) Upon review, if the administrator determines that a support obligation does not qualify for modification under this section, a party may appeal the determination. A hearing on the appeal shall be conducted by a hearing officer appointed by the Employment Department. Appeal of the order of the hearing officer may be taken to the circuit court of the county in which the support obligation has been entered[, docketed] or registered for a hearing de novo. The appeal to the court shall be by petition for review filed within 60 days after entry of the order of the hearing officer [has been docketed].

          (f) If the court, the administrator or the hearing officer finds that more than two years have elapsed, as described in paragraph (b) of this subsection, the court, the administrator or the hearing officer shall modify the support order to bring the support obligation into substantial compliance with the formula established under ORS 25.270 to 25.287, regardless of whether there has been a substantial change in circumstances since the support obligation was last established, modified or reviewed. Proceedings by the administrator or hearing officer under this subsection shall be conducted according to the provisions of ORS 416.425 and 416.427.

          (g) The provisions of this subsection apply to any support obligation established by a support order under ORS chapter 24, 107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590.

          (2) The administrator, court or hearing officer may use the provisions of subsection (1) of this section when a support order was entered in another state and registered in Oregon, the provisions of ORS chapter 110 apply and more than two years have elapsed as provided in subsection (1)(b) of this section.

          (3) Notwithstanding the provisions of this section, proceedings may be initiated at any time to modify a support obligation based upon a substantial change of circumstances under any other provision of law.

          (4) The obligee is a party to any action to modify a support obligation under this section.

 

          SECTION 185. ORS 30.390 is amended to read:

          30.390. If judgment is given for the recovery of money or damages against a public corporation mentioned in ORS 30.310, no execution shall issue thereon for the collection of such money or damages, but the judgment shall be satisfied as follows:

          (1) The party in whose favor the judgment is given may, at any time thereafter, when an execution might issue on a like judgment against a private person, present a certified [transcript] copy of the [docket thereof] judgment document, to the officer of the public corporation who is authorized to draw orders on the treasurer thereof.

          (2) On the presentation of the [transcript] copy, the officer shall draw an order on the treasurer for the amount of the judgment, in favor of the party for whom the judgment was given. Thereafter, the order shall be presented for payment, and paid, with like effect and in like manner as other orders upon the treasurer of the public corporation.

          (3) The certified [transcript] copy provided for in subsection (1) of this section shall not be furnished by the clerk, unless at the time an execution might issue on the judgment if the same was against a private person, nor until satisfaction of the judgment in respect to such money or damages is acknowledged as in ordinary cases. The clerk shall [include in the transcript] provide with the copy a memorandum of such acknowledgment of satisfaction and the entry thereof. Unless the [transcript contains such a] memorandum is provided, no order upon the treasurer shall issue thereon.

 

          SECTION 186. ORS 59.265 is amended to read:

          59.265. (1) When the Director of the Department of Consumer and Business Services ascertains that the assets or capital of any broker-dealer not otherwise registered under Section 15 of the Securities Exchange Act of 1934, as amended, or state investment adviser that has its principal place of business in this state are impaired, or that such person’s affairs are in an unsound condition, the director may take possession of all the property, business and assets of such person located in this state and retain possession of them pending the further proceedings specified in this section. The director shall inventory the assets and liabilities of such person. The director shall file one copy of the inventory in the office of the director and one copy in the office of the clerk of the circuit court of the county in which the principal place of business of such person is located, and shall mail one copy to each shareholder or partner of such person at the last-known address of the shareholder or partner. The clerk of the court shall file the inventory as a pending proceeding and give it a [docket] case number.

          (2) If any person refuses to permit the director to take such possession, the director may apply to the circuit court of the county in which the principal place of business of such person is located for an order appointing a receiver, who may be the director, to take such possession.

          (3) If the deficiency in assets or capital has not been made good or the unsound condition remedied within 60 days from the date when the director or receiver took possession, the property, business and assets of such person located in this state shall be liquidated. If a receiver has not been appointed, the director shall apply for such appointment by the court in which the inventory was filed. The liquidation shall proceed as provided by law for liquidation of a private corporation in receivership.

          (4) The expenses of the receiver and compensation of counsel, as well as all expenditures required in the liquidation proceedings, shall be fixed by the director, subject to the approval of the court, and, upon certification by the director, shall be paid out of the funds in the hands of the director as such receiver.

 

          SECTION 187. ORS 59.895 is amended to read:

          59.895. (1) When the Director of the Department of Consumer and Business Services ascertains that the assets or capital of any mortgage banker or mortgage broker is impaired, or that the mortgage banker’s or mortgage broker’s affairs are in an unsound condition, the director may take possession of all the property, business and assets of the mortgage banker or mortgage broker located in this state and retain possession of them pending the further proceedings specified in this section. The director shall inventory the assets and liabilities of the mortgage banker or mortgage broker. The director shall file one copy of the inventory in the office of the director and one copy in the office of the clerk of the circuit court of the county in which the principal place of business of the mortgage banker or mortgage broker is located, and shall mail one copy to each shareholder or partner of the mortgage banker or mortgage broker at the last-known address of the shareholder or partner. The clerk of the court shall file the inventory as a pending proceeding and give it a [docket] case number.

          (2) If any mortgage banker or mortgage broker refuses to permit the director to take possession under this section, the director may apply to the circuit court of the county in which the principal place of business of the mortgage banker or mortgage broker is located for an order appointing a receiver, who may be the director, to take possession.

          (3) If the deficiency in assets or capital has not been made good or the unsound condition remedied within 60 days from the date when the director or receiver took possession, the property, business and assets of the mortgage banker or mortgage broker located in this state shall be liquidated. If a receiver has not been appointed, the director shall apply for such appointment by the court in which the inventory was filed. The liquidation shall proceed as provided by law for liquidation of a private corporation in receivership.

          (4) The expenses of the receiver and compensation of counsel, as well as all expenditures required in the liquidation proceedings, shall be fixed by the director, subject to the approval of the court, and, upon certification by the director, shall be paid out of the funds in the hands of the director as such receiver.

 

          SECTION 188. ORS 87.450 is amended to read:

          87.450. (1) When an attorney claims a lien under ORS 87.445, if the judgment [or decree] is for a sum of money only, the attorney must file a notice of claim of lien with the clerk of the court that [issues] entered the judgment [or decree] within three years after the judgment [or decree] is [given] entered. The clerk shall enter the notice in the [records of the action or suit and shall also make a note of the filing of the notice in the judgment docket] register of the court and in the separate record maintained by the court administrator under section 9 of this 2003 Act.

          (2) When an attorney files a notice of claim of lien under subsection (1) of this section, the attorney shall send forthwith a copy of the notice to the client by registered or certified mail sent to the client at the last-known address of the client.

          (3) A lien under ORS 87.445 on a judgment [or decree] for a sum of money only remains a lien on [that] the judgment [or decree for as long as the judgment or decree remains valid under ORS 18.360 or 18.365] until the judgment remedies for the judgment expire under sections 18 to 22 of this 2003 Act.

          (4) For purposes of this section, a “judgment [or decree] for a sum of money only” does not include a [decree] judgment or order for the payment of money for the support of any person under ORS 107.095, 107.105, 108.120, 109.155, 419B.400 or 419C.590.

 

          SECTION 189. ORS 87.470 is amended to read:

          87.470. The notice of claim of lien required under ORS 87.450 to 87.460 shall be a statement in writing verified by the oath of the attorney and must contain:

          (1) A statement of the attorney’s demand, including the amount of the fee or compensation of the attorney;

          (2) [The citation to the book, volume and page of the judgment docket wherein is entered the judgment or decree upon which the attorney claims a lien] The name of the case in which the judgment was entered, the date on which the judgment was entered in the register, and a description of the real or personal property which is to be awarded, transferred or conveyed to the client under the judgment [or decree];

          (3) A statement that the amount claimed is a true and bona fide existing debt as of the date of the filing of the notice of claim of lien; and

          (4) The date on which payment was due to the attorney for professional services to the client.

 

          SECTION 190. ORS 88.710 is amended to read:

          88.710. As used in ORS 88.710 to 88.740:

          (1) “Director” means the Director of Veterans’ Affairs.

          (2) “Lien” means any charge upon property for the payment or discharge of a debt, tax or duty due the State of Oregon or any agency of the state, including judgment liens, recorded [or docketed] warrants or any notice or claim of amount due given by the state, or an agency thereof, pursuant to law and carried forward on the County Clerk Lien Record or the register of the circuit court [judgment docket] of the county wherein property is located to which a lien of the state attaches.

 

          SECTION 191. ORS 137.270 is amended to read:

          137.270. No conviction of any person for crime works any forfeiture of any property, except in cases where the same is expressly provided by law; but in all cases of the commission or attempt to commit a felony, the state has a lien, from the time of such commission or attempt, upon all the property of the defendant for the purpose of satisfying any judgment which may be given against the defendant for any fine on account thereof and for the costs and disbursements in the proceedings against the defendant for such crime; provided, however, such lien shall not attach to such property as against a purchaser or incumbrancer in good faith, for value, whose interest in the property was acquired before the [docketing] entry of the judgment against the defendant.

 

          SECTION 192. ORS 180.360 is amended to read:

          180.360. Filing, recording or court fees [shall] may not be required from the Division of Child Support of the Department of Justice by any circuit court clerk for the filing of any cases, documents, stipulated orders or processes. However, if the division is entitled to recover costs and disbursements, any of those fees taxable as costs and disbursements may be so taxed, and if recovered by the division, shall be paid to the appropriate officer. A circuit court clerk [shall] may not refuse to file [or docket] a stipulated order, or enter a stipulated judgment, for the reason that the parties signing such order have failed to pay any fee when such order is presented by the Division of Child Support and is signed by a judge.

 

          SECTION 193. ORS 183.485 is amended to read:

          183.485. (1) The court having jurisdiction for judicial review of contested cases shall direct its decision, including its judgment, to the agency issuing the order being reviewed and may direct that its judgment be delivered to the circuit court for any county designated by the prevailing party for entry in the circuit court’s [judgment docket] register.

          (2) Upon receipt of the court’s decision, including the judgment, the clerk of the circuit court shall enter a judgment [or decree] in the register [and docket it] of the court pursuant to the direction of the court to which the appeal is made.

 

          SECTION 194. ORS 205.125 is amended to read:

          205.125. (1) The County Clerk Lien Record maintained under ORS 205.130 shall contain the following information for each order or warrant recorded:

          (a) The name of any person subject to the order or warrant.

          (b) The name of the officer and the agency that issued the order or warrant or the name of the claimant in whose favor an order of the Construction Contractors Board or State Landscape Contractors Board has been given. The name of the agency or board that issued the order or warrant must be clearly printed on the order or warrant.

          (c) The amount of any monetary obligation imposed by the order or warrant, and the name of all persons against whom the obligation is imposed.

          (d) The date on which the order or warrant was received and recorded.

          (e) Full or partial satisfaction, if any, of any lien claim created by the order or warrant.

          (f) County Clerk Lien Record instruments filed under ORS 205.130 (3)(c)(A) shall be on official letterhead and include the seals, if any, of the officers and agencies.

          (g) Such other information as may be considered necessary by the county clerk.

          (2) From the date that an order or warrant is recorded in the County Clerk Lien Record, the order or warrant shall have the attributes and effect of a judgment that has been entered in the register [and docketed in the judgment docket] of the circuit court for that county, including but not limited to the creation of a judgment lien for any monetary obligation in favor of the officer or agency issuing the order or warrant or in favor of the claimant in the proceedings before the Construction Contractors Board or State Landscape Contractors Board, renewal and enforcement by supplementary proceedings, writs of execution, notices of garnishment and writs of garnishment.

          [(3) From the date that an order or warrant is recorded in the County Clerk Lien Record, the order or warrant becomes a lien upon any interest in real property of the person against whom the order or warrant is issued in the county where the order or warrant is recorded.]

          (3) From the date that an order or warrant imposing a monetary obligation is recorded in the County Clerk Lien Record, the order or warrant becomes a lien upon the title to and interest in property of the person against whom it is issued in the same manner as a judgment that creates a judgment lien under sections 1 to 44 of this 2003 Act.

          (4) In addition to any other remedy provided by law, orders and warrants recorded in the County Clerk Lien Record may be enforced as provided in ORS 205.126.

 

          SECTION 195. 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] sections 29 to 44 of this 2003 Act.

          [(b) Supplementary proceedings under ORS 23.710 to 23.730.]

          (b) Proceedings in support of execution under sections 31, 32 and 33 of this 2003 Act.

          (c) Garnishment proceedings under ORS 18.600 to 18.850.

          (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] an extension of judgment remedies noted in the register [and judgment docket, as provided in ORS 18.360] under section 19 of this 2003 Act, 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 196. ORS 205.515 is amended to read:

          205.515. (1) If an order or warrant issued by a state agency or officer was docketed in the judgment docket of the circuit court of any county before October 3, 1989, notice of satisfaction or release of the lien of an order or warrant so docketed shall be docketed in the same judgment docket in which the order or warrant was docketed.

          (2) If an order or warrant issued by a state agency or officer was docketed in the judgment docket of a circuit court of any county before October 3, 1989, the officer or agency may cause such an order or warrant to be transferred to and recorded in the County Clerk Lien Record of the same county in which the order or warrant was originally docketed as provided in subsection (3) of this section. An order or warrant so transferred shall continue the lien created by the original docketing of the order or warrant.

          (3) Upon request, the clerk of a circuit court shall supply to an officer or agency a certified copy of any order or warrant docketed in the judgment docket of a circuit court before October 3, 1989. That certified copy may then be recorded in the County Clerk Lien Record of the county where the circuit court is located in the same manner and with the same effect provided for the recording of original orders and warrants. Upon recording of the order or warrant, the agency or officer shall as soon as possible thereafter cause to be returned to the clerk of the circuit court that prepared the certified copy, the original of that certified copy reflecting the recording of the copy in the County Clerk Lien Record and the date of the recording. The clerk shall then cause to be entered in the [judgment docket] register a notation reflecting the recording of the order or warrant in the County Clerk Lien Record and the date of the recording.

          (4) Nothing in this section shall be construed to affect the status of liens created by, or require the transfer from, any judgment docket to any County Clerk Lien Record of any order or warrant docketed in a judgment docket before October 3, 1989.

 

          SECTION 197. ORS 267.385 is amended to read:

          267.385. (1) To carry out the powers granted by ORS 267.010 to 267.390, a district may by ordinance impose an excise tax on every employer equal to not more than six-tenths of one percent of the wages paid with respect to the employment of individuals. For the same purposes, a district may by ordinance impose a tax on each individual equal to not more than six-tenths of one percent of the individual’s net earnings from self-employment.

          (2) No employer shall make a deduction from the wages of an employee to pay all or any portion of a tax imposed under this section.

          (3) The provisions of ORS 305.620 are applicable to collection, enforcement, administration and distribution of a tax imposed under this section.

          (4) At any time an employer or individual fails to remit the amount of taxes when due under an ordinance of the district board imposing a tax under this section, the Department of Revenue may enforce collection by the issuance of a distraint warrant for the collection of the delinquent amount and all penalties, interest and collection charges accrued thereon. Such warrant shall be issued[, docketed and proceeded upon] and may be enforced in the same manner and have the same force and effect as prescribed with respect to warrants for the collection of delinquent state income taxes.

          (5) Any ordinance adopted under subsection (1) of this section shall require an individual having net earnings from self-employment from activity both within and without the district taxable by the State of Oregon to allocate and apportion such net earnings to the district in the manner required for allocation and apportionment of income under ORS 314.280 and 314.605 to 314.675. Such ordinance shall give the individual the option of apportioning income based on a single factor designated by the ordinance.

          (6) Any ordinance adopted under subsection (1) of this section with respect to net earnings from self-employment may impose a tax for a taxable year measured by each individual’s net earnings from self-employment for the prior taxable year, whether such prior taxable year begins before or after November 1, 1981, or such ordinance.

          (7) Any ordinance imposing a tax authorized by subsection (1) of this section shall not apply to any business, trade, occupation or profession upon which a tax is imposed under ORS 267.360.

 

          SECTION 198. ORS 311.615 is amended to read:

          311.615. (1) Notice of the warrants required by ORS 311.610 and the issue thereof, except as provided in ORS 311.620, shall be given by four consecutive weekly publications thereof in a newspaper of general circulation in the county, to be designated by the county court. All warrants served by publication may be included in one general notice.

          (2) The published notice shall contain:

          (a) A general statement of the effect of the warrants when filed and [docketed] recorded.

          (b) The names of the respective owners of the several personal properties and descriptions thereof as appearing in the latest tax roll or in the list or return listing or reporting the property pursuant to ORS 308.285 or 308.290.

          (c) The year or years for which taxes are delinquent on each property.

          (d) The amount of delinquent taxes for each year.

          (e) The interest accrued on each such amount to the date of issuance of the warrant.

          (3) The publication of the notice shall be sufficient service on each person named therein or interested in any property described therein. It shall not be necessary to mail a copy of the notice to the persons named in the published notice or interested in any property described therein. All persons named in the notice or owning or claiming to own, or having or claiming to have any interest in any property described therein, are required to take notice of the proceeding and of all steps thereunder.

 

          SECTION 199. ORS 311.630 is amended to read:

          311.630. Except as provided in ORS 311.610, the process of issuing, serving, [docketing] recording and executing warrants covering all delinquent taxes on personal property, as provided in ORS 311.605 to 311.635, shall be mandatory, irrespective of any other process, procedure or remedy provided by law in respect to collection or payment of such taxes.

 

          SECTION 200. ORS 319.182 is amended to read:

          319.182. (1) If a person fails to pay in full any tax, interest or penalty due under ORS 319.010 to 319.430, the Department of Transportation may issue a warrant under the department’s official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the person found within that county, for payment of the amount due, with the added penalties or charges, interest and the cost of executing the warrant, and to return the warrant to the department and pay to the department the money collected from the sale by the time specified in the warrant, not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy of the warrant. The clerk shall enter in the County Clerk Lien Record the name of the person mentioned in the warrant, the amount of the tax or portion of the tax and penalties or charges for which the warrant is issued and the date when the copy is recorded. The amount of the warrant shall become a lien upon the title to and interest in property of the person against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act.

          (3) The sheriff shall proceed upon the warrant in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (4) In the discretion of the Department of Transportation, a warrant of like terms, force and effect to levy upon funds of the person in possession of the Department of Revenue may be issued and directed to any agent authorized by the Department of Transportation to collect taxes payable under ORS 319.010 to 319.430, and in the execution thereof the agent shall have all of the powers conferred by law upon sheriffs but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

 

          SECTION 201. ORS 319.742 is amended to read:

          319.742. (1) If a person fails to pay in full any obligation due under ORS 319.510 to 319.880, the Department of Transportation may issue a warrant under the department’s official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the person found within that county, for payment of the amount of the obligation and the cost of executing the warrant, and to return the warrant to the department and pay to the department the money collected from the sale by the time specified in the warrant, not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy of the warrant. The clerk shall enter in the County Clerk Lien Record the name of the person mentioned in the warrant, the amount of the obligation for which the warrant is issued and the date when the copy is recorded. The amount of the warrant shall become a lien upon the title to and interest in property of the person against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act.

          (3) The sheriff shall proceed upon the warrant in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (4) In the discretion of the Department of Transportation, a warrant of like terms, force and effect to levy upon funds of the person in possession of the Department of Revenue may be issued and directed to any agent authorized by the Department of Transportation to collect taxes payable under ORS 319.510 to 319.880, and in the execution thereof the agent shall have all of the powers conferred by law upon sheriffs but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

 

          SECTION 202. ORS 320.080 is amended to read:

          320.080. (1) If any tax or penalty imposed by this chapter is not paid as required by this chapter within 30 days after the date that the written notice and demand for payment required under ORS 305.895 is mailed, the Department of Revenue shall issue a warrant directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the person or persons named in the warrant and liable for the tax found within the county, for the payment of the amount thereof with the added penalty and the cost of executing the warrant, and to return the warrant to the department and pay to it the money collected by virtue thereof by a time to be therein specified not more than 30 days from the date of the warrant. A copy of the warrant shall be mailed or delivered to the taxpayer by the department at the taxpayer’s last-known address.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy thereof. Thereupon the clerk shall enter in the County Clerk Lien Record the names of the persons mentioned in the warrant, and the amount of the tax and penalty for which the warrant is issued and the date when such copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to any interest in real property or personal property of the persons against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff shall thereupon proceed upon the same in all respects, with like effect and in the manner prescribed by law in respect to execution issued against property upon judgment of a court of record, and the sheriff is entitled to the same fees for services in executing the warrant to be collected in the same manner. If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the claim for taxes as if the people of the state had recovered judgment for the amount of the tax.

 

          SECTION 203. ORS 321.570 is amended to read:

          321.570. (1) If any tax imposed by ORS 321.005 to 321.185, 321.257 to 321.390, 321.405 to 321.487 or 321.560 to 321.600, or any portion of such tax, is not paid within 30 days after the date that the written notice and demand for payment required under ORS 305.895 is mailed, the Department of Revenue may issue a warrant, directed to the sheriff of any county of the state, commanding the sheriff to levy upon and sell the real and personal property of the taxpayer owning the same, found within that county, for the payment of the amount of the tax, with the added penalties, interest and cost of executing the warrant, and to return the warrant to the department and to pay to it the money collected from the sale, within 60 days after receipt of the warrant. A copy of the warrant shall be mailed or delivered to the taxpayer by the department at the taxpayer’s last-known address.

          (2) The sheriff shall, within five days after the receipt of the warrant, record a copy with the county clerk, and the clerk shall immediately enter in the County Clerk Lien Record the name of the taxpayer mentioned in the warrant, and the amount of the tax or portion of the tax and penalties for which the warrant is issued and the date when the copy is recorded. The amount of the warrant so recorded shall become a lien upon the title to and interest in real property of the taxpayer against which it is issued, in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff immediately shall proceed upon the warrant in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the department a warrant of like terms, force and effect may be issued and directed to any agent authorized to collect this tax. In the execution of the warrant, such agent has the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the claim for taxes against the taxpayer as if the state had a recorded judgment against the taxpayer for the amount of the tax.

 

          SECTION 204. ORS 323.390 is amended to read:

          323.390. (1) If any tax imposed by ORS 323.005 to 323.482 or any portion of such tax is not paid within 30 days after notice of a deficiency determination is given pursuant to ORS 323.403 or of a tax determined under ORS 323.385, and no provision is made to secure the payment thereof by bond, deposit or otherwise, pursuant to regulations promulgated by the Department of Revenue, the department shall:

          (a) Assess a collection charge of $5 if the sum of the tax, penalty and interest then due exceeds $10.

          (b) Issue a warrant directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the taxpayer found within that county, for the payment of the amount of the tax, with the added penalties, interest, collection charge and the sheriff’s cost of executing the warrant, and to return such warrant to the department and pay to it the money collected by virtue thereof by a time to be therein specified, not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy thereof, and thereupon the clerk shall enter in the County Clerk Lien Record the name of the taxpayer mentioned in the warrant, and the amount of the tax or portion thereof and penalties and interest for which the warrant is issued and the date when such copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to and interest in property of the taxpayer against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff thereupon shall proceed upon the same in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the department a warrant of like terms, force and effect may be issued and directed to any agent authorized to collect income taxes, and in the execution thereof the agent shall have all the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the claim for taxes against the taxpayer as if the people of the state had recovered judgment against the taxpayer for the amount of the tax.

 

          SECTION 205. ORS 323.610 is amended to read:

          323.610. (1) If any tax imposed under the Tobacco Products Tax Act or any portion of the tax is not paid within the time provided by law and no provision is made to secure the payment of the tax by bond, deposit or otherwise, pursuant to rules adopted by the Department of Revenue, the department may issue a warrant directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the taxpayer found within the county, for the payment of the amount of the tax, with the added penalties, interest and the sheriff’s cost of executing the warrant, and to return the warrant to the department and pay to it the money collected from the sale, within 60 days after the date of receipt of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy of the warrant, and the clerk shall immediately enter in the County Clerk Lien Record the name of the taxpayer mentioned in the warrant, the amount of the tax or portion of the tax and penalties for which the warrant is issued and the date the copy is recorded. The amount of the warrant so recorded shall become a lien upon the title to and interest in real property of the taxpayer against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff immediately shall proceed upon the warrant in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the department a warrant of like terms, force and effect may be issued and directed to any agent authorized to collect the taxes imposed by the Tobacco Products Tax Act. In the execution of the warrant, the agent shall have all the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the claim for taxes against the taxpayer as if the people of the state had recovered judgment against the taxpayer for the amount of the tax.

 

          SECTION 206. ORS 324.190 is amended to read:

          324.190. (1) If any tax imposed by this chapter, or any portion of such tax, is not paid within 30 days after the date that the written notice and demand for payment required under ORS 305.895 is mailed, the Department of Revenue shall issue a warrant, directed to the sheriff of any county of the state, commanding the sheriff to levy upon and sell the real and personal property of the person owing the tax, found within that county, for the payment in the amount thereof, with the added penalties, interest and cost of executing the warrant, and to return the warrant to the department and to pay to it the money collected by virtue thereof, within 60 days after receipt of the warrant. A copy of the warrant shall be mailed or delivered to the taxpayer by the department at the taxpayer’s last-known address.

          (2) The sheriff shall, within five days after the receipt of the warrant, record a copy with the county clerk, and thereupon the clerk shall enter in the County Clerk Lien Record the name of the person mentioned in the warrant, and the amount of the tax or portion thereof and penalties for which the warrant is issued and the date when the copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to and interest in real property of the person against which it is issued, in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff thereupon shall proceed upon the warrant in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of records, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the department a warrant of like terms, force and effect may be issued and directed to any agent of the department authorized by it to collect this tax. In the execution of the warrant, such agent has the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the claim for taxes against the owner as if the state had a recorded judgment against the owner for the amount of the tax.

 

          SECTION 207. ORS 416.422, as amended by section 9, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645), is amended to read:

          416.422. (1) Past support may not be ordered for any period of time prior to the later of:

          (a) The date of the most recent application for service from the child support program administered under Title IV-D of the Social Security Act; or

          (b) In the case of a mandatory referral based on the receipt of public assistance, the date of the last referral to the child support program administered under Title IV-D of the Social Security Act.

          (2) If the administrator has issued a notice and finding of financial responsibility under ORS 416.415 that includes a statement of past support but the administrator or hearing officer has not issued an order, and a court proceeding that involves the same obligor and child support for the same child is pending or is commenced after the notice is issued, the administrator may certify all matters under the notice to the court for consolidation in the court proceeding. After the matter is certified to the court, the court may, in the same manner as the administrator, order a parent to pay an amount of past support.

          (3) If the administrator does not certify the matter to the court under subsection (2) of this section and the court’s judgment[, decree] or order does not address past support, the administrator or a hearing officer may thereafter issue an order directing a parent to pay an amount of past support.

 

          SECTION 208. ORS 416.425 is amended to read:

          416.425. (1) Any time support enforcement services are being provided under ORS 25.080, the obligated parent, the obligee, the party holding the support rights or the administrator may move for the existing order to be modified under this section. The motion shall be in writing in a form prescribed by the administrator, shall set out the reasons for modification and shall state the telephone number and address of the moving party. The motion shall be served upon the obligated parent, the obligee, the party holding the support rights and the administrator, as appropriate. The obligor shall be served in the same manner as provided for service of the notice and finding of financial responsibility under ORS 416.415 (1). The obligee shall be served in accordance with ORS 25.085. The parties against whom the motion is made shall have 30 days to resolve the matter by stipulated agreement or to serve the moving party by regular mail with a written response setting forth any objections to the motion and a request for hearing. The hearing shall be conducted pursuant to ORS 416.427.

          (2) When the moving party is other than the administrator and no objections and request for hearing have been served within 30 days, the moving party may submit a true copy of the motion to the hearings officer as provided in ORS 416.427, except the default shall not be construed to be a contested case as defined in ORS 183.310 to 183.550. Upon proof of service, the hearings officer shall issue an order granting the relief sought.

          (3) When the moving party is the administrator and no objections and request for hearing have been served within 30 days, the administrator may enter an order granting the relief sought.

          (4) A motion for modification made pursuant to this section shall not stay the administrator from enforcing and collecting upon the existing order unless so ordered by the court in which the order is [docketed] entered.

          (5) Except as otherwise provided by ORS 416.400 to 416.470, the only support payments which may be modified are the monthly future support payments.

          (6) The party requesting modification shall have the burden of showing a substantial change of circumstances or that a modification is appropriate under the provisions of ORS 25.287.

          (7) An administrative order modifying a court order is not effective until the administrative order is reviewed and approved by the court that entered the court order. The court shall make a written finding on the record that the administrative order complies with the formula established by ORS chapter 25. The court may approve the administrative order at any time after the order is issued. If upon review the court finds that the administrative order should not be approved, the court shall set the matter for hearing de novo.

          (8) The obligee is a party to all proceedings under this section.

          (9) An order entered under this section that modifies a support order because of the incarceration of the obligor is effective only during the period of the obligor’s incarceration and for 60 days after the obligor’s release from incarceration. The previous support order is reinstated by operation of law on the 61st day after the obligor’s release from incarceration. An order that modifies a support order because of the obligor’s incarceration must contain a notice that the previous order will be reinstated on the 61st day after the obligor’s release from incarceration.

 

          SECTION 208a. If House Bill 2111 becomes law, section 208 of this 2003 Act (amending ORS 416.425) is repealed and ORS 416.425, as amended by section 4, chapter 419, Oregon Laws 2003 (Enrolled House Bill 2111), is amended to read:

          416.425. (1) Any time support enforcement services are being provided under ORS 25.080, the obligor, the obligee, the party holding the support rights or the administrator may move for the existing order to be modified under this section. The motion shall be in writing in a form prescribed by the administrator, shall set out the reasons for modification and shall state the telephone number and address of the moving party. The motion shall be served upon the obligor, the obligee, the party holding the support rights and the administrator, as appropriate. The obligor shall be served in the same manner as provided for service of the notice and finding of financial responsibility under ORS 416.415 (1). The obligee shall be served in accordance with ORS 25.085. The parties against whom the motion is made shall have 30 days to resolve the matter by stipulated agreement or to serve the moving party by regular mail with a written response setting forth any objections to the motion and a request for hearing. The hearing shall be conducted under ORS 416.427.

          (2) When the moving party is other than the administrator and no objections and request for hearing have been served within 30 days, the moving party may submit a true copy of the motion to the hearings officer as provided in ORS 416.427, except the default shall not be construed to be a contested case as defined in ORS 183.310 to 183.550. Upon proof of service, the hearings officer shall issue an order granting the relief sought.

          (3) When the moving party is the administrator and no objections and request for hearing have been served within 30 days, the administrator may enter an order granting the relief sought.

          (4) A motion for modification made under this section does not stay the administrator from enforcing and collecting upon the existing order unless so ordered by the court in which the order is [docketed] entered.

          (5) An administrative order filed in accordance with ORS 416.440 is a final judgment as to any installment or payment of money that has accrued up to the time the nonmoving party is served with a motion to set aside, alter or modify the judgment. The administrator may not set aside, alter or modify any portion of the judgment that provides for any payment of money for minor children that has accrued before the motion is served. However:

          (a) The administrator may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or [decree] judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child; and

          (b) The administrator may allow a credit against child support arrearages for any Social Security or veterans’ benefits paid retroactively to the child, or to a representative payee administering the funds for the child’s use and benefit, as a result of a parent’s disability or retirement.

          (6) The party requesting modification has the burden of showing a substantial change of circumstances or that a modification is appropriate under the provisions of ORS 25.287.

          (7) An administrative order modifying a court order is not effective until the administrative order is reviewed and approved by the court that entered the court order. The court shall make a written finding on the record that the administrative order complies with the formula established by ORS chapter 25. The court may approve the administrative order at any time after the order is issued. If upon review the court finds that the administrative order should not be approved, the court shall set the matter for hearing de novo.

          (8) The obligee is a party to all proceedings under this section.

          (9) An order entered under this section that modifies a support order because of the incarceration of the obligor is effective only during the period of the obligor’s incarceration and for 60 days after the obligor’s release from incarceration. The previous support order is reinstated by operation of law on the 61st day after the obligor’s release from incarceration. An order that modifies a support order because of the obligor’s incarceration must contain a notice that the previous order will be reinstated on the 61st day after the obligor’s release from incarceration.

 

          SECTION 209. ORS 416.427 is amended to read:

          416.427. (1) When a party requests a hearing pursuant to ORS 416.415, 416.425 (1) or 416.429, the contested case provisions of ORS 183.310 to 183.550 apply except when the issue of paternity is to be resolved pursuant to ORS 416.430.

          (2) Except as provided in ORS 416.430, hearings shall be conducted by a hearing officer assigned from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999.

          (3) The hearing officer has the power to issue subpoenas for witnesses necessary to develop a full record. The attorney of record for the office may issue subpoenas. Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the administrator, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2). Obedience to the subpoena may be compelled in the same manner as set out in ORS 183.440 (2).

          (4) Upon issuance of an order, action by the administrator to enforce and collect upon the order, including arrearages, may be taken. Such action shall not be stayed or partially stayed pending appeal or by any court unless there is substantial evidence showing that the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

          (5) An order issued by the hearing officer or the administrator is final. The order shall be in full force and effect while any appeal is pending unless the order is stayed by a court. No stay shall be granted unless there is substantial evidence showing the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

          (6) Appeal of the order of the hearing officer or any default or consent order entered by the administrator pursuant to ORS 416.400 to 416.470 may be taken to the circuit court of the county in which the order has been [docketed] entered pursuant to ORS 416.440 for a hearing de novo. The appeal shall be by petition for review filed within 60 days after the order has been [docketed] entered pursuant to ORS 416.440. Unless otherwise specifically provided by law, the appeal shall be conducted pursuant to the Oregon Rules of Civil Procedure.

          (7) The obligor, the obligee and the state are parties to any proceedings, including appeals, under this section.

 

          SECTION 210. ORS 416.427, as amended by section 79, chapter 849, Oregon Laws 1999, is amended to read:

          416.427. (1) When a party requests a hearing pursuant to ORS 416.415, 416.425 (1) or 416.429, the contested case provisions of ORS 183.310 to 183.550 apply except when the issue of paternity is to be resolved pursuant to ORS 416.430.

          (2) Except as provided in ORS 416.430, hearings shall be conducted by a qualified hearing officer appointed by the Employment Department.

          (3) The hearing officer has the power to issue subpoenas for witnesses necessary to develop a full record. The attorney of record for the office may issue subpoenas. Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the administrator, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415 (2). Obedience to the subpoena may be compelled in the same manner as set out in ORS 183.440 (2).

          (4) Upon issuance of an order, action by the administrator to enforce and collect upon the order, including arrearages, may be taken. Such action shall not be stayed or partially stayed pending appeal or by any court unless there is substantial evidence showing that the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

          (5) An order issued by the hearing officer or the administrator is final. The order shall be in full force and effect while any appeal is pending unless the order is stayed by a court. No stay shall be granted unless there is substantial evidence showing the obligor would be irreparably harmed and that the obligee would not be irreparably harmed.

          (6) Appeal of the order of the hearing officer or any default or consent order entered by the administrator pursuant to ORS 416.400 to 416.470 may be taken to the circuit court of the county in which the order has been [docketed] entered pursuant to ORS 416.440 for a hearing de novo. The appeal shall be by petition for review filed within 60 days after the order has been [docketed] entered pursuant to ORS 416.440. Unless otherwise specifically provided by law, the appeal shall be conducted pursuant to the Oregon Rules of Civil Procedure.

          (7) The obligor, the obligee and the state are parties to any proceedings, including appeals, under this section.

 

          SECTION 211. ORS 416.429 is amended to read:

          416.429. (1) The administrator may issue a notice of intent to establish and enforce arrearages for any support order that is registered, filed or [docketed] entered in this state. The notice must be served upon the obligor in the manner prescribed for service of summons in a civil action or mailed to the obligor at the obligor’s last-known address by certified mail, return receipt requested. The administrator shall mail the notice to the obligee by regular mail.

          (2) The notice shall include:

          (a) A statement of the name of the caretaker relative or agency and the name of the dependent child for whom support is to be paid;

          (b) A statement of the monthly support the obligor is required to pay under the support order;

          (c) A statement of the arrearages claimed to be owed under the support order;

          (d) A demand that the obligor make full payment to the Department of Justice or the clerk of the court, whichever is appropriate, within 14 days of the receipt or service of the notice;

          (e) A statement that if full payment or an objection is not received within 14 days, the administrator will enter an order directing that the amount of the arrearages stated in the notice be entered in the child support accounting record maintained by the Department of Justice;

          (f) A statement that if the obligor or the obligee objects to the enforcement of the arrearages, then the objecting party must send to the office issuing the notice, within 14 days of the date of service, a written response that sets forth any objections and requests a hearing;

          (g) A statement that the only basis upon which an obligor or an obligee may object to the enforcement of the arrearages is that the amount of the arrearages specified in the notice is incorrect;

          (h) A reference to ORS 416.400 to 416.470;

          (i) A statement that the obligor and the obligee are responsible for notifying the office of any change of address or employment;

          (j) A statement that if the obligor or the obligee has any questions, the obligor or obligee should telephone or visit the appropriate office or consult an attorney; and

          (k) Such other information as the administrator finds appropriate.

          (3) If a timely written response setting forth objections and requesting a hearing is received by the appropriate office, a hearing shall be held under ORS 416.427.

          (4) If no timely written response and request for hearing is received by the appropriate office, the administrator shall enter an order directing that the amount of the arrearages stated in the notice be entered in the child support accounting record maintained by the Department of Justice.

          (5) Action to administratively enforce and collect upon the arrearages established under this section may be taken 14 days after service of or receipt or refusal of the notice by the obligor or obligee.

          (6) Nothing in this section shall prevent the administrator from using other available enforcement remedies at any time.

 

          SECTION 212. ORS 416.440 is amended to read:

          416.440. (1) The documents required to be filed for purposes of subsection (2) of this section include all the following:

          (a) A true copy of any order entered, filed or registered by the administrator or hearings officer pursuant to ORS 416.400 to 416.470 or ORS chapter 110.

          (b) A true copy of the return of service, if applicable.

          (c) A separate statement containing the information required to be contained in a judgment under [ORCP 70 A(2)(a)] section 5 (2) of this 2003 Act.

          (2) The documents described under subsection (1) of this section shall be filed in the office of the clerk of the circuit court in the county in which either the parent or the dependent child resides or in the county where the court order was entered if the administrative order is an order modifying a court order. Upon receipt of the documents, the clerk shall [docket] enter the order in the register of the circuit court [judgment docket] and shall note in the register that the order creates a lien.

          (3) Upon [docketing] entry in the register under subsection (2) of this section, the order shall have all the force, effect and attributes of a [docketed order or decree] judgment of the circuit court, including but not limited to:

          [(a) Lien effect;]

          (a) Creation of a judgment lien under sections 1 to 44 of this 2003 Act; and

          [(b) Ability to be renewed pursuant to ORS 18.360; and]

          [(c) Ability to be enforced by supplementary proceedings, contempt of court proceedings, writs of execution and writs of garnishment.]

          (b) Ability to be enforced by contempt proceedings and pursuant to sections 29 to 44 of this 2003 Act.

          (4) Notwithstanding subsection (3) of this section, an administrative order modifying a court order shall not become effective until reviewed and approved by the court under ORS 416.425 (7).

          (5) Notwithstanding subsections (2) and (3) of this section, the [docketing of] entry in the register of an order [entered by] of the administrator or hearings officer does not preclude any subsequent proceeding or remedy available under ORS 416.400 to 416.470.

          (6) A court or administrative order of another state may be filed, or if appropriate, registered, pursuant to this section for the purposes of ORS chapter 110. Notwithstanding any other provision of this chapter, an order of another state registered pursuant to ORS 110.405, 110.408 and 110.411 may not be modified unless the requirements of ORS 110.432 are met.

 

          SECTION 213. ORS 416.443 is amended to read:

          416.443. (1) No later than one year after an order establishing paternity is [docketed] entered under ORS 416.440 and if no genetic parentage test has been completed, a party may apply to the administrator to have the issue of paternity reopened. Upon receipt of a timely application, the administrator shall order:

          (a) The mother and the male party to submit to parentage tests; and

          (b) The person having physical custody of the child to submit the child to a parentage test.

          (2) If a party refuses to comply with an order under subsection (1) of this section, the issue of paternity shall be resolved against that party by an appropriate order of the court upon the motion of the administrator. Support paid before an order is vacated under this section shall not be returned to the payer.

 

          SECTION 214. ORS 419C.450 is amended to read:

          419C.450. (1)(a) It is the policy of the State of Oregon to encourage and promote the payment of restitution and other obligations by youth offenders as well as by adult offenders. In any case within the jurisdiction of the juvenile court pursuant to ORS 419C.005 in which the youth offender caused another person any physical, emotional or psychological injury or any loss of or damage to property, the court shall consider restitution to the victim to be of high priority. There shall be a rebuttable presumption that the obligation to make such restitution is in the best interest of the youth offender as well as of the victim and society. For acts committed on or after December 5, 1996, the court shall order the prompt payment of restitution whenever possible.

          (b) The court may order restitution, including but not limited to counseling and treatment expenses, for emotional or psychological injury under this section only:

          (A) When the act that brought the youth offender within the jurisdiction of the court would constitute aggravated murder, murder or a sex crime if committed by an adult; and

          (B) For an injury suffered by the victim or a member of the victim’s family who observed the act.

          (2) Restitution for injury inflicted upon a person by the youth offender, for property taken, damaged or destroyed by the youth offender and for a reward offered by the victim or an organization authorized by the victim and paid for information leading to the apprehension of the youth offender, may be required as a condition of probation. Restitution does not limit or impair the right of a victim to sue in a civil action for damages suffered, nor shall the fact of consultation by the victim be admissible in such civil action to prove consent or agreement by the victim. However, the court shall credit any restitution paid by the youth offender to a victim against any judgment in favor of the victim in such civil action. Before setting the amount of such restitution, the court shall notify the person upon whom the injury was inflicted or the owner of the property taken, damaged or destroyed and give such person an opportunity to be heard on the issue of restitution.

          (3) If the youth offender has been placed in custody of the Oregon Youth Authority on probation or for placement at a youth correction facility, the court may order that the youth offender pay restitution, as provided in this section, and any assessment under ORS 137.290. In determining whether or not to order restitution or payment of an assessment under ORS 137.290 and, if so, the conditions of payment, the court shall take into consideration the availability to the youth offender of paid employment during such time as the youth offender may be committed to a youth correction facility.

          (4) In determining whether or not to order restitution or an assessment under ORS 137.290, the court shall take into account:

          (a) The financial resources of the youth offender and the burden that payment of restitution will impose, with due regard to the other obligations of the youth offender;

          (b) The present and future ability of the youth offender to pay restitution on an installment basis or on other conditions to be fixed by the court; and

          (c) The rehabilitative effect on the youth offender of the payment of restitution and the method of payment.

          (5) Notwithstanding ORS 419C.501 and 419C.504, when the court has ordered a youth offender to pay restitution, as provided in this section, the judgment may be [docketed and, if so, shall have the same effect as a judgment in a civil action, as provided in ORS 18.320, 18.350, 18.360 and 18.400] entered in the register or docket of the court in the manner provided by sections 1 to 44 of this 2003 Act and enforced in the manner provided by sections 29 to 44 of this 2003 Act. The judgment is in favor of the state and may be enforced only by the state. Notwithstanding ORS 419A.255, a judgment for restitution [docketed] entered under this subsection is a public record. [The requirements of ORS 137.071 (9) apply to a judgment under this subsection.] Judgments entered under this subsection are subject to section 6 of this 2003 Act.

 

          SECTION 215. ORS 646.632 is amended to read:

          646.632. (1) A prosecuting attorney who has probable cause to believe that a person is engaging in, has engaged in, or is about to engage in an unlawful trade practice may bring suit in the name of the State of Oregon in the appropriate court to restrain such person from engaging in the alleged unlawful trade practice.

          (2) Except as provided in subsections (5) and (6) of this section, before filing a suit under subsection (1) of this section, the prosecuting attorney shall in writing notify the person charged of the alleged unlawful trade practice and the relief to be sought. Such notice shall be served in the manner set forth in ORS 646.622 for the service of investigative demands. The person charged thereupon shall have 10 days within which to execute and deliver to the prosecuting attorney an assurance of voluntary compliance. Such assurance shall set forth what actions, if any, the person charged intends to take with respect to the alleged unlawful trade practice. The assurance of voluntary compliance shall not be considered an admission of a violation for any purpose. If the prosecuting attorney is satisfied with the assurance of voluntary compliance, it may be submitted to an appropriate court for approval and if approved shall thereafter be filed with the clerk of the court. If an approved assurance of voluntary compliance provides for the payment of an amount of money, as restitution or otherwise, and if the amount is not paid within 90 days of the date the court approves the assurance, or, if the assurance of voluntary compliance requires periodic payments and if any periodic payment is not paid within 30 days of the date specified in the assurance of voluntary compliance for any periodic payment, then the prosecuting attorney may submit that portion of the assurance of voluntary compliance which provides for the payment of money to the court with a certificate stating the unpaid balance in a form which fully complies with the requirements of [ORCP 70] sections 4 and 5 of this 2003 Act. Upon submission of an assurance of voluntary compliance under this subsection, the court shall sign the assurance of voluntary compliance and it shall be entered in the register [and docketed in the judgment docket] of the court and the clerk of the court shall note in the register that it creates a lien. The assurance of voluntary compliance shall thereupon constitute a judgment in favor of the State of Oregon and [shall be due and payable] may be enforced as provided in sections 1 to 44 of this 2003 Act. [Any money judgment docketed pursuant to this section shall be enforceable as a judgment in a civil action, as provided in ORS 18.320, 18.350, 18.360 and 18.400.] The notice of the prosecuting attorney under this subsection shall not be deemed a public record until the expiration of 10 days from the service of the notice.

          (3) The prosecuting attorney may reject as unsatisfactory any assurance:

          (a) Which does not contain a promise to make restitution in specific amounts or through arbitration for persons who suffered any ascertainable loss of money or property as a result of the alleged unlawful trade practice; or

          (b) Which does not contain any provision, including but not limited to the keeping of records, which the prosecuting attorney reasonably believes to be necessary to [insure] ensure the continued cessation of the alleged unlawful trade practice, if such provision was included in a proposed assurance attached to the notice served pursuant to this section.

          (4) Violation of any of the terms of an assurance of voluntary compliance which has been approved by and filed with the court shall constitute a contempt of court.

          (5) The prosecuting attorney need not serve notice pursuant to subsection (2) of this section before filing a suit if, within two years of the filing of such suit, the person charged with the alleged unfair trade practice submitted to any prosecuting attorney an assurance of voluntary compliance which was accepted by and filed with an appropriate court. The prosecuting attorney shall in such case serve notice on the defendant in the manner set forth in ORS 646.622 for the service of investigative demands, on the 10th or earlier day previous to the filing of suit.

          (6) If the prosecuting attorney alleges that the prosecuting attorney has reason to believe that the delay caused by complying with the provisions of subsection (2) or (5) of this section would cause immediate harm to the public health, safety or welfare, the prosecuting attorney may immediately institute a suit under subsection (1) of this section.

          (7) A temporary restraining order may be granted without prior notice to the person if the court finds there is a threat of immediate harm to the public health, safety or welfare. Such a temporary restraining order shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the person restrained consents that it may be extended for a longer period.

          (8) The court may award reasonable attorney fees to the prevailing party in an action under this section. If the defendant prevails in such suit and the court finds that the defendant had in good faith submitted to the prosecuting attorney a satisfactory assurance of voluntary compliance prior to the institution of the suit or that the prosecuting attorney, in a suit brought under subsections (5) and (6) of this section, did not have reasonable grounds to proceed under those subsections, the court shall award reasonable attorney fees at trial and on appeal to the defendant.

 

          SECTION 216. ORS 657.396 is amended to read:

          657.396. (1) In any case in which the Director of the Employment Department may bring a civil action for the collection of amounts liable to be repaid under ORS 657.310 or interest on those amounts, the director may instead:

          (a) Assess a collection charge of $5 if the sum of the amount liable to be repaid or interest then due exceeds $10.

          (b) Issue a warrant under official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the individual found within that county, for the payment of the amount liable to be repaid with the added interest, collection charge and the sheriff’s cost of executing the warrant, and to return such warrant to the director and pay to the director the money collected by virtue thereof by a time to be therein specified, but not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy thereof, and thereupon the clerk shall enter in the County Clerk Lien Record the name of the individual mentioned in the warrant, and the amount liable to be repaid, interest and collection charge for which the warrant is issued and the date when such copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to and interest in property of the individual against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff thereupon shall proceed upon the same in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon the judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the director, a warrant of like terms, force and effect may be issued and directed to any agent authorized by the director to collect amounts liable to be repaid and in the execution thereof the agent shall have all the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the director shall have the same remedies to enforce the claim for amounts due and interest against the individual as if the director had recovered judgment against the individual for the amount liable to be repaid and interest.

          (5) Interest upon the amounts liable to be repaid as set forth in the warrant shall be paid and collected at the rate prescribed in ORS 657.310.

 

          SECTION 217. ORS 657.642 is amended to read:

          657.642. (1) In any case in which the Director of the Employment Department may bring a civil action for the collection of taxes, interest and penalties under this chapter, the director may instead:

          (a) Assess a collection charge of $5 if the sum of the tax, penalty and interest then due exceeds $10.

          (b) Issue a warrant under official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the employer found within that county, for the payment of the amount of the tax with the added penalties, interest, collection charge and the sheriff’s cost of executing the warrant, and to return such warrant to the director and pay to the director the money collected by virtue thereof by a time to be therein specified, not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy thereof, and thereupon the clerk shall enter in the County Clerk Lien Record the name of the employer mentioned in the warrant, and the amount of the tax, interest, penalties and collection charge for which the warrant is issued and the date when such copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to and interest in property of the employer against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act. The sheriff thereupon shall proceed upon the same in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon the judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (3) In the discretion of the director, a warrant of like terms, force and effect may be issued and directed to any agent authorized by the director to collect taxes and in the execution thereof the agent shall have all the powers conferred by law upon sheriffs, but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (4) If a warrant is returned not satisfied in full, the director shall have the same remedies to enforce the claim for taxes, interest and penalties against the employer as if the director had recovered judgment against the employer for the amount of the taxes, interest and penalties.

          (5) Interest upon the taxes due as set forth in the warrant shall be paid and collected at the rate prescribed in ORS 657.515 (2).

 

          SECTION 218. ORS 697.063 is amended to read:

          697.063. (1) When the Director of the Department of Consumer and Business Services revokes a registration, the director may take possession of all business records and all bank accounts of the registrant and retain possession of them pending the further proceedings specified in this section. The director shall inventory all the business records and all bank accounts of the registrant. The director shall file one copy of the inventory in the office of the director and one copy in the office of the clerk of the circuit court of the county in which the principal place of business of the registrant is located and shall mail one copy to each shareholder or partner of the registrant at the last-known address of the shareholder or partner. The clerk of the court shall file the inventory as a pending proceeding and give it a [docket] case number. The director by rule may delegate the director’s authority under this section relating to the inventory of business records and bank accounts of a registrant.

          (2) If any person refuses to permit the director to take possession of business records and bank accounts under subsection (1) of this section, the director may apply to the circuit court of the county in which the principal place of business of the registrant is located for an order appointing a receiver, who may be the director, to take possession.

          (3) The business records and bank accounts of the registrant shall be liquidated. If a receiver has not been appointed, the director shall apply for appointment by the court in which the inventory was filed. The liquidation shall proceed as provided by law for liquidation of a private corporation in receivership.

          (4) The expenses of the receiver and attorney fees, as well as all expenditures required in the liquidation proceedings, shall be fixed by the director, subject to the approval of the court, and, upon certification by the director, shall be paid out of the funds in the hands of the director as such receiver.

 

          SECTION 219. ORS 731.258 is amended to read:

          731.258. (1) The Attorney General upon request of the Director of the Department of Consumer and Business Services may proceed in the courts of this state or any reciprocal state to enforce an order or decision in any court proceeding or in any administrative proceeding before the director.

          (2) As used in this section:

          (a) “Reciprocal state” means any state the laws of which contain procedures substantially similar to those specified in this section for the enforcement of decrees or orders in equity issued by courts located in other states, against any insurer incorporated or authorized to do business in such state.

          (b) “Foreign decree” means any decree or order in equity of a court located in a reciprocal state, including a court of the United States located therein, against any insurer incorporated or authorized to do business in this state.

          (c) “Qualified party” means a state regulatory agency acting in its capacity to enforce the insurance laws of its state.

          (3) The Director of the Department of Consumer and Business Services of this state shall determine which states qualify as reciprocal states and shall maintain at all times an up-to-date list of such states.

          (4) A copy of any foreign decree authenticated in accordance with the statutes of this state may be filed in the office of the clerk of any circuit court of this state. The clerk, upon verifying with the director that the decree or order qualifies as a foreign decree shall treat the foreign decree in the same manner as a [decree] judgment of a circuit court of this state. A foreign decree so filed has the same effect and shall be deemed as a [decree] judgment of a circuit court of this state, and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a [decree] judgment of a circuit court of this state and may be enforced or satisfied in like manner.

          (5)(a) At the time of the filing of the foreign decree, the Attorney General shall make and file with the clerk of the court an affidavit setting forth the name and last-known post-office address of the defendant.

          (b) Promptly upon the filing of the foreign decree and the affidavit, the clerk shall mail notice of the filing of the foreign decree to the defendant at the address given and to the director of this state and shall make a note of the mailing in the [docket] register of the court. In addition, the Attorney General may mail a notice of the filing of the foreign decree to the defendant and to the director of this state and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the Attorney General has been filed.

          (c) No execution or other process for enforcement of a foreign decree filed under subsection (4) of this section shall issue until 30 days after the date the decree is filed.

          (6)(a) If the defendant shows the circuit court that an appeal from the foreign decree is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign decree until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the defendant has furnished the security for the satisfaction of the decree required by the state in which it was rendered.

          (b) If the defendant shows the circuit court any ground upon which enforcement of a [decree] judgment of any circuit court of this state would be stayed, the court shall stay enforcement of the foreign decree for an appropriate period, upon requiring the same security for satisfaction of the decree which is required in this state for a judgment.

 

          SECTION 220. ORS 731.988 is amended to read:

          731.988. (1) Any person who violates any provision of the Insurance Code, any lawful rule or final order of the Director of the Department of Consumer and Business Services or any [final judgment or decree] judgment made by any court upon application of the director, shall forfeit and pay to the General Fund of the State Treasury a civil penalty in an amount determined by the director of not more than $10,000 for each offense. In the case of individual agents, adjusters or insurance consultants, the civil penalty shall be not more than $1,000 for each offense. Each violation shall be deemed a separate offense.

          (2) In addition to the civil penalty set forth in subsection (1) of this section, any person who violates any provision of the Insurance Code, any lawful rule or final order of the director or any [final judgment or decree] judgment made by any court upon application of the director, may be required to forfeit and pay to the General Fund of the State Treasury a civil penalty in an amount determined by the director but not to exceed the amount by which such person profited in any transaction which violates any such provision, rule, order[,] or judgment [or decree].

          (3) In addition to the civil penalties set forth in subsections (1) and (2) of this section, any insurer that is required to make a report under ORS 742.400 and that fails to do so within the specified time may be required to pay to the General Fund of the State Treasury a civil penalty in an amount determined by the director but not to exceed $10,000.

          (4) A civil penalty imposed under this section may be recovered either as provided in subsection (5) of this section or in an action brought in the name of the State of Oregon in any court of appropriate jurisdiction.

          (5) Civil penalties under this section shall be imposed and enforced in the manner provided by ORS 183.090. [If a civil penalty is not paid within 10 days after an order assessing the penalty becomes final by operation of law or on appeal, the order may be recorded with the county clerk in any county of this state. The clerk shall record the name of the person incurring the penalty and the amount of the penalty in the County Clerk Lien Record. The penalty provided in the order so recorded shall become a lien upon any interest in property of the person against whom the order is entered in the county where the order is recorded. Execution may be issued from the circuit court for the county in which the order is first recorded in the same manner as execution upon a judgment entered in the register and docketed in the judgment docket of that court.]

          (6) The provisions of this section are in addition to and not in lieu of any other enforcement provisions contained in the Insurance Code.

 

          SECTION 221. ORS 734.440 is amended to read:

          734.440. (1) On the return day of the order to show cause specified in the assessment order issued under ORS 734.420, if the member or subscriber does not appear and serve verified objections upon the Director of the Department of Consumer and Business Services, the court shall make an order adjudging that such member or subscriber is liable for the amount of the assessment against the member or subscriber, together with $10 costs, and that the director may have judgment against the member or subscriber therefor.

          (2) If on such return day the member or subscriber shall appear and serve verified objections upon the director, there shall be a full hearing before the court or a referee to hear and determine the matter. The court, after such hearing, shall make an order either negativing the liability of the member or subscriber to pay the assessment or affirming liability to pay the whole or some part thereof, together with $25 costs and the necessary disbursements incurred at such hearing, and directing that the director, in the latter case, may have judgment therefor.

          [(3) A judgment upon any such order shall have the same force and effect, and may be entered and docketed, and may be appealed from, as if it were a judgment in an original action brought against a member or subscriber in the court in which the delinquency proceeding is pending.]

 

          SECTION 222. ORS 825.504 is amended to read:

          825.504. (1) If any tax, or fee in lieu of tax, reported due, or any final assessment made by the Department of Transportation under ORS 825.490, 825.494 and 825.496, including any penalties or charges therein imposed, or any final penalty imposed under ORS 825.950, 825.955 or 825.960, is not paid in full, the department may issue a warrant under the department’s official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the taxpayer found within that county, for payment of the amount thereof, with the added penalties or charges, interest and the cost of executing the warrant, and to return such warrant to the department and pay to the department the money collected by virtue thereof by a time to be specified therein, not less than 60 days from the date of the warrant.

          (2) The sheriff shall, within five days after the receipt of the warrant, record with the clerk of the county a copy thereof, and thereupon the clerk shall enter in the County Clerk Lien Record the name of the taxpayer mentioned in the warrant, and the amount of the tax or portion thereof and penalties or charges for which the warrant is issued and the date when such copy is recorded. Thereupon the amount of the warrant so recorded shall become a lien upon the title to and interest in property of the taxpayer against whom it is issued in the same manner as a judgment [duly docketed] that creates a judgment lien under sections 1 to 44 of this 2003 Act.

          (3) The sheriff thereupon shall proceed upon the same in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgment of a court of record, and shall be entitled to the same fees for services in executing the warrant, to be added to and collected as a part of the warrant liability.

          (4) In the discretion of the Department of Transportation, a warrant of like terms, force and effect to levy upon funds of the taxpayer in possession of the Department of Revenue may be issued and directed to any agent authorized by the Department of Transportation to collect taxes payable under this chapter, and in the execution thereof the agent shall have all of the powers conferred by law upon sheriffs but is entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty.

          (5) The procedures authorized by this section may also be used for collection of any fees and penalties imposed on persons registering vehicles under ORS chapter 826.

 

          SECTION 223. ORCP 63 E is amended to read:

          E Duties of the clerk. The clerk shall, on the date an order made pursuant to this rule is entered or on the date a motion is deemed denied pursuant to section D of this rule, whichever is earlier, mail a notice of the date of entry of the order or denial of the motion to the attorney of record, if any, of each party who is not in default for failure to appear. If a party who is not in default for failure to appear does not have an attorney of record, such notice shall be mailed to the party. The clerk also shall make a note in the [docket] register of the mailing.

 

          SECTION 224. ORCP 84 C is amended to read:

          C Attachment by claim of lien.

          C(1) Property subject to claim of lien. When attachment is authorized, the plaintiff may attach the defendant’s real property by filing a claim of lien.

          C(2) Form of claim; filing.

          C(2)(a) Form. The claim of lien must be signed by the plaintiff or plaintiff’s attorney and must:

          C(2)(a)(i) Identify the action by names of parties, court, [docket] case number, and judgment demanded;

          C(2)(a)(ii) Describe the particular property attached in a manner sufficient to identify it;

          C(2)(a)(iii) Have a certified copy of the order authorizing the claim of lien attached to the claim of lien.

          C(2)(a)(iv) State that an attachment lien is claimed on the property.

          C(2)(b) Filing. A claim of attachment lien in real property shall be filed with the clerk of the court that authorized the claim and with the county clerk of the county in which the property is located. The county clerk shall certify upon every claim of lien so filed the time when it was received. Upon receiving the claim of lien, the county clerk shall immediately record it in the County Clerk Lien Record. When the claim of lien is so recorded, the lien in favor of the plaintiff attaches to the real property described in the claim of lien. Whenever such lien is discharged, the county clerk shall enter upon the margin of the page on which the claim of lien is recorded a minute of the discharge.

 

JUDGMENT LIENS

 

          SECTION 225. ORS 9.735 is amended to read:

          9.735. The court shall [award] enter a judgment awarding reasonable compensation and expenses to any attorney who acts as custodian under ORS 9.705 to 9.755. [The court’s order shall be in the form of a judgment for the amount of such award] The judgment shall be against the affected attorney or the estate of the affected attorney. [Said] The judgment [shall be] is a lien upon all nontrust funds, office furnishings, supplies, equipment, library and other personal property used in the law practice of the affected attorney retroactive to the date of filing of the petition for jurisdiction under ORS 9.705 to 9.755. [Said] The judgment lien [shall be] is subordinate to nonpossessory liens and security interest created prior to its taking effect, and may be foreclosed as provided in ORS chapter 87.

 

          SECTION 226. ORS 23.280 is amended to read:

          23.280. (1) At any time after the date of execution of an agreement to transfer the ownership of property in which a homestead exemption exists pursuant to ORS 23.240, the homestead owner or the owner’s transferee may give notice of intent to [effect] discharge the property from the judgment lien to [any owner of the judgment docketed against the homestead owner in the county in which the property is situated] a judgment creditor. Each notice shall be styled as a paper in the action in which the judgment was recovered and shall:

          (a) Identify the property and the judgment and state that the judgment debtor is about to transfer, or has transferred, the property and that the transfer is intended to discharge the property from any lien [lawfully arising out] effect of the judgment;

          (b) State the fair market value of the property on the date of the notice or of any applicable petition in bankruptcy, whichever is applicable, and list the encumbrances against the property, including the nature and date of each encumbrance, the name of the encumbrancer and the amount presently secured by each encumbrance;

          (c) State that the property is claimed by the person giving the notice to be wholly exempt from the lien of the judgment or, if the value of the property exceeds the sum of the encumbrances specified as required under paragraph (b) of this subsection that are senior to the judgment lien and $25,000 or $33,000, whichever amount of the homestead exemption is applicable under ORS 23.240 (1), that the amount of the excess or the amount due on the judgment, whichever is less, will be deposited with the [clerk of the] court administrator for the court in which the judgment [is docketed] was entered for the use of the judgment holder; and

          (d) Advise the holder of the judgment that the property may be discharged from any lien arising from the judgment, without further notice to the [holder of the] judgment creditor, unless prior to a specified date, which in no case may be earlier than 14 days after the date of mailing of the notice, the judgment [holder] creditor files objections and a request for a hearing on the matter as provided in ORS 23.290.

          (2) Each notice described by subsection (1) of this section shall be sent by certified mail to the [present holder of the] judgment creditor, as shown by the [judgment lien docket] court records, at the [holder’s] judgment creditor’s present or last-known address according to the best knowledge of the person sending the notice. A copy of each notice, together with proof of mailing, may be filed with the [clerk of the court with whom] court administrator for the court in which the judgment [is docketed] was entered and shall be filed by the [clerk] court administrator with the records and files of the action in which the judgment was recovered.

 

          SECTION 227. ORS 23.290 is amended to read:

          23.290. (1) Any holder of an interest in a judgment described in a notice sent pursuant to ORS 23.280 may file, with the [clerk of the] court administrator for the court in which the judgment [is docketed] was entered, objections to the notice and request for a hearing upon the application for an order made pursuant to ORS 23.300 (4). The objections and a request for hearing must be filed prior to the date specified in the notice and must indicate the grounds for the objections and include the address to which notice of any hearing upon request for an order may be sent.

          (2)(a) If the holder of a judgment admits the validity of the homestead exemption and objects only that the value placed upon the property in the notice is or was less than the fair market value of the property on the date of the notice or petition in bankruptcy, whichever is applicable, the court shall try the issue of fair market value without formal pleadings. Each party may offer evidence of fair market value, but the holder of the judgment has the burden of proving the fair market value.

          (b) If the objection is made to other than the valuation of the property, the court shall try the issues of fact and law in the manner of a quiet title suit and may direct filing of formal pleadings as it considers necessary for definition of issues.

          (3) If the court finds that the fair market value of the property specified in the notice reasonably approximates the fair market value of the property on the date of the notice or petition in bankruptcy, whichever is applicable, or, if other issues are raised by the objections and are decided against the holder of the judgment, the court shall make an order that the property is not subject to the lien of the objecting judgment holder. In all other cases, the application for an order shall be dismissed and the lien upon the property shall not be affected by the notice.

 

          SECTION 228. ORS 23.300 is amended to read:

          23.300. (1) If a deposit, as required by ORS 23.280 (1)(c), is made by a transferee of any property, the transferee may credit the amount of the deposit against the consideration owed by the transferee for the transfer.

          (2) The holder of any judgment described in ORS 23.280 (1) is entitled to receive the full amount of any deposit made with respect to the judgment upon delivery to the [clerk of the court of a certificate of annulment of the lien, prepared as provided in ORS 18.400 (2) and specifying that the property described in the notice is released from the judgment lien] court administrator of a release of lien document in the form provided by section 23 of this 2003 Act for the property described in the notice. If the real property is located in a county where a certified copy of the judgment or lien record abstract has been recorded, the holder of the judgment, upon receipt of the deposit, shall have a certified copy of the [annulment] release of lien document recorded in the County Clerk Lien Record.

          (3) If [no certificate of annulment of the lien] a release of lien document for the property is not delivered by the holder of the judgment to the [clerk,] court administrator as required by subsection (2) of this section, the [clerk] court administrator shall hold the deposit described in ORS 23.280 (1) and the deposit shall be paid by the [clerk] court administrator to the homestead claimant upon expiration of the judgment remedies for the judgment [and any subsequent renewal thereof as provided in ORS 18.360 and 18.365] as provided in sections 18 to 22 of this 2003 Act.

          (4) At any time after the date specified in a notice, as provided by ORS 23.280 (1)(d), the homestead claimant for the property described in the judgment may apply to the court in which the judgment [is docketed] was entered for an order that the property described in the notice is no longer subject to the judgment lien. If no objections are filed and no hearing is requested in accordance with ORS 23.290, the judge shall issue an ex parte order that the property is no longer subject to the judgment lien if the judge is satisfied that the property has been, or is about to be, transferred and that the notice was prepared and mailed and a deposit was made as required in ORS 23.280. The judge must, in addition, find that the holder of the judgment actually received notice or, if the whereabouts of the holder are unknown, that a reasonably diligent effort has been made to find the holder. If objections and a request for a hearing have been filed by the holder of the judgment, the court shall set a hearing and notify the holder of the judgment of the time and place of the hearing. The homestead claimant may have a certified copy of the ex parte order recorded in the County Clerk Lien Record.

 

          SECTION 229. ORS 93.643 is amended to read:

          93.643. (1) To give constructive notice of an interest in real property, a person must have documentation of the interest recorded in the indices maintained under ORS 205.130 in the county where the property is located. Such recordation, and no other record, constitutes constructive notice to any person of the existence of the interest, except:

          (a) Constructive notice may be given as provided in ORS 18.350, 311.405 and 446.515 to 446.547 and ORS chapters 87, 450, 451, 452, 453, 454, 455 and 456 and local government charters; or

          (b) A city may give constructive notice of a governmental lien by maintaining a record of the lien in an electronic medium that is accessible on-line during the regular business hours of the city.

          (2) Notwithstanding subsection (1) of this section:

          (a) A judgment lien [shall be created against all] attaches to real property of the judgment debtor as provided in [ORS 18.320 and 18.350] sections 1 to 44 of this 2003 Act.

          (b) A lien shall be created against all real property of the person named in an order or warrant as provided in ORS 205.125 if the order or warrant is recorded in the County Clerk Lien Record.

          (c) Constructive notice of either a local improvement district estimated assessment or a system development charge installment payment contract pursuant to ORS 223.290, created after September 9, 1995, is given only by one of the following methods:

          (A) By recording the notice of estimated assessment or the acceptance of the system development charge installment payment contract in the indices maintained under ORS 205.130 in the county in which the property is located. The recording shall include a description of real property in the manner prescribed in ORS 93.600. The city shall continue to maintain the bond lien docket as prescribed in ORS 223.230. The bond lien docket shall include a reference to the county recording by a document fee number or book and page number.

          (B) By recording the notice of estimated assessment or the acceptance of the system development charge installment payment contract through an on-line electronic medium. The electronic lien record shall be the controlling lien record, to the exclusion of any informational recording made by the city in county indices. The city informational recording shall include a clear statement of the purpose of the recording and a reference to the location of the electronic lien record.

          (3) A city that maintains records through an on-line electronic medium shall comply with the following requirements:

          (a) Each lien record shall consist of the effective date of the recording, a reference to the location of source documents or files, a description of real property in the manner prescribed in ORS 93.600, a site address, if appropriate, a state property identification number or county property tax identification number, a lien account number or other account identifier, the amount of the estimated assessment or system development charge installment payment contract, the final assessment in the case of a local improvement assessment district and the current amount of principal balance.

          (b) Lien records shall be accessible through the on-line electronic medium to any individual or organization by mutual agreement with the city. Users of the on-line electronic medium shall be authorized to access the lien records from equipment maintained at sites of their choosing.

          (4) Recording of the satisfaction of a local improvement district assessment or system development charge installment payment contract shall be made in the same location as the original recording, either in the indices maintained under ORS 205.130 or in the lien docket maintained through an electronic medium as provided in this section.

          (5) A city that establishes an electronic lien record as authorized by this section shall record in the County Clerk Lien Record maintained under ORS 205.130 a statement that indicates the date and time at which the electronic lien record takes priority over the County Clerk Lien Record and that describes the methods by which the electronic lien records of the city are made accessible.

 

          SECTION 230. ORS 314.423 is amended to read:

          314.423. (1) After a warrant has been recorded under ORS 314.430, the lien imposed by ORS 314.417 shall be subordinate to:

          (a) Any interest in real property to the same extent that a judgment [lien] recorded in the County Clerk Lien Record under section 15 of this 2003 Act at the same time the warrant was recorded would be subordinate to the interest; and

          (b) Any interest in personal property to the same extent that a security agreement filed under the Uniform Commercial Code at the same time the warrant was filed would be subordinate to the interest.

          (2) After a warrant has been recorded under ORS 314.430, the lien imposed by ORS 314.417 shall not be valid as to a purchaser, security interest holder or lienholder in a sale, security agreement or lien arising out of the following types of property or property transactions unless the purchaser, security interest holder or lienholder had actual knowledge of the lien:

          (a) Securities as defined in ORS 78.1020;

          (b) Retail purchases in the ordinary course of business;

          (c) Casual sales of personal property;

          (d) Attorney’s liens;

          (e) Insurance contract loans; or

          (f) Passbook loans.

 

FINAL JUDGMENTS

 

          SECTION 231. ORS 3.315 is amended to read:

          3.315. (1) Within 20 days after the close of all evidence offered in a trial on reference conducted under ORS 3.311, unless a later time is agreed upon by the parties, the reference judge shall mail to each party a copy of the proposed written report of the reference judge. The proposed report shall contain the findings of fact and conclusions of law by the reference judge, and the judgment thereon of the reference judge.

          (2) Within 10 days after receipt of the copy of the proposed report, any party may serve written objections and suggested modifications or corrections to the proposed report upon the reference judge and the other parties. The reference judge without delay shall consider the objections and suggestions and prepare a final written report. If requested by any party, the reference judge shall conduct a hearing on the proposed written report and any objections or suggested modifications or corrections thereto before preparing the final written report.

          (3) Upon completion of the final written report, the reference judge shall file with the clerk of the circuit court:

          (a) Copies of all original papers in the action filed with the reference judge;

          (b) The exhibits offered and received or rejected in the trial on reference;

          (c) The transcript of the proceedings in the trial, if a trial court reporter was used in the trial;

          (d) The audio record of the proceedings in the trial, if a trial court reporter was not used in the trial; and

          (e) The final written report containing the findings of fact and conclusions of law by the reference judge, and the judgment thereon of the reference judge.

          (4) In the interest of economy, the presiding judge for a judicial district may allow the reference judge to file the final written report under subsection (3) of this section without any of the items listed in subsection (3)(a) to (d) of this section. However, the presiding judge shall require the reference judge to file the items listed in subsection (3)(a) to (d) of this section if timely notice of appeal of the judgment is filed.

          (5) At the time the reference judge files the final written report under subsection (3) of this section, the reference judge shall mail to each party a copy of the report.

          (6) Upon receipt of the final written report by the clerk of the court, the referral of the action shall terminate and the presiding judge shall order the judgment contained in the report entered as the judgment of the court in the action. Subsequent motions and other related post-trial proceedings in the action may be conducted and disposed of by the reference judge upon the order of the presiding judge, in the sole discretion of the presiding judge, or may otherwise be assigned by the presiding judge.

          (7) The judgment of the reference judge entered as provided in subsection (6) of this section may be appealed in the same manner as a [final] judgment of the circuit court in a civil action.

 

          SECTION 232. ORS 18.580 is amended to read:

          18.580. (1) In a civil action, when a party is awarded damages for bodily injury or death of a person which are to be paid by another party to the action, and the party awarded damages or person injured or deceased received benefits for the injury or death other than from the party who is to pay the damages, the court may deduct from the amount of damages awarded, before the entry of [final] a judgment, the total amount of those collateral benefits other than:

          (a) Benefits which the party awarded damages, the person injured or that person’s estate is obligated to repay;

          (b) Life insurance or other death benefits;

          (c) Insurance benefits for which the person injured or deceased or members of that person’s family paid premiums; and

          (d) Retirement, disability and pension plan benefits, and federal social security benefits.

          (2) Evidence of the benefit described in subsection (1) of this section and the cost of obtaining it is not admissible at trial, but shall be received by the court by affidavit submitted after the verdict by any party to the action.

 

          SECTION 233. ORS 33.125 is amended to read:

          33.125. (1) The imposition of a sanction for contempt shall be by a judgment. The judgment shall be entered in the register as a [final] general judgment.

          (2) A defendant may appeal from a judgment imposing a remedial sanction in the same manner as from a judgment in an action at law. An appeal from a judgment imposing a punitive sanction shall be in the manner provided for appeals in ORS chapter 138. Appeals from judgments imposing sanctions for contempt in municipal courts and justice courts shall be in the manner provided by law for appeals from those courts.

          (3)(a) If a motion to initiate proceedings to impose remedial sanctions is filed in a related proceeding under ORS 33.055 (3) before entry of judgment in the related proceeding, and the court determines that the defendant is in contempt, the court may suspend imposition of sanctions and entry of judgment on the contempt until entry of judgment in the related proceeding.

          (b) If a motion to initiate proceedings to impose remedial sanctions is filed in a related proceeding under ORS 33.055 (3) before entry of judgment in the related proceeding, and the court denies the motion or declines to impose sanctions, the court shall enter judgment on that denial or determination only as part of the judgment in the related proceeding.

          (4) An appeal from a contempt judgment shall not stay any action or proceeding to which the contempt is related.

 

          SECTION 234. ORS 33.720 is amended to read:

          33.720. (1) The determination authorized by ORS 33.710 shall be in the nature of a proceeding in rem; and the practice and procedure therein shall follow the practice and procedure of an action not triable by right to a jury, as far as the same is consistent with the determination sought to be obtained, except as provided in this section.

          (2) Jurisdiction of the municipal corporation shall be obtained by the publication of notice directed to the municipal corporation; and jurisdiction of the electors of the municipal corporation shall be obtained by publication of notice directed to all electors, freeholders, taxpayers and other interested persons, without naming such electors, freeholders, taxpayers and other interested persons individually. The notice shall be served on all parties in interest by publication thereof for at least once a week for three successive weeks in a newspaper of general circulation published in the county where the proceeding is pending, or if no such newspaper is published therein, then in a contiguous county. Jurisdiction shall be complete within 10 days after the date of completing publication of the notice as provided in this section.

          (3) Any person interested may at any time before the expiration of the 10 days appear and contest the validity of such proceeding, or of any of the acts or things therein enumerated. Such proceeding shall be tried forthwith and judgment rendered as expeditiously as possible declaring the matter so contested to be either valid or invalid. Any order or judgment in the course of such proceeding may be made and rendered by the judge in vacation or otherwise; and for that purpose, the court shall be deemed at all times to be in session and the act of the judge in making the order or judgment shall be the act of the court.

          (4) Any party may appeal to the Court of Appeals from [the final] a judgment rendered in such proceeding. The court, in inquiring into the regularity, legality or correctness of any proceeding of the municipal corporation or its governing body shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties to the special proceeding, and may approve the proceedings in part and may disapprove and declare illegal or invalid in part other or subsequent proceedings, or may approve or disapprove the proceedings, or may approve the proceedings in part and disapprove the remainder thereof.

          (5) Costs of the proceeding may be allowed and apportioned between the parties in the discretion of the court.

          (6) Upon conclusion of a proceeding authorized by ORS 33.710 (2)(b), including any appeal of [the] a judgment, [a final] the judgment entered in the proceeding is binding upon the parties and all other persons. Claim preclusion and issue preclusion apply to all matters adjudicated in the proceeding. Except for an action to enforce a [final] judgment, the courts of this state do not have jurisdiction over an action by or against the governing body or municipal corporation named in the [final] judgment if the purpose of the action is to seek judicial review or judicial examination, directly or indirectly, of a matter adjudicated in the proceeding.

 

          SECTION 235. ORS 34.710 is amended to read:

          34.710. Any party to a proceeding by habeas corpus, including the state when the district attorney appears therein, may appeal from the judgment of the court refusing to allow such writ or any [final] judgment therein, either in term time or vacation, in like manner and with like effect as in an action. No question once finally determined upon a proceeding by habeas corpus shall be reexamined upon another proceeding of the same kind.

 

          SECTION 236. ORS 35.265 is amended to read:

          35.265. (1) When a public condemner commences an action for the condemnation of property and immediate possession of the property is considered necessary by the public condemner, a fund shall be created in the amount estimated to be the just compensation for the property and placed in the hands of the treasurer of the public condemner for deposit with the clerk of the court wherein the action was commenced, for the use of the defendants in the action.

          (2) When the public condemner is a state agency and immediate possession of property is considered necessary by the agency, the agency shall certify to such facts and authorize an advancement out of funds available to the agency of the amount estimated by the agency to be just compensation for the property. Upon such certification and authorization, a warrant shall be drawn in favor of the clerk of the court in the amount authorized.

          (3) Upon the deposit in court by the public condemner of the estimated amount of just compensation as provided by subsections (1) and (2) of this section, no interest shall be allowed thereon in [any final] the judgment.

 

          SECTION 237. ORS 105.140 is amended to read:

          105.140. No continuance shall be granted to a defendant for a longer period than two days unless:

          (1) The defendant gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant; or

          (2) In an action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies, the court orders a defendant to pay rent into court as it becomes due from the commencement of the action until [final] entry of a general judgment in the action. If a defendant fails to pay rent into court as ordered under this subsection, the action shall be tried forthwith.

 

          SECTION 238. ORS 105.580 is amended to read:

          105.580. (1) Except as provided in subsection (3) of this section, if the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the [final] general judgment in the case.

          (2) The order of abatement may direct the effectual closing of the premises, building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. The court shall not include provisions for the closing of the premises under the provisions of this subsection unless that relief is specifically requested in the complaint.

          (3) The court, if satisfied of an owner’s good faith, shall enter no order of abatement as to that owner if the court finds that the owner:

          (a) Had no knowledge of the existence of the nuisance or has been making reasonable efforts to abate the nuisance;

          (b) Has not been guilty of any contempt of court in the proceedings; and

          (c) Will make best efforts to immediately abate any nuisance that may exist and prevent it from being a nuisance for a period of one year thereafter.

          (4) Except for an order of abatement entered based on the manufacture of a controlled substance, if an order of abatement has been entered and an owner subsequently meets the requirements of this section, the order of abatement shall be canceled as to that owner.

          (5) If the court enters an order under this section on the basis that the property was used for the manufacture of a controlled substance, the court shall send a copy of the order to the Director of Human Services. The director or the director’s designee shall declare the property to be an illegal drug manufacturing site for purposes of ORS 453.855 to 453.912. An order of the court under this section shall not be canceled until the director or the director’s designee determines the property to be fit for use. Upon determining the property to be fit for use, the director or designee shall notify the court, which shall cancel the abatement order.

 

          SECTION 239. ORS 105.755 is amended to read:

          105.755. (1) As used in this section, “public road” means a road used by the general public, whether designated as a state highway, county or district road or otherwise, but does not include city streets under ORS 105.760.

          (2) Whenever the Department of Transportation changes the grade of any public road from a previously established or maintained grade, the state shall be liable for and shall pay just and reasonable compensation for any legal damage or injury to real property abutting upon the public road affected by the grade change; except that the state shall not be liable for any damage or injury for any such change whenever the county has requested the Department of Transportation to make such change.

          (3) Any person having any right, title or interest in any such real property has a cause of action against the state to enforce payment of the compensation. Any such action may be commenced and maintained in the circuit court for the county in which the real property is situated. Any party to any such action has the right to appeal as in other civil actions from [the final] a judgment of any circuit court. Any person having or claiming any right, title or interest in such real property may join as party plaintiff or may intervene in any action involving the real property in which the interest is claimed.

          (4) The trial circuit court shall, in its [final] general judgment, apportion such just compensation as it may award among the various persons found by it to own or have some right, title or interest in such real property. The awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made when real property is taken under the power of eminent domain.

          (5) The liability of the state terminates wholly when it pays into court the sums determined by the circuit court to be just compensation. Any cause of action granted by this section is barred unless such action is commenced within six months after the change of grade is physically completed and accepted by the Department of Transportation.

 

          SECTION 240. ORS 105.760 is amended to read:

          105.760. (1) If consent is given by the governing body of any city to change any grade of any street as such grade has been established or maintained by the consenting city and pursuant thereto the Department of Transportation or a county changes the grade, the state or the county, whichever makes such change of grade, shall be liable for and shall pay just and reasonable compensation for any damage or injury to any real property abutting upon the road or street affected by the grade change.

          (2) Any person having any right, title or interest in any such real property has a cause of action against the state or against the county to enforce payment of the compensation. Any such action may be commenced and maintained in the circuit court for the county in which the real property is situated. Any party to any such action has the right to appeal as in any other civil action from [the final] a judgment of any circuit court. Any person having or claiming any right, title or interest in such real property may join as party plaintiff or may intervene in any action involving the real property in which the interest is claimed.

          (3) The trial circuit court shall, in its [final] general judgment, apportion such just compensation as it may award among the various persons found by it to own or have some right, title or interest in such real property. The awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made when real property is taken under the power of eminent domain.

          (4) The liability of the state or the liability of the county, as the case may be, terminates wholly when it pays into court the sums determined by the circuit court to be just compensation. Any cause of action granted by this section is barred unless such action is commenced within six months after the change of grade is physically completed and accepted by the Department of Transportation or the county.

 

          SECTION 241. ORS 105.860 is amended to read:

          105.860. Any person having any right, title or interest in any such abutting real property has a cause of action against the city to enforce payment of the compensation. Any such action may be commenced and maintained in the circuit court for the county in which the real property is situated. Any party to any such action has the right to appeal from the [final] judgment of the circuit court as in other actions. A person having or claiming any right, title or interest in such real property may join as party plaintiff and may intervene in any action involving the real property in which the interest is claimed.

 

          SECTION 242. ORS 105.865 is amended to read:

          105.865. (1) The circuit court shall, in its [final] general judgment, apportion such just compensation as it may award among the various persons found by it to own or have some right, title or interest in such real property. The awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made when real property is taken under the power of eminent domain.

          (2) The liability of the city terminates wholly when it pays into court the sums determined by the circuit court to be just compensation.

 

          SECTION 243. ORS 107.065 is amended to read:

          107.065. (1) Except as provided in ORS 107.095 and in subsection (2) of this section, no trial or hearing on the merits in a suit for the dissolution of a marriage shall be had until after the expiration of 90 days from the date of:

          (a) The service of the summons and petition upon the respondent; or

          (b) The first publication of summons.

          (2)(a) Upon written motion, the court may in its discretion grant a judgment dissolving the marriage prior to the expiration of the waiting period. The written motion must be supported by an affidavit setting forth grounds of emergency or necessity and facts that satisfy the court that immediate action is warranted to protect the rights or interest of any party or person who might be affected by a [final] judgment in the proceedings.

          (b) An affidavit stating that a stipulated judgment has been signed by the parties is adequate grounds of necessity for immediate action under this subsection.

          (c) If the court grants a judgment before the expiration of the waiting period, the court shall find and recite in the judgment the grounds of emergency or necessity and the facts with respect thereto.

 

          SECTION 244. ORS 109.100 is amended to read:

          109.100. (1) Any minor child or state agency on behalf of that minor child may, in accordance with ORCP 27 A, apply to the circuit court in the county in which the child resides, or in which the natural or adoptive father or mother of the child may be found, for an order upon such child’s father or mother, or both, to provide for the child’s support. The minor child or state agency may apply for the order by filing in such county a petition setting forth the facts and circumstances relied upon for such order. If satisfied that a just cause exists, the court shall direct that the father or mother appear at a time set by the court to show cause why an order of support should not be entered in the matter. If it appears to the satisfaction of the court that such child is without funds to employ counsel, the court may make an order directing the district attorney to prepare such petition and order to show cause.

          (2) The [order is a final] judgment of a court under subsection (1) of this section is final as to any installment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the [order] judgment, and the court does not have the power to set aside, alter or modify [such order] the judgment, or any portion thereof, which provides for any payment of money which has accrued prior to the filing of such motion.

          (3) The provisions of ORS 108.110 (3), 108.120 and 108.130 shall apply to proceedings under subsection (1) of this section.

          (4) In any proceeding under this section, both the child’s physical and legal custodians are parties to the action.

 

          SECTION 245. ORS 138.640 is amended to read:

          138.640. [After deciding the issues raised in the proceeding, the court shall deny the petition or enter an order granting the appropriate relief. The court may also make orders as provided in ORS 138.520. The order making final disposition of the petition shall state clearly the grounds upon which the cause was determined, and whether a state or federal question, or both, was presented and decided. This order shall constitute a final judgment for purposes of appellate review and for purposes of res judicata.] After deciding the issues raised in the proceeding, the court shall enter a judgment denying the petition or granting the appropriate relief. The judgment may include orders as provided in ORS 138.520. The judgment must clearly state the grounds on which the cause was determined, and whether a state or federal question was presented and decided.

 

          SECTION 246. ORS 138.650 is amended to read:

          138.650. Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of [final] a judgment on a petition pursuant to ORS 138.510 to 138.680. The manner of taking the appeal and the scope of review by the Court of Appeals and the Supreme Court shall be the same as that provided by law for appeals in criminal actions, except that:

          (1) The trial court may provide that the transcript contain only such evidence as may be material to the decision of the appeal; and

          (2) With respect to ORS 138.081 (1), if petitioner appeals, petitioner shall cause the notice of appeal to be served on the attorney for defendant, and, if defendant appeals, defendant shall cause the notice of appeal to be served on the attorney for petitioner or, if petitioner has no attorney of record, on petitioner.

 

          SECTION 247. ORS 161.665 is amended to read:

          161.665. (1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the State Court Administrator under ORS 151.430. Costs shall not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

          (2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its [final] general judgment, or [modify the] enter a supplemental judgment that includes, [to include] a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500, including counsel who is appointed under ORS 151.216 or counsel who is under contract to provide services for the appeal pursuant to ORS 151.460, and other costs and expenses allowed by the appellate court under ORS 138.500 (4). A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the State Court Administrator under ORS 151.430.

          (3) The court shall not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

          (4) A defendant who has been sentenced to pay costs under this section and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced the defendant for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the immediate family of the defendant, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.

          (5) All moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.

 

          SECTION 248. ORS 161.665, as amended by section 41, chapter 962, Oregon Laws 2001, is amended to read:

          161.665. (1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the Public Defense Services Commission under ORS 151.216. Costs do not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

          (2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its [final] general judgment, or [modify the] enter a supplemental judgment that includes, [to include] a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500, including counsel who is appointed under ORS 151.216 or counsel who is under contract to provide services for the proceeding under ORS 151.219, and other costs and expenses allowed by the public defense services executive director under ORS 138.500 (4). A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the commission under ORS 151.216.

          (3) For purposes of subsections (1) and (2) of this section, compensation of counsel shall be determined by reference to a schedule of compensation established by the commission under ORS 151.216.

          (4) The court shall not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

          (5) A defendant who has been sentenced to pay costs under this section and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced the defendant for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the immediate family of the defendant, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.

          (6) All moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.

 

          SECTION 249. ORS 161.715 is amended to read:

          161.715. (1) Any court empowered to suspend imposition or execution of sentence or to sentence a defendant to probation may discharge the defendant if:

          (a) The conviction is for an offense other than murder, treason or a Class A or B felony; and

          (b) The court is of the opinion that no proper purpose would be served by imposing any condition upon the defendant’s release.

          (2) If a sentence of discharge is imposed for a felony, the court shall set forth in the record the reasons for its action.

          (3) If the court imposes a sentence of discharge, the defendant shall be released with respect to the conviction for which the sentence is imposed without imprisonment, fine, probationary supervision or conditions.

          (4) If a defendant pleads not guilty and is tried and found guilty, a sentence of discharge is a [final] judgment on a conviction for all purposes, including an appeal by the defendant.

          (5) If a defendant pleads guilty, a sentence of discharge is not appealable, but for all other purposes is a [final] judgment on a conviction.

 

          SECTION 250. ORS 305.589 is amended to read:

          305.589. (1) A local government unit or an association of local government units acting for the common benefit of and on behalf of consenting members may petition the regular division of the Oregon Tax Court for a judicial declaration of the court concerning the effect of section 11b, Article XI of the Oregon Constitution on any tax, fee, charge or assessment imposed or to be imposed by, or bonded indebtedness incurred or to be incurred by, that local government unit or by any of the consenting members of the association of local government units.

          (2) Notice of the commencement of a proceeding under this section shall be given by the petitioner or petitioners by publication of notice directed to all electors, taxpayers and other interested persons, without naming such electors, taxpayers or other interested persons individually. The notice shall be published at least once a week for three successive weeks in a newspaper of general circulation within the boundaries of the local government unit and each of the consenting members of the association of local government units, if any, or if no such newspaper is published therein, then in a contiguous county.

          (3) The petitioner or petitioners may elect to give further notice to affected electors, taxpayers and other interested persons, or the court may order such further notice as the court considers practicable.

          (4) The action authorized by this section shall be a special proceeding in the nature of an ex parte proceeding in the absence of the intervention of a respondent in opposition to the petition.

          (5) Jurisdiction of the local government unit and of consenting members of an association of local government units shall be obtained by filing of the petition. Jurisdiction over the electors, taxpayers and other interested persons shall be complete 10 days after the date of completing publication of the notice provided for in subsection (2) of this section, or giving of any further notice as provided for in subsection (3) of this section. Jurisdiction of any other party shall be obtained by appearance of any interested person who seeks and is granted leave to intervene in the proceeding.

          (6) Any elector, taxpayer or interested person or local government unit that may be affected by the tax, fee, charge or assessment that is the subject of the petition may intervene as a petitioner or respondent by filing the appropriate appearance.

          (7) Any party to a proceeding commenced under this section, including a consenting member of an association of local government units that was a party to the proceeding, may appeal from the [final] judgment rendered by the tax court to the Oregon Supreme Court in the manner provided for appeals from other decisions of the tax court under ORS 305.445.

          (8) If, in a proceeding commenced under this section, the court finds that a tax, fee, charge or assessment is subject to the limits of section 11b, Article XI of the Oregon Constitution, the court may order such relief as it considers appropriate, but such relief shall be prospective only.

          (9) Costs of the proceeding may be allowed and apportioned between the parties in the discretion of the court.

          (10) As used in this section:

          (a) “Local government unit” means any unit of local government, including a city, county, incorporated town or village, school district, any other special district, or any other municipal or quasi-municipal corporation, intergovernmental authority created pursuant to ORS 190.010, a district as defined in ORS 198.010, 198.180, 198.210 and 198.330 or an urban renewal agency established under ORS 457.035.

          (b) “Consenting member” means a member of an association of local government units who affirmatively consents, through filing of a consenting certificate with the tax court, to the commencement of a proceeding under this section.

          (c) “Association of local government units” means an association, or any other lawful organization, composed of member local government units organized for the mutual benefit of such local government units.

 

          SECTION 251. ORS 373.060 is amended to read:

          373.060. (1) If by the closing of any street as provided in ORS 373.050, real property abutting on the intersected street between the point of intersection and the next street, but in no event beyond a point 300 feet from the point of intersection, is damaged, any person having any right, title or interest in any such real property has a cause of action against the state to enforce payment of such compensation or damages.

          (2) Any such action may be commenced and prosecuted in the circuit court for the county in which such real property is situated. Any party to any such action has the right to appeal from the [final] judgment of any circuit court to the Court of Appeals. Any person having or claiming any right, title or interest in such real property may join as party plaintiff or may intervene in any action involving real property in which the person claims an interest.

          (3) The trial circuit court shall, in its [final] general judgment, apportion such compensation as it may award among the various persons found by it to own or have some right, title or interest in such real property. The awarded compensation shall be apportioned according to the rules of law governing the distribution of awards made when real property is taken under the power of eminent domain.

          (4) The liability of the state and of the municipality terminates wholly when the compensation thus determined is paid into court. Any cause of action granted by this section is barred unless it is commenced within six months after the street is closed and entrance from the street to the state highway or intersecting street is physically barred.

 

          SECTION 252. ORS 419B.402 is amended to read:

          419B.402. Any order for support entered pursuant to ORS 419B.400 [is a final] shall be entered as a judgment [as to any installment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the order,] and the court does not have the power to set aside, alter or modify [such order] the judgment, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of [such] a motion to set aside, alter or modify the judgment.

 

          SECTION 253. ORS 419C.592 is amended to read:

          419C.592. Any order for support entered pursuant to ORS 419C.590 is a [final] judgment and is final as to any installment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the order, and the court does not have the power to set aside, alter or modify such order, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion.

 

          SECTION 254. Section 35, chapter 780, Oregon Laws 2001, is amended to read:

          Sec. 35. (1) If it has been determined in an action brought under the provisions of ORS 475A.075 that the plaintiff has prevailed as to some or all of the defendant property, the plaintiff shall serve on the claimant a proposed judgment of forfeiture and a statement of costs as defined in ORS 475A.120 (1)(a) and 475A.125 (1)(a) (1999 Edition).

          (2) A claimant who has filed a claim to seized property, appeared in the action, and part or all of whose interest in the claimed property is forfeited under the terms of the proposed judgment may file a motion for a mitigation hearing:

          (a) A motion under this section must list all evidence not previously received that is relevant to the determination to be made by the court under ORS 475A.100. Every argument that the claimant wishes to raise in mitigation must be set out in specific detail in the motion.

          (b) Before filing a motion for mitigation, the claimant and the plaintiff must make a good faith effort to confer with one another concerning any issues in dispute. The claimant must file a certificate of compliance with the requirements of this paragraph before the time set for hearing on the motion. The certificate is sufficient if the certificate states that the parties conferred or the certificate contains facts showing good cause for not conferring.

          (c) A motion under this section may only be filed after the service of a proposed judgment on the claimants. If a motion for a mitigation hearing is not filed with the court within 14 days after the date the plaintiff serves the proposed judgment on the claimant, the court shall enter judgment.

          (3) If a motion for a mitigation hearing is filed, the court shall determine whether any portion of the proposed judgment is excessive in the manner provided by ORS 475A.100.

          (4) A hearing under the provisions of this section is subject to the Oregon Rules of Evidence.

          (5) The court may make such orders, as may be necessary to insure that the forfeiture is not excessive, including but not limited to the following orders:

          (a) An order directing that the defendant property, or part of it, be sold and the proceeds of sale distributed between the litigants.

          (b) An order directing that the claimant make available to the court other assets, not named as defendants in the forfeiture action, for the purpose of fashioning a [final] judgment that is not excessive.

          (6) The court shall make written findings of fact and shall enter written conclusions of law in proceedings under the provisions of this section.

 

          SECTION 255. Section 37, chapter 780, Oregon Laws 2001, is amended to read:

          Sec. 37. (1) In any appeal from a judgment of forfeiture, review of any mitigation ordered by the trial court shall be limited to the following:

          (a) Whether the findings of fact are supported by the evidence in the record.

          (b) Whether the ultimate conclusion modifying or declining to modify the judgment submitted by the plaintiff was an abuse of discretion by the trial court.

          (c) Whether the [final] judgment complies with applicable constitutional limitations.

          (2) An appellate court may reverse, affirm, modify or remand the provisions of a judgment of forfeiture relating to mitigation. But the appellate court may not consider arguments for mitigation of a judgment of forfeiture unless those arguments were timely raised by the motion provided for in ORS 475A.090 (1999 Edition).

 

          SECTION 256. ORS 545.579 is amended to read:

          545.579. (1) The appellant and all persons appearing shall make a statement in writing of the grounds of appeal, and no further pleadings shall be necessary. The cause shall be tried in one action by the circuit court as an action not triable by right to a jury.

          (2) Upon the entry of [final] a judgment, any person aggrieved by the judgment may appeal to the Court of Appeals in the manner provided for other cases in equity. Notice of appeal shall be served on those appearing in the circuit court or their attorneys. The cause shall be tried de novo by the Court of Appeals as expeditiously as possible after the appeal is perfected. Upon the effective date of decision of the Court of Appeals, the circuit court shall enter such judgment as is directed by the Court of Appeals.

          (3) If the resolution of the board of directors is affirmed it shall be considered an assessment against all the lands described in the resolution for the amount of the assessment and payable at the times specified in the resolution, as well as a final determination of the total benefits accruing from the existing or proposed improvements to the parcels of land described in the resolution. If the resolution is modified in any respect, the court shall specify the proper resolution to be entered, which shall be entered accordingly. If no appeal is taken from the resolution, it shall become final.

 

          SECTION 257. ORS 548.110 is amended to read:

          548.110. (1) The proceedings under ORS 548.105 shall be in the nature of a proceeding in rem. The practice and procedure therein shall follow the practice and procedure of an action not triable by right to a jury, so far as they are consistent with the determination sought to be obtained, except as otherwise provided in ORS 548.105 to 548.115. The jurisdiction of the irrigation district or drainage district and of all the freeholders, assessment payers and legal voters therein shall be obtained by publication of notice directed to the district, and to “all freeholders, legal voters and assessment payers within the district,” without naming them individually. The notice shall be served on all parties in interest by publication for at least once a week for three successive weeks in some newspaper of general circulation published in the county where the proceeding is pending. Jurisdiction shall be complete within 10 days after full publication.

          (2) Any person interested may at any time before the expiration of the 10 days appear and contest the validity of the proceeding, or of any of the acts or things therein enumerated. The proceedings shall be speedily tried and judgment rendered declaring the matter so contested to be either valid or invalid. Any order or judgment in the course of the proceeding may be made and rendered by the judge of the court in vacation. For the purpose of any such order or judgment, the court shall be deemed at all times to be in session, and the act of the judge in making such order or judgment shall be the act of the court.

          (3) Any party may appeal to the Court of Appeals at any time within 30 days after rendition of the [final] judgment. The appeal must be heard and determined within three months from the time of taking the appeal.

          (4) The court, in inquiring into the regularity, legality or correctness of any of the proceedings, must disregard any error, irregularity or omission which does not affect the substantial rights of the parties to the court proceedings, and may approve the proceedings in part and disapprove and declare invalid other or subsequent proceedings in part. The costs of the court proceedings may be allowed and apportioned between the parties in the discretion of the court.

 

          SECTION 258. ORS 744.013 is amended to read:

          744.013. (1) If the Director of the Department of Consumer and Business Services finds with respect to an adjuster or insurance consultant or an applicant for an adjuster or insurance consultant license that one or more of the grounds set forth in subsection (2) of this section exist, the director may take the following disciplinary actions:

          (a) The director may refuse to renew or may suspend or revoke a license issued under ORS 744.002 or the authority under a license to engage in any category of insurance business or any class of insurance.

          (b) The director may refuse to issue a license under ORS 744.002 or refuse to grant authority under a license to engage in any category of insurance business or any class of insurance.

          (2) The director may take any disciplinary action under subsection (1) of this section on one or more of the following grounds:

          (a) Incompetence or untrustworthiness of the applicant or adjuster or insurance consultant.

          (b) Falsification by the applicant or adjuster or insurance consultant of the application for the license or an amendment thereto, or engagement in any dishonest act in relation to the application or examination therefor.

          (c) Violation of or noncompliance with any applicable provision of the Insurance Code or any rule or order of the director.

          (d) Misappropriation or conversion to the adjuster’s or insurance consultant’s own use, or illegal withholding, of money or property belonging to policyholders, insurers, beneficiaries or others, and received by the adjuster or insurance consultant in the conduct of business under the license.

          (e) Conviction[, by final judgment,] in any jurisdiction, of an offense which if committed in this state, constitutes a felony, a misdemeanor involving dishonesty or breach of trust, or an offense punishable by death or imprisonment under the laws of the United States. The record of the conviction shall be conclusive evidence of the conviction.

          (f) Material misrepresentation of the terms of any insurance policy or proposed insurance policy.

          (g) Use of a fraudulent or dishonest practice by the adjuster or insurance consultant in the conduct of business under the license, or demonstration therein that the adjuster or insurance consultant is incompetent, untrustworthy or a source of injury and loss to the public or others.

          (h) Error by the director in issuing or renewing a license.

          (i) Failure to pay a civil penalty assessed by the director that has become final by operation of law or upon appeal.

          (j) Failure to pay any fee or charge to the director.

          (k) Use of the license principally to effect insurance on property or against liability of the applicant or adjuster or insurance consultant, or to evade the provisions of ORS chapter 746.

          (L) Cancellation, revocation, suspension or refusal to renew by any state of a license or other evidence of authority to act as an agent, adjuster or insurance consultant. The record of the cancellation, revocation, suspension or refusal to renew shall be conclusive evidence of the action taken.

          (m) Cancellation, revocation, suspension or refusal to renew by any state or federal agency of the authority to practice law or to practice under any other regulatory authority if the cancellation, revocation, suspension or refusal to renew was related to the business of an agent, adjuster or insurance consultant or if dishonesty, fraud or deception was involved. The record of the cancellation, revocation, suspension or refusal to renew shall be conclusive evidence of the action taken.

          (n) Failure to comply with continuing education requirements applicable to the license or any category of insurance authorized under the license, unless the director has waived the requirements.

          (o) Dishonesty, fraud or misrepresentation not related to the business of an agent, adjuster or insurance consultant.

          (3) The director may refuse to issue or renew or may revoke or suspend the license of a firm or corporation or may take any such action with respect to any authority applied for by or granted to the firm or corporation to engage under the license in any category of insurance business or class of insurance if the director finds that any ground set forth in subsection (2) of this section exists:

          (a) With respect to any individual adjuster or insurance consultant employed by or under contract with the firm or corporation.

          (b) With respect to a director or officer of the firm or corporation.

          (c) With respect to any person who directly or indirectly has the power to direct or cause to be directed the management, control or activities of the adjuster or insurance consultant.

 

          SECTION 259. ORCP 32 F is amended to read:

          F Notice and exclusion.

          F(1) When ordering that an action be maintained as a class action under this rule, the court shall direct that notice be given to some or all members of the class under subsection E(2) of this rule, shall determine when and how this notice should be given and shall determine whether, when, how, and under what conditions putative members may elect to be excluded from the class. The matters pertinent to these determinations ordinarily include: (a) the nature of the controversy and the relief sought; (b) the extent and nature of any member’s injury or liability; (c) the interest of the party opposing the class in securing a final resolution of the matters in controversy; (d) the inefficiency or impracticality of separately maintained actions to resolve the controversy; (e) the cost of notifying the members of the class; and (f) the possible prejudice to members to whom notice is not directed. When appropriate, exclusion may be conditioned on a prohibition against institution or maintenance of a separate action on some or all of the matters in controversy in the class action or a prohibition against use in a separately maintained action of any judgment rendered in favor of the class from which exclusion is sought.

          F(2) Prior to the entry of a [final] judgment against a defendant the court shall request members of the class who may be entitled to individual monetary recovery to submit a statement in a form prescribed by the court requesting affirmative relief which may also, where appropriate, require information regarding the nature of the loss, injury, claim, transactional relationship, or damage. The statement shall be designed to meet the ends of justice. In determining the form of the statement, the court shall consider the nature of the acts of the defendant, the amount of knowledge a class member would have about the extent of such member’s damages, the nature of the class including the probable degree of sophistication of its members, and the availability of relevant information from sources other than the individual class members. The amount of damages assessed against the defendant shall not exceed the total amount of damages determined to be allowable by the court for each individual class member who has filed a statement required by the court, assessable court costs, and an award of attorney fees, if any, as determined by the court.

          F(3) Failure of a class member to file a statement required by the court will be grounds for entry of judgment dismissing such class member’s claim for individual monetary recovery without prejudice to the right to maintain an individual, but not a class, action for such claim.

          F(4) Plaintiffs shall bear costs of any notice ordered prior to a determination of liability. The court may, however, order that defendant bear all or a specified part of the costs of any notice included with a regular mailing by defendant to its current customers or employees. The court may hold a hearing to determine how the costs of such notice shall be apportioned.

          F(5) No duty of compliance with due process notice requirements is imposed on a defendant by reason of the defendant including notice with a regular mailing by the defendant to current customers or employes of the defendant under this section.

          F(6) As used in this section, “customer” includes a person, including but not limited to a student, who has purchased services or goods from a defendant.

 

          SECTION 260. ORCP 47 H is amended to read:

          H Multiple parties or claims; [final] limited judgment. [In any action involving multiple parties or multiple claims, a summary judgment which is not entered in compliance with Rule 67 B shall not constitute a final judgment.] If the court grants summary judgment for less than all parties and claims in an action, a limited judgment may be entered if the court makes the determination required by Rule 67 B.

 

          SECTION 261. ORCP 67 G is amended to read:

          G Judgment on portion of claim exceeding counterclaim. The court may direct entry of a [final] limited judgment as to that portion of any claim which exceeds a counterclaim asserted by the party or parties against whom the judgment is entered, if such party or parties have admitted the claim and asserted a counterclaim amounting to less than the claim.

 

          SECTION 262. ORCP 68 C, as amended by the Council on Court Procedures on December 14, 2002, is amended to read:

          C Award of and entry of judgment for attorney fees and costs and disbursements.

          C(1) Application of this section to award of attorney fees. Notwithstanding Rule 1 A and the procedure provided in any rule or statute permitting recovery of attorney fees in a particular case, this section governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recovery of such fees, except where:

          C(1)(a) Such items are claimed as damages arising prior to the action; or

          C(1)(b) Such items are granted by order, rather than entered as part of a judgment.

          C(2)(a) Alleging right to attorney fees. A party seeking attorney fees shall allege the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover such fees accrues. No attorney fees shall be awarded unless a right to recover such fee is alleged as provided in this subsection.

          C(2)(b) If a party does not file a pleading and seeks judgment or dismissal by motion, a right to attorney fees shall be alleged in such motion, in similar form to the allegations required in a pleading.

          C(2)(c) A party shall not be required to allege a right to a specific amount of attorney fees. An allegation that a party is entitled to “reasonable attorney fees” is sufficient.

          C(2)(d) Any allegation of a right to attorney fees in a pleading or motion shall be deemed denied and no responsive pleading shall be necessary. The opposing party may make a motion to strike the allegation or to make the allegation more definite and certain. Any objections to the form or specificity of allegation of the facts, statute, or rule which provides a basis for the award of fees shall be waived if not alleged prior to trial or hearing.

          C(3) Proof. The items of attorney fees and costs and disbursements shall be submitted in the manner provided by subsection (4) of this section, without proof being offered during the trial.

          C(4) Procedure for seeking attorney fees or costs and disbursements. The procedure for seeking attorney fees or costs and disbursements shall be as follows:

          C(4)(a) Filing and serving statement of attorney fees and costs and disbursements. A party seeking attorney fees or costs and disbursements shall, not later than 14 days after entry of judgment pursuant to Rule 67:

          C(4)(a)(i) File with the court a signed and detailed statement of the amount of attorney fees or costs and disbursements, together with proof of service, if any, in accordance with Rule 9 C; and

          C(4)(a)(ii) Serve, in accordance with Rule 9 B, a copy of the statement on all parties who are not in default for failure to appear.

          C(4)(b) Objections. A party may object to a statement seeking attorney fees or costs and disbursements or any part thereof by written objections to the statement. The objections shall be served within 14 days after service on the objecting party of a copy of the statement. The objections shall be specific and may be founded in law or in fact and shall be deemed controverted without further pleading. Statements and objections may be amended in accordance with Rule 23.

          C(4)(c) Hearing on objections.

          C(4)(c)(i) If objections are filed in accordance with paragraph C(4)(b) of this rule, the court, without a jury, shall hear and determine all issues of law and fact raised by the statement of attorney fees or costs and disbursements and by the objections. The parties shall be given a reasonable opportunity to present evidence and affidavits relevant to any factual issue, including any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements.

          C(4)(c)(ii) The court shall deny or award in whole or in part the amounts sought as attorney fees or costs and disbursements.

          C(4)(d) No timely objections. If objections are not timely filed the court may award attorney fees or costs and disbursements sought in the statement.

          C(4)(e) Findings and conclusions. On the request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party shall make a request pursuant to this paragraph by including a request for findings and conclusions in the title of the statement of attorney fees or costs and disbursements or objections filed pursuant to paragraph (a) or (b) of this subsection. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding attorney fees.

          C(5) Judgment concerning attorney fees or costs and disbursements.

          C(5)(a) As part of judgment. When all issues regarding attorney fees or costs and disbursements have been determined before a judgment pursuant to Rule 67 is entered, the court shall include any award or denial of attorney fees or costs and disbursements in that judgment.

          C(5)(b) By supplemental judgment; notice. When any issue regarding attorney fees or costs and disbursements has not been determined before a judgment pursuant to Rule 67 is entered, any award or denial of attorney fees or costs and disbursements shall be made by a separate supplemental judgment. The supplemental judgment shall be filed and entered and notice shall be given to the parties in the same manner as provided in Rule 70 B(1).

          C(6) Avoidance of multiple collection of attorney fees and costs and disbursements.

          C(6)(a) Separate judgments for separate claims. [Where separate final judgments are granted in one action for separate claims, pursuant to Rule 67 B] If more than one judgment is entered in an action, the court shall take such steps as necessary to avoid the multiple taxation of the same attorney fees and costs and disbursements in [more than one such judgment] those judgments.

          C(6)(b) Separate judgments for the same claim. [When there are separate judgments entered for one] If more than one judgment is entered for the same claim (where separate actions are brought for the same claim against several parties who might have been joined as parties in the same action, or where pursuant to Rule 67 B separate [final] limited judgments are entered against several parties for the same claim), attorney fees and costs and disbursements may be entered in each [such] judgment as provided in this rule, but satisfaction of one [such judgment shall bar] judgment bars recovery of attorney fees or costs and disbursements included in all other judgments.

 

          SECTION 263. ORCP 72 D is amended to read:

          D Stay of judgment as to multiple claims or multiple parties.[When a court has ordered a final judgment under the conditions stated in Rule 67 B] If a court enters a limited judgment under the provisions of Rule 67 B, the court may stay enforcement of [that] the judgment [or judgments] and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

 

          SECTION 264. ORCP 81 A is amended to read:

          A Definitions. As used in Rules 81 through 85, unless the context otherwise requires:

          A(1) Attachment. “Attachment” is the procedure by which an unsecured plaintiff obtains a judicial lien on defendant’s property prior to judgment.

          A(2) Bank. “Bank” includes commercial and savings banks, trust companies, savings and loan associations, and credit unions.

          A(3) Clerk. “Clerk” means clerk of the court or any person performing the duties of that office.

          A(4) Consumer goods. “Consumer goods” means consumer goods as defined in ORS 79.0102.

          A(5) Consumer transaction. “Consumer transaction” means a transaction in which the defendant becomes obligated to pay for goods sold or leased, services rendered, or monies loaned, primarily for purposes of the defendant’s personal, family, or household use.

          A(6) Issuing officer. “Issuing officer” means any person who on behalf of the court is authorized to issue provisional process.

          A(7) Levy. “Levy” means to create a lien upon property prior to judgment by any of the procedures provided by Rules 81 through 85 that create a lien.

          A(8) Plaintiff and defendant. “Plaintiff” includes any party asserting a claim for relief whether by way of claim, third party claim, cross-claim, or counterclaim, and “defendant” includes any person against whom such claim is asserted.

          A(9) Provisional process. “Provisional process” means attachment under Rule 84, claim and delivery under Rule 85, temporary restraining orders under Rule 83, preliminary injunctions under Rule 83, or any other legal or equitable judicial process or remedy which before [final] entry of a judgment enables a plaintiff, or the court on behalf of the plaintiff, to take possession or control of, or to restrain use or disposition of, or fix a lien on property in which the defendant claims an interest, except an order appointing a provisional receiver under Rule 80 or granting a temporary restraining order or preliminary injunction under Rule 79.

          A(10) Security interest. “Security interest” means a lien created by agreement, as opposed to a judicial or statutory lien.

          A(11) Sheriff. “Sheriff” includes a constable of a justice court.

          A(12) Writ. A “writ” is an order by a court to a sheriff or other official to aid a creditor in attachment.

 

          SECTION 265. ORCP 84 A is amended to read:

          A Actions in which attachment allowed.

          A(1) Order for provisional process. Before a writ of attachment may be issued or any property attached by any means provided by this rule, the plaintiff must obtain, and have recorded in the County Clerk Lien Record, an order under Rule 83 that provisional process may issue.

          A(2) Actions in which attachment allowed. The plaintiff, at the time of issuing the summons or any time afterwards, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, in the following cases:

          A(2)(a) An action upon a contract, expressed or implied, for the direct payment of money, when the contract is not secured by mortgage, lien, or pledge, or when it is so secured but such security has been rendered nugatory by act of the defendant.

          A(2)(b) An action against a defendant not residing in this state to recover a sum of money as damages for breach of any contract, expressed or implied, other than a contract of marriage.

          A(2)(c) An action against a defendant not residing in this state to recover a sum of money as damages for injury to property in this state.

          A(3) Exception for financial institution. Notwithstanding subsection (2) of this section, no attachment shall be issued against any financial institution, as that term is defined in ORS 706.008, or against the property of a financial institution.[before final judgment as security for the satisfaction of any judgment that may be recovered against such financial institution.]

 

          SECTION 266. ORCP 84 B is amended to read:

          B Property that may be attached. Only the following kinds of property are subject to lien or levy before [final] judgment:

          B(1) In actions in circuit court, real property;

          B(2) Tangible personal property, including negotiable instruments and securities as defined in ORS 78.1020 except a certificate of an account or obligation or interest therein of a savings and loan institution;

          B(3) Debts; and

          B(4) The interest of a distributee of a decedent’s estate.

 

THE DEMISE OF DECREES

 

          SECTION 267. ORS 1.010 is amended to read:

          1.010. Every court of justice has power:

          (1) To preserve and enforce order in its immediate presence.

          (2) To enforce order in the proceedings before it, or before a person or body empowered to conduct a judicial investigation under its authority.

          (3) To provide for the orderly conduct of proceedings before it or its officers.

          (4) To compel obedience to its judgments, [decrees,] orders and process, and to the orders of a judge out of court, in an action, suit or proceeding pending therein.

          (5) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto.

          (6) To compel the attendance of persons to testify in an action, suit or proceeding pending therein, in the cases and manner provided by statute.

          (7) To administer oaths in an action, suit or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers or the performance of its duties.

 

          SECTION 268. ORS 1.655 is amended to read:

          1.655. (1) It is the duty of a judge pro tempore appointed as provided in ORS 1.635 to hear, decide and dispose of all cases and matters submitted to the judge pro tempore as promptly as the nature of the questions involved will permit. The powers, jurisdiction and judicial authority of the judge pro tempore in respect to any case or matter tried or heard by the judge pro tempore while serving under the appointment shall continue beyond the expiration of the appointment so far as may be necessary to:

          (a) Decide and dispose of any case or matter on trial or held under advisement.

          (b) Hear and decide any motion for a new trial or for a judgment notwithstanding a verdict, or objections to any cost bill, that may be filed in the case.

          (c) Settle a transcript for appeal and grant extensions of time therefor.

          (2) The Supreme Court at any time by order may:

          (a) Extend the term of appointment of a judge pro tempore appointed as provided in ORS 1.635.

          (b) Terminate the term of appointment of a judge pro tempore appointed as provided in ORS 1.635 as of a date specified in the order; but termination does not affect the validity of any judgment, [decree,] order or other action of the judge pro tempore prior to the effective date of the termination.

          (3) A judge pro tempore of a circuit court appointed as provided in ORS 1.635 is not eligible to appear as attorney in that court in any case tried by a jury at the same term of court during which the judge pro tempore served as judge pro tempore.

 

          SECTION 269. ORS 3.070 is amended to read:

          3.070. Any judge of a circuit court in any judicial district may, in chambers, grant and sign defaults, judgments, [decrees,] interlocutory orders and provisional remedies, make findings and decide motions, demurrers and other like matters relating to any judicial business coming before the judge from any judicial district in which the judge has presided in such matters. The judge may hear, in chambers, contested motions, demurrers and other similar matters pending within the judicial district, at any location in the district designated under ORS 1.085. Upon stipulation of counsel, the judge may try and determine any issue in equity or in law where a jury has been waived and hear and decide motions, demurrers and other like matters, in chambers, at any location in the state where the judge may happen to be, relating to any judicial business coming before the judge from any judicial district in which the judge has presided in such matters. The judge may exercise these powers as fully and effectively as though the motions, demurrers, matters or issues were granted, ordered, decided, heard and determined in open court in the county where they may be pending. If signed other than in open court, all such orders, findings[,] and judgments [and decrees] issued, granted or rendered, other than orders not required to be filed and entered with the clerk before becoming effective, shall be transmitted by the judge to the clerk of the court within the county where the matters are pending. They shall be filed and entered upon receipt thereof and shall become effective from the date of entry in the register.

 

          SECTION 270. ORS 3.260 is amended to read:

          3.260. (1) [On and after July 1, 1968,] The circuit courts and the judges thereof shall exercise all juvenile court jurisdiction, authority, powers, functions and duties.

          (2) Pursuant to ORS 3.275, in addition to any other jurisdiction vested in it by law, the circuit court shall exercise exclusive and original judicial jurisdiction, authority, powers, functions, and duties in the judicial district in any or all of the following matters that on the date specified in the order entered under ORS 3.275 are not within the jurisdiction of the circuit court:

          (a) Adoption.

          (b) Change of name under ORS 33.410.

          (c) Filiation.

          (d) Commitment of the mentally ill or mentally deficient.

          (e) Any suit or civil proceeding involving custody or other disposition of a child or the support thereof or the support of a spouse, including enforcement of the Uniform Reciprocal Enforcement of Support Act and enforcement of out-of-state or foreign judgments and decrees on domestic relations.

          (f) Waivers of the three-day waiting period before a marriage license becomes effective under ORS 106.077.

          (g) Issuance of delayed birth certificate.

 

          SECTION 271. ORS 3.425 is amended to read:

          3.425. (1) The family court department or, if there is no family court department, the presiding judge or designee of each circuit court may establish an education program designed to inform parents about the impact of family restructuring on children when the parent is a named party in any of the following proceedings:

          (a) An annulment or dissolution of marriage action.

          (b) A legal separation action.

          (c) A petition to establish custody or parenting time.

          (d) [Post-decree] Post-judgment litigation involving custody or parenting time.

          (2) An education program established under subsection (1) of this section must include, but need not be limited to, information about:

          (a) The emotional impact of a dissolution of marriage or a separation on children at different developmental stages.

          (b) Parenting during and after a dissolution of marriage or a separation.

          (c) Custody, parenting time and shared parenting plans.

          (d) The effect on children of parental conduct including, but not limited to, long distance parenting.

          (e) Mediation and conflict resolution.

          (3) The family court department or, if there is no family court department, the presiding judge or designee of each circuit court may establish an education program designed to provide information about dissolution law and legal procedures, mediation and other dispute resolution alternatives to persons seeking to annul or dissolve a marriage or to separate from each other. The program must include, but need not be limited to, information about:

          (a) Shared parenting plans.

          (b) Division of marital property.

          (c) Spousal and child support.

          (d) Court procedures and time requirements.

          (e) Litigation, mediation and conflict resolution.

          (f) The role of attorneys in mediation.

          (4) The court may order the parties in any action listed in subsection (1) of this section to participate in education programs described in this section unless:

          (a) Subject to the approval of the court, the parties agree not to participate;

          (b) On motion of either party or on its own motion, the court determines that participation is unnecessary; or

          (c) With prior approval of the court, the parties select and participate in comparable education programs.

          (5) The court may not require both parties to attend an education program established under this section at the same time.

          (6)(a) The family court department or, if there is no family court department, the presiding judge or designee of each circuit court shall designate the program providers for the education programs.

          (b) A program provider may charge a person a reasonable fee to attend education programs. A program provider may not exclude a person from attending education programs due to an inability to pay the fee if the court has indicated that the person is indigent or otherwise unable to pay the fee.

          (c) A program provider shall issue a certificate of completion to a participant when the participant has satisfactorily completed the education programs. A certificate of completion must be filed with the court prior to the entry of the [final] judgment in the action.

 

          SECTION 272. ORS 5.090 is amended to read:

          5.090. (1) When the county judge is incapacitated, or absent from the county, or whenever there is a vacancy in the office of county judge, any circuit judge for or assigned to the county may perform the judicial functions of the county judge, hear proceedings, and enter any judgment[,] or order [or decree] necessary to carry into effect the judicial jurisdiction of the county court in all matters with the same force and effect as if done by the county judge when present in the county.

          (2) A county judge that exercises judicial functions may exercise judicial powers and functions in another county court as a pro tem county judge:

          (a) In the event of a vacancy in the office of county judge in another county, until the vacancy is filled as provided by law; or

          (b) In the event of the absence, incapacity or disqualification of a county judge in another county, during the period of the absence, incapacity or disqualification.

 

          SECTION 273. ORS 5.120 is amended to read:

          5.120. (1) A party to a judicial proceeding in a county court may appeal from a [decree] judgment or other final determinative order given therein. The appeal shall be taken at the time and in the manner prescribed by law for the taking of an appeal from a [decree] judgment or other appealable order of the justice court. The appeal shall lie to the circuit court for the county in which the county court is located and be prosecuted, heard and determined in the manner prescribed by law for the prosecution, hearing and determination of appeals from the justice court.

          (2) An appeal shall lie to the Court of Appeals from the whole or a specified part of the [decree] judgment or other final determinative order of the circuit court given upon such appeal to it, in like manner and with like effect as though it were from a [decree] judgment or other appealable determinative order of such circuit court given in a suit in equity therein.

 

          SECTION 274. ORS 7.140 is amended to read:

          7.140. If the record of any judgment[, decree] or other proceeding of any judicial court of this state, or any part of the record of any judicial proceeding, is lost or destroyed, any party or person interested may, on application, by petition in writing under oath to the court and on showing to its satisfaction that the record has been lost or destroyed without fault or neglect of the applicant, obtain an order from the court authorizing the defect to be supplied by a certified copy of the original record when it can be obtained. The certified copy shall have the same effect as the original record.

 

          SECTION 275. ORS 7.160 is amended to read:

          7.160. In case of the destruction of the records or any part thereof of any court having probate jurisdiction, the judge of the court may proceed, upon the motion of the judge or upon application in writing of any party in interest, to restore the records, papers and proceedings of the court relating to the estate of a deceased person, including recorded wills and wills probated or filed for probate in the court. For this purpose the judge may cause citations to be issued to any parties designated by the judge, and the judge may compel the attendance in court of witnesses whose testimony may be necessary to the establishment of the record or part thereof. The judge may also compel the production of written or documentary evidence which the judge deems necessary in determining the true import and effect of the original record, will, paper or other document belonging to the files of the court. The judge may also make orders and [decrees] judgments establishing the original record, will, paper, document or proceeding, or its substance, as to the judge shall seem just and proper. The judge may make all rules and regulations governing the proceedings for the restoration as in the judgment of the judge will best secure the rights and protect the interest of all parties concerned.

 

          SECTION 276. ORS 7.211 is amended to read:

          7.211. (1) The clerk or court administrator of any court having jurisdiction over adoption cases shall keep separate records in all cases of adoption filed in such court. The records shall not be subject to the inspection of any person, except upon order of the court. Adoption proceedings shall not be entered upon the general records of the court, nor shall the clerk or court administrator disclose to any person, without the court order, any information appearing in the adoption records. The clerk, court administrator or any other person having custody of any records or files in such cases shall not disclose them to any person without the court order. Nothing contained in this section shall prevent the clerk or court administrator from certifying copies of a [decree] judgment of adoption to the petitioners in such proceeding or their attorney. At the time of the entry of any [final decree] judgment of adoption, the clerk, court administrator or other person having custody of the records or files in such cases shall cause all records, papers and files relating to the adoption to be sealed in the record of the case and such sealed records, papers and files shall not be unsealed, opened or subject to the inspection of any person except upon order of a court of competent jurisdiction.

          (2) The provisions of subsection (1) of this section do not apply to the disclosure of information under ORS 109.425 to 109.507.

 

          SECTION 277. ORS 9.330 is amended to read:

          9.330. An attorney has authority to bind the attorney’s client in any of the proceedings in an action, suit or proceeding, by the attorney and client agreement, filed with the clerk or entered in the appropriate record of the court. The attorney also has authority to receive money or property claimed by the client in an action, suit or proceeding, during the pendency thereof, or within three years after judgment [or decree], and upon the payment or delivery thereof to discharge the claim or acknowledge satisfaction of the judgment [or decree]. This section does not prevent a party from employing a new attorney to issue execution upon a judgment [or decree,] or to take other proceedings prescribed by law for its enforcement, and when the party does so, the authority of the former attorney ceases.

 

          SECTION 278. ORS 9.380 is amended to read:

          9.380. The attorney in an action, suit or proceeding may be changed, or the relationship of attorney and client terminated, as follows:

          (1) Before judgment[, decree] or final determination, upon the consent of the attorney filed with the clerk or entered in the appropriate record of the court; or

          (2) At any time, upon the order of the court or judge thereof, based on the application of the client or the attorney, for good and sufficient cause.

 

          SECTION 279. ORS 9.655 is amended to read:

          9.655. (1) Upon the filing of a claim, verified under oath, by a client claiming a pecuniary loss under ORS 9.625, the board or its designated representative shall determine if the person named in the claim as the attorney whose dishonest conduct caused the loss

maintained an office in the State of Oregon at the time of the transaction out of which the claim arose and:

          (a) Has been found guilty of a crime arising out of the claimed dishonest conduct which caused the loss;

          (b) In the case of a claim of loss of $5,000 or less, has been disbarred, suspended or reprimanded in disciplinary proceedings or has resigned from the bar due to circumstances arising out of the claimed dishonest conduct which caused the loss; or

          (c) Has been the object of a judgment [or decree] entered in any proceeding arising out of the claimed dishonest conduct which caused the loss and, if the object of a judgment for money entered in favor of the claimant, has failed to pay the judgment, and execution issued on the judgment has been returned uncollected or that issuance of execution would be a useless act.

          (2) After complying with subsection (1) of this section, if the board or representative requires additional information to determine the claim, the board or the representative may compel by subpoena the person named in the claim as the attorney whose dishonest conduct caused the loss, or any other person having knowledge of the matter, to appear for the purpose of giving testimony, and may compel by subpoena the production of records and documents pertinent to the claim. The subpoena shall have the same force and effect as in a civil action in the circuit court, and may be enforced by order of the circuit court for the county in which the person was served.

 

          SECTION 279a. ORS 12.085, as amended by section 1, chapter 85, Oregon Laws 2003 (Enrolled House Bill 2274), 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 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] judgment of final distribution for the estate.

 

          SECTION 280. ORS 19.005 is amended to read:

          19.005. As used in this chapter:

          (1) “Exhibits” means exhibits offered and received or rejected in the trial court.

          (2) “Judgment” means a judgment[, decree] or appealable order, as provided in ORS 19.205.

          (3) “Notice of appeal” includes a notice of cross-appeal.

          (4) “Record” or “record of the case” means the trial court file and any transcript, narrative statement and exhibits.

          (5) “Supersedeas undertaking” means an undertaking on appeal that secures performance of a judgment being appealed and operates to stay enforcement of the judgment pending appeal.

          (6) “Transcript” means the transcript of the court reporter’s report as provided in ORS 8.340, 8.350 and 8.360 and any transcript of an audio record prepared under ORS 19.370.

          (7) “Trial court file” means all the original papers filed in the trial court whether before or after judgment, including but not limited to the summons and proof of service thereof, pleadings, motions, affidavits, depositions, stipulations, orders, jury instructions, the judgment, the notice of appeal and the undertaking on appeal.

          (8) “Undertaking for costs” means an undertaking on appeal that secures payment of costs and disbursements that may be awarded against an appellant on appeal, and any amounts that may be awarded to the respondent under the provisions of ORS 19.445.

          (9) “Undertaking on appeal” means a promise secured by sureties or by money, bond or any other security described in ORS 22.020. “Undertaking on appeal” includes undertakings for costs and supersedeas undertakings.

 

          SECTION 281. ORS 19.345 is amended to read:

          19.345. If the judgment [or decree] has been given in an action or suit upon a contract, notwithstanding an appeal and supersedeas undertaking, the respondent may proceed to enforce such judgment [or decree], if within 10 days from the time the appeal is perfected the respondent files with the trial court administrator an undertaking to the effect that if the judgment [or decree] is reversed or modified the respondent will make such restitution as the appellate court may direct. Such undertaking may be excepted to by the appellant in like manner and with like effect as the undertaking of an appellant, and the sureties therein shall have the same qualifications.

 

          SECTION 282. ORS 19.355 is amended to read:

          19.355. (1) The provisions of this chapter relating to stays on appeal apply to a domestic relations judgment.

          (2) If an appellant seeks a stay of only specific provisions of a domestic relations judgment, the motion seeking the stay must identify those provisions of the judgment that are to be stayed. If the court allows a stay of only certain provisions of the judgment, the order of the court must specifically indicate those provisions. If a supersedeas undertaking is filed with the court for the purpose of staying specific provisions of the judgment, the undertaking must indicate the specific provisions of the judgment covered by the undertaking. A stay of any specific provision of a domestic relations judgment may be granted only if:

          (a) The specific provision is subject to stay under the provisions of this chapter; and

          (b) All requirements of this chapter for a stay of the provision are satisfied.

          (3) For the purposes of this section, “domestic relations judgment” means a judgment [or decree] entered in proceedings under ORS chapter 107, 108 or 109.

 

          SECTION 283. ORS 19.425 is amended to read:

          19.425. Upon an appeal, the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment [or decree] appealed from; and when it reverses or modifies such judgment [or decree], may direct complete restitution of all property and rights lost thereby.

 

          SECTION 284. ORS 19.445 is amended to read:

          19.445. Whenever a judgment [or decree] is affirmed on appeal, and it is for recovery of money, or personal property or the value thereof, the judgment [or decree] shall be given for 10 percent of the amount thereof, for damages for the delay, unless it appears evident to the appellate court that there was probable cause for taking the appeal.

 

          SECTION 285. ORS 20.160 is amended to read:

          20.160. The attorney of a plaintiff who resides out of the state or is a foreign corporation, against whom costs are adjudged in favor of a defendant, is liable to the defendant therefor; and if the attorney neglects to pay the same, upon the information of the defendant shall be punished as for a contempt. The attorney may relieve or discharge the attorney from such liability by filing, at the commencement of the action or suit, or at any time thereafter before judgment, [or decree] an undertaking executed by one or more sufficient sureties, or an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008, in either case providing for the payment to the defendant of the costs and disbursements that may be adjudged to the attorney.

 

          SECTION 286. ORS 21.020 is amended to read:

          21.020. For making and certifying to a copy of any opinion, pleading, judgment, [decree,] paper or record of the office of the State Court Administrator for private parties, and not in the course of the regular court proceedings, the State Court Administrator shall collect the sum of 25 cents for each page. For affixing the seal of the court where not in the course of the regular court proceedings the State Court Administrator shall collect $1.

 

          SECTION 287. ORS 21.111 is amended to read:

          21.111. (1) In the proceedings specified in subsection (2) of this section, the clerk of the circuit court shall collect the sum of $90 as a flat and uniform filing fee from the petitioner at the time the petition is filed, and shall collect the sum of $46 as a flat and uniform filing fee from the respondent upon the respondent making an appearance.

          (2) The filing fee established by subsection (1) of this section shall be collected by the clerk in the following proceedings:

          (a) Proceedings for dissolution of marriage, annulment of marriage or separation.

          (b) Filiation proceedings under ORS 109.124 to 109.230.

          (c) Proceedings to determine custody or support of a child under ORS 109.103.

          (3) In addition to all other fees collected, the clerk of the circuit court shall collect from the moving party a fee of $45 at the time of the filing of a motion for the modification of a [decree] judgment of marital annulment, dissolution or separation, if the motion is filed more than one year after the entry of the [decree] judgment in the register of the court. No fee shall be charged to the responding party at the time a response is filed to the motion.

          (4) A paper or pleading shall be filed by the clerk only if the fee required under this section is paid or if a request for a fee waiver or deferral is granted by the court. No part of any such filing fee shall be refunded to any party. The uniform fee shall cover all services to be performed by the court or clerk in any of the proceedings, except where additional fees are specially authorized by law.

          (5) Any petitioner or respondent that files a petition or appearance that is subject to the filing fees established under subsection (1) of this section must include in the caption of the pleading the following words: “Domestic relations case subject to fee under ORS 21.111.”

          (6) The fees described in this section shall not be charged to a district attorney or to the Division of Child Support of the Department of Justice for the filing of any case, motion, document, stipulated order, process or other document relating to the provision of support enforcement services as described in ORS 25.080.

 

          SECTION 288. ORS 21.660 is amended to read:

          21.660. Except as provided in ORS 20.140, and except the fees for which advance payment or a deposit is otherwise required by law, every officer, witness, or other person required to do or perform any act or service for any party to any action, suit or proceeding in a court of justice in this state shall be entitled to demand and receive from such party the compensation which the law allows therefor in advance; but a party may at the option of the party pay the fees of the officers of the court in advance, or give such officers an undertaking with sufficient sureties therefor. The fees secured to the officers, or any of them, by any party to the judgment [or decree], may be collected by an execution against the property of such party and that of the sureties of the party in the undertaking therefor. Such officers’ execution may issue in the name of the clerk as plaintiff in the writ, and for the benefit of all officers to whom fees are so due and secured, whenever an execution might issue to enforce the judgment [or decree] at the instance of the prevailing party.

 

          SECTION 289. ORS 23.242 is amended to read:

          23.242. (1) It is the policy of this state:

          (a) To afford protection to the debtor and the debtor’s family homestead through the homestead exemption;

          (b) To maintain dependent children from the financial resources of both parents of those children;

          (c) That the homestead exemption should not be permitted to serve as a shield for a debtor’s evasion of child support obligations;

          (d) That the burden for that support should not be shifted in all cases to the present family of the debtor through the sale of the family residence; and

          (e) That to accommodate these policies, the court should have the discretion to decline to allow all or part of a claimed homestead exemption in cases involving child support as provided in this section.

          (2) Notwithstanding ORS 23.240 to 23.300, a court in its discretion may decline to allow a homestead exemption in whole or part in any proceeding under ORS 23.445 if the proceeding is based on a judgment for child support that arises out of an order or [decree] judgment under ORS 24.115, 107.095, 107.105, 107.135, 108.120, 109.100, 109.103, 109.155, 109.165, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110 or 125.

          (3) In exercising the discretion granted under subsection (1) of this section, the court shall consider:

          (a) The financial resources of both parties;

          (b) The number of dependents of each of the parties;

          (c) The ages, health and conditions of parties and their dependents;

          (d) The child support payment history of the judgment debtor on the judgment which is the subject of the petition; and

          (e) Other collection attempts by the judgment creditor on the judgment which is the subject of the petition.

          (4) This section shall not apply to any proceeding under ORS 23.445 brought by or on the behalf of the state or any agency of the state.

 

          SECTION 290. ORS 23.445 is amended to read:

          23.445. (1) As used in this section and ORS 23.450 and 23.515:

          (a) “Mobile home” does not include a mobile home that is held as inventory for sale or lease in the ordinary course of business.

          (b) “Residential real property” means a single family dwelling or condominium unit.

          (2) The sheriff may not sell the residential real property or the mobile home of a natural person on execution without an order of the court authorizing the sale.

          (3) The holder of a judgment desiring to have the residential real property or the mobile home of a natural person sold on execution may petition the court for an order authorizing the sheriff to sell. The petition must:

          (a) Identify the judgment under which the property is to be sold and the amount due thereon;

          (b) Indicate if the judgment arises out of an order or [decree] judgment for child support as described in ORS 23.242;

          (c) Identify the residential real property or mobile home to be sold;

          (d) Allege whether the property is a homestead or not; and

          (e) If the property is a homestead, allege facts showing that it may nevertheless be sold on execution.

          (4) The petition shall be accompanied by an affidavit disclosing the basis of the allegations contained in the petition. If the sheriff is to serve the papers under subsection (6) of this section, the petition and affidavit shall be accompanied by a deposit sufficient to pay the fees of the sheriff for that service.

          (5) Promptly upon the filing of a petition and affidavit as provided in subsections (3) and (4) of this section, the court shall schedule a hearing on the petition, allowing adequate time for notice to the judgment debtor at least 10 days prior to the hearing.

          (6) At least 10 days prior to the hearing on the petition, the petitioner shall cause to be served upon the judgment debtor, in the manner provided by ORCP 7 for service of summons, a true copy of the petition and affidavit and of a notice of the time and place of the hearing in substantially the following form:

______________________________________________________________________________

 

NOTICE OF HEARING ON SHERIFF’S

SALE OF YOUR PROPERTY

 

          This is to notify you that ________ has asked the court to order the sheriff to sell your property located at _______ to satisfy a [court] judgment against ________.

          Before deciding whether to order the sale, the court will hold a hearing on ________, 2____, at _________ a.m./p.m., in Room ________, _________.

          The law provides that your property is your homestead if you, or your spouse, dependent parent or dependent child, actually live in it as your home. If you are temporarily absent from the property but intend to move back in, it is still your homestead.

          The law provides that if the property is your homestead, then $________ of its value ($________for a mobile home if you do not own the property it is on) may not be taken to satisfy a judgment against you. In addition, a homestead usually may not be sold to satisfy a judgment for $3,000 or less.

          The law provides that your property may be sold despite the fact that it is your homestead and all of its value taken to satisfy a judgment against you if the judgment is for child support.

          IF YOU WISH TO PROTECT THIS PROPERTY FROM A SHERIFF’S SALE, YOU SHOULD COME TO THE COURT HEARING.

          IF YOU HAVE ANY QUESTIONS, YOU SHOULD SEE A LAWYER AT ONCE.

          If you do not own this property, please give this notice and the papers served with it to the owner.

______________________________________________________________________________

 

          (7) Whether the judgment debtor appears at the hearing on the petition or not, the court shall try the issues without formal pleadings and shall inquire as to the facts alleged in the petition. The judgment creditor shall have the burden of proof on all issues.

          (8) Except as provided in ORS 23.164 (9) and 23.240 (7), the court may not authorize the sheriff to sell the property if the court finds:

          (a) That the property is the homestead of the judgment debtor;

          (b) That the judgment is subject to the homestead exemption; and

          (c) That the amount of the judgment was $3,000 or less at the time of entry of the judgment.

          (9) If the court authorizes the sheriff to sell the property, the order of the court shall state whether the homestead exemption applies to the property, and if so, the amount of the exemption.

          (10) This section does not apply to a writ of execution to enforce a judgment that directs the sale of the particular property or to a writ of execution to enforce a judgment arising out of the foreclosure of:

          (a) A construction lien for work, labor or material done or furnished exclusively for the improvement of the property;

          (b) A lawfully executed purchase money lien; or

          (c) A lawfully executed mortgage or trust deed.

          (11) This section does not apply to the sale on execution of a judgment of restitution under ORS 105.161 of a mobile home removed from premises by the sheriff pursuant to the execution.

          (12) If the petitioner prevails at the hearing, the court shall award the petitioner the costs of service of the papers under subsection (6) of this section.

 

          SECTION 291. ORS 23.530 is amended to read:

          23.530. Property sold subject to redemption, as provided in ORS 23.520, or any part thereof separately sold, may be redeemed by the following persons:

          (1) The mortgagor or judgment debtor whose right and title were sold, or the heir, devisee or grantee of the mortgagor or judgment debtor, who has acquired, by inheritance, devise, deed, sale, or by virtue of any execution or by any other means, the legal title to the whole or any part of the property separately sold; provided, that in the event redemption is made by anyone acquiring the legal title after attachment, or after a judgment becomes a lien on the property, such person shall acquire no greater or better right thereby to the property so redeemed than the holder of the legal title at the time of such attachment or judgment.

          (2) A creditor having a lien by judgment[, decree] or mortgage on any portion of the property, or any portion of any part thereof separately sold, subsequent in time to that on which the property was sold. Such creditors, after having redeemed the property, are to be termed redemptioners.

 

          SECTION 292. ORS 25.020 is amended to read:

          25.020. (1) Support payments for or on behalf of any person, ordered, registered or filed pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, unless otherwise authorized by ORS 25.030, shall be made to the Department of Justice, as the state disbursement unit:

          (a) During periods for which support is assigned pursuant to ORS 418.032, 418.042, 419B.406 or 419C.597;

          (b) As provided by rules adopted pursuant to ORS 409.021 or under ORS 180.340, when public assistance as defined by ORS 411.010 is provided to a person who receives or has a right to receive support payments on the person’s own behalf or on behalf of another person;

          (c) After the assignment of support terminates for as long as amounts assigned remain owing;

          (d) For any period during which support enforcement services are provided pursuant to the child support enforcement program created by Title IV-D of the Social Security Act or pursuant to ORS 25.080;

          (e) When ordered by the court pursuant to ORS 419B.400;

          (f) When a support order that is entered or modified on or after January 1, 1994, includes a provision requiring the obligor to pay support by income withholding; or

          (g) When ordered by the court under any other applicable provision of law.

          (2) The Department of Justice shall disburse payments, after lawful deduction of fees and in accordance with applicable statutes and rules, to those persons and entities that are lawfully entitled to receive such payments.

          (3)(a) When the administrator is providing support enforcement services under ORS 25.080, the obligee may enter into an agreement with a collection agency, as defined in ORS 697.005, for assistance in collecting child support payments.

          (b) The department:

          (A) Except as otherwise provided in this paragraph, shall disburse support payments, to which the obligee is legally entitled, to the collection agency according to the terms of the agreement between the obligee and the collection agency;

          (B) May not disburse moneys to the collection agency before the obligee submits the form referred to in paragraph (c)(A) of this subsection to the department and the department adjusts its support payment records;

          (C) May not disburse moneys to the collection agency after 180 days following the date the department adjusts its support payment records as described in subparagraph (B) of this paragraph;

          (D) May not disburse moneys to the collection agency if the collection agency violates any provision of this subsection;

          (E) Shall credit the obligor’s account for the full amount of each support payment received by the department and disbursed to the collection agency;

          (F) Shall develop the form referred to in paragraph (c)(A) of this subsection, which shall include a notice to the obligee printed in type size equal to at least 12-point type that the obligee may be eligible for support enforcement services from the department or the district attorney without paying the interest or fee that is typically charged by a collection agency; and

          (G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

          (c) The obligee shall:

          (A) Provide to the department, on a form approved by the department, information about the agreement with the collection agency; and

          (B) Promptly notify the department when the agreement is terminated.

          (d) The collection agency:

          (A) May provide investigative and location services to the obligee and disclose relevant information from those services to the department for purposes of providing support enforcement services under ORS 25.080;

          (B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

          (C) May not initiate, without written authorization from the department, any enforcement action relating to support payments on which support enforcement services are provided by the department under ORS 25.080.

          (4) The Department of Justice may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

          (5) The Department of Justice shall notify each obligor and obligee by mail when support payments shall be made to the Department of Justice and when the obligation to make payments in this manner shall cease.

          (6)(a) The administrator shall provide information about a child support account directly to a party to the support order regardless of whether the party is represented by an attorney. As used in this subsection, “information about a child support account” means the:

          (A) Date of issuance of the support order.

          (B) Amount of the support order.

          (C) Dates and amounts of payments.

          (D) Dates and amounts of disbursements.

          (E) Payee of any disbursements.

          (F) Amount of any arrearage.

          (G) Source of any collection.

          (b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

          (7) Any pleading for the entry or modification of a support order must contain a statement that payment of support under a new or modified order will be by income withholding unless an exception to payment by income withholding is granted under ORS 25.396.

          (8)(a) Except as provided in paragraph (d) of this subsection, a [decree] judgment or order establishing paternity or including a provision concerning support shall contain the residence, mailing or contact address, Social Security number, telephone number and driver license number of each party and the name, address and telephone number of all employers of each party.

          (b) The [decree] judgment or order shall also include notice that the obligor and obligee:

          (A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

          (B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

          (c) The administrator may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

          (d)(A) Upon a finding, that may be made ex parte, that the health, safety or liberty of a party or child would unreasonably be put at risk by the disclosure of information specified in this subsection or by the disclosure of other information concerning a child or party to a paternity or support proceeding or if an existing order so requires, a court or administrator or hearing officer, when the proceeding is administrative, shall order that the information not be contained in any document provided to another party or otherwise disclosed to a party other than the state.

          (B) The Department of Human Services shall adopt rules providing for similar confidentiality for information described in subparagraph (A) of this paragraph that is maintained by an entity providing support enforcement services under ORS 25.080.

          (9)(a) Except as otherwise provided in paragraph (b) of this subsection, in any subsequent child support enforcement action, the court or administrator, upon a showing of diligent effort made to locate the obligor or obligee, may deem due process requirements to be met by mailing notice to the last-known residential, mailing or employer address or contact address as provided in ORS 25.085.

          (b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

          (10) Subject to ORS 25.030, this section, to the extent it imposes any duty or function upon the Department of Justice, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

          (11) Except as provided for in subsections (12), (13) and (14) of this section, credit shall not be given for payments not made to the Department of Justice as required pursuant to subsection (1) of this section.

          (12) The Department of Justice shall give credit for payments not made to the Department of Justice when:

          (a) Payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments were made and should be credited;

          (b) Payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific payments were made, canceled checks or other substantial evidence is presented to corroborate their statements and the obligee has been given prior written notice of any potential criminal or civil liability that may attach to an admission of the receipt of assigned support;

          (c) Payments are assigned to another state and that state verifies that payments not paid to the Department of Justice were received by the other state; or

          (d) As provided by rule adopted pursuant to ORS 409.021 or under ORS 180.340.

          (13) An obligor may apply to the Department of Justice for credit for payments made other than to the Department of Justice. If the obligee or other state does not provide the agreement, sworn statement or verification required by subsection (12) of this section, credit may be given pursuant to order of a hearing officer assigned from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999, after notice and opportunity to object and be heard are given to both obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor may be by regular mail at the address provided in the application for credit. A hearing conducted under this subsection is a contested case hearing and ORS 183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit court.

          (14) Nothing in this section precludes the Department of Justice from giving credit for payments not made to the Department of Justice when there has been a judicially determined credit or satisfaction or when there has been a satisfaction of support executed by the person to whom support is owed.

          (15) The Department of Human Services shall adopt rules that:

          (a) Direct how support payments that are made through the Department of Justice are to be applied and distributed; and

          (b) Are consistent with federal regulations.

 

          SECTION 293. ORS 25.020, as amended by section 3, chapter 455, Oregon Laws 2001, is amended to read:

          25.020. (1) Support payments for or on behalf of any person, ordered, registered or filed pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, unless otherwise authorized by ORS 25.030, shall be made to the Department of Justice, as the state disbursement unit:

          (a) During periods for which support is assigned pursuant to ORS 418.032, 418.042, 419B.406 or 419C.597;

          (b) As provided by rules adopted pursuant to ORS 409.021 or under ORS 180.340, when public assistance as defined by ORS 411.010 is provided to a person who receives or has a right to receive support payments on the person’s own behalf or on behalf of another person;

          (c) After the assignment of support terminates for as long as amounts assigned remain owing;

          (d) For any period during which support enforcement services are provided pursuant to the child support enforcement program created by Title IV-D of the Social Security Act or pursuant to ORS 25.080;

          (e) When ordered by the court pursuant to ORS 419B.400;

          (f) When a support order that is entered or modified on or after January 1, 1994, includes a provision requiring the obligor to pay support by income withholding; or

          (g) When ordered by the court under any other applicable provision of law.

          (2) The Department of Justice shall disburse payments, after lawful deduction of fees and in accordance with applicable statutes and rules, to those persons and entities that are lawfully entitled to receive such payments.

          (3)(a) When the administrator is providing support enforcement services under ORS 25.080, the obligee may enter into an agreement with a collection agency, as defined in ORS 697.005, for assistance in collecting child support payments.

          (b) The department:

          (A) Except as otherwise provided in this paragraph, shall disburse support payments, to which the obligee is legally entitled, to the collection agency according to the terms of the agreement between the obligee and the collection agency;

          (B) May not disburse moneys to the collection agency before the obligee submits the form referred to in paragraph (c)(A) of this subsection to the department and the department adjusts its support payment records;

          (C) May not disburse moneys to the collection agency after 180 days following the date the department adjusts its support payment records as described in subparagraph (B) of this paragraph;

          (D) May not disburse moneys to the collection agency if the collection agency violates any provision of this subsection;

          (E) Shall credit the obligor’s account for the full amount of each support payment received by the department and disbursed to the collection agency;

          (F) Shall develop the form referred to in paragraph (c)(A) of this subsection, which shall include a notice to the obligee printed in type size equal to at least 12-point type that the obligee may be eligible for support enforcement services from the department or the district attorney without paying the interest or fee that is typically charged by a collection agency; and

          (G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

          (c) The obligee shall:

          (A) Provide to the department, on a form approved by the department, information about the agreement with the collection agency; and

          (B) Promptly notify the department when the agreement is terminated.

          (d) The collection agency:

          (A) May provide investigative and location services to the obligee and disclose relevant information from those services to the department for purposes of providing support enforcement services under ORS 25.080;

          (B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

          (C) May not initiate, without written authorization from the department, any enforcement action relating to support payments on which support enforcement services are provided by the department under ORS 25.080.

          (4) The Department of Justice may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

          (5) The Department of Justice shall notify each obligor and obligee by mail when support payments shall be made to the Department of Justice and when the obligation to make payments in this manner shall cease.

          (6)(a) The administrator shall provide information about a child support account directly to a party to the support order regardless of whether the party is represented by an attorney. As used in this subsection, “information about a child support account” means the:

          (A) Date of issuance of the support order.

          (B) Amount of the support order.

          (C) Dates and amounts of payments.

          (D) Dates and amounts of disbursements.

          (E) Payee of any disbursements.

          (F) Amount of any arrearage.

          (G) Source of any collection.

          (b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

          (7) Any pleading for the entry or modification of a support order must contain a statement that payment of support under a new or modified order will be by income withholding unless an exception to payment by income withholding is granted under ORS 25.396.

          (8)(a) Except as provided in paragraph (d) of this subsection, a [decree] judgment or order establishing paternity or including a provision concerning support shall contain the residence, mailing or contact address, Social Security number, telephone number and driver license number of each party and the name, address and telephone number of all employers of each party.

          (b) The [decree] judgment or order shall also include notice that the obligor and obligee:

          (A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

          (B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

          (c) The administrator may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

          (d)(A) Upon a finding, that may be made ex parte, that the health, safety or liberty of a party or child would unreasonably be put at risk by the disclosure of information specified in this subsection or by the disclosure of other information concerning a child or party to a paternity or support proceeding or if an existing order so requires, a court or administrator or hearing officer, when the proceeding is administrative, shall order that the information not be contained in any document provided to another party or otherwise disclosed to a party other than the state.

          (B) The Department of Human Services shall adopt rules providing for similar confidentiality for information described in subparagraph (A) of this paragraph that is maintained by an entity providing support enforcement services under ORS 25.080.

          (9)(a) Except as otherwise provided in paragraph (b) of this subsection, in any subsequent child support enforcement action, the court or administrator, upon a showing of diligent effort made to locate the obligor or obligee, may deem due process requirements to be met by mailing notice to the last-known residential, mailing or employer address or contact address as provided in ORS 25.085.

          (b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

          (10) Subject to ORS 25.030, this section, to the extent it imposes any duty or function upon the Department of Justice, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

          (11) Except as provided for in subsections (12), (13) and (14) of this section, credit shall not be given for payments not made to the Department of Justice as required pursuant to subsection (1) of this section.

          (12) The Department of Justice shall give credit for payments not made to the Department of Justice when:

          (a) Payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments were made and should be credited;

          (b) Payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific payments were made, canceled checks or other substantial evidence is presented to corroborate their statements and the obligee has been given prior written notice of any potential criminal or civil liability that may attach to an admission of the receipt of assigned support;

          (c) Payments are assigned to another state and that state verifies that payments not paid to the Department of Justice were received by the other state; or

          (d) As provided by rule adopted pursuant to ORS 409.021 or under ORS 180.340.

          (13) An obligor may apply to the Department of Justice for credit for payments made other than to the Department of Justice. If the obligee or other state does not provide the agreement, sworn statement or verification required by subsection (12) of this section, credit may be given pursuant to order of a hearing officer of the Department of Human Services after notice and opportunity to object and be heard are given to both obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor may be by regular mail at the address provided in the application for credit. A hearing conducted under this subsection is a contested case hearing and ORS 183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit court.

          (14) Nothing in this section precludes the Department of Justice from giving credit for payments not made to the Department of Justice when there has been a judicially determined credit or satisfaction or when there has been a satisfaction of support executed by the person to whom support is owed.

          (15) The Department of Human Services shall adopt rules that:

          (a) Direct how support payments that are made through the Department of Justice are to be applied and distributed; and

          (b) Are consistent with federal regulations.

 

          SECTION 293a. If House Bill 3015 becomes law, section 293 of this 2003 Act (amending ORS 25.020) is repealed and ORS 25.020, as amended by section 3, chapter 455, Oregon Laws 2001, and section 7, chapter 380, Oregon Laws 2003 (Enrolled House Bill 3015), is amended to read:

          25.020. (1) Support payments for or on behalf of any person, ordered, registered or filed pursuant to ORS chapter 25, 107, 108, 109, 110, 416, 419B or 419C, unless otherwise authorized by ORS 25.030, shall be made to the Department of Justice, as the state disbursement unit:

          (a) During periods for which support is assigned pursuant to ORS 418.032, 418.042, 419B.406 or 419C.597;

          (b) As provided by rules adopted pursuant to ORS 409.021 or under ORS 180.340, when public assistance as defined by ORS 411.010 is provided to a person who receives or has a right to receive support payments on the person’s own behalf or on behalf of another person;

          (c) After the assignment of support terminates for as long as amounts assigned remain owing;

          (d) For any period during which support enforcement services are provided pursuant to the child support enforcement program created by Title IV-D of the Social Security Act or pursuant to ORS 25.080;

          (e) When ordered by the court pursuant to ORS 419B.400;

          (f) When a support order that is entered or modified on or after January 1, 1994, includes a provision requiring the obligor to pay support by income withholding; or

          (g) When ordered by the court under any other applicable provision of law.

          (2) The Department of Justice shall disburse payments, after lawful deduction of fees and in accordance with applicable statutes and rules, to those persons and entities that are lawfully entitled to receive such payments.

          (3)(a) When the administrator is providing support enforcement services under ORS 25.080, the obligee may enter into an agreement with a collection agency, as defined in ORS 697.005, for assistance in collecting child support payments.

          (b) The department:

          (A) Except as otherwise provided in this paragraph, shall disburse support payments, to which the obligee is legally entitled, to the collection agency according to the terms of the agreement between the obligee and the collection agency;

          (B) May not disburse moneys to the collection agency before the obligee submits the form referred to in paragraph (c)(A) of this subsection to the department and the department adjusts its support payment records;

          (C) May not disburse moneys to the collection agency after 180 days following the date the department adjusts its support payment records as described in subparagraph (B) of this paragraph;

          (D) May not disburse moneys to the collection agency if the collection agency violates any provision of this subsection;

          (E) Shall credit the obligor’s account for the full amount of each support payment received by the department and disbursed to the collection agency;

          (F) Shall develop the form referred to in paragraph (c)(A) of this subsection, which shall include a notice to the obligee printed in type size equal to at least 12-point type that the obligee may be eligible for support enforcement services from the department or the district attorney without paying the interest or fee that is typically charged by a collection agency; and

          (G) May use information disclosed by the collection agency to provide support enforcement services under ORS 25.080.

          (c) The obligee shall:

          (A) Provide to the department, on a form approved by the department, information about the agreement with the collection agency; and

          (B) Promptly notify the department when the agreement is terminated.

          (d) The collection agency:

          (A) May provide investigative and location services to the obligee and disclose relevant information from those services to the department for purposes of providing support enforcement services under ORS 25.080;

          (B) May not charge interest or a fee for its services exceeding 20 percent of each support payment received; and

          (C) May not initiate, without written authorization from the department, any enforcement action relating to support payments on which support enforcement services are provided by the department under ORS 25.080.

          (4) The Department of Justice may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received.

          (5) The Department of Justice shall notify each obligor and obligee by mail when support payments shall be made to the Department of Justice and when the obligation to make payments in this manner shall cease.

          (6)(a) The administrator shall provide information about a child support account directly to a party to the support order regardless of whether the party is represented by an attorney. As used in this subsection, “information about a child support account” means the:

          (A) Date of issuance of the support order.

          (B) Amount of the support order.

          (C) Dates and amounts of payments.

          (D) Dates and amounts of disbursements.

          (E) Payee of any disbursements.

          (F) Amount of any arrearage.

          (G) Source of any collection.

          (b) Nothing in this subsection limits the information the administrator may provide by law to a party who is not represented by an attorney.

          (7) Any pleading for the entry or modification of a support order must contain a statement that payment of support under a new or modified order will be by income withholding unless an exception to payment by income withholding is granted under ORS 25.396.

          (8)(a) Except as provided in paragraph (d) of this subsection, a [decree] judgment or order establishing paternity or including a provision concerning support shall contain the residence, mailing or contact address, Social Security number, telephone number and driver license number of each party and the name, address and telephone number of all employers of each party. Such a [decree] judgment or order issued in a proceeding under ORS 107.085 or 107.485 shall contain the Social Security number of each party in the manner established under section 1, chapter 380, Oregon Laws 2003 (Enrolled House Bill 3015) [of this 2003 Act].

          (b) The [decree] judgment or order shall also include notice that the obligor and obligee:

          (A) Must inform the court and the administrator in writing of any change in the information required by this subsection within 10 days after such change; and

          (B) May request that the administrator review the amount of support ordered after two years or at any time upon a substantial change of circumstances.

          (c) The administrator may require of the parties any additional information that is necessary for the provision of support enforcement services under ORS 25.080.

          (d)(A) Upon a finding, that may be made ex parte, that the health, safety or liberty of a party or child would unreasonably be put at risk by the disclosure of information specified in this subsection or by the disclosure of other information concerning a child or party to a paternity or support proceeding or if an existing order so requires, a court or administrator or hearing officer, when the proceeding is administrative, shall order that the information not be contained in any document provided to another party or otherwise disclosed to a party other than the state.

          (B) The Department of Human Services shall adopt rules providing for similar confidentiality for information described in subparagraph (A) of this paragraph that is maintained by an entity providing support enforcement services under ORS 25.080.

          (9)(a) Except as otherwise provided in paragraph (b) of this subsection, in any subsequent child support enforcement action, the court or administrator, upon a showing of diligent effort made to locate the obligor or obligee, may deem due process requirements to be met by mailing notice to the last-known residential, mailing or employer address or contact address as provided in ORS 25.085.

          (b) Service of an order directing an obligor to appear in a contempt proceeding is subject to ORS 33.015 to 33.155.

          (10) Subject to ORS 25.030, this section, to the extent it imposes any duty or function upon the Department of Justice, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416, 419A, 419B and 419C that would otherwise impose the same duties or functions upon the county clerk or the Department of Human Services.

          (11) Except as provided for in subsections (12), (13) and (14) of this section, credit shall not be given for payments not made to the Department of Justice as required pursuant to subsection (1) of this section.

          (12) The Department of Justice shall give credit for payments not made to the Department of Justice when:

          (a) Payments are not assigned to this or another state and the obligee and obligor agree in writing that specific payments were made and should be credited;

          (b) Payments are assigned to the State of Oregon, the obligor and obligee make sworn written statements that specific payments were made, canceled checks or other substantial evidence is presented to corroborate their statements and the obligee has been given prior written notice of any potential criminal or civil liability that may attach to an admission of the receipt of assigned support;

          (c) Payments are assigned to another state and that state verifies that payments not paid to the Department of Justice were received by the other state; or

          (d) As provided by rule adopted pursuant to ORS 409.021 or under ORS 180.340.

          (13) An obligor may apply to the Department of Justice for credit for payments made other than to the Department of Justice. If the obligee or other state does not provide the agreement, sworn statement or verification required by subsection (12) of this section, credit may be given pursuant to order of a hearing officer of the Department of Human Services after notice and opportunity to object and be heard are given to both obligor and obligee. Notice shall be served upon the obligee as provided by ORS 25.085. Notice to the obligor may be by regular mail at the address provided in the application for credit. A hearing conducted under this subsection is a contested case hearing and ORS 183.413 to 183.470 apply. Any party may seek a hearing de novo in the circuit court.

          (14) Nothing in this section precludes the Department of Justice from giving credit for payments not made to the Department of Justice when there has been a judicially determined credit or satisfaction or when there has been a satisfaction of support executed by the person to whom support is owed.

          (15) The Department of Human Services shall adopt rules that:

          (a) Direct how support payments that are made through the Department of Justice are to be applied and distributed; and

          (b) Are consistent with federal regulations.

 

          SECTION 294. ORS 25.070 is amended to read:

          25.070. Any [decree,] judgment or order entered in a proceeding for the enforcement of any delinquent support obligation, including an order entered under ORS 25.378, shall include, on the motion of the Division of Child Support of the Department of Justice or the district attorney, if either has appeared in the case, an order for payment of any support enforcement fees required by law in addition to any other costs chargeable to the obligor, and in addition to the support obligation. The Department of Justice shall deduct the amount of any previously imposed support enforcement fees from any payment subsequently made by the obligor but the amount of the deduction shall not exceed 25 percent of any payment. The support enforcement fee, when collected, shall be paid to the Division of Child Support of the Department of Justice or the district attorney, whichever appeared in the case.

 

          SECTION 295. ORS 25.080 is amended to read:

          25.080. (1) This subsection describes the entity primarily responsible for providing support enforcement services described in subsection (4) of this section for any order or [decree] judgment that is or could be entered under ORS chapter 107, 108, 109, 110 or 416 or ORS 419B.400 or 419C.590. The entity shall provide the support enforcement services described in subsection (4) of this section on behalf of the State of Oregon and no other party or either parent. The following entity is primarily responsible:

          (a) The Division of Child Support of the Department of Justice:

          (A) If support rights are, or were within the past five months, assigned to the Department of Human Services, the Oregon Youth Authority or a public assistance agency of another state; or

          (B) In any case where arrearage under a support order is assigned or owed to or the right to recover back support or state debt is held by a government agency.

          (b) Except as provided in subsection (5) of this section, the district attorney in cases other than those described in paragraph (a) of this subsection if the obligee, obligor, beneficiary or person having physical custody of a minor child regarding any support order that has been imposed or could be imposed requests support enforcement services.

          (2) The Department of Human Services shall establish rules addressing the provision of support enforcement services when the purposes of the state in providing those services may be contradictory in individual cases.

          (3) Notwithstanding the division of responsibility for providing support enforcement services between the Division of Child Support of the Department of Justice and the district attorney as described in subsection (1) of this section, provision of support enforcement services shall not be challenged on the basis that the entity providing the services in a particular case is not the entity responsible for the case under subsection (1) of this section.

          (4) When responsible for providing support enforcement services and there is sufficient evidence available to support the action to be taken, the entity described in subsection (1) of this section:

          (a) Shall establish and enforce any child support obligation;

          (b) Shall establish paternity;

          (c) Shall enforce spousal support when the obligee is living with the obligor’s child for whom support enforcement services are being provided and those services are funded in part by federal moneys;

          (d) May enforce any other order or [decree] judgment for spousal support;

          (e) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a substantial change of circumstances;

          (f) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a modification conducted under ORS 25.287 concerning existing child support orders;

          (g) Shall establish and enforce obligations to provide medical insurance coverage for dependent children;

          (h) Shall [insure] ensure compliance with the provisions of 42 U.S.C. 651 to 669 and 45 C.F.R. Chapter III as authorized by state law;

          (i) Shall carry out the policy of the State of Oregon regarding child support obligations as expressed in ORS 416.405; and

          (j) Shall [insure] ensure that child support orders are in compliance with the formula established by this chapter.

          (5) The district attorney of any county, the Department of Human Services and the Division of Child Support of the Department of Justice may provide by agreement for assumption by the Division of Child Support of the functions of the district attorney under subsection (1) of this section or for redistribution between the district attorney and the Division of Child Support of all or any portion of the duties, responsibilities and functions set forth in subsections (1) and (4) of this section.

          (6) All county governing bodies and all district attorneys shall enter into child support cooperative agreements with the Department of Human Services. The following apply to this subsection:

          (a) The agreements shall contain appropriate terms and conditions sufficient for the state to comply with all child support enforcement service requirements under federal law; and

          (b) If this state loses any federal funds due to the failure of a county governing body or district attorney to either enter into an agreement under this subsection or to provide sufficient support enforcement service, the county shall be liable to the department for, and the liability shall be limited to, the amount of money the state determines it lost because of the failure. The state shall offset the loss from any moneys the state is holding for or owes the county or from any moneys the state would pay to the county for any purpose.

          (7) The district attorney or the Division of Child Support, whichever is appropriate, shall provide the services specified in subsections (1) and (4) of this section to any person requesting them, but may in their discretion, upon a determination and notice to the person requesting the service that prospect of successful recovery from the obligor of a portion of the delinquency or future payments is remote, require payment to the district attorney or the Division of Child Support of an application fee, in accordance with an application fee schedule established by rule by the Department of Human Services. If service performed results in the district attorney or the Division of Child Support recovering any support enforcement fees, such fees shall be paid to the applicant in an amount equal to the amount of the application fee.

          (8) An obligee may request the Division of Child Support of the Department of Justice or a district attorney to cease all collection efforts if it is anticipated that physical or emotional harm will be caused to the parent or caretaker relative or the child for whom support was to have been paid. The Department of Human Services, by rule, shall set out the circumstances under which such requests shall be honored.

 

          SECTION 296. ORS 25.100 is amended to read:

          25.100. (1) With respect to any order or [decree] judgment entered [or docketed] pursuant to ORS 107.095, 107.105, 108.120, 109.155, 416.400 to 416.470, 419B.400 or 419C.590 or ORS chapter 110, if a party seeking modification or enforcement of an order or [decree] judgment for the payment of money files a certificate to the effect that a party is presently in another county of this state, the court may, upon motion of the party, order that certified copies of the files, records and prepared transcripts of testimony in the original proceeding be transmitted to the clerk of the circuit court of any county in this state in which the obligee or obligor resides, or in which property of the obligor is located.

          (2) Any files, records and prepared transcripts of testimony maintained in the county to which certified copies have been transmitted as provided in subsection (1) of this section shall be auxiliary to those maintained in the county of origin, whose files, records and prepared transcripts shall remain the official record.

          (3) The original of any order entered in the auxiliary county under ORS 25.110 shall be entered in the files and records of the auxiliary county and certified copies thereof shall be forwarded to the county of origin for filing. The party submitting the original order for signature shall submit an extra copy for forwarding by the clerk and shall indicate on that copy where it is to be forwarded.

          (4) Notwithstanding any file number assigned in the auxiliary county for purposes of identification, the file number assigned in the county of origin shall be the reference number for all purposes including support payment records in the Department of Justice.

 

          SECTION 297. ORS 25.110 is amended to read:

          25.110. (1) Upon receipt of such certified copies referred to in ORS 25.100, the circuit court of the county to which such certified copies have been transmitted shall have jurisdiction to compel compliance with such order or [decree] judgment the same as if it were the court which made and entered the original order or [decree] judgment for the payment of support. The only court having jurisdiction to modify any provision of the original order or [decree] judgment is the court having original jurisdiction of the cause in which such order or [decree] judgment was entered or the circuit court of the county in which either party resides if that court has received the certified copies referred to in ORS 25.100.

          (2) The provisions of ORS 25.100 (2) to (4) shall apply to this section.

 

          SECTION 298. ORS 25.167, as amended by section 7, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645), is amended to read:

          25.167. This section establishes procedures for determining the amount of arrearage and for making a record of arrearage of support payments. All of the following apply to this section:

          (1) A record of support payment arrearage may be established by:

          (a) Court order;

          (b) A governing child support judgment issued under section 3 or 5, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645) [of this 2003 Act];

          (c) Administrative order issued under ORS 416.427 or 416.429;

          (d) Stipulation of the parties; or

          (e) The procedures under subsection (2) of this section whenever an existing child or spousal support case enters the Department of Justice records system without a current payment record maintained by any court clerk.

          (2) When allowed under subsection (1) of this section, arrearage amounts may be established under this subsection. All of the following apply to this subsection:

          (a) The obligee or obligor may execute a certificate in a form acceptable to the Department of Justice that states the total amount owed or the payment history in as much detail as is necessary to demonstrate the periods and amounts of any arrearage.

          (b) The person making the certificate shall file the original certificate with the court in which the [decree or] support judgment was entered. When a governing child support judgment has been issued, the person making the certificate shall file the original certificate with the court that issued the governing child support judgment.

          (c) The person making the certificate shall serve a true copy of the certificate upon the other party together with a notice that the certificate will be the basis of a permanent record unless the other party files objections.

          (d) For objections to be valid under paragraph (c) of this subsection, the other party must file the objection with the court within 14 days from the date of service of the certificate and must mail or serve true copies of the objections on both the party who filed the certificate and either:

          (A) The district attorney; or

          (B) If support rights are or have been assigned to the State of Oregon at any time within the last five months or if arrears under the support judgment are so assigned, the Division of Child Support of the Department of Justice.

          (e) If objections are filed within the time allowed, the party filing the certificate must file a supplemental certificate that is in a form acceptable to the department and that provides any information concerning the payment history that the department determines necessary.

          (f) If objections are filed within the time allowed, the district attorney or the Division of Child Support shall cause the case to be set for a court hearing. At the hearing, the court shall consider the correctness of the certificate but may not consider objections to the merits of the support judgment [or decree]. The parties may settle the case by written agreement anytime before the court hearing. Notice of the court hearing shall be served upon the party filing the objections as authorized in ORCP 9 B.

          (g) If no objections are filed under this subsection within the time allowed, the amount of arrearage stated in the certificate is the amount owed for purposes of any subsequent action. The district attorney or the Division of Child Support shall file with the court a certificate stating the arrearage established under this paragraph.

          (3) When a request for accounting and distribution services is made under ORS 25.164, an agency or court may not take or allow any ex parte enforcement action on amounts owed as arrearage from before the time that the Department of Justice commences support accounting and distribution until the amount is established under this section. This subsection does not prohibit or limit any enforcement action on support payments that become due subsequent to the department’s commencement of support accounting and distribution under ORS 25.164.

          (4) In any determination under this section, a canceled check, payable to the obligee, indorsed by the obligee or deposited to an account of the obligee, drawn on the account of the obligor and marked as child support shall be prima facie evidence that child support was paid to the obligee in the amount shown on the face of the check. It is immaterial that the check was signed by a person other than the obligor, provided that the person who signed the check was an authorized signatory of checks drawn on the account.

 

          SECTION 298a. Section 2, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645), is amended to read:

          Sec. 2. (1) As used in this section, “child support judgment” means the terms of a judgment[, decree] or order of a court, or an order that has been filed under ORS 416.440, that provide for past or current monetary support or for health insurance under ORS 25.255 for the benefit of a child. “Child support judgment” does not include any term of a judgment[, decree] or order that deals with matters other than monetary support or health insurance under ORS 25.255 for the benefit of a child.

          (2)(a) A child support judgment originating under ORS 416.440 has all the force, effect and attributes of a circuit court judgment. The judgment lien created by a child support judgment originating under ORS 416.440 applies to all arrearages owed under the underlying order from the date the administrator or hearing officer entered, filed or registered the underlying order under ORS 416.400 to 416.470 or ORS chapter 110.

          (b) Until the underlying order is filed under ORS 416.440, the order may not be enforced against and has no lien effect on real property.

          (c) No action to enforce a child support judgment originating under ORS 416.440 may be taken while the child support judgment is stayed under ORS 416.427, except as permitted in the order granting the stay.

          (3) In any judicial or administrative proceeding in which child support may be awarded under this chapter or ORS chapter 107, 108, 109, 110 or 416 or ORS 125.025, 419B.400 or 419C.590, if a child support judgment already exists with regard to the same obligor and child:

          (a) A court may only enforce the existing child support judgment, modify the existing child support judgment as specifically authorized by law or set aside the existing child support judgment under subsection (6) of this section or under the provisions of ORCP 71. If the court sets aside the existing child support judgment, the court may issue a new child support judgment.

          (b) The administrator or hearing officer may only enforce the existing child support judgment, modify the existing child support judgment as specifically authorized by law or, with regard to an existing child support judgment originating under ORS 416.400, move to set aside the existing child support judgment under subsection (6) of this section or for the reasons set out in ORCP 71.

          (4) If the administrator or hearing officer finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, the administrator or hearing officer shall apply the provisions of section 5, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645) [of this 2003 Act].

          (5)(a) If the court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and each judgment was issued in this state, the court shall apply the provisions of section 3, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645), [of this 2003 Act] to determine the controlling terms of the child support judgments and to issue a governing child support judgment as defined in section 3, chapter 146, Oregon Laws 2003 (Enrolled House Bill 2645) [of this 2003 Act].

          (b) If the court finds that there exist two or more child support judgments involving the same obligor and child and the same period of time, and one or more of the judgments was issued by a tribunal of another state, the court shall apply the provisions of ORS chapter 110 to determine which judgment is the controlling child support order.

          (6) Subject to the provisions of subsection (3) of this section, a court may modify or set aside a child support judgment issued in this state when:

          (a) The child support judgment was issued without prior notice to the issuing court, administrator or hearing officer that:

          (A) There was pending in this state or any other jurisdiction any type of support proceeding involving the child; or

          (B) There existed in this state or any other jurisdiction another child support judgment involving the child; or

          (b) The child support judgment was issued after another child support judgment, and the later judgment did not enforce, modify or set aside the earlier judgment in accordance with this section.

          (7) When modifying a child support judgment, the court, administrator or hearing officer shall specify in the modification judgment the effects of the modification on the child support judgment being modified.

 

          SECTION 299. ORS 25.245 is amended to read:

          25.245. (1) Notwithstanding any other provision of Oregon law, a parent who is eligible for and receiving cash payments under Title IV-A of the Social Security Act, the general assistance program as provided in ORS chapter 411 or a general assistance program of another state or tribe, the Oregon Supplemental Income Program or the federal Supplemental Security Income Program shall be rebuttably presumed unable to pay child support and a child support obligation does not accrue unless the presumption is rebutted.

          (2) Each month, the Department of Human Services shall identify those persons receiving cash payments under the programs listed in subsection (1) of this section that are administered by the State of Oregon and provide that information to the administrator. If benefits are received from programs listed in subsection (1) of this section that are administered by other states, tribes or federal agencies, the obligor shall provide the administrator with written documentation of the benefits. The Department of Human Services shall adopt rules to implement this subsection.

          (3) The administrator shall refer to the information provided in subsection (2) of this section prior to establishing any child support obligation. Within 30 days following identification of persons under subsection (2) of this section, the entity responsible for support enforcement services under ORS 25.080 shall provide notice of the presumption to the obligee and obligor and shall inform all parties to the support order that, unless a party objects as provided in subsection (4) of this section, child support shall cease accruing beginning with the support payment due on or after the date the obligor first begins receiving the cash payments and continuing through the support payment due in the last month in which the obligor received the cash payments. The entity responsible for support enforcement services shall serve the notice on the obligee in the manner provided for the service of summons in a civil action or by certified mail, return receipt requested, and shall serve the notice on the obligor by first class mail to the obligor’s last-known address. The notice shall specify the month in which cash payments are first made and shall contain a statement that the administrator represents the state and that low cost legal counsel may be available.

          (4) A party may object to the presumption by sending an objection to the entity responsible for support enforcement services under ORS 25.080 within 20 days after the date of service of the notice. The objection must describe the resources of the obligor or other evidence that might rebut the presumption of inability to pay child support. The entity receiving the objection shall cause the case to be set for a hearing before a court or a hearing officer. The court or hearing officer may consider only whether the presumption has been rebutted.

          (5) If no objection is made, or if the court or hearing officer finds that the presumption has not been rebutted, the Department of Justice shall discontinue billing the obligor for the period of time described in subsection (3) of this section and no arrearage shall accrue for the period during which the obligor is not billed. In addition, the entity providing support enforcement services shall file with the circuit court in which the support order or [decree] judgment has been entered [or docketed] a copy of the notice described in subsection (3) of this section or, if an objection is made and the presumption is not rebutted, a copy of the hearing officer’s order.

          (6)(a) Within 30 days after the date the obligor ceases receiving cash payments under a program listed in subsection (1) of this section, the Department of Justice shall provide notice to all parties to the support order:

          (A) Specifying the last month in which a cash payment was made;

          (B) Stating that the payment of those benefits has terminated and that by operation of law billing and accrual of support resumes; and

          (C) Informing the parties of their rights to request a review and modification of the support order based on a substantial change in circumstance or pursuant to ORS 25.287 or any other provision of law.

          (b) The notice shall include a statement that the administrator represents the state and that low cost legal counsel may be available.

          (c) The entity providing enforcement services shall file a copy of the notice required by paragraph (a) of this subsection with the circuit court in which the support order or [decree] judgment has been entered [or docketed].

          (7) Receipt by a child support obligor of cash payments under any of the programs listed in subsection (1) of this section shall be sufficient cause for a court or hearing officer to allow a credit and satisfaction against child support arrearage for months that the obligor received the cash payments.

          (8) The notice and finding of financial responsibility required by ORS 416.415 shall include notice of the presumption, nonaccrual and arrearage credit rights provided for in this section.

          (9) The presumption, nonaccrual and arrearage credit rights created by this section shall apply whether or not child support enforcement services are being provided under Title IV-D of the Social Security Act.

          (10) Application of the presumption, nonaccrual and arrearage credit rights created by this section does not constitute a modification but does not limit the right of any party to seek a modification of a support order based upon a change of circumstances or pursuant to ORS 25.287 or any other provision of law. In determining whether a change in circumstances has occurred or whether two years have elapsed since entry of a support order, the court or hearing officer may not consider any action taken under this section as entry of a support order. The presumption stated in subsection (1) of this section applies in any modification proceeding.

 

          SECTION 300. ORS 25.255 is amended to read:

          25.255. (1) All child support orders entered pursuant to ORS chapters 107, 108, 109 and 110 and ORS 416.400 to 416.470 and 419B.400 or 419C.590, and any modifications of those orders, shall provide, at the election of the obligee, assignee of the rights to medical support under the Medicaid program or the assignee of current support rights, that the obligor shall name the subject child as beneficiary on any health insurance plan that is available, under the terms of an applicable contract, to the obligor at reasonable cost. Health insurance is considered reasonable in cost if it is employment related insurance or other group health insurance, regardless of service delivery mechanism, and is available on a group basis or through an employer or union at a monthly cost, with respect to the coverage of the subject child, not to exceed the amount of the monthly child support obligation determined under the formula provided by ORS 25.275 and 25.280. In consideration of the out-of-pocket costs to the obligor attributable to naming a child on a health insurance plan, the Administrator of the Division of Child Support, an administrative hearings officer or a court shall reduce the obligor’s child support obligation by the amount that represents the obligee’s pro rata share, based upon the obligee’s proportionate share of the combined income of the parents, of the obligor’s out-of-pocket costs of health insurance of the child. When an obligor does not provide health insurance for a child, and the obligee elects to provide insurance and incurs out-of-pocket costs to provide health insurance, the Administrator of the Division of Child Support, an administrative hearings officer or a court shall increase the obligor’s child support obligation by an amount that represents the obligor’s pro rata share of the obligee’s out-of-pocket costs of the health insurance attributable to enrolling the child. Nothing in this section limits the cost of the insurance which may be provided by the obligee when the obligor does not provide insurance for the child or children. However, nothing in this section shall authorize an increase in the amount of child support to be paid by the obligor in consideration of the obligee’s out-of-pocket costs in an amount more than would be the obligor’s pro rata share if the cost of the insurance were reasonable in cost as defined by this section. As used in this section, “health insurance” includes coverage under fee for service, health maintenance organizations, preferred provider organizations and other types of coverage under which medical services could be provided to the dependent child of an absent parent. For purposes of this section, the term “insurer” includes a group health plan, as defined in section 607 (1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1167), a health maintenance organization or an entity offering a service benefit plan.

          (2) If health insurance is not available to an obligor at the time a child support order is entered, the order shall include a provision requiring the obligor to provide health insurance in the future when health insurance becomes available to the obligor.

          (3) In addition to the health insurance coverage required in subsections (1) and (2) of this section, the order shall also require the obligor to provide dependent health insurance for the benefit of the obligee if it is available at no additional cost to the obligor and in this case the provisions of this section apply. The remedy provided by this subsection is in addition to and not exclusive of any other remedy provided by law.

          (4) Where the obligor is eligible for family coverage, and upon application of the obligor, the employer, union or plan administrator shall enroll the child as a beneficiary in the health insurance plan and withhold any required premium from the obligor’s income or wages. If the obligor is enrolled, but fails to make application to obtain coverage for the child, and subject to the provisions of subsection (5) or (6) of this section, the employer, union or plan administrator shall enroll the child under family coverage upon application of the child’s other parent, or the department or the entity responsible for enforcement under ORS 25.080. The employer shall withhold from the employee’s compensation the employee’s share of premiums for health coverage as necessary and pay this amount to the insurer.

          (5) The obligee or entity responsible for support enforcement under ORS 25.080 may serve a notice of order to provide for insurance coverage in a form substantially similar to that prescribed by the Department of Human Services on the obligor’s employer or union or the employer’s or union’s registered agent, bookkeeper, accountant, person responsible for payroll or local office manager. If a medical child support order is required under section 609 of the Employee Retirement Income Security Act of 1974, the order shall be provided to the plan administrator. The notice of order to provide health insurance or a medical child support order may be served by regular mail or any means that is calculated to give actual notice. The notice of order or medical child support order may be issued ex parte either administratively or judicially and without advance notice to enforce the health insurance provisions of an order. The notice of order or a medical child support order may be issued when the following conditions are met:

          (a) An administrative or judicial order[,] or judgment [or decree] requires the obligor to provide health insurance for the subject child; and

          (b) The obligor is enrolled in but fails to provide written proof to the obligee or the entity responsible for support enforcement that the child has been enrolled or application to enroll the child has been made.

          (6) Notwithstanding the provisions of subsections (4) and (5) of this section, when an obligor provides coverage and changes employment, the obligee, the Department of Human Services or the entity responsible for enforcement under ORS 25.080 shall transfer notice of order to the new employer. Unless the obligor contests the notice of order by requesting a modification of the underlying order, the notice of order operates to enroll the child in the obligor’s health plan if the employer provides health care coverage. If a medical child support order is required under section 609 of the Employee Retirement Income Security Act of 1974, the enforcing entity shall issue a medical child support order.

          (7) The signature of the custodial parent or guardian of the insured dependent is a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the health services.

          (8) When an order for dependent insurance coverage is in effect or is being sought, the obligor’s employer or union shall release to the obligee or the entity responsible for support enforcement, upon request, the name and address of the insurer and any plan administrator.

          (9) When an order for dependent insurance coverage is in effect or is being sought, the insurer shall release to the obligee, or to the entity responsible for support enforcement, upon request, information about the dependent coverage.

          (10) The obligor who fails to maintain the health insurance for the benefit of the child as ordered shall be liable for any health expenses incurred from the date of the order.

          [(11) The remedies in this section are not exclusive. Nothing in this section precludes action by the court to enforce a judicial or docketed administrative order requiring health insurance for a child or children by imposition of remedial or punitive sanctions for contempt or otherwise.]

          (11) The remedies in this section are not exclusive. Nothing in this section precludes action by the court to enforce a judgment or a judicial or administrative order requiring health insurance for a child or children by imposition of remedial or punitive sanctions for contempt or otherwise.

 

          SECTION 300a. If House Bill 2095 becomes law, section 300 of this 2003 Act (amending ORS 25.255) is repealed.

 

          SECTION 301. ORS 25.710 is amended to read:

          25.710. (1) Notwithstanding ORS 25.080, the district attorney, except as provided in subsection (2) of this section, shall continue to enforce support enforcement cases until the Department of Human Services otherwise directs if:

          (a) The case was being enforced by the district attorney on October 1, 1985; and

          (b) The case involves any arrearages assigned to any government agency.

          (2) This section does not apply where the obligor or beneficiary of the support [decree] judgment or order is receiving any of the following:

          (a) General or public assistance as defined in ORS 411.010; or

          (b) Care, support or services under ORS 418.015.

 

          SECTION 302. ORS 28.010 is amended to read:

          28.010. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment [or decree] is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a [final] judgment [or decree].

 

          SECTION 303. ORS 28.050 is amended to read:

          28.050. The enumeration in ORS 28.010 to 28.040 does not limit or restrict the exercise of the general powers conferred in ORS 28.010, in any proceedings where declaratory relief is sought, in which a judgment [or decree] will terminate the controversy or remove an uncertainty.

 

          SECTION 304. ORS 28.060 is amended to read:

          28.060. The court may refuse to render or enter a declaratory judgment [or decree] where such judgment [or decree], if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

 

          SECTION 305. ORS 28.070 is amended to read:

          28.070. All orders[,] and judgments [and decrees] under this chapter may be appealed from or reviewed as other orders[,] and judgments [and decrees].

 

          SECTION 306. ORS 28.080 is amended to read:

          28.080. Further relief based on a declaratory judgment [or decree] may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment [or decree,] to show cause why further relief should not be granted forthwith.

 

          SECTION 307. ORS 28.150 is amended to read:

          28.150. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments [and decrees].

 

          SECTION 308. ORS 33.420 is amended to read:

          33.420. (1) Before [decreeing] entering a judgment for a change of name, except as provided in ORS 109.360, the court shall require public notice of the application to be given, that all persons may show cause why the same should not be granted. The court shall also require public notice to be given of the change after the entry of the [decree] judgment.

          (2) Before [decreeing] entering a judgment for a change of name in the case of a minor child the court shall require that, in addition to the notice required under subsection (1) of this section, written notice be given to the parents of the child, both custodial and noncustodial, and to any legal guardian of the child.

          (3) Notwithstanding subsection (2) of this section, notice of an application for the change of name of a minor child need not be given to a parent of the child if the other parent of the child files a verified statement in the change of name proceeding that asserts that the minor child has not resided with the other parent and that the other parent has not contributed or tried to contribute to the support of the child.

 

          SECTION 309. ORS 33.460 is amended to read:

          33.460. (1) A court that has jurisdiction to determine an application for change of name of a person under ORS 33.410 and 33.420 may order a legal change of sex and enter a [decree] judgment indicating the change of sex of a person whose sex has been changed by surgical procedure.

          (2) The court may order a legal change of sex and enter the [decree] judgment in the same manner as that provided for change of name of a person under ORS 33.410 and 33.420.

          (3) If a person applies for a change of name under ORS 33.410 and 33.420 at the time the person applies for a legal change of sex under this section, the court may order change of name and legal change of sex at the same time and in the same proceeding.

 

          SECTION 310. ORS 33.510 is amended to read:

          33.510. The surety or the representatives of any surety upon the bond of any trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary, and any irrevocable letter of credit issuer for any trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary is entitled as a matter of right to be discharged from liability as provided in this section, and to that end may, on notice to the principal named in the bond or irrevocable letter of credit, apply to the court that accepted the bond or irrevocable letter of credit or to the court of which the judge who accepted the bond or irrevocable letter of credit was a member or to any judge thereof, praying to be relieved from liability for the act or omission of the principal occurring after the date of the order relieving such person, and that the principal be required to account and give new sureties or cause to be issued new letters of credit. Notice of the application shall be served on the principal personally not less than five days prior to the date on which the application is to be made, unless it satisfactorily appears to the court or judge that personal service cannot be had with due diligence within the state, in which case notice may be given by personal service without the state or in such manner as the court or judge directs. Pending the hearing of the application the court or judge may restrain the principal from acting except to preserve the trust estate until further order. If upon the return of the application the principal fails to file a new bond or irrevocable letter of credit to the satisfaction of the court or judge, the court or judge must make an order requiring the principal to file a new bond or irrevocable letter of credit within a period not exceeding five days. If the new bond or irrevocable letter of credit is filed upon the return of the application, or within the time fixed by the order, the court or judge must make a [decree] judgment or order requiring the principal to account for all acts and proceedings to and including the date of the [decree] judgment or order, and to file such account within a time fixed, not exceeding 20 days, and discharge the surety or letter of credit issuer making application from liability for any act or default of the principal subsequent to the date of the [decree] judgment or order. If the principal fails to file a new bond or irrevocable letter of credit within the time specified, a [decree] judgment or order must be made revoking the appointment of the principal or removing and requiring the principal to file an account within not more than 20 days. If the principal fails to file the account, the surety or letter of credit issuer may make and file an account with like force and effect as though filed by the principal, and upon settlement thereof and upon the trust fund or estate being found or made good and paid over or properly secured, credit shall be given for all commissions, costs, disbursements and allowances to which the principal would be entitled were the principal accounting, and allowance shall be made to the surety or letter of credit issuer for the expense incurred in filing the account and procuring the settlement thereof. After the filing of the account, either by the principal or the surety or the letter of credit issuer, the court or judge must, upon the petition of the principal or surety or the letter of credit issuer, issue an order requiring all persons interested in the estate or trust to attend a settlement of the account at a time and place therein specified, and upon the trust fund or estate being found or made good and paid over or properly secured, the surety or the letter of credit issuer shall be discharged from all liability. Upon demand in writing by the principal, the surety or the letter of credit issuer shall return any compensation that has been paid for the unexpired period of the bond or the letter of credit.

 

          SECTION 311. ORS 34.330 is amended to read:

          34.330. A person may not prosecute a writ of habeas corpus if:

          (1) The person is imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer.

          (2) The person is imprisoned or restrained by virtue of the judgment [or decree] of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment [or decree].

          (3) Except as provided in ORS 138.530, the person is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680.

          (4) The person is eligible to seek judicial review of a final order of the State Board of Parole and Post-Prison Supervision under ORS 144.335 but the person fails to seek judicial review of the order in a timely manner.

          (5) The person seeks judicial review of a final order of the board under ORS 144.335 but the Court of Appeals:

          (a) Dismisses the judicial review on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;

          (b) Summarily affirms the order of the board on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;

          (c) Otherwise disposes of the judicial review on the merits of the petitioner’s issues on judicial review; or

          (d) Dismisses the judicial review because of a procedural defect.

 

          SECTION 312. ORS 34.360 is amended to read:

          34.360. If the challenge is to the authority for confinement, the petition shall state, in substance:

          (1) That the party in whose behalf the writ is petitioned is imprisoned or restrained of liberty, the place where, and officer or person by whom the party is imprisoned or restrained, naming both parties if their names are known, or describing them if not known.

          (2) That such person is not imprisoned or restrained by virtue of any order, judgment[, decree] or process specified in ORS 34.330.

          (3) The cause or pretense of the imprisonment or restraint, according to the best knowledge or belief of the plaintiff.

          (4) If the original imprisonment or restraint is by virtue of any order, warrant or process, a copy thereof shall be annexed to the petition, or it must be alleged that, by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or that the demand was made, and the legal fees therefor tendered to the person having the party in custody, and that a copy was refused.

          (5) That the claim has not already been adjudged upon a prior writ of habeas corpus, to the knowledge or belief of the plaintiff.

 

          SECTION 313. ORS 34.362 is amended to read:

          34.362. If the person is imprisoned or restrained by virtue of any order, judgment[, decree] or process specified in ORS 34.330 and the person challenges the conditions of confinement or complains of a deprivation of rights while confined, the petition shall:

          (1) Comply with requirements of ORS 34.360 (1), (3), (4) and (5); and

          (2) State facts in support of a claim that the person is deprived of a constitutional right that requires immediate judicial attention and for which no other timely remedy is practicably available to the plaintiff.

 

          SECTION 314. ORS 34.600 is amended to read:

          34.600. It shall be the duty of the court or judge forthwith to remand such party if it appears that the party is legally detained in custody, either:

          (1) By virtue of process issued by any court, or judge or commissioner or any other officer thereof, of the United States, in a case where such court, or judge or officer thereof, has exclusive jurisdiction; or,

          (2) By virtue of the judgment [or decree] of any [competent court of civil or criminal jurisdiction] court, or of any execution issued upon such judgment [or decree]; or,

          (3) For any contempt, specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged; and,

          (4) That the time during which such party may legally be detained has not expired.

 

          SECTION 315. ORS 34.610 is amended to read:

          34.610. If it appears on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before the officer, authorized by law, such prisoner shall be discharged only if one of the following cases exists:

          (1) The jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or person.

          (2) The original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the party has become entitled to be discharged.

          (3) The order or process is defective in some matter of substance required by law, rendering the same void.

          (4) The order or process, though in proper form, has been issued in a case not allowed by law.

          (5) The person having the custody of the prisoner under such order or process is not the person empowered by law to detain the prisoner.

          (6) The order or process is not authorized by any judgment [or decree] of any court, nor by any provision of law.

 

          SECTION 316. ORS 34.720 is amended to read:

          34.720. No person who has been finally discharged upon a proceeding by habeas corpus shall again be imprisoned, restrained or kept in custody for the same cause; but it is not to be deemed the same cause if:

          (1) The person has been discharged from a commitment on a criminal charge, and afterwards is committed for the same offense by the legal order or process of the court wherein the person is bound by a release agreement or has deposited security, or in which the person is indicted or convicted for the same offense; or

          (2) After a judgment of discharge for a defect of evidence or for a material defect in the commitment, in a criminal case, the party again is arrested on sufficient evidence, and committed by legal process for the same offense; or

          (3) In a civil action or suit, the party has been discharged for illegality in the judgment[, decree] or process, and afterwards is imprisoned for the same cause of action or suit; or

          (4) In a civil action or suit, the person has been discharged from commitment on a writ of arrest, and afterwards is committed on execution, in the same action or suit, or on a writ of arrest in another action or suit, after the dismissal of the first one.

 

          SECTION 317. ORS 58.377 is amended to read:

          58.377. If all of the outstanding shares of a professional corporation organized for the purpose of practicing medicine are held by an administrator, executor, personal representative, guardian, conservator or receiver of the estate of a former shareholder, or by a transferee who receives such shares by operation of law or [court decree] by a judgment, such administrator, executor, personal representative, guardian, conservator, receiver or transferee may be a director, officer or shareholder of the professional corporation for a period of six months following receipt or transfer of such shares.

 

          SECTION 318. ORS 59.115 is amended to read:

          59.115. (1) A person who sells a security is liable as provided in subsection (2) of this section to a purchaser of the security if the person:

          (a) Sells a security, other than a federal covered security, in violation of the Oregon Securities Law or of any condition, limitation or restriction imposed upon a registration or license under the Oregon Securities Law; or

          (b) Sells a security by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.

          (2) The purchaser may recover:

          (a) Upon tender of the security, the consideration paid for the security, and interest from the date of payment equal to the greater of the rate of interest specified in ORS 82.010 for judgments [and decrees] for the payment of money or the rate provided in the security if the security is an interest-bearing obligation, less any amount received on the security; or

          (b) If the purchaser no longer owns the security, damages in the amount that would be recoverable upon a tender, less the value of the security when the purchaser disposed of it and less interest on such value at the rate of interest specified in ORS 82.010 for judgments [and decrees] for the payment of money from the date of disposition.

          (3) Every person who directly or indirectly controls a seller liable under subsection (1) of this section, every partner, limited liability company manager, including a member who is a manager, officer or director of such seller, every person occupying a similar status or performing similar functions, and every person who participates or materially aids in the sale is also liable jointly and severally with and to the same extent as the seller, unless the nonseller sustains the burden of proof that the nonseller did not know, and, in the exercise of reasonable care, could not have known, of the existence of facts on which the liability is based. Any person held liable under this section shall be entitled to contribution from those jointly and severally liable with that person.

          (4) Notwithstanding the provisions of subsection (3) of this section, a person whose sole function in connection with the sale of a security is to provide ministerial functions of escrow, custody or deposit services in accordance with applicable law is liable only if the person participates or materially aids in the sale and the purchaser sustains the burden of proof that the person knew of the existence of facts on which liability is based or that the person’s failure to know of the existence of such facts was the result of the person’s recklessness or gross negligence.

          (5) Any tender specified in this section may be made at any time before entry of judgment.

          (6) Except as otherwise provided in this subsection, no action or suit may be commenced under this section more than three years after the sale. An action under this section for a violation of subsection (1)(b) of this section or ORS 59.135 may be commenced within three years after the sale or two years after the person bringing the action discovered or should have discovered the facts on which the action is based, whichever is later. Failure to commence an action on a timely basis is an affirmative defense.

          (7) No action may be commenced under this section solely because an offer was made prior to registration of the securities.

          (8) Any person having a right of action against a broker-dealer, state investment adviser or against a salesperson or investment adviser representative acting within the course and scope or apparent course and scope of authority of the salesperson or investment adviser representative, under this section shall have a right of action under the bond or irrevocable letter of credit provided in ORS 59.175.

          (9) Subsection (4) of this section shall not limit the liability of any person:

          (a) For conduct other than in the circumstances described in subsection (4) of this section; or

          (b) Under any other law, including any other provisions of the Oregon Securities Law.

          (10) Except as provided in subsection (11) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

          (11) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (10) of this section if the action under this section is maintained as a class action pursuant to ORCP 32.

 

          SECTION 319. ORS 59.127 is amended to read:

          59.127. (1) A person who purchases a security is liable as provided in subsection (2) of this section to the person selling the security, if the person:

          (a) Purchases a security, other than a federal covered security, in violation of any condition, limitation or restriction imposed upon a registration under the Oregon Securities Law; or

          (b) Purchases a security by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (the seller not knowing of the untruth or omission), and if the person does not sustain the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.

          (2) The seller may recover:

          (a) Upon a tender of the consideration paid for the security, the security plus interest from the date of purchase equal to the greater of the rate of interest specified in ORS 82.010 for judgments [and decrees] for the payment of money, or the rate provided in the security if the security is an interest-bearing obligation;

          (b) Damages in the amount that would be recoverable upon a tender, plus any amount received on the security, less the consideration paid for the security; or

          (c) If the purchaser no longer owns the security, damages equal to the value of the security when the purchaser disposed of it plus interest on such value at the rate of interest specified in ORS 82.010 for judgments [and decrees] for the payment of money from the date of disposition, less the consideration paid for the security.

          (3) Every person who directly or indirectly controls a purchaser liable under subsection (1) of this section, every partner, limited liability company manager, including a member who is a manager, officer or director of such purchaser, every person occupying a similar status or performing similar functions, and every person who participates or materially aids in the purchase is also liable jointly and severally with and to the same extent as the purchaser, unless the nonpurchaser sustains the burden of proof that the nonpurchaser did not know, and, in the exercise of reasonable care, could not have known, of the existence of facts on which the liability is based. Any person held liable under this section shall be entitled to contribution from those jointly and severally liable with the person.

          (4) Notwithstanding the provisions of subsection (3) of this section, a person whose sole function in connection with the purchase of a security is to provide ministerial functions of escrow, custody or deposit services in accordance with applicable law is liable only if the person participates or materially aids in the purchase and the seller sustains the burden of proof that the person knew of the existence of facts on which liability is based or that the person’s failure to know of the existence of such facts was the result of the person’s recklessness or gross negligence.

          (5) Any tender specified in this section may be made at any time before entry of judgment.

          (6) Except as otherwise provided in this subsection, no action or suit may be commenced under this section more than three years after the purchase. An action under this section for a violation of subsection (1)(b) of this section or ORS 59.135 may be commenced within three years after the purchase or two years after the person bringing the action discovered or should have discovered the facts on which the action is based, whichever is later. Failure to commence an action on a timely basis is an affirmative defense.

          (7) Any person having a right of action against a broker-dealer, state investment adviser or against a salesperson or investment adviser representative acting within the course and scope or apparent course and scope of the authority of the salesperson or investment adviser representative, under this section shall have a right of action under the bond or irrevocable letter of credit provided in ORS 59.175.

          (8) Subsection (4) of this section shall not limit the liability of any persons:

          (a) For conduct other than in the circumstances described in subsection (4) of this section; or

          (b) Under any other law, including any other provisions of the Oregon Securities Law.

          (9) Except as provided in subsection (10) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

          (10) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (9) of this section if the action under this section is maintained as a class action pursuant to ORCP 32.

 

          SECTION 320. ORS 59.131 is amended to read:

          59.131. (1) Except as provided in subsection (3) of this section, no action or suit may be commenced under ORS 59.127 if the seller has received before suit a written notice of intent to return the security as outlined in subsection (2) of this section.

          (2) The notice shall contain:

          (a) An offer to tender the security and interest from the date of purchase, at a rate equal to the greater of the rate of interest specified in ORS 82.010 for judgments [and decrees] for the payment of money or the rate provided in the security if the security is an interest-bearing obligation, less the consideration paid for the security; and

          (b) A statement of the effect on the seller’s rights of failure to respond as required in subsection (3) of this section.

          (3) An action or suit under this section may be commenced after receipt of a notice as outlined in subsection (2) of this section:

          (a) If the seller accepts the offer and gives notice of acceptance within three days after receipt of the offer and fails to receive the contents of such offer as specified in subsection (2)(a) of this section within one day from the date the notice of acceptance was sent; or

          (b) If the seller elects to recover damages as specified in subsection (2)(b) of this section and gives notice of the election within 30 days after receipt of the offer.

          (4) An offer to tender the security pursuant to this section involves the offer for sale of a security. The transaction must be registered under ORS 59.055 unless there is an exemption from the registration requirement or a notice is filed under ORS 59.049.

 

          SECTION 321. ORS 59.305 is amended to read:

          59.305. (1) A person aggrieved by an order of the Director of the Department of Consumer and Business Services which has been the subject of a timely application for hearing before the director shall be entitled to judicial review of the order under ORS 183.310 to 183.550.

          (2) [No decree] A judgment of a reviewing court under ORS 183.310 to 183.550 [shall] may not bar the director from thereafter vacating or modifying an order involved in the proceeding for review, or entering any new order, for a proper cause which was not decided by the reviewing court.

 

          SECTION 322. ORS 59.910 is amended to read:

          59.910. (1) A person aggrieved by an order of the Director of the Department of Consumer and Business Services which has been the subject of a timely application for hearing before the director shall be entitled to judicial review of the order under ORS 183.310 to 183.550.

          (2) [No decree] A judgment of a reviewing court under ORS 183.310 to 183.550 [shall] may not bar the director from thereafter vacating or modifying an order involved in the proceeding for review, or entering any new order, for a proper cause that was not decided by the reviewing court.

 

          SECTION 323. ORS 60.671 is amended to read:

          60.671. (1) If after a hearing the court determines that one or more grounds for judicial dissolution described in ORS 60.661 or 60.952 (2)(m) exist, it may enter a [decree] judgment dissolving the corporation and specifying the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the [decree] judgment to the office for filing. The Secretary of State shall file the certified copy of the [decree] judgment.

          (2) After entering the [decree] judgment of dissolution, the court shall direct the winding up and liquidation of the corporation’s business and affairs in accordance with ORS 60.637 and the notification of claimants in accordance with ORS 60.641 and 60.644.

 

          SECTION 324. ORS 62.365 is amended to read:

          62.365. (1) In the event of a breach or threatened breach of a cooperative contract authorized by ORS 62.355, the cooperative is entitled to an injunction to prevent the breach or any further breach thereof, and to a [decree] judgment of specific performance thereof. Upon filing of a verified complaint showing the breach or threatened breach, and upon filing a sufficient bond, the cooperative is entitled to a temporary restraining order.

          (2) Any person who, with knowledge that a contract exists, induces or attempts to induce any member to breach the contract with the cooperative, or who in any manner aids a breach of the contract, is liable to the cooperative for damages caused by such interference. The cooperative is also entitled to an injunction to prevent any interference or further interference with the contract.

 

          SECTION 325. ORS 62.695 is amended to read:

          62.695. (1) In addition to any other instances in which the law provides such power, a circuit court has full power to dissolve a cooperative and liquidate the assets and business thereof:

          (a) In an action by a member or shareholder when it is established that:

          (A) The members are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors; or

          (B) The corporate assets are being misapplied or wasted.

          (b) In an action by a creditor:

          (A) When the claim of the creditor has been reduced to judgment and an execution thereon returned unsatisfied and it is established that the cooperative is insolvent; or

          (B) When the cooperative has admitted in writing that the claim of the creditor is due and owing and it is established that the cooperative is insolvent.

          (c) Upon application by a cooperative which has commenced voluntary dissolution proceedings as provided in this chapter, to have its liquidation continued under the supervision of the court.

          (d) When an action has been filed by the Attorney General to dissolve a cooperative and it is established that liquidation of its business and affairs should precede the entry of a [decree] judgment of dissolution.

          (2) Venue for a proceeding by the Attorney General to dissolve a corporation lies in Marion County. Venue for a proceeding brought by any other party named in this section lies in the county where a corporation’s principal office is located or, if the principal office is not in this state, where its registered office is or was last located.

          (3) It is not necessary to make members or shareholders parties to any action or proceeding under this section unless relief is sought against them personally.

          (4) A court in a proceeding brought to dissolve a cooperative may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the assets of the cooperative wherever located and carry on the business of the cooperative until a full hearing can be held.

 

          SECTION 326. ORS 62.704 is amended to read:

          62.704. (1) If after a hearing the court determines that one or more grounds for judicial dissolution described in ORS 62.695 exist, it may enter a [decree] judgment dissolving the cooperative and specifying the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the [decree] judgment to the office for filing. The Secretary of State shall file the certified copy of the [decree] judgment.

          (2) After entering the [decree] judgment of dissolution, the court shall direct the winding up and liquidation of the cooperative’s business and affairs in accordance with ORS 62.708 and the notification of claimants in accordance with ORS 62.712 and 62.714.

 

          SECTION 327. ORS 63.621 is amended to read:

          63.621. A limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:

          (1) Upon reaching the time for dissolution, if any, specified in the articles of organization.

          (2) Upon the occurrence of events specified in the articles of organization or any operating agreement.

          (3) By the vote or such other action of the members as provided in the articles of organization or any operating agreement or, if neither the articles of organization nor any operating agreement so provides, by the consent of all the members.

          (4) At such time as the limited liability company has no members.

          (5) Upon administrative dissolution by the Secretary of State under ORS 63.651.

          (6) Upon entry of a [decree] judgment of judicial dissolution under ORS 63.671.

 

          SECTION 328. ORS 63.671 is amended to read:

          63.671. (1) If after a hearing the court determines that one or more grounds for judicial dissolution described in ORS 63.661 exist, it may enter a [decree] judgment dissolving the limited liability company and specifying the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the [decree] judgment to the office for filing. The Secretary of State shall file the certified copy of the [decree] judgment.

          (2) After entering the [decree] judgment of dissolution, the court shall direct the winding up and liquidation of the limited liability company’s business and affairs in accordance with ORS 63.637, the notification of claimants and enforcement of claims in accordance with ORS 63.641 and 63.644, and the distribution of limited liability company assets in accordance with ORS 63.625.

 

          SECTION 329. ORS 65.671 is amended to read:

          65.671. (1) If after a hearing the court determines that one or more grounds for judicial dissolution described in ORS 65.661 exist, it may enter a [decree] judgment dissolving the corporation and specifying the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the [decree] judgment to the Office of the Secretary of State for filing.

          (2) After entering the [decree] judgment of dissolution, the court shall direct the winding up and liquidation of the corporation’s affairs in accordance with ORS 65.637 and the notification of claimants in accordance with ORS 65.641 and 65.644.

 

          SECTION 330. ORS 65.757 is amended to read:

          65.757. (1) If after a hearing the court determines that one or more grounds for judicial revocation of authority described in ORS 65.751 exists, it may enter a [decree] judgment revoking the corporation’s authority to transact business in Oregon and specifying the effective date of the revocation. The clerk of the court shall deliver a certified copy of the [decree] judgment to the Office of the Secretary of State for filing.

          (2) The authority of a foreign corporation to transact business in Oregon ceases as of the date of the [decree] judgment of revocation.

          (3) The [decree] judgment of revocation of a foreign corporation’s authority to transact business in this state appoints the Secretary of State the foreign corporation’s agent for service of process in any proceeding based on a cause of action which arose during the time the foreign corporation was authorized to transact business in this state.

          (4) Revocation of a foreign corporation’s authority to transact business in this state terminates the authority of the registered agent of the corporation.

 

          SECTION 331. ORS 65.870 is amended to read:

          65.870. Burial lots or space for burial of incinerate remains in buildings or grounds sold by a nonprofit corporation organized and existing solely for the purposes of either owning and operating a cemetery or cremating dead bodies and burying and caring for incinerate remains shall be for the sole purpose of interment or deposit and safekeeping of incinerate remains. Such lots or space shall be exempt from execution, attachment or other lien or process, if used as intended by the purchaser thereof from such corporation, or the assigns or representatives of the purchaser, exclusively for burial purposes, and in no wise with a view to profit. Such lots or space shall be exempt from taxation as provided in ORS 307.150. The vendor of any gravestone, however, shall not be prevented from having and enforcing a lien thereon for all or part of its purchase price. If a suit is brought to enforce such a lien, the [decree] judgment therein is enforceable thereafter; and, for the purpose of enabling the lien to be had and enforced, the gravestone shall be deemed personal property and may be severed and removed, under execution and order of sale, from the lot where it is situated and may be sold in the same manner as any other personal property.

 

          SECTION 332. ORS 70.330 is amended to read:

          70.330. On application by or for a partner, the circuit court may [decree] enter a judgment for the dissolution of a limited partnership whenever it is not reasonably practicable to carry on the business in conformity with the partnership agreement.

 

          SECTION 333. ORS 72.7160 is amended to read:

          72.7160. (1) A judgment requiring specific performance may be [decreed where] entered if the goods are unique or in other proper circumstances.

          (2) The [decree] judgment for specific performance may include such terms and conditions as to payment of the price, damages or other relief as the court may deem just.

          (3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort the buyer is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family or household purposes, the buyer’s right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.

 

          SECTION 334. ORS 72A.5210 is amended to read:

          72A.5210. (1) A judgment requiring specific performance may be [decreed] entered if the goods are unique or in other proper circumstances.

          (2) A [decree] judgment for specific performance may include any terms and conditions as to payment of the rent, damages or other relief that the court considers just.

          (3) A lessee has a right of replevin, detinue, sequestration, claim and delivery or the like for goods identified to the lease contract if after reasonable effort the lessee is unable to effect cover for those goods or the circumstances reasonably indicate that the effort will be unavailing.

 

          SECTION 335. ORS 87.146 is amended to read:

          87.146. (1) Except as provided in subsection (2) of this section:

          (a) Liens created by ORS 87.152 to 87.162 have priority over all other liens, security interests and encumbrances on the chattel subject to the lien, except that taxes and duly perfected security interests existing before chattels sought to be subjected to a lien created by ORS 87.162 are brought upon the leased premises have priority over that lien.

          (b) Liens created by ORS 87.216 to 87.232 have equal priority. When a [decree] judgment is given foreclosing two or more liens created by ORS 87.216 to 87.232 upon the same chattel, the debts secured by those liens shall be satisfied pro rata out of the proceeds of the sale of the property.

          (c) With regard to the same chattel, a lien created by ORS 87.216 to 87.232 has priority over a nonpossessory chattel lien created by any other law.

          (d) With regard to the same chattel, a lien created by ORS 87.216 is junior and subordinate to a duly perfected security interest in existence when the notice of claim of such lien is filed under ORS 87.242.

          (e) With regard to the same chattel, a lien created by ORS 87.222 to 87.232 has priority over a security interest created under ORS chapter 79.

          (2)(a) A personal property tax lien, a chattel lien claimed by the State of Oregon, its agencies or any political subdivision thereof, and a chattel lien claimed by a state officer or employee during the course of official duty pursuant to law have priority over a lien created by ORS 87.152 to 87.162 and 87.216 to 87.232.

          (b) A duly perfected security interest of a lessor in any portion of crops or animals to pay or secure payment of rental of the premises upon which those crops or animals are grown, not to exceed 50 percent of those crops or animals, shall not be subject to the lien created by ORS 87.226.

 

          SECTION 336. ORS 87.342 is amended to read:

          87.342. (1) The owner of a chattel subject to a lien created by ORS 87.216 to 87.232, or any other interested person, may file with the recording officer of the county in whose office the claim of lien is filed a bond executed by a corporation authorized to issue surety bonds in the State of Oregon to the effect that the owner of the chattel against which the lien is claimed shall pay the amount of the claim and all costs and attorney fees which are awarded against the chattel on account of the lien. The bond shall be in an amount not less than 150 percent of the amount claimed under the lien, and must be filed prior to the commencement of a foreclosure proceeding by the lien claimant.

          (2)(a) In lieu of the surety bond provided for in subsection (1) of this section, a person may deposit with the treasurer of the county in which the claim for lien is filed an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008, or a sum of money or its equivalent equal in value to 150 percent of the amount claimed under the lien.

          (b) When a person deposits money or an irrevocable letter of credit with the treasurer of a county under this subsection, the person shall file with the recording officer of the same county an affidavit stating that the deposit was made.

          (3) When a bond is filed under subsection (1) of this section or an irrevocable letter of credit or money deposited and an affidavit filed under subsection (2) of this section, the recording officer shall issue to the owner or other person a certificate stating that the bond, irrevocable letter of credit or money is substituted for the chattel and that the lien on the chattel is discharged. A marginal entry of the discharge and bond, irrevocable letter of credit or money shall be made in the index of liens on chattels containing the original record of the claim of lien.

          (4) When a bond is filed under subsection (1) of this section, or money or an irrevocable letter of credit is deposited under subsection (2) of this section, the owner or other person filing the bond or depositing the money or an irrevocable letter of credit shall promptly send a copy of the certificate received from the recording officer under subsection (3) of this section to the lien claimant by registered or certified mail sent to the lien claimant at the last-known address of the lien claimant.

          (5) If the lien claimant establishes the validity of the lien claim by a suit to enforce it, the lien claimant is entitled to judgment [or decree] against the sureties upon the bond, against the irrevocable letter of credit issuer or against the deposited money.

 

          SECTION 337. ORS 87.435 is amended to read:

          87.435. (1) The owner of papers or personal property subject to a lien created by ORS 87.430, or any other interested person, may file with the recording officer of the county in which the attorney has the principal office of the attorney a bond executed by a corporation authorized to issue surety bonds in the State of Oregon to the effect that the owner of the papers and personal property against which the lien is claimed shall pay the amount of the claim and all costs which are awarded against the papers and personal property on account of the lien. The bond shall be in an amount not less than 150 percent of the amount claimed under the lien, and must be filed prior to the commencement of a foreclosure proceeding by the attorney.

          (2)(a) In lieu of the surety bond provided for in subsection (1) of this section, a person may deposit with the treasurer of the county in which the attorney has the principal office of the attorney an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008, or a sum of money or its equivalent equal in value to 150 percent of the amount claimed under the lien.

          (b) When a person deposits money or an irrevocable letter of credit with the treasurer of a county under this subsection, the person shall file with the recording officer of the same county an affidavit stating that the deposit was made.

          (3) When a bond is filed under subsection (1) of this section or money or an irrevocable letter of credit deposited and an affidavit filed under subsection (2) of this section, the recording officer shall issue to the owner or other person a certificate stating that the bond, irrevocable letter of credit or money is substituted for the chattel and that the lien on the chattel is discharged.

          (4) When a bond is filed under subsection (1) of this section, or money or an irrevocable letter of credit is deposited under subsection (2) of this section, the owner or other person filing the bond or depositing the money shall promptly send a copy of the certificate received from the recording officer under subsection (3) of this section to the attorney by registered or certified mail.

          (5) If the attorney establishes the validity of the lien claim by a suit to enforce it under ORS chapter 88, the attorney is entitled to judgment [or decree] against the sureties upon the bond, against the irrevocable letter of credit issuer or against the deposited money.

 

          SECTION 338. ORS 87.445 is amended to read:

          87.445. An attorney has a lien upon actions, suits and proceedings after the commencement thereof, and judgments, [decrees,] orders and awards entered therein in the client’s favor and the proceeds thereof to the extent of fees and compensation specially agreed upon with the client, or if there is no agreement, for the reasonable value of the services of the attorney.

 

          SECTION 339. ORS 87.455 is amended to read:

          87.455. (1) When an attorney claims a lien under ORS 87.445, if the judgment [or decree] is for the possession, award or transfer of personal property, the attorney must file a notice of claim of lien not later than one year after entry of the [final] judgment [or decree] and disposition of any appeal [thereof] of the judgment. The notice shall be filed with the recording officer of the county in which the judgment [or decree] is rendered, with the recording officer of the county, if known, in which the personal property is located and with the recording officer of the county, if known, in which the attorney’s client resides. The recording officer of a county shall record the notices filed under this section in a book called “index of liens upon chattels.”

          (2) Except as provided in subsection (3) of this section, a lien under ORS 87.445 on a judgment [or decree] for the possession, award or transfer of personal property must be foreclosed in the manner provided in ORS chapter 88, not later than one year after the notice of claim of lien is filed under subsection (1) of this section.

          (3) An attorney and the client of the attorney may, by an agreement in writing, extend the period of time within which a lien created by ORS 87.445 must be foreclosed to two years after the notice of claim of lien is filed. An agreement to extend a foreclosure period under this subsection shall contain the time and place of the filing of the notice of claim of lien by the attorney and shall be filed with the recording officer with whom the notice of claim of lien was filed.

 

          SECTION 340. ORS 87.460 is amended to read:

          87.460. (1) When an attorney claims a lien under ORS 87.445, if the judgment [or decree] is for the possession, award or conveyance of real property, the attorney must file a notice of claim of lien not later than six months after entry of the [final] judgment [or decree] and disposition of any appeal [thereof] of the judgment. The notice shall be filed with the recording officer of the county in which the real property, or any part of it, is situated. The recording officer of a county shall record the notices filed under this section in a book that shall be indexed in the same manner as the record of deeds and mortgages.

          (2) Except as provided in subsection (3) of this section, a lien under ORS 87.445 upon a judgment [or decree] for the possession, award or conveyance of real property must be foreclosed in the manner provided in ORS chapter 88, not later than one year after the notice of claim of lien is filed under subsection (1) of this section.

          (3) An attorney and the client of the attorney may, by agreement, in writing, extend the period of time within which a lien created by ORS 87.445 must be foreclosed to two years after the notice of claim of lien is filed. An agreement to extend a foreclosure period under this subsection shall contain the time and place of the filing of the notice of claim of lien by the attorney and shall be filed with the recording officer with whom the notice of claim of lien was filed.

 

          SECTION 341. ORS 87.475 is amended to read:

          87.475. (1) Except as provided in subsections (3) and (4) of this section, the lien created by ORS 87.445 is not affected by a settlement between the parties to the action, suit or proceeding before or after judgment, [decree,] order or award.

          (2) Except as provided in subsections (3) and (4) of this section, a party to the action, suit or proceeding, or any other person, does not have the right to satisfy the lien created by ORS 87.445 or any judgment, [decree,] order or award entered in the action, suit or proceeding until the lien, and claim of the attorney for fees based thereon, is satisfied in full.

          (3) A judgment debtor may pay the full amount of a judgment [or decree] into court and the clerk of the court shall thereupon fully satisfy the judgment [or decree] on the record and the judgment debtor shall be thereby released from any further claims thereunder.

          (4) If more than one attorney appears of record for a litigant, the satisfaction of the lien created by ORS 87.445 by any one of the attorneys is conclusive evidence that the lien is fully satisfied.

 

          SECTION 342. ORS 87.480 is amended to read:

          87.480. Attorneys have the same right and power over actions, suits, proceedings, judgments, [decrees,] orders and awards to enforce their liens as their clients have for the amount due thereon to them.

 

          SECTION 343. ORS 87.490 is amended to read:

          87.490. (1) Except for tax liens, prior encumbrances and prior liens of record on the real or personal property subject to the lien created by ORS 87.445, the lien created by ORS 87.445 is superior to all other liens.

          (2) When the lien of an attorney created under ORS 87.445 attaches to a judgment [or decree] allowing or enforcing a client’s lien, the attorney’s lien has the same priority as the client’s lien with regard to personal or real property subject to the client’s lien.

 

          SECTION 344. ORS 87.585 is amended to read:

          87.585. The liens described in ORS 87.555 may be foreclosed by a suit in the circuit court. In any suit brought pursuant to the provisions of ORS 87.581 or this section, upon entering a [decree] judgment for the plaintiff, the court shall allow as part of the costs and disbursements all moneys paid for the filing and recording of the notice of lien, and reasonable attorney fees at trial and on appeal.

 

          SECTION 345. ORS 88.010 is amended to read:

          88.010. Except as otherwise provided by law, a lien upon real or personal property, other than that of a judgment [or decree], whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. Except as provided in ORS 88.070, in addition to the [decree] judgment of foreclosure and sale, if a promissory note or other personal obligation for the payment of the debt has been given by the lien debtor or any other person as principal or otherwise, the court also shall [decree a recovery of] enter a judgment for the amount of the debt against [such] the person or persons[, as the case may be, as in the case of an ordinary decree for the recovery of money]. The provisions of this chapter as to liens upon personal property are not intended to exclude a person having such lien from any other remedy or right in regard to such property.

 

          SECTION 346. ORS 88.020 is amended to read:

          88.020. Any cause of suit involving real property provided for in ORS 88.010 may be joined with any cause of suit provided for in ORS 105.605 in the same complaint or cross-complaint, if both causes of suit involve the same real property or some part thereof and are separately stated. Any person may be joined as a party who is a proper party to either cause of suit. The court, in event of such joinder, may render a [decree which] judgment that will, among other things, determine the paramount title to the real property involved or any part thereof.

 

          SECTION 347. ORS 88.050 is amended to read:

          88.050. When it is adjudged that any of the defendants have a lien upon the property, the court shall make a like [decree] judgment in relation thereto, and the debt secured thereby, as if such defendant were a plaintiff in the suit. When a [decree] judgment is given foreclosing two or more liens upon the same property or any portion thereof in favor of different persons not united in interest, the [decree] judgment shall specify the order, according to their priority, in which the debts secured by such liens shall be satisfied out of the proceeds of the sale of the property.

 

          SECTION 348. ORS 88.060 is amended to read:

          88.060. The [decree] judgment may be enforced by execution as an ordinary [decree] judgment for the recovery of money, except as in this section otherwise provided:

          (1) When a [decree] judgment of foreclosure and sale is given, an execution may issue thereon against the property adjudged to be sold. If the [decree] judgment is in favor of the plaintiff only, the execution may issue as in ordinary cases, but if it is in favor of different persons, not united in interest, it shall issue upon the joint request of such persons or upon the order of the court or judge thereof on the motion of any of them.

          (2) When the [decree] judgment is also against the defendants or any one of them in person, and the proceeds of the sale of the property upon which the lien is foreclosed are not sufficient to satisfy the [decree] judgment as to the sum remaining unsatisfied, the [decree] judgment may be enforced by execution as in ordinary cases. When in such case the [decree] judgment is in favor of different persons not united in interest, it shall be deemed a separate [decree] judgment as to such persons, and may be enforced accordingly.

 

          SECTION 349. ORS 88.070 is amended to read:

          88.070. When a [decree] judgment is given for the foreclosure of any mortgage given to secure payment of the balance of the purchase price of real property, the [decree] judgment shall provide for the sale of the real property covered by such mortgage for the satisfaction of the [decree] judgment given therein, but the mortgagee shall not be entitled to a deficiency judgment on account of the mortgage or note or obligation secured by the same.

 

          SECTION 350. ORS 88.080 is amended to read:

          88.080. A [decree] judgment of foreclosure shall order the mortgaged property sold. Property sold on execution issued upon a [decree] judgment may be redeemed in like manner and with like effect as property sold on an execution pursuant to ORS 23.410 to 23.600, and not otherwise. A sheriff’s deed for property sold on execution issued upon a [decree] judgment shall have the same force and effect as a sheriff’s deed issued for property sold on an execution pursuant to ORS 23.410 to 23.600.

 

          SECTION 351. ORS 88.090 is amended to read:

          88.090. When a suit is commenced to foreclose a lien securing a debt payable in installments, either of interest or principal, and any of such installments is not then due, the court shall [decree a] enter a judgment for the foreclosure of the lien, and may also [decree a sale of] include in the judgment a requirement that the property be sold for the satisfaction of the whole debt, or so much thereof as may be necessary to satisfy the installment then due, with costs of suit. In the latter case, the [decree] judgment of foreclosure as to the remainder of the property may be enforced by an order of sale, in whole or in part, whenever default occurs in the payment of the installments not then due.

 

          SECTION 352. ORS 88.100 is amended to read:

          88.100. If, before a [decree] judgment is given, the amount then due with the costs of suit is brought into court and paid to the clerk, the suit shall be dismissed. If the same is done after [decree] judgment and before sale, the effect of the [decree] judgment as to the amount then due and paid shall be terminated, and the execution, if any has issued, shall be recalled by the clerk. When an installment not due is adjudged to be paid, the court shall determine and specify in the [decree] judgment what sum shall be received in satisfaction thereof, which sum may be equal to such installment, or otherwise, according to the present value thereof.

 

          SECTION 353. ORS 93.190 is amended to read:

          93.190. (1) Every conveyance, deed of trust, mortgage or devise of an interest in or lien upon real or personal property to two or more persons as trustees or personal representatives, creates a joint tenancy in such interest or lien in the trustees or personal representatives unless it is expressly declared in the conveyance, deed of trust, mortgage or devise that the trustees or personal representatives shall take or hold the property as tenants in common or otherwise.

          (2) If the conveyance, deed of trust, mortgage or devise provides for filling any vacancy in the office of trustee or personal representative, it may be filled as therein provided, but a court of competent jurisdiction may fill a vacancy in the trusteeship according to the established rules and principles of equity. In whichever way the vacancy is filled, the new trustee shall hold the property with all powers, rights and duties of an original trustee unless otherwise directed by conveyance, deed of trust, mortgage or devise, or order or [decree] judgment of the court.

 

          SECTION 354. ORS 93.730 is amended to read:

          93.730. A certified copy of any judgment[, decree] or order of confirmation affecting lands in this state made in any [suit] action may be recorded in the records of deeds in any county in which the land affected is wholly or partly situated by any party interested in the land or [suit] in the action. After the transcript is so recorded, the [decree] judgment is notice to all persons of [such suit] the action and of the judgment[,] or order [or decree], as completely as if the entire proceedings were had originally in the county in which the transcript is recorded. The record of the transcript is prima facie evidence of title as therein determined.

 

          SECTION 355. ORS 93.810 is amended to read:

          93.810. The following are subjects of validating or curative Acts applicable to this chapter:

          (1) Evidentiary effect and recordation of conveyances before 1854.

          (2) Evidentiary effect and recordation of certified copies of deeds issued by State Land Board prior to 1885 where original deed was lost.

          (3) Defective acknowledgments of married women to conveyances prior to 1891.

          (4) Foreign instruments executed prior to 1903.

          (5) Deeds of married women before 1907, validity; executed under power of attorney and record as evidence.

          (6) Conveyances by reversioners and remaindermen to life tenant.

          (7) Decrees or judgments affecting lands in more than one county.

          (8) Irregular deeds and conveyances; defective acknowledgments; irregularities in judicial sales; sales and deeds of executors, personal representatives, administrators, conservators and guardians; vested rights arising by adverse title; recordation[,].

          (9) Defective acknowledgments.

          (10) Title to lands from or through aliens.

 

          SECTION 356. ORS 94.816 is amended to read:

          94.816. (1) Except as otherwise provided in this section, no judicial action for partition of a timeshare property may be undertaken as long as the property remains subject to a timeshare plan.

          (2) If any timeshare is owned by two or more persons as tenants in common, as tenants by the entirety or as tenants with rights of survivorship, nothing in this section shall prohibit the judicial sale of the timeshare in lieu of partition as between the cotenants.

          (3) A court of competent jurisdiction, on petition of the developer of a timeshare plan or the developer’s successor in interest, may grant a waiver of the prohibition against partition under subsection (1) of this section, if the court is satisfied that:

          (a) The developer retains at least 50 percent of the timeshares created in the timeshare plan;

          (b) The timeshare plan has failed and the continuation of the use of timeshare property by timeshare owners is no longer possible in the manner prescribed by the timeshare instruments;

          (c) It is in the best interest of timeshare owners to terminate the timeshare plan and that no reasonable alternative to partition of the timeshare property exists;

          (d) The petition has not been brought by the developer to avoid the developer’s responsibilities under the timeshare instrument without good cause; and

          (e) The holder of each blanket encumbrance consents to the proceeding under this section.

          (4) Except as otherwise provided in subsection (5) of this section, upon a court declaration of timeshare plan failure under subsection (3) of this section, the court shall proceed to partition the timeshare property as otherwise provided by law.

          (5) In the event of a court ordered sale in connection with partition, proceeds of the sale shall be applied in the following order:

          (a) Costs described in ORS 105.285 (1) and (2);

          (b) Repayment to owners except the developer of down payments and payments of principal and interest paid by such owners for their timeshares less the value, as determined by the court, of the owners’ use of their timeshares;

          (c) Payments to satisfy and discharge the remaining timeshare purchase money obligations of all owners except the developer. If the developer or an entity closely related to the developer holds the beneficial interest in any of such purchase money obligations, funds shall first be applied to discharge the purchase money obligations held by other holders, and then to the credit of the developer and its related entity for purchase money obligations held by the developer or such entity. Funds paid to the developer or the related entity’s credit shall be held by the court as proceeds available to lienholders and other claimants in such partition. If there are insufficient funds to fully discharge purchase money obligations of all owners except the developer, the balance of unsatisfied purchase money obligations of all owners except the developer shall be discharged by [decree] judgment of the court; and

          (d) As otherwise provided by law.

 

          SECTION 357. ORS 97.580 is amended to read:

          97.580. No conveyance or other action of the owner without the written consent or joinder of the spouse of the owner divests the spouse of the vested right of interment, except that a [final decree] judgment of divorce between them terminates the right unless otherwise provided in the [decree] judgment.

 

          SECTION 358. ORS 97.890 is amended to read:

          97.890. (1) Upon the adoption of the resolution described in ORS 97.880 the officers of the cemetery association may file a complaint in the circuit court for the county in which the cemetery is located against the owners, holders or parties interested in such abandoned portion of its cemetery demanding that the court require such owners, holders or interested parties to keep the premises clear of weeds and brush and in condition in harmony with other lots and, if the owners, holders, or interested parties fail to appear in court and comply with the order of the court, demanding that the court make a [decree] judgment declaring such portions of the cemetery a common nuisance, directing the governing board to abate the nuisance by clearing the premises and keeping them clear of weeds and brush, creating a lien upon such lots and parcels in favor of the cemetery association or other proprietor, [decreeing] providing that the lien be foreclosed and the lots and parcels be sold in the same manner as other sales upon execution are made and authorizing the governing board to become a purchaser thereof on behalf of the association or the proprietor.

          (2) In such suit any number of owners of different lots, subdivisions of lots, pieces or parcels of the cemetery may be included in the one suit.

          (3) It is a sufficient designation of the property so abandoned and unimproved to give the lot number or portion thereof, or a description of the piece or parcel having no lot number, together with the name of the owner thereof, as appears on the record of the cemetery association.

          (4) In addition to the names of the persons that appear on the records of the cemetery association as the record owners of such unused and unimproved portions of the cemetery, the plaintiff shall include as a defendant in a complaint the following: “Also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint.”

 

          SECTION 359. ORS 97.900 is amended to read:

          97.900. (1) Summons shall be served upon all owners or holders who are residents of this state in like manner as in service of summons in a civil action if such owners and holders are known to the sheriff in the county in which the cemetery is located. If the defendants are not known to the sheriff, it is sufficient to serve the owners and holders whose names appear on the tax rolls of the county for the year previous to that in which the suit is started. The plaintiff is not required to mail a copy of the summons or complaint to nonresident defendants.

          (2) All owners and holders of such unimproved lots whose names do not appear on the tax rolls as aforesaid as shown by the return of the sheriff may be served by publication in any legal newspaper published in the county in which the cemetery is located for four consecutive weeks upon return of the sheriff that such owners and holders are not known and cannot be served in the jurisdiction of the sheriff.

          (3) The published summons shall contain the names of the record owners, as shown by the records of the cemetery association, and “also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint,” together with a brief description of the lot, or subdivisions of lots, pieces or parcels of the cemetery and a statement setting forth the order and [decree] judgment described in ORS 97.890 (1) for which the plaintiff has applied to the court in the complaint. Such summons shall require all parties defendant to appear and show cause why an order should not be made declaring the unused and unimproved portions of the cemeteries to be a common nuisance, directing the cemetery association or other proprietor to abate the nuisance, creating a lien thereon, [decreeing] providing that it be foreclosed and directing that the unused and unimproved portion of the cemetery be sold within four weeks from and after the date of the first publication thereof.

 

          SECTION 360. ORS 97.920 is amended to read:

          97.920. Upon the failure of the owner of the premises to comply with the order of the court requiring proper care of the premises or upon the failure of any of the defendants to appear and answer the complaint or upon the trial of the cause, if the court finds that the allegations of the complaint are supported by the evidence and that the summons has been served as provided in ORS 97.900, the court may enter a [decree] judgment in accordance with the allegations of the complaint and the provisions of ORS 97.890 (1).

 

          SECTION 361. ORS 105.240 is amended to read:

          105.240. The rights of the plaintiffs and defendants may be put in issue, tried and determined in the suit. If a defendant fails to answer, or if a sale of the property is necessary, the title shall be ascertained by proof to the satisfaction of the court before the [decree] judgment for partition or sale is given.

 

          SECTION 362. ORS 105.245 is amended to read:

          105.245. If it is alleged in the complaint and established by evidence, or if it appears by the evidence to the satisfaction of the court without an allegation in the complaint, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale of the property, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it shall [decree] enter a judgment requiring a partition according to the respective rights of the parties, as ascertained by the court. The court shall appoint three referees to partition the property and shall designate the portion to remain undivided for the owners whose interest remain unknown or not ascertained.

 

          SECTION 363. ORS 105.260 is amended to read:

          105.260. The court may confirm or set aside the report in whole or in part and if necessary appoint new referees. Upon the report being confirmed, a [decree] judgment shall be given stating that the partition shall be effectual forever. Except as provided in ORS 105.265, the [decree] judgment is binding and conclusive:

          (1) On all parties named therein, and their legal representatives, who have at the time any interest in any part of the property divided as owners in fee or as tenants for life or for years.

          (2) On all parties named therein, and their legal representatives, entitled to the reversion, remainder or inheritance of the property or any part thereof after the termination of a particular estate therein, or who by any contingency may be entitled to a beneficial interest in the property.

          (3) On all parties named therein, or their legal representatives, who have an interest in any undivided share of the property as tenants for years or for life.

          (4) On all persons interested in the property who are unknown, to whom notice was given of the application for partition by publication, as directed by ORS 105.230.

          (5) On all persons claiming from parties or persons listed in subsections (1) to (4) of this section.

 

          SECTION 364. ORS 105.265 is amended to read:

          105.265. The [decree] judgment provided for in ORS 105.260 shall not affect tenants for years or for life of the whole of the property which is the subject of partition. Except as provided in ORS 105.260, the [decree] judgment and partition shall not preclude any person from claiming title to the property in question, or from controverting the title of the parties between whom the partition was made.

 

          SECTION 365. ORS 105.270 is amended to read:

          105.270. If the referees report to the court that the property [for which partition has been decreed] to be partitioned, or any separate portion thereof, is so situated that a partition thereof cannot be made without great prejudice to the owners, and the court is satisfied that the report is correct, it may, by an order, direct the referees to sell the property or separate portion thereof so situated.

 

          SECTION 366. ORS 105.285 is amended to read:

          105.285. The proceeds of the sale of encumbered property shall be distributed by the [decree] judgment of the court as follows:

          (1) To pay the property’s just proportion of the general costs of the suit.

          (2) To pay the costs of the reference.

          (3) To satisfy the several liens in their order of priority, by payment of the sums due and to become due, according to the [decree] judgment.

          (4) The residue among the owners of the property sold, according to their respective shares.

 

          SECTION 367. ORS 105.360 is amended to read:

          105.360. The report of sale may be excepted to by any party entitled to a share of the proceeds in like manner and with like effect as in ordinary cases. If the sale is confirmed the order of confirmation shall direct the referees to execute conveyances and take securities pursuant to the sale, which acts they are hereby authorized to do. The order shall discharge the property of the estate or interest of every person mentioned in ORS 105.260 and of tenants for life or years of the property sold. The order shall be binding and conclusive upon all such persons as if it were a [decree] judgment for the partition of such property and except as provided in ORS 105.350, upon all persons whomsoever as to the regularity of the proceedings concerning such sale.

 

          SECTION 368. ORS 105.405 is amended to read:

          105.405. (1) The expenses of the referees, including those of a surveyor and assistants of the surveyor when employed, shall be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, shall be paid by the plaintiff, and may be allowed as part of the costs of partition.

          (2) The reasonable costs of partition, including reasonable attorney fees and disbursements, that are for services performed for the common benefit of all parties, shall be paid by the parties [decreed to] that will share in the lands divided in proportion to their respective interests therein, and shall be included and specified in the [decree] judgment. They shall be a lien on the several shares, and the [decree] judgment may be enforced by execution against the parties separately. When, however, a controversy arises between some of the parties only, the court may require the expense of such controversy to be paid by any of, or all, the parties thereto.

 

          SECTION 369. ORS 105.624 is amended to read:

          105.624. As used in ORS 105.623 to 105.649:

          (1) “Disclaimant” means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.

          (2) “Disclaimed interest” means the interest that would have passed to the disclaimant had the disclaimer not been made.

          (3) “Disclaimer” means the refusal to accept an interest in property or a power over property.

          (4) “Fiduciary” means a personal representative, trustee, agent acting under a power of attorney or other person authorized to act as a fiduciary with respect to the property of another person.

          (5) “Jointly held property” means property held in the name of two or more persons under an arrangement pursuant to which:

          (a) All holders have concurrent interests; and

          (b) The last surviving holder is entitled to the whole of the property.

          (6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, public corporation or any other legal or commercial entity.

          (7) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by another state.

          (8) “Trust” means:

          (a) A charitable or noncharitable express trust, including any additions made to the trust, whenever and however created; and

          (b) A trust created pursuant to a statute[,] or judgment [or decree] that requires the trust to be administered in the same manner as an express trust.

 

          SECTION 370. ORS 105.890 is amended to read:

          105.890. (1) A solar energy easement shall be appurtenant to and run with the real property benefited and burdened by such an easement.

          (2) A solar energy easement shall terminate:

          (a) Upon the conditions stated therein;

          (b) By [court decree] judgment of a court based upon abandonment or changed conditions; or

          (c) At any time by agreement of all owners of benefited and burdened property.

 

          SECTION 371. ORS 105.905 is amended to read:

          105.905. (1) A wind energy easement shall be appurtenant to and run with the real property benefited and burdened by the easement.

          (2) A wind energy easement shall terminate:

          (a) Upon occurrence of the conditions stated in the creating instrument;

          (b) By [court decree] judgment of a court based upon abandonment or changed conditions; or

          (c) At any time by agreement of all the owners of the benefited and burdened property.

 

          SECTION 372. ORS 106.030 is amended to read:

          106.030. When either party to a marriage is incapable of making such contract or consenting thereto for want of legal age or sufficient understanding, or when the consent of either party is obtained by force or fraud, such marriage shall be void from the time it is so declared by [decree] judgment of a court having jurisdiction thereof.

 

          SECTION 373. ORS 106.190 is amended to read:

          106.190. (1) The issue of marriages void under ORS 106.020 are legitimate.

          (2) All children conceived or born of parents who married or who may hereafter marry prior to the expiration of six months from the date of a [decree] judgment of divorce or declaring a marriage void rendered in a suit to which one of the parents was a party or during the period of an appeal from such a [decree] judgment, if the marriage is in all other respects regular, are legitimate.

 

          SECTION 374. ORS 114.135 is amended to read:

          114.135. If the decedent and the surviving spouse were living apart at the time of the death of the decedent, whether or not there was a [decree] judgment for legal separation, the court in its discretion may deny any right to elect against the will, may reduce the elective share of the spouse to such amount as the court determines reasonable and proper or may grant the full elective share in accordance with the circumstances of the particular case. The court, in deciding what elective share, if any, should be granted, shall consider the length of the marriage, whether the marriage was a first or subsequent marriage for either or both of the spouses, the contribution of the surviving spouse to the property of the decedent in the form of services or transfers of property, the length and cause of the separation and any other relevant circumstances.

 

          SECTION 375. ORS 116.083 is amended to read:

          116.083. (1) A personal representative shall make and file in the estate proceeding a verified account of the personal representative’s administration:

          (a) Unless the court orders otherwise, annually within 30 days after the anniversary date of the personal representative’s appointment.

          (b) Within 30 days after the date of the personal representative’s removal or resignation or the revocation of the personal representative’s letters.

          (c) When the estate is ready for final settlement and distribution.

          (d) At such other times as the court may order.

          (2) Each account shall include the following information:

          (a) The period of time covered by the account.

          (b) The total value of the property with which the personal representative is chargeable according to the inventory, or, if there was a prior account, the amount of the balance of the prior account.

          (c) All money and property received during the period covered by the account.

          (d) All disbursements made during the period covered by the account. Vouchers for disbursements shall accompany the account, unless otherwise provided by order or rule of the court, or unless the personal representative is a trust company that has complied with ORS 709.030, but that personal representative shall:

          (A) Maintain the vouchers for a period of not less than one year following the date on which the order approving the final account is entered;

          (B) Permit interested persons to inspect the vouchers and receive copies thereof at their own expense at the place of business of the personal representative during the personal representative’s normal business hours at any time prior to the end of the one-year period following the date on which the order approving the final account is entered; and

          (C) Include in each annual account and in the final account a statement that the vouchers are not filed with the account but are maintained by the personal representative and may be inspected and copied as provided in subparagraph (B) of this paragraph.

          (e) The money and property of the estate on hand.

          (f) Such other information as the personal representative considers necessary to show the condition of the affairs of the estate or as the court may require.

          (3) When the estate is ready for final settlement and distribution, the account shall also include:

          (a) A statement that all Oregon income, inheritance and personal property taxes, if any, have been paid, or if not so paid, that payment of those taxes has been secured by bond, deposit or otherwise, and that all required tax returns have been filed.

          (b) A petition for a [decree] judgment authorizing the personal representative to distribute the estate to the persons and in the portions specified therein.

          (4) If the distributees consent thereto in writing and all creditors of the estate have been paid in full, the personal representative, in lieu of the final account otherwise required by this section, may file a verified statement that includes the following:

          (a) The period of time covered by the statement.

          (b) A statement that all creditors have been paid in full.

          (c) The statement and petition referred to in subsection (3) of this section.

 

 

Notice of time for filing objections to the verified statement is not required.

          (5) The Chief Justice of the Supreme Court may by rule specify the form and contents of accounts that must be filed by a personal representative.

 

          SECTION 376. ORS 116.093 is amended to read:

          116.093. (1) Upon filing the final account and petition for [decree] a judgment of distribution, the personal representative shall fix a time for filing objections thereto in a notice thereof. Not less than 20 days before the time fixed in the notice, the personal representative shall cause a copy of the notice to be mailed to:

          (a) Each heir at the last-known address of the heir, if the decedent died intestate.

          (b) Each devisee at the last-known address of the devisee, if the decedent died testate.

          (c) Each creditor who has not received payment in full and whose claim has not otherwise been barred.

          (d) Any other person known to the personal representative to have or to claim an interest in the estate being distributed.

          (2) The notice need not be mailed to the personal representative.

          (3) Proof of the mailing to those persons entitled to notice shall be made by affidavit and filed in the estate proceeding at or before approval of the final account.

          (4) If the Department of Human Services has presented a claim under ORS chapters 411 to 415 and ORS 416.310 to 416.340 and 416.510 to 416.990 or 417.010 to 417.080, or the Department of Corrections or the authorized agent of the Department of Corrections has presented a claim under ORS 179.620 (3), and the claim has not been settled or paid in full, the personal representative shall mail to the appropriate department a copy of the final account at the same time, and shall make proof of the mailing in the same manner, as the notice provided for in this section.

 

          SECTION 377. ORS 116.113 is amended to read:

          116.113. (1) If no objections to the final account and petition for distribution are filed, or if objections are filed, upon the hearing, the court shall give [its decree] a judgment of final distribution. In [its decree] the judgment the court shall designate the persons in whom title to the estate available for distribution is vested and the portion of the estate or property to which each is entitled under the will, by agreement approved by the court or pursuant to intestate succession. The [decree] judgment shall also contain any findings of the court in respect to:

          (a) Advancements.

          (b) Election against will by the surviving spouse.

          (c) Renunciation.

          (d) Lapse.

          (e) Adjudicated controversies.

          (f) Partial distribution, which shall be confirmed or modified.

          (g) Retainer.

          (h) Claims for which a special fund is set aside, and the amount set aside.

          (i) Contingent claims that have been allowed and are still unpaid.

          (j) Approval of the final account in whole or in part.

          (2) The personal representative is not entitled to approval of the final account until Oregon income and personal property taxes, if any, have been paid and appropriate receipts and clearances therefor have been filed, or until payment of those taxes has been secured by bond, deposit or otherwise, provided, however, that no such receipts or clearances shall be required with regard to damages accepted upon settlement of a claim or recovered on a judgment in an action for wrongful death as provided in ORS 30.010 to 30.100.

          (3) If, by agreement approved by the court, property is distributed to persons in whom title is vested by the [decree] judgment of final distribution otherwise than as provided by the will or pursuant to intestate succession, the [decree] judgment operates as a transfer of the property between those persons.

          (4) The [decree] judgment of final distribution is a conclusive determination of the persons who are the successors in interest to the estate and of the extent and character of their interest therein, subject only to the right of appeal and the power of the court to vacate the [decree] judgment.

 

          SECTION 378. ORS 116.203 is amended to read:

          116.203. If a report filed in the estate proceeding by the personal representative not less than 30 days after the date of entry of the [decree] judgment of distribution shows that payment or delivery of property in the possession of the personal representative or under the control of the personal representative cannot be made to a distributee entitled thereto, either because the distributee refuses to accept the property or because the distributee cannot be found, the court may direct the personal representative to pay or deliver the property to the Division of State Lands, to be placed in the escheat funds of the state. The personal representative shall take the receipt of the Division of State Lands stating from whom the property was received, a description of the property and the name of the person entitled to the property. The person entitled thereto may apply for and recover the property in the manner provided for recovery of escheat funds.

 

          SECTION 379. ORS 116.213 is amended to read:

          116.213. Upon the filing of receipts or other evidence satisfactory to the court that distribution has been made as ordered in the [final decree] general judgment, the court shall enter [an order] a supplemental judgment of discharge. Except as provided in ORS 115.004, the discharge so entered operates as a release of the personal representative from further duties and as a bar to any action against the personal representative and the surety of the personal representative. The court may, in its discretion and upon such terms as may be just, within one year after entry of the [order] supplemental judgment of discharge, permit an action to be brought against the personal representative and the surety of the personal representative if the [order] supplemental judgment of discharge was taken through fraud or misrepresentation of the personal representative or the surety of the personal representative or through the mistake, inadvertence, surprise or excusable neglect of the claimant.

 

          SECTION 380. ORS 116.253 is amended to read:

          116.253. (1) Within 10 years after the entry of a [decree] judgment of final distribution designating title to an estate available for distribution in the Division of State Lands or an order of escheat to the state, a claim may be made for the property escheated, or the proceeds thereof, by or on behalf of a person not having actual knowledge of the [decree] judgment or order.

          (2) The claim shall be made by a petition filed with the Director of the Division of State Lands. The claim is considered a contested case as provided in ORS 183.310 and there is the right of judicial review as provided in ORS 183.480. The petition shall be verified in the same manner as a complaint and shall state:

          (a) The age and place of residence of the claimant by whom or on whose behalf the petition is filed;

          (b) That the claimant lawfully is entitled to the property or proceeds, briefly describing the property or proceeds;

          (c) That at the time the property escheated to the state the claimant had no knowledge or notice thereof;

          (d) That the claimant claims the property or proceeds as an heir or as the personal representative of the estate of an heir, setting forth the relationship of the decedent who at the time of death was the owner;

          (e) That 10 years have not elapsed since the entry of the [decree] judgment or order escheating the property to the state; and

          (f) If the petition is not filed by the claimant, the status of the petitioner.

          (3) If it is determined that the claimant is entitled to the property or the proceeds thereof, the Director of the Division of State Lands shall deliver the property to the petitioner, subject to and charged with the inheritance tax thereon, if any, and the costs and expenses of the state in connection therewith.

          (4) If the person whose property escheated or reverted to the state was at any time an inmate of a state institution in Oregon for the mentally ill or mentally deficient, the reasonable unpaid cost, as determined by the Department of Human Services, of the care and maintenance of the person while a ward of the institution, regardless of when the cost was incurred, may be deducted from, or, if necessary, be offset in full against, the amount of the escheated property.

 

          SECTION 380a. If Senate Bill 64 becomes law, section 380 of this 2003 Act (amending ORS 116.253) is repealed and ORS 116.253, as amended by section 18, chapter 395, Oregon Laws 2003 (Enrolled Senate Bill 64), is amended to read:

          116.253. (1) Within 10 years after the death of a decedent whose estate escheated in whole or in part to the state, or within eight years after the entry of a [decree] judgment or order escheating property of an estate to the state, a claim may be made for the property escheated, or the proceeds thereof, by or on behalf of a person not having actual knowledge of the escheat or by or on behalf of a person who at the time of the escheat was unable to prove entitlement to the escheated property.

          (2) The claim shall be made by a petition filed with the Director of the Division of State Lands. The claim is considered a contested case as provided in ORS 183.310 and there is the right of judicial review as provided in ORS 183.480. The petition shall be verified in the same manner as a petition in probate and shall state:

          (a) The age and place of residence of the claimant by whom or on whose behalf the petition is filed;

          (b) That the claimant lawfully is entitled to the property or proceeds, briefly describing the property or proceeds;

          (c) That at the time the property escheated to the state the claimant had no knowledge or notice thereof or was unable to prove entitlement to the escheated property and has subsequently acquired new evidence of that entitlement;

          (d) That the claimant claims the property or proceeds as an heir or devisee or as the personal representative of the estate of an heir or devisee, setting forth the relationship, if any, of the claimant to the decedent who at the time of death was the owner;

          (e) That 10 years have not elapsed since the death of the decedent, or that eight years have not elapsed since the entry of the [decree] judgment or order escheating the property to the state; and

          (f) If the petition is not filed by the claimant, the status of the petitioner.

          (3) If it is determined that the claimant is entitled to the property or the proceeds thereof, the Director of the Division of State Lands shall deliver the property to the petitioner, subject to and charged with any tax on the property and the costs and expenses of the state in connection therewith.

          (4) If the person whose property escheated or reverted to the state was at any time an inmate of a state institution in Oregon for the mentally ill or mentally deficient, the reasonable unpaid cost, as determined by the Department of Human Services, of the care and maintenance of the person while a ward of the institution, regardless of when the cost was incurred, may be deducted from, or, if necessary, be offset in full against, the amount of the escheated property.

          (5) For the purposes of this section, the death of the decedent is presumed to have occurred on the date shown in the decedent’s death certificate or in any other similar document issued by the jurisdiction in which the death occurred or issued by an agency of the federal government.

 

          SECTION 381. ORS 118.350 is amended to read:

          118.350. (1) Whenever an estate, devise, legacy or beneficial interest therein, charged or sought to be charged with the inheritance tax is of such nature or is so disposed that the liability of the same is doubtful, or the value thereof cannot with reasonable certainty be ascertained under the provisions of law, the Department of Revenue may compromise with the beneficiaries or representatives of such estate, and compound the tax thereon. The payment of the amount of the taxes so agreed upon shall discharge the lien against the property of the estate.

          (2) In any suit or action involving the title to real property, in which it appears, by the pleadings or otherwise, that an inheritance tax is or might be payable to the State of Oregon by reason of the death of any person whose estate has not been administered in Oregon, the circuit court shall direct that a copy of the pleadings in such cause be served upon the Department of Revenue, such service to be made as summons is served in any cause in the circuit court of this state. Thereupon further proceedings in the cause shall be suspended until the department has had an opportunity to appear therein, such appearance to be made within the time that is required by the service of summons upon a private person or corporation. The department shall appear in the cause and present the claims of the state, if any, to an inheritance tax, and it is the duty of the Attorney General of the state to represent the state and the department in such proceedings, and the department may compromise and compound the tax claimed to be due upon the passing of such real property. Such settlement and compromise shall be entered of record in the register of such court. Thereafter the payment of the amount of taxes so agreed upon shall discharge the inheritance tax lien against the property. If a compromise is not effected, the amount of tax, if any, due upon the passing of the real property shall be determined by the court as are other questions involved in such litigation, and subject to the same right of appeal to the Court of Appeals. The [decree] judgment of the court or of the Court of Appeals, if there is an appeal, is conclusive as to the amount of taxes due upon the passing of the real property and payment thereof shall discharge the lien against the property.

 

          SECTION 382. ORS 118.830 is amended to read:

          118.830. The proof required by ORS 118.820 may be in the form of a certificate issued by the official or body charged with the administration of the death tax laws of the domiciliary state but if such proof is not filed within the time limit set out in ORS 118.820, the clerk of the court forthwith shall notify by mail the official or body of the domiciliary state charged with the administration of the death tax laws thereof with respect to such estate, and shall state in such notice as far as is known to the clerk, the name, date of death and last domicile of such decedent; the name and address of each executor or administrator; a summary of the values of the real estate, tangible personalty and intangible personalty, wherever situated, belonging to such decedent at the time of death; and the fact that such executor or administrator has not filed theretofore the proof required in ORS 118.820. The clerk shall attach to such notice a plain copy of the will and codicils of such decedent, if the decedent died testate, or if the decedent died intestate, a list of heirs and next of kin of the decedent, so far as is known to such clerk. Within 60 days after the mailing of such notice, the official or body charged with the administration of the death tax laws of the domiciliary state may file with the court in this state a petition for an accounting in such estate. Such official or body of the domiciliary state shall be deemed a party interested for the purpose of petitioning the court for such accounting. If such petition is filed within the period of 60 days, the court shall [decree such] order the accounting, and upon the accounting being filed and approved shall [decree] enter a judgment requiring the remission to the fiduciary appointed by the domiciliary probate court of the balance of the intangible personalty after the payment of creditors and expenses of administration in this state.

 

          SECTION 383. ORS 128.001 is amended to read:

          128.001. (1) Except as provided in this section, a person may not accept anything of value in exchange for the preparation of a trust.

          (2) Subsection (1) of this section does not apply to an attorney who charges and accepts a fee for the preparation of a trust for a client in the course of representing that client.

          (3) Subsection (1) of this section does not apply to any trust company or financial institution as defined in ORS chapter 706.

          (4) Subsection (1) of this section does not apply to a resulting or constructive trust, a business trust that provides for certificates to be issued to the beneficiary, an investment trust, a voting trust, a security instrument, a trust created by the judgment [or decree] of a court, a liquidation trust, a trust for the primary purpose of paying dividends, interests, interest coupons, salaries, wages, pensions, profits or employee benefits of any kind, an instrument in which a person is nominee or escrowee for another person or a trust created in deposits in any financial institution.

          (5) Nothing in this section authorizes any person to engage in the practice of law in violation of ORS 9.160.

 

          SECTION 384. ORS 128.005 is amended to read:

          128.005. As used in ORS 128.003 to 128.051 and 128.065:

          (1) “Trust” means an express trust created by a trust instrument, including a will, whereby a trustee has the duty to administer a trust asset for the benefit of a named or otherwise described income or principal beneficiary, or both; “trust” does not include a resulting or constructive trust, a business trust which provides for certificates to be issued to the beneficiary, an investment trust, a voting trust, a security instrument, a trust created by the judgment [or decree] of a court, a liquidation trust, or a trust for the primary purpose of paying dividends, interests, interest coupons, salaries, wages, pensions or profits, or employee benefits of any kind, an instrument wherein a person is nominee or escrowee for another, a trust created in deposits in any financial institution, or other trust the nature of which does not admit of general trust administration.

          (2) “Trustee” means an original, added, or successor trustee and includes the state, or any agency thereof, when it is acting as the trustee of a trust as defined in this section.

 

          SECTION 385. ORS 128.720 is amended to read:

          128.720. Every person who offers for probate any instrument which establishes a testamentary trust of property for charitable purposes or who records in any county any inter vivos transfer of property for charitable purposes shall furnish a copy of such document to the Attorney General. Upon filing the final account and petition for [decree] a judgment of distribution of any estate through which a residuary testamentary trust for charitable purposes is established, the personal representative shall mail a copy thereof, and a copy of the notice fixing the time for filing objections thereto, to the Attorney General not less than 20 days before the time fixed in the notice. The custodian of the records of a court having jurisdiction of probate matters or of charitable trusts shall furnish such copies of papers, records and files of the office of the custodian relating to the subject of ORS 128.610 to 128.750 as the Attorney General requires.

          NOTE: Section 386 was deleted by amendment. Subsequent sections were not renumbered.

 

          SECTION 387. Section 14, chapter 666, Oregon Laws 2001, is amended to read:

          Sec. 14. (1) If no financial institution has filed the affidavit described in section 11 (1), chapter 666, Oregon Laws 2001, [of this 2001 Act,] and if the court has failed to uphold the claim or affidavit of any other person claiming an interest in the property, the effect of the judgment is that:

          (a) Title to the property passes to the seizing agency free of any interest or encumbrance thereon in favor of any person who has been given notice;

          (b) The seizing agency may transfer good and sufficient title to any subsequent purchaser or transferee, and all courts, the state and the departments and agencies of this state, and any political subdivision shall recognize the title. In the case of real property, the seizing agency shall warrant the title against constitutional defect. A warranty under this paragraph is limited to the purchase price of the real property; and

          (c) Any department, agency or officer of this state or any political subdivision whose official functions include the issuance of certificates or other evidence of title is immune from civil or criminal liability when such issuance is pursuant to a judgment of criminal forfeiture.

          (2) If an affidavit is filed by a financial institution under section 11 (1), chapter 666, Oregon Laws 2001, [of this 2001 Act,] or if a person files an affidavit under section 11 (2), chapter 666, Oregon Laws 2001 [of this 2001 Act]:

          (a) The court shall foreclose all security interests, liens and vendor’s interests of financial institutions and claimants as to which the court determines that there is a legal or equitable basis for foreclosure; and

          (b) All other interests applicable to the property that are not foreclosed or otherwise eliminated through a judgment [and decree] of foreclosure, if and to the extent that they are valid and subsisting, remain in effect and the property remains subject to them upon completion of the criminal forfeiture proceeding.

          (3) Notwithstanding any other provision of law, if a financial institution or other person has filed an affidavit described in section 11, chapter 666, Oregon Laws 2001, [of this 2001 Act,] or if the court has upheld the claim of any claimant, then as to each item of property seized:

          (a) If the court has determined that the property should not be forfeited and has not foreclosed the security interests, liens or other interests covering the property, the court shall render judgment in favor of the owner of the property, the property must be returned to the owner and all security interests, liens and other interests applicable to the property remain in effect as though the property had never been seized. Upon the return of the property to the owner, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure.

          (b) If the court has determined that the property should not be forfeited and has foreclosed one or more interests covering the property, including security interests or liens covering the property or contracts for the transfer or conveyance of the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court within such time as may be prescribed by the court following entry of the judgment. If any interests covering the property have not been foreclosed, including any liens or security interests of a claimant whose claim has been upheld, or of a financial institution that has filed the affidavit described in section 11, chapter 666, Oregon Laws 2001, [of this 2001 Act,] the property must be sold subject to those interests. The judgment shall order the proceeds of the sale applied in the following order:

          (A) To the payment of the costs of the sale;

          (B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and

          (C) The excess, if any, to the owner of the property.

          (c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property must be sold subject to the interest. The sale of the property must be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale applied in the following order:

          (A) To the payment of the costs of the sale;

          (B) To the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority; and

          (C) The excess, if any, to the seizing agency to be disposed of as provided in section 16 or 17, chapter 666, Oregon Laws 2001 [of this 2001 Act].

          (d) If the court has determined that the property should be forfeited and has not foreclosed the interests of any party in the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure. The court shall enter a judgment awarding the property to the seizing agency, subject to the interests of any claimants whose claims or affidavits were upheld by the court, and subject to the interests of any financial institutions that filed affidavits under section 11 (1), chapter 666, Oregon Laws 2001, [of this 2001 Act] that remain in full force and effect.

          (4) The court may include in the judgment of criminal forfeiture an order that directs the seizing agency to distribute to the victim of the crime of conviction a portion of any proceeds from property received by the seizing agency if:

          (a) The crime of conviction was a person felony or person Class A misdemeanor as those terms are defined by rule of the Oregon Criminal Justice Commission; and

          (b) The court included an order of restitution in the criminal judgment.

          (5) The seizing agency is not liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.

          (6) The forfeiture counsel shall send a copy of the judgment to the Asset Forfeiture Oversight Advisory Committee.

          (7)(a) On entry of judgment for a claimant in any proceeding to forfeit property under sections 1 to 18, chapter 666, Oregon Laws 2001, [of this 2001 Act,] unless the court has foreclosed one or more security interests, liens or other interests covering the property, the property or interest in property must be returned or conveyed immediately to the claimant designated by the court.

          (b) If it appears that there was reasonable suspicion that the property was subject to criminal forfeiture, the court shall cause a finding to be entered and no claimant or financial institution is entitled to damages nor is the person who made the seizure, the seizing agency or forfeiture counsel liable to suit or judgment on account of the seizure or action. An order directing seizure issued under section 5, chapter 666, Oregon Laws 2001, [of this 2001 Act] constitutes a finding of reasonable suspicion that the property was subject to criminal forfeiture.

          (8) Nothing in this section prevents a claimant or financial institution from obtaining any deficiency to which the claimant or financial institution would otherwise be entitled.

          (9) Nothing in this section or in section 6, chapter 666, Oregon Laws 2001, [of this 2001 Act] prevents a seizing agency from entering into an agreement with a claimant or other person for the reimbursement of the seizing agency for the costs and expenses relating to towing and storage of property or the cost of discharging any possessory chattel lien on the property arising under ORS 87.152 to 87.162 that attached to the property in the period between the seizure of the property and the release or criminal forfeiture of the property.

 

          SECTION 388. ORS 137.010 is amended to read:

          137.010. (1) The statutes that define offenses impose a duty upon the court having jurisdiction to pass sentence in accordance with this section or, for felonies committed on or after November 1, 1989, in accordance with rules of the Oregon Criminal Justice Commission unless otherwise specifically provided by law.

          (2) If it cannot be determined whether the felony was committed on or after November 1, 1989, the defendant shall be sentenced as if the felony had been committed prior to November 1, 1989.

          (3) Except when a person is convicted of a felony committed on or after November 1, 1989, if the court is of the opinion that it is in the best interests of the public as well as of the defendant, the court may suspend the imposition or execution of any part of a sentence for any period of not more than five years. The court may extend the period of suspension beyond five years in accordance with subsection (4) of this section.

          (4) If the court suspends the imposition or execution of a part of a sentence for an offense other than a felony committed on or after November 1, 1989, the court may also impose and execute a sentence of probation on the defendant for a definite or indefinite period of not more than five years. However, upon a later finding that a defendant sentenced to probation for a felony has violated a condition of the probation and in lieu of revocation, the court may order the period of both the suspended sentence and the sentence of probation extended until a date not more than six years from the date of original imposition of sentence. Time during which the probationer has absconded from supervision and a bench warrant has been issued for the probationer’s arrest shall not be counted in determining the time elapsed since imposition of the sentence of probation.

          (5) If the court announces that it intends to suspend imposition or execution of any part of a sentence, the defendant may, at that time, object and request imposition of the full sentence. In no case, however, does the defendant have a right to refuse the court’s order, and the court may suspend imposition or execution of a part of the sentence despite the defendant’s objection or request. If the court further announces that it intends to sentence the defendant to a period of probation, the defendant may, at that time, object and request that a sentence of probation or its conditions not be imposed or that different conditions be imposed. In no case, however, does the defendant have the right to refuse a sentence of probation or any of the conditions of the probation, and the court may sentence the defendant to probation subject to conditions despite the defendant’s objection or request.

          (6) The power of the judge of any court to suspend execution of any part of a sentence or to sentence any person convicted of a crime to probation shall continue until the person is delivered to the custody of the Department of Corrections.

          (7) When a person is convicted of an offense and the court does not suspend the imposition or execution of any part of a sentence or when a suspended sentence or sentence of probation is revoked, the court shall impose the following sentence:

          (a) A term of imprisonment;

          (b) A fine;

          (c) Both imprisonment and a fine; or

          (d) Discharge of the defendant.

          (8) This section does not deprive the court of any authority conferred by law to [decree a] enter a judgment for the forfeiture of property, suspend or cancel a license, remove a person from office or impose any other civil penalty. An order exercising that authority may be included as part of the judgment of conviction.

          (9) When imposing sentence for a felony committed on or after November 1, 1989, the court shall complete a sentencing report form as established under section 7, chapter 790, Oregon Laws 1989. The completed form shall be submitted to the Oregon Criminal Justice Commission forthwith.

          (10) A judgment of conviction that includes a term of imprisonment for a felony committed on or after November 1, 1989, shall state the length of incarceration and the length of post-prison supervision. The judgment of conviction shall also provide that if the defendant violates the conditions of post-prison supervision, the defendant shall be subject to sanctions including the possibility of additional imprisonment in accordance with rules of the Oregon Criminal Justice Commission.

 

          SECTION 389. ORS 147.355 is amended to read:

          147.355. (1) The state has a claim for the amount of compensation paid under ORS 135.905 and 147.005 to 147.365 upon all claims, demand or causes of action against an assailant to recover for the injuries or death of a victim which were the basis for an award.

          (2) At the time an award is paid under ORS 135.905 and 147.005 to 147.365 the Department of Justice shall give written notice of this claim to the applicant and all other recipients of the award. The claim attaches to any verdict[,] or judgment [or decree] entered and to any money or property which is recovered on account of the claim, demand, cause of action or suit against the assailant after notice is given.

          (3) On petition filed by the department on behalf of the state or by the applicant or other recipient of an award, the Circuit Court for Marion County, on written notice to all interested parties, shall adjudicate the rights of the parties and enforce the claim.

 

          SECTION 390. ORS 166.725 is amended to read:

          166.725. (1) Any circuit court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of ORS 166.720 (1) to (4) by issuing appropriate orders and judgments, including, but not limited to:

          (a) Ordering a divestiture by the defendant of any interest in any enterprise, including real property.

          (b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of the provisions of ORS 166.720 (1) to (4).

          (c) Ordering the dissolution or reorganization of any enterprise.

          (d) Ordering the suspension or revocation of a license, permit or prior approval granted to any enterprise by any agency of the state.

          (e) Ordering the forfeiture of the charter of a corporation organized under the laws of this state, or the revocation of a certificate of authority authorizing a foreign corporation to conduct business within this state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of ORS 166.720 (1) to (4) and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate of authority revoked.

          (2) All property, real or personal, including money, used in the course of, derived from or realized through conduct in violation of a provision of ORS 166.715 to 166.735 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. Forfeited property shall be distributed as follows:

          (a)(A) All moneys and the clear proceeds of all other property forfeited shall be deposited with the State Treasurer to the credit of the Common School Fund.

          (B) For purposes of subparagraph (A) of this paragraph, “clear proceeds” means proceeds of forfeited property less costs of maintaining and preserving property pending its sale or other disposition, less costs of sale or disposition and, if the Department of Justice has not otherwise recovered its costs and expenses of the investigation and prosecution leading to the forfeiture, less 30 percent of the remaining proceeds of the property which is awarded to the department as reasonable reimbursement for costs of such investigation and prosecution.

          (b) Any amounts awarded to the Department of Justice pursuant to paragraph (a) of this subsection shall be deposited in the Criminal Justice Revolving Account in the State Treasury.

          (3) Property subject to forfeiture under this section may be seized by a police officer, as defined in ORS 133.525 (2), upon court process. Seizure without process may be made if:

          (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

          (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.

          (4) In the event of a seizure under subsection (3) of this section, a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the police officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the police officer may:

          (a) Place the property under seal;

          (b) Remove the property to a place designated by the court; or

          (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

          (5) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of a provision of ORS 166.715 to 166.735 may institute civil proceedings under this section. In any action brought under this section, the circuit court shall give priority to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper. The Attorney General, district attorney or state agency bringing an action under this section may be awarded, upon entry of a [final judgment or decree] judgment in favor of the state, costs of investigation and litigation, reasonably incurred. Amounts recovered may include costs and expenses of state and local governmental departments and agencies incurred in connection with the investigation or litigation.

          (6)(a) Any aggrieved person may institute a proceeding under subsection (1) of this section:

          (A) If the proceeding is based upon racketeering activity for which a criminal conviction has been obtained, any rights of appeal have expired and the action is against the individual convicted of the racketeering activity; or

          (B) If the person is entitled to pursue a cause of action under subsection (7)(a)(B) of this section.

          (b) In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits.

          (7)(a) Any person who is injured by reason of any violation of the provisions of ORS 166.720 (1) to (4) shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages:

          (A) If a criminal conviction for the racketeering activity that is the basis of the violation has been obtained, any rights of appeal have expired and the action is against the individual convicted of the racketeering activity; or

          (B) If the violation is based on racketeering activity as defined in ORS 166.715 (6)(a)(B) to (J), (K) as it relates to burglary and criminal trespass, (L) to (P), (S), (T) except for claims arising under ORS 167.087, (U), (V), (X) to (Z), (AA) to (DD), (KK), (LL) or (OO) to (VV).

          (b) The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this subsection.

          (c) Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.

          (8) An investigative agency may bring an action for civil penalties for any violation of ORS 166.720 (1) to (4). Upon proof of any such violation, the court shall impose a civil penalty of not more than $250,000.

          (9) A [final judgment or decree] judgment rendered in favor of the state in any criminal proceeding under ORS 166.715 to 166.735 shall estop the defendant in any subsequent civil action or proceeding brought by the state or any other person as to all matters as to which such judgment [or decree] would be an estoppel as between the state and the defendant.

          (10) The Attorney General may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or (7) of this section if the Attorney General certifies that, in the opinion of the Attorney General, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.

          (11)(a) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ORS 166.715 to 166.735 may be commenced at any time within five years after the conduct in violation of a provision of ORS 166.715 to 166.735 terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of ORS 166.715 to 166.735, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or (7) of this section which is based in whole or in part upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two years following its termination.

          (b) A cause of action arising under subsection (6)(a)(A) or (7)(a)(A) of this section accrues when the criminal conviction for the underlying activity is obtained. In addition to any suspension of the running of the period of limitations provided for in paragraph (a) of this subsection, the period of limitations prescribed by paragraph (a) of this subsection is suspended during any appeal from the criminal conviction for the underlying activity.

          (12) The application of one civil remedy under any provision of ORS 166.715 to 166.735 shall not preclude the application of any other remedy, civil or criminal, under ORS 166.715 to 166.735 or any other provision of law. Civil remedies under ORS 166.715 to 166.735 are supplemental and not mutually exclusive.

          (13) Notwithstanding subsection (6) or (7) of this section, a person may not institute a proceeding under subsection (6) of this section and does not have a cause of action under subsection (7) of this section if the conduct that is the basis of the proceeding or action could also be the basis of a claim of discrimination because of sex that constitutes sexual harassment.

          (14) In an action brought under the provisions of this section by a person other than the Attorney General, a district attorney or a state agency, the court may award reasonable attorney fees to the prevailing party. In a civil action brought under the provisions of this section by the Attorney General, a district attorney or a state agency:

          (a) The court may award reasonable attorney fees to the Attorney General, district attorney or state agency if the Attorney General, district attorney or state agency prevails in the action; and

          (b) The court may award reasonable attorney fees to a defendant who prevails in an action under this section if the court determines that the Attorney General, district attorney or state agency had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court.

 

          SECTION 391. ORS 167.162 is amended to read:

          167.162. (1) A gambling device is a public nuisance. Any peace officer shall summarily seize any such device that the peace officer finds and deliver it to the custody of the sheriff, who shall hold it subject to the order of the court having jurisdiction.

          (2) Whenever it appears to the court that the gambling device has been possessed in violation of ORS 167.147, the court shall adjudge forfeiture thereof and shall order the sheriff to destroy the device and to deliver any coins taken therefrom to the county treasurer, who shall deposit them to the general fund of the county. However, when the defense provided by ORS 167.147 (3) is raised by the defendant, the gambling device or slot machine shall not be forfeited or destroyed until after a final judicial determination that the defense is not applicable. If the defense is applicable, the gambling device or slot machine shall be returned to its owner.

          (3) The seizure of the gambling device or operating part thereof constitutes sufficient notice to the owner or person in possession thereof. The sheriff shall make return to the court showing that the sheriff has complied with the order.

          (4) Whenever, in any proceeding in court for the forfeiture of any gambling device except a slot machine seized for a violation of ORS 167.147, and [such] a judgment for forfeiture is [decreed] entered, the court shall have exclusive jurisdiction to remit or mitigate the forfeiture.

          (5) In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until the claimant proves that the claimant:

          (a) Has an interest in the gambling device, as owner or otherwise, which the claimant acquired in good faith.

          (b) At no time had any knowledge or reason to believe that it was being or would be used in violation of law relating to gambling.

          (6) In any proceeding in court for the forfeiture of any gambling device except a slot machine seized for a violation of law relating to gambling, the court may in its discretion order delivery thereof to any claimant who shall establish the right to the immediate possession thereof, and shall execute, with one or more sureties, or by a surety company, approved by the court, and deliver to the court, a bond in such sum as the court shall determine, running to the State of Oregon, and conditioned to return such gambling device at the time of trial, and conditioned further that, if the gambling device be not returned at the time of trial, the bond may in the discretion of the court stand in lieu of and be forfeited in the same manner as such gambling device.

 

          SECTION 392. ORS 169.340 is amended to read:

          169.340. (1) A sheriff who suffers the escape of a prisoner, arrested or in a local correctional facility, without the consent or connivance of the party on whose behalf the arrest or imprisonment was made, is liable to an action by such party, as follows:

          (a) When the arrest is upon an order of arrest in a civil action, suit or proceeding; when the presence of the defendant at the return of the summons is necessary to enable the plaintiff to proceed therein, and the defendant does not appear at the time and place specified in the summons.

          (b) When the arrest or imprisonment is upon an order of arrest in any other civil action, suit or proceeding, or upon a surrender in exoneration of the sheriff or security release, and the defendant is not found upon an execution against the person of the defendant issued to the proper county on a judgment [or decree] in such action, suit, or proceeding.

          (c) When the arrest is on an execution or commitment to enforce the payment of money, and the party interested is not recaptured or surrendered into custody at the expiration of the time limited for the service thereof, or legally discharged therefrom.

          (d) When a person is imprisoned on an execution or commitment to enforce the payment of money, and the person escapes after the time limited for the service, and is not recaptured or surrendered before an action is commenced for the escape.

          (2) The measure of damages in an action brought under subsection (1) of this section, is as follows:

          (a) For the escape mentioned in subsection (1)(a) of this section, the actual damages sustained.

          (b) In any other case, the amount expressed in the execution or commitment.

 

          SECTION 393. ORS 180.380 is amended to read:

          180.380. (1) In addition to its other duties, powers and functions, the Division of Child Support may use its facilities and sources of information to search for any child or absent parent for the purpose of enforcing any state or federal law regarding the unlawful taking or restraint of a child or for the purpose of making or enforcing a child custody determination.

          (2) Only information concerning the most recent address and place of employment of such child or parent may be provided, and then only to authorized persons as defined in subsection (3) of this section.

          (3) As used in ORS 180.320 and this section:

          (a) “Authorized person” means:

          (A) Any agent or attorney of any state who has the duty or authority under the law of such state to enforce a child custody determination;

          (B) Any court having jurisdiction to make or enforce such a child custody determination, or any agent of such court;

          (C) Any agent or attorney of the United States or of a state who has the duty or authority to investigate, enforce or bring a prosecution with respect to the unlawful taking or restraint of a child; and

          (D) A state agency responsible for administering an approved child welfare plan or an approved foster care and adoption assistance plan.

          (b) “Custody determination” means a judgment[, decree] or other order of a court providing for the custody of, parenting time with or visitation with a child, and includes permanent and temporary orders, and initial orders and modifications.

 

          SECTION 394. ORS 183.500 is amended to read:

          183.500. Any party to the proceedings before the circuit court may appeal from the [decree] judgment of that court to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals from the circuit court in suits in equity.

 

          SECTION 395. ORS 206.110 is amended to read:

          206.110. (1) The former sheriff shall return all process, whether before or after judgment [or decree], which the former sheriff has fully executed, and the new sheriff and the successor in office shall complete the execution of all final process which the predecessor commenced and did not complete.

          (2) In all cases where real property is sold under execution by any sheriff, and the sheriff fails or neglects during the term of office of the sheriff, by virtue of the expiration thereof, or otherwise, to make or execute a proper sheriff’s deed conveying the property to the purchaser, or if through mistake in its execution, or otherwise, any sheriff’s deed is inoperative, or if by reason of the loss of an unrecorded sheriff’s deed, the purchaser, the heirs or assigns or successors in interest of the purchaser desire the execution of another sheriff’s deed, the sheriff in office at any time after the purchaser is entitled to a deed shall execute such conveyance. When executed to cure or replace a defective or lost deed such conveyance shall be to the grantee in the defective or lost deed, but shall relate back and be deemed to take effect as of the date of the execution of the defective or lost deed so as to inure to the benefit of the heirs and assigns, or other successors in interest, of the grantee named therein. Such conveyance so executed by the sheriff in office shall have the same force and effect as if executed by the sheriff who made the sale.

 

          SECTION 396. ORS 221.785 is amended to read:

          221.785. (1) Notwithstanding ORS 221.770, 323.455, 366.785 to 366.820 and 471.810, when a proceeding challenging the validity of the incorporation of a city is commenced before a court or administrative agency of this state within two years after the incorporation, if the court or agency determines that the incorporation is invalid, moneys otherwise payable to the city under ORS 221.770, 323.455, 366.785 to 366.820 and 471.810 shall not be distributed to the city, but shall be deposited with the State Treasurer as provided in subsection (3) of this section.

          (2) Not later than 30 days after the issuance of an order or judgment declaring the incorporation of a city invalid, the party challenging the incorporation shall send a certified copy of the order or judgment to the State Treasurer, Department of Transportation, Department of Revenue and the Oregon Liquor Control Commission.

          (3) Upon receiving a certified copy of the order or judgment under subsection (2) of this section, the state officer or department having responsibility for the distribution of moneys under ORS 221.770, 323.455, 366.785 to 366.820 and 471.810 shall deposit those moneys in an escrow account administered by the State Treasurer.

          (4) Upon final determination of the validity of an incorporation by judgment [or decree] rendered by the highest court in which a decision could be had, the moneys in the escrow account established under subsection (3) of this section shall be distributed as follows:

          (a) If the incorporation is determined to be valid, to the city.

          (b) If the incorporation is determined to be invalid, each city in this state shall receive such share of the moneys as its population bears to the total population of the cities of the state.

          (5) The State Treasurer, upon receiving a certified copy of the judgment [or decree] of the court which constitutes the final determination of the validity of the challenged incorporation shall distribute moneys in the escrow account as provided in subsection (4) of this section.

          (6) The State Treasurer shall retain interest earned on moneys deposited in the escrow account and shall distribute the interest in the same manner as other moneys in the account are distributed.

 

          SECTION 397. ORS 223.565 is amended to read:

          223.565. (1) The owner, or legal representatives of the owner, or the successor in interest of the owner, or any person having a lien by judgment[, decree] or mortgage, or owner of a tax lien, on any property sold by virtue of ORS 223.520 may redeem it upon conditions provided in this section. Redemption of any real property sold for a delinquent final assessment or lien under the provisions of ORS 223.505 to 223.590 may be made by paying to the treasurer, at any time within one year from the date of the certificate of sale, the purchase price and 10 percent thereof as penalty, and interest on the purchase price at the rate of 10 percent per annum, from the date of the certificate. Where redemption is made by the holder of a tax lien the holder may have such redemption noted upon the record of the lien in like manner and with like effect as prescribed in this section. Such redemption shall discharge the property so sold from the effect of the sale and, if made by a lien creditor, the amount paid for the redemption shall thereafter be deemed a part of the judgment, [decree,] mortgage or tax lien, as the case may be, and shall bear like interest, and may be enforced and collected as a part thereof.

          (2) Anyone applying or seeking to redeem property sold under the provisions of ORS 223.505 to 223.590 must pay or offer to pay the sum necessary in lawful money of the United States.

          (3) When an individual purchases real property at a foreclosure sale under ORS 223.505 to 223.590, if, with the approval of the governmental unit, that purchaser incurs costs for maintaining or improving the property during the period allowed for redemption and if the property is subsequently redeemed, the treasurer may return all or part of the penalty paid by the person redeeming the property to the purchaser as provided by charter or ordinance of the governmental unit.

 

          SECTION 398. ORS 223.593 is amended to read:

          223.593. (1) Notwithstanding ORS 223.565 and 223.650, when a governmental unit sells real property under ORS 223.510 to 223.590 or pursuant to a [decree] judgment of foreclosure entered in an action authorized by ORS 223.610 for neglect or refusal by the owner to pay installments under ORS 223.265, the property may be redeemed as provided in this section by the owner, a legal representative or a successor in interest or by any other person having a lien on the property.

          (2) Redemption of such real property may be made by paying to the treasurer of the governmental unit, at any time within one year after the date of sale, the following amounts:

          (a) The purchase price at the foreclosure sale and 10 percent thereof as penalty;

          (b) The amount of any taxes, assessments or liens upon the property that are paid after the sale by the purchaser at the sale; and

          (c) Interest on the amounts paid under paragraphs (a) and (b) of this subsection at a rate of 10 percent per annum from the respective times of the payments of the purchase price, taxes, assessments or liens to the date of redemption.

          (3) A redemption of property under this section shall be made for cash.

 

          SECTION 399. ORS 223.645 is amended to read:

          223.645. The governmental unit may bid at the sale on execution of the property involved in the foreclosure suit any amount not exceeding the sum found by the [decree] judgment of the court to be due upon the governmental unit’s lien, together with interest, costs, penalties and attorney fees, and it may credit the amount of its bid upon the execution.

 

          SECTION 400. ORS 225.300 is amended to read:

          225.300. Any filing made by any city upon the unappropriated waters of this state for use in the future development of a hydroelectric plant by such city shall be reserved to such city and shall not be subject to appropriation by any other person, municipality or corporation unless it is judicially determined that the filing exceeds the reasonable present and future requirements of such city. In that event the surplus or excess may, by [decree] judgment of a court of competent jurisdiction, be released and discharged from the filing. Proceedings in court for the determination of whether or not the filing by any city exceeds its reasonable present and future requirements may be instituted by the State of Oregon, by the Water Resources Commission in the name of and for the State of Oregon, or by any other applicant for the right to use the waters involved.

 

          SECTION 401. ORS 226.600 is amended to read:

          226.600. All such persons or parties having or claiming any right, title, estate or interest in the real property in controversy, so served by publication as in ORS 226.590 provided, shall have the same rights as provided by law in case of all other defendants upon whom service is made by publication, and the suit shall proceed against such persons in the same manner as against defendants who are named, upon whom service is made by publication, and with like effect; and any such persons or parties who claim any right, title, estate or interest in said real property in controversy, at the time of the commencement of the suit, duly served as aforesaid, shall be found and concluded by the judgment [or decree] in such suit, and if the same is in favor of the plaintiff therein, as effectually as if the suit was brought against such defendant by his or her name and constructive service obtained.

 

          SECTION 402. ORS 226.620 is amended to read:

          226.620. Whenever any municipal corporation shall have proceeded under ORS 226.510 to 226.630, and a [decree] judgment of the court shall vest in said municipal corporation the title to such cemetery properties, as referred to herein, by eminent domain, such municipal corporation shall proceed with the removal of remains, stones, monuments and any and all evidences of a grave, and provide for reinterment in a suitable location, within a reasonable time after the entry of a [final decree] general judgment, and the expiration of the time for appeal therefrom, or the final disposition of any appeal which may be filed in connection with [said decree] the judgment.

 

          SECTION 403. ORS 237.600 is amended to read:

          237.600. (1) Notwithstanding any other provision of law, payment of any pension, annuity, retirement allowance, disability benefit, death benefit, refund benefit or other benefit under any public employer retirement plan other than the Public Employees Retirement System that would otherwise be made to a person entitled to benefits under the plan shall be paid, in whole or in part, to an alternate payee if and to the extent expressly provided for in the terms of any [court decree] judgment of annulment or dissolution of marriage or of separation, or the terms of any court order or court-approved property settlement agreement incident to any [court decree] judgment of annulment or dissolution of marriage or of separation. Notwithstanding any other provisions of this section, the total value of benefits payable to a member and to an alternate payee under this section may not be greater than the value of the benefits the member would otherwise be eligible to receive. Any payment under this subsection to an alternate payee bars recovery by any other person.

          (2) A [decree] judgment, order or settlement providing for payment to an alternate payee under subsection (1) of this section may also provide:

          (a) That payments to the alternate payee may commence, at the election of the alternate payee, at any time after the earlier of:

          (A) The earliest date the member would be eligible to receive retirement benefits if the member separates from service; or

          (B) The date the member actually separates from service due to death, disability, retirement or termination of employment.

          (b) That the alternate payee may elect to receive payment in any form of pension, annuity, retirement allowance, disability benefit, death benefit, refund benefit or other benefit, except a benefit in the form of a joint and survivor annuity, available to the member under the public employer retirement plan, or that would be available to the member if the member retired or separated from service at the time of election by the alternate payee, without regard to the form of benefit elected by the member.

          (c) That the alternate payee’s life is the measuring life for the purposes of measuring payments to the alternate payee under the form of benefit selected by the alternate payee.

          (3) Subsection (1) of this section applies only to payments made by the public employer retirement plan after the date of receipt by the administrators of the plan of written notice of the [decree] judgment, order or agreement and such additional information and documentation as the plan administrators may prescribe.

          (4)(a) A [decree] judgment, order or agreement providing for payment to an alternate payee under subsection (1) of this section may not provide for payment to an alternate payee of:

          (A) Any disability payments provided to a member of a public employer retirement plan in lieu of workers’ compensation benefits pursuant to ORS 656.027 (6), to the extent those payments are to be made before the member attains 55 years of age; or

          (B) Any medical or hospital benefits payable to a member as part of a disability benefit provided to a member of a public employer retirement plan in lieu of workers’ compensation benefits pursuant to ORS 656.027 (6), regardless of the member’s age.

          (b) Paragraph (a) of this subsection does not prevent a court from considering the disability payments described in that paragraph in making a division of property pursuant to ORS 107.105 or an award of support.

          (5) Any public employer or public employer retirement plan that is required by the provisions of this section to make a payment to some person other than a member of the retirement plan offered by the public employer shall charge and collect out of the benefits payable to the member and the other person actual and reasonable administrative expenses and related costs incurred by the public employer or public employer retirement plan in obtaining data and making calculations that are necessary by reason of the provisions of this section. A public employer or public employer retirement plan may not charge more than $300 for total administrative expenses and related costs incurred in obtaining data or making calculations that are necessary by reason of the provisions of this section. A public employer or public employer retirement plan that charges and collects administrative expenses and related costs under the provisions of this subsection shall allocate those expenses between the member of the retirement plan and any other person receiving a benefit from the plan based on the fraction of the benefit received by the member or person.

          (6) As used in this section:

          (a) “Court” means any court of appropriate jurisdiction of this or any other state or of the District of Columbia.

          (b) “Member” means a person entitled to a benefit from a public employer retirement plan.

          (c) “Public employer” means the state, one of its agencies, any city, county, municipal or public corporation, any political subdivision of the state or any instrumentality thereof, or an agency created by two or more such political subdivisions to provide themselves governmental services.

          (d) “Public employer retirement plan” means any system, program, annuity, contract or other plan established by a public employer for the purpose of providing a pension, annuity, retirement allowance or disability benefit to officers or employees of the public employer.

 

          SECTION 404. ORS 238.462 is amended to read:

          238.462. (1) A member of the Public Employees Retirement System who is married on the effective date of member’s retirement shall receive a service retirement allowance in the form provided for in Option 3 under ORS 238.305 (1) or a disability retirement allowance in the form provided for in Option 3 under ORS 238.325 (1) unless the member provides proof of spousal consent to receiving an allowance in the form provided by ORS 238.300 or 238.320, or in one of the optional forms provided for in ORS 238.305 and 238.325 other than Option 3.

          (2) Except as provided in subsection (3) of this section, a member of the system who is married on the effective date of the member’s retirement may not change the form in which a retirement allowance is paid after an election has been made as to the form of the retirement allowance unless the member provides proof of spousal consent.

          (3) A member of the system who is married on the effective date of the member’s retirement is not required to provide spousal consent to a change in the form in which a retirement allowance is paid if the spouse of the member dies after the effective date of the member’s retirement or disability and the change in the form of the allowance is made within the time periods provided by ORS 238.305 and 238.325. A member seeking to change the form of a retirement allowance without spousal consent under the provisions of this subsection must provide a notarized statement to the Public Employees Retirement Board that certifies to the board that the spouse of the member is deceased.

          (4) Any member of the system who is not married on the effective date of the member’s retirement must provide a notarized statement to the Public Employees Retirement Board that certifies to the board that the member is not married. No retirement allowance may be paid to a member of the system who is not married until the statement required by this subsection is provided to the board.

          (5) A member of the system who is married on the effective date of the member’s retirement must provide proof of spousal consent for the purposes of this section by submitting a statement to the board that:

          (a) Contains the notarized signature of the member’s spouse;

          (b) Indicates the form in which the retirement allowance is to be paid; and

          (c) Contains a statement that the member’s spouse consents to the payment of the retirement allowance in the specified form.

          (6) If a member of the system who is married on the effective date of the member’s retirement fails to provide proof of spousal consent as required by this section, the board shall calculate and pay to the member a retirement allowance in the form provided for in Option 3 under ORS 238.305 (1) if the retirement is for service, or a retirement allowance in the form provided for in Option 3 under ORS 238.325 (1) if the retirement is for disability. The allowance will be calculated based on the ages of the member and the spouse, and the spouse will be designated as the beneficiary for any survivor benefits that may thereafter become payable.

          (7) Proof of spousal consent under this section is not required for, and cannot alter, the designation of any form of a retirement allowance that is required under the terms of any [court decree] judgment of annulment or dissolution of marriage or of separation, or the terms of any court order or court-approved property settlement agreement incident to any [court decree] judgment of annulment or dissolution of marriage or of separation, that has been received by the board in compliance with the requirements prescribed by ORS 238.465.

 

          SECTION 405. ORS 238.465, as amended by section 89, chapter 945, Oregon Laws 2001, is amended to read:

          238.465. (1) Notwithstanding ORS 238.445 or any other provision of law, payments under this chapter of any pension, annuity, retirement allowance, disability benefit, death benefit, refund benefit or other benefit that would otherwise be made to a person entitled thereto under this chapter shall be paid, in whole or in part, by the Public Employees Retirement Board to an alternate payee if and to the extent expressly provided for in the terms of any [court decree] judgment of annulment or dissolution of marriage or of separation, or the terms of any court order or court-approved property settlement agreement incident to any [court decree] judgment of annulment or dissolution of marriage or of separation. Notwithstanding any other provisions of this section, the total value of benefits payable to a member and to an alternate payee under this section may not be greater than the value of the benefits the member would otherwise be eligible to receive. Any payment under this subsection to an alternate payee bars recovery by any other person.

          (2) A [decree] judgment, order or settlement providing for payment to an alternate payee under subsection (1) of this section may also provide:

          (a) That payments to the alternate payee may commence, at the election of the alternate payee, at any time after the earlier of:

          (A) The earliest date the member would be eligible to receive retirement benefits if the member separates from service; or

          (B) The date the member actually separates from service due to death, disability, retirement or termination of employment.

          (b) That the alternate payee may elect to receive payment in any form of pension, annuity, retirement allowance, disability benefit, death benefit, refund benefit or other benefit, except a benefit in the form of a joint and survivor annuity, that would be available to the member under this chapter, or that would be available to the member if the member retired or separated from service at the time of election by the alternate payee, without regard to the form of benefit elected by the member.

          (c) That the alternate payee’s life is the measuring life for the purpose of measuring payments to the alternate payee under the form of benefit selected by the alternate payee and for the purpose of determining necessary employer reserves.

          (d) Except as provided in ORS 238.305 (10) and 238.325 (7), that any person designated by the member as a beneficiary under ORS 238.300, 238.305 or 238.325 be changed, even though the member has retired and has begun receiving a retirement allowance. If a change of beneficiary is ordered under this paragraph, the board shall adjust the anticipated benefits that would be payable to the member and the beneficiary to ensure that the cost to the system of providing benefits to the member and the new beneficiary does not exceed the cost that the system would have incurred to provide benefits to the member and the original beneficiary. The [decree] judgment, order or settlement may not provide for any change to the option selected by the retired member under ORS 238.300, 238.305, 238.320 or 238.325 as to the form of the retirement benefit.

          (3) The board shall adopt rules that provide for:

          (a) The creation of a separate account in the name of the alternate payee reflecting the [decree’s] judgment’s, order’s or agreement’s distribution of the member’s benefits under this chapter;

          (b) The establishing of criteria to determine whether domestic relations [decrees] judgments, orders and agreements comply with this section; and

          (c) The definitions and procedures for the administration of this section.

          (4) If a [decree] judgment, order or agreement awards an interest to an alternate payee, and if the alternate payee predeceases the member before the alternate payee has commenced receiving benefits, the alternate payee shall be considered a member of the system who died before retiring for the purposes of the death benefits provided in ORS 238.390 and 238.395, but for purposes of the death benefits provided in ORS 238.395, the alternate payee shall be considered a member of the system who died before retiring only if the member would have been eligible for death benefits under ORS 238.395 had the member died at the same time as the alternate payee. Payment of the death benefits to the beneficiaries, estate or other persons entitled to receive the benefits under ORS 238.390 and 238.395 shall constitute payment in full of the alternate payee’s interest under the [decree] judgment, order or agreement.

          (5) Any increase in the retirement allowance provided to the member shall increase the amounts paid to the spouse or former spouse of the member in the same proportion, except that an alternate payee is not entitled to receive cost-of-living adjustments under ORS 238.360 or any other retirement allowance increase until benefits are first paid from the system on behalf of the member.

          (6) An alternate payee under this section is not eligible to receive the benefits provided under ORS 238.410, 238.415, 238.420 and 238.440 by reason of the provisions of this section.

          (7) An alternate payee who elects to begin receiving payments under subsection (1) of this section before the member’s effective date of retirement is not eligible to receive any additional payment by reason of credit in the system acquired by the member after the alternate payee begins to receive payments.

          (8) Subsection (1) of this section applies only to payments made by the board after the date of receipt by the board of written notice of the [decree] judgment, order or agreement and such additional information and documentation as the board may prescribe.

          (9) Whenever the board is required to make payment to an alternate payee under the provisions of this section, the board shall charge and collect out of the benefits payable to the member and the alternate payee actual and reasonable administrative expenses and related costs incurred by the board in obtaining data and making calculations that are necessary by reason of the provisions of this section. The board may not charge more than $300 for total administrative expenses and related costs incurred in obtaining data or making calculations that are necessary by reason of the provisions of this section. The board shall allocate expenses and costs charged under the provisions of this subsection between the member and the alternate payee based on the fraction of the benefit received by the member or alternate payee.

          (10) As used in this section, “court” means any court of appropriate jurisdiction of this or any other state or of the District of Columbia.

 

          SECTION 406. ORS 243.507 is amended to read:

          243.507. (1) Notwithstanding any other provision of law, deferred compensation under a deferred compensation plan that would otherwise be paid by a public employer to an eligible employee shall be paid, in whole or in part, to an alternate payee if and to the extent expressly provided for in the terms of any [court decree] judgment of annulment or dissolution of marriage or of separation, or the terms of any court order or court-approved property settlement agreement incident to any [court decree] judgment of annulment or dissolution of marriage or of separation. Any payment under this subsection to an alternate payee bars recovery by any other person.

          (2) A [decree] judgment, order or agreement providing for payment to an alternate payee under subsection (1) of this section may also provide:

          (a) That payments to the alternate payee may commence on the date the employee separates from service or at such later date as may be allowed under the provisions of the deferred compensation plan.

          (b) That the alternate payee may elect to receive payment in any manner available to the employee under the deferred compensation plan, without regard to the form of payment elected by the employee.

          (c) That the alternate payee’s life is the measuring life for the purposes of measuring payments to the alternate payee under the form of payment selected by the alternate payee.

          (d) That all or a portion of the deferred compensation account of the eligible employee be segregated in an account in the name of and for the benefit of the alternate payee, and that the alternate payee have the same rights and privileges as an eligible employee only concerning the investment or deposit of funds under the deferred compensation plan.

          (3) Subsection (1) of this section applies only to payments of deferred compensation made after the date of receipt by the administrator of the deferred compensation plan of written notice of the [decree] judgment, order or agreement and such additional information and documentation as the plan administrator may prescribe.

          (4) Payment of all or any part of deferred compensation to an alternate payee under this section shall be reported for state and federal income tax purposes as payment to the eligible employee. Any amount required to be withheld for state or federal income tax purposes shall be withheld from the payment to the alternate payee.

          (5) If an eligible employee transfers from a deferred compensation plan of a public employer to a deferred compensation plan established by another public employer, the new employer is not required to accept as part of the transfer any portion of the eligible employee’s account with the former employer that is subject to [decree] judgment, order or agreement requiring payment of that portion of the eligible employee’s account to an alternate payee.

          (6) If an eligible employee transfers from a deferred compensation plan of a public employer to a deferred compensation plan established by another public employer, the employee’s previous employer shall not transfer to the plan established by the new employer any portion of the eligible employee’s account that is subject to a [decree] judgment, order or agreement requiring payment of that portion of the eligible employee’s account to an alternate payee.

          (7) The Public Employees Retirement Board, or the plan administrator for any local government deferred compensation plan, may adopt rules, policies or other regulations for the purpose of maintaining compliance of a deferred compensation plan with section 457 of the Internal Revenue Code or any other provision of federal law that affects the tax qualification of a deferred compensation plan. Rules, policies or other regulations adopted under this subsection may vary from the express language of this section if the rules, policies or other regulations are required for the purpose of maintaining compliance of a deferred compensation plan with section 457 of the Internal Revenue Code or any other provision of federal law that affects the tax qualification of a deferred compensation plan.

          (8) Any public employer or deferred compensation plan that is required by the provisions of this section to make a payment to an alternate payee shall charge and collect out of the deferred compensation payable to the eligible employee and the alternate payee actual and reasonable administrative expenses and related costs incurred by the public employer or deferred compensation plan in obtaining data and making calculations that are necessary by reason of the provisions of this section. A public employer or deferred compensation plan may not charge more than $300 for total administrative expenses and related costs incurred in obtaining data or making calculations that are necessary by reason of the provisions of this section. A public employer or deferred compensation plan that charges and collects administrative expenses and related costs under the provisions of this subsection shall allocate those expenses and costs between the eligible employee and the alternate payee based on the fraction of the benefit received by the member or alternate payee.

          (9) As used in this section:

          (a) “Alternate payee” means a spouse, former spouse, child or other dependent of a member.

          (b) “Court” means any court of appropriate jurisdiction of this or any other state or of the District of Columbia.

          (c) “Eligible employee” means a state plan participant or local plan participant.

          (d) “Public employer” means the state or a local government that establishes a deferred compensation plan.

 

          SECTION 407. ORS 261.330 is amended to read:

          261.330. Any filing made by any utility district upon the unappropriated waters of this state for use in the future development of a hydroelectric plant by the district shall be reserved to the district and shall not be subject to appropriation by any other person, municipality or corporation, unless it is judicially determined that such filing exceeds the reasonable present and future requirements of the district, in which event the surplus or excess may be by [decree] judgment of a court of competent jurisdiction released and discharged from such filing. Proceedings in court for the determination of whether or not the filing by any utility district exceeds its reasonable present and future requirements may be instituted by the State of Oregon, by the Water Resources Commission in the name of and for the State of Oregon, or by any other applicant for the right to the use of the waters involved.

 

          SECTION 408. ORS 261.615 is amended to read:

          261.615. Either party may appeal to the Court of Appeals at any time within 30 days after the rendering of the [final] general judgment [or decree], which appeal must be heard and determined within three months from the time of taking such appeal.

 

          SECTION 409. ORS 264.220 is amended to read:

          264.220. When an attempt has been made to organize a district under the provisions of this chapter and subsequently by a [decree] judgment of a court of competent jurisdiction it has been declared that the organization is invalid, but prior to such [decree] judgment the invalid organization has levied taxes, the funds derived from the levy shall be disposed of as follows:

          (1) If the area embraced in the invalid organization is embraced in a subsequently created organization composed of unincorporated or incorporated territory, or combinations thereof, for the purpose of furnishing domestic water to the inhabitants thereof, the custodian of the taxes collected for the invalid organization shall turn them over to the subsequent organization to be used only for the purpose of furnishing domestic water to such inhabitants.

          (2) If the subsequent organization does not embrace all territory embraced in the invalid organization, such taxes as have been collected from the levy upon property in areas not embraced in the subsequent organization shall be refunded to the payers thereof by the custodian of the taxes before the balance is turned over to the subsequent organization.

          (3) If no such subsequent organization is created to provide domestic water for the inhabitants of such an area, within a period of two years after the entry of the [decree] judgment of invalidation, the taxes collected shall be refunded by the custodian of them to the taxpayers who paid them.

 

          SECTION 410. ORS 267.225 is amended to read:

          267.225. (1) A district may cooperate with or enter into agreements with any city, county, port or state agency having jurisdiction or control over any right of way that is available for public travel for the joint use of such right of way. A city, county, port or state agency may cooperate with or enter agreements with a district for the joint use of any right of way open to public travel located within the district.

          (2) For the purpose of providing a mass transit system, a district may commence a condemnation proceeding to acquire land or an interest in land for right of way for the system over any public right of way already located, condemned or occupied or that may be located, condemned or occupied by some other public agency for the purpose of travel by the public. The proceeding shall be conducted as provided by the laws of this state for the condemnation of land or an interest in land for right of way for highway purposes. At the time of rendering judgment for compensation or damages, the court shall enter a judgment [or decree] authorizing the district to occupy and use the right of way, if necessary, in common with the public agency already occupying or owning the right of way, and defining the terms and conditions upon which the right of way shall be so occupied and used in common.

 

          SECTION 411. ORS 273.880 is amended to read:

          273.880. (1) Jurisdiction for judicial review of actions of the Board of County Commissioners of Clatsop County under ORS 273.855 (3), (4) and (5) and 273.860 to 273.880 is conferred on the circuit court for the county in which the land applied for is located. Proceedings for review shall be instituted by filing a petition not later than the 60th day after the date on which the findings of the county board became final. The petition shall state the nature of the petitioner’s interest, the facts showing how the petitioner is aggrieved by the county board’s decision, and the grounds on which the petitioner contends that the decision should be reversed or set aside. True copies of the petition shall be served by registered or certified mail on the county board and all other parties of record in the proceeding. No responsive pleading is required of the county board. In its discretion the court may permit other interested persons to intervene.

          (2) Not later than the 30th day after service of the petition, or within such further time as the court may allow, the county board shall transmit to the court the original or a certified copy of the entire record of the proceeding under review; however, by stipulation of all parties to the review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record when deemed desirable.

          (3) If, before the date set for hearing, application is made to the court for leave to present additional evidence to the issues in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good and substantial reasons for failure to present it in the proceeding before the county board, the court may order that the additional evidence be taken before the county board on such conditions as the court deems proper. The county board may modify its findings and decision by reason of the additional evidence and, within a time to be fixed by the court, shall file with the reviewing court, to become a part of the record, the additional evidence, together with any modifications or new findings or decision, or its certificate that it elects to stand on its original findings and decision, as the case may be.

          (4) The review shall be conducted by the court without a jury as a suit in equity and shall be confined to the record, except that, in cases of alleged irregularities in procedure before the county board, not shown in the record, testimony thereon may be taken in the court. The court, on request, shall hear oral argument and receive written briefs.

          (5) The court may adopt the county board’s findings of fact and affirm the decision of the county board; or it may reverse and set aside the county board’s decision, or reverse and remand for further proceedings, after review of all the facts disclosed by the record, and any additional facts established under subsection (4) of this section. The court thereupon shall enter [its decree] a judgment. In the case of reversal the court shall make special findings of fact based on evidence in the record and conclusions of law indicating clearly all respects in which the county board’s decision is erroneous.

          (6) Any party to the proceedings before the circuit court may appeal from the [decree] judgment of that court to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals from the circuit courts in suits in equity.

 

          SECTION 412. ORS 305.440 is amended to read:

          305.440. (1) The decision of the court shall be binding upon all parties until changed, if at all, by the decision of the Supreme Court upon appeal. If no appeal is taken to the Supreme Court, the decision of the court shall constitute a final determination of the matter. If an appeal is taken, the decision of the court shall become final in the same manner as the decision[,] or judgment [or decree] of the circuit court becomes final when appeal therefrom is taken to the Supreme Court.

          (2) Upon the final determination of any ad valorem tax matter, all officers having charge of the rolls on which the assessments involved in such proceeding appears shall correct the same in accordance with such determination, and taxes shall be refunded as provided in ORS 311.806 or additional taxes collected by the proper officers. In the case of an appeal as to properties assessed or taxed under ORS 308.505 to 308.665 or 308.805 to 308.820, a certified copy of the [decree] judgment of the court shall be sufficient warrant for the apportionment, levying and collecting of taxes against the property constituting the subject matter of the appeal and upon the valuation determined by the court. If any reapportionment as between counties is made by the court on appeal, corresponding adjustments shall be made by the tax collectors of the counties affected.

 

          SECTION 413. ORS 311.691 is amended to read:

          311.691. (1) Notwithstanding any provision of ORS chapter 312 to the contrary and ORS 311.696 (1), upon compliance with ORS 311.693, taxes assessed against a tax-deferred homestead for any tax year that were unpaid as of July 1 of the tax year for which homestead property tax deferral was initially granted under ORS 311.666 to 311.701, and that remain unpaid, shall remain a lien and shall become delinquent as otherwise provided by law, but shall not be subject to foreclosure under ORS chapter 312 until August 15 of the calendar year following the calendar year in which one of the circumstances listed in ORS 311.684 occurs.

          (2) This section does not apply if:

          (a) The tax-deferred homestead property is a manufactured structure or floating home and is moved out of state;

          (b) Except in the case of a manufactured structure or floating home, the tax-deferred homestead property is personal property; or

          (c) The owner of the tax-deferred homestead property has household income, for the calendar year immediately preceding the calendar year in which application is filed under ORS 311.693, of more than the maximum household income that may be incurred under an allowable claim for deferral, as provided in ORS 311.668.

          (3) If the property to which subsection (1) of this section applies has been included on a foreclosure list, or a [decree] judgment of foreclosure entered, the property shall be removed from the foreclosure list, or [decree] judgment vacated, unless the proceeding against the property involves delinquent taxes other than those described in subsection (1) of this section.

          (4) Upon removal from the foreclosure list, or upon vacation of the [decree] judgment, no penalty shall be imposed under ORS 312.110 or 312.120. In lieu thereof, the penalty is abated, or if the penalty has been paid, upon application made to the county assessor on or before July 1 of the year immediately following the year of vacation or removal, the penalty shall be refunded out of the unsegregated tax collections account in the manner provided in ORS 311.806.

          (5) Within 60 days after approval of an application under ORS 311.693, with respect to any property to which this section applies, the tax collector shall make the proper entries on the tax roll and shall remove the property from the foreclosure list and proceeding.

          (6) If a [decree] judgment has been entered foreclosing liens for delinquent taxes against any property which is the subject of an application filed under ORS 311.693, and the delinquent taxes include only those taxes described in subsection (1) of this section, or taxes in excess of those described in subsection (1) of this section are paid, the [decree] judgment shall be null and void and of no effect and the tax collector shall make the proper entries on the assessment and tax rolls to reflect the vacation of the [decree] judgment and to acknowledge the subsisting liens.

          (7) Nothing in this section shall remove or release property to which this section applies from the lien of any unpaid tax thereon, but the unpaid taxes shall remain valid and subsisting liens as though the foreclosure proceeding had not been instituted or as though the foreclosure proceeding had not been instituted and a [decree] judgment entered.

          (8) Nothing in this section shall affect a foreclosure proceeding instituted, or a [decree] judgment entered, to foreclose liens for delinquent taxes against properties subject to foreclosure if the delinquent taxes include taxes other than those described under subsection (1) of this section. Such foreclosure proceedings shall be instituted or continued without regard to this section and such [decree] judgment shall be of full force and effect as if this section did not exist.

          (9) Interest on taxes to which this section applies shall be determined from the same dates, in the same manner and until paid as for other property taxes remaining unpaid upon the due dates, upon preparation of the foreclosure list in accordance with ORS chapter 312 and subsection (1) of this section and upon entry and following a [decree] judgment of foreclosure.

 

          SECTION 414. ORS 312.060 is amended to read:

          312.060. (1) Application for judgment [and decree] foreclosing any tax lien shall be in writing, shall be verified, and shall contain a succinct statement of the cause of suit. All amendments may be made which are permissible in any civil action. The application for judgment [and decree], together with a certified copy of the foreclosure list, shall be filed with the clerk of the court on the day of the first publication of the foreclosure list.

          (2) No assessment of property or charge for taxes shall be considered invalid because of:

          (a) An irregularity in an assessment roll.

          (b) An assessment roll not having been made, completed or returned within the time prescribed by law.

          (c) The property having been listed or charged in an assessment or tax roll without any name, or with a name other than that of the owner.

          (3) No error or informality on the part of any officer in connection with assessment, equalization, levy or collection shall vitiate or affect the assessment of the property or the taxes thereon.

          (4) Any such irregularity, informality, omission or other error may, in the discretion of the court, be corrected to conform to law.

 

          SECTION 415. ORS 312.070 is amended to read:

          312.070. Any person interested in any real property included in the foreclosure list may file an answer and defense to the application for judgment [and decree] within 30 days after the date of the first publication of the foreclosure list, exclusive of the day of the first publication. The answer and defense shall be in writing under oath and shall specify the particular cause of objection.

 

          SECTION 416. ORS 312.080 is amended to read:

          312.080. The court shall examine the application for judgment [and decree]. If answer and defense is filed by any defendant or other interested person, the matter shall be heard in a summary manner without other pleading.

 

          SECTION 417. ORS 312.090 is amended to read:

          312.090. The court shall give judgment [and decree] for the delinquent taxes and interest appearing to be due on the several parcels of real property described in the application, and shall [decree] enter a judgment requiring that the several liens of such taxes be foreclosed. The judgment shall be a several judgment against and a lien on each parcel of property included therein. The several judgment shall bear interest at the legal rate from the date of entry thereof.

 

          SECTION 418. ORS 312.100 is amended to read:

          312.100. The court shall order that the several properties, against which the judgment [and decree] is entered, shall be sold directly to the county for the respective amounts of taxes and interest for which the properties severally are liable. The clerk of the court shall deliver to the tax collector a certified copy of the judgment [and decree], included in which shall be a list of the properties so ordered sold, with the several amounts due thereon. The certified copy shall constitute a certificate of sale to the county of the several properties described in the judgment [and decree] and no other certificate need be issued.

 

          SECTION 419. ORS 312.110 is amended to read:

          312.110. At any time prior to judgment, [and decree] any parcel of real property may be removed from the foreclosure proceeding by payments such as would have prevented inclusion of the property in the foreclosure list, plus any additional interest or penalty accrued; except that after the first publication of the foreclosure list any person seeking to remove any property from the foreclosure proceeding shall pay, in addition to the particular amounts of taxes and interest otherwise required, a penalty of five percent of the total amount of taxes and interest charged against the property. The penalty and fee shall be in lieu of all publication costs and other charges in connection with the foreclosure proceeding. On receipt of the payments as to a particular property, prior to the filing of the application for judgment [and decree], the tax collector shall make the proper entries in the tax roll and shall remove the property from the foreclosure list and proceeding. Subsequent to filing of the application for judgment [and decree], no property may be removed from the foreclosure list and proceeding except on order entered by the court. The removal of any property from the foreclosure list and proceeding, as provided in this section, does not release the property from the lien of any unpaid tax thereon, but the unpaid taxes shall remain valid and subsisting liens as though the foreclosure proceeding had not been instituted.

 

          SECTION 420. ORS 312.120 is amended to read:

          312.120. (1) Except as provided in ORS 312.122, all real properties sold to the county under ORS 312.100, shall be held by the county for the period of two years from and after the date of the judgment [and decree] of foreclosure, unless sooner redeemed.

          (2) During the two-year period any person having an interest in the property at the date of the judgment [and decree] of foreclosure, or any heir or devisee of such person, or any person holding a lien of record on the property, or any municipal corporation having a lien on the property, may redeem the property by payment of the full amount applicable to the property under the judgment [and decree], with interest thereon as provided by law, plus a penalty of five percent of the total amount applicable to the property under the judgment [and decree] and a fee as specified under subsection (5) of this section. The penalty of five percent and fee shall be in lieu of all costs chargeable against the property in connection with the foreclosure proceeding. The fee shall be used to defray the costs, among other costs, incurred by the county to provide the notices of redemption period expiration to lienholders and others required under ORS 312.125.

          (3) Property so redeemed shall be subject to assessment for taxation during the period of redemption, as though it had continued in private ownership.

          (4) Any person holding a mortgage or other lien of record covering a part only of a particular parcel of real property included in the judgment [and decree] of foreclosure may redeem such part by payment of the proportionate amount applicable thereto under the judgment [and decree].

          (5) The fee specified by this subsection is as follows:

          (a) If the property is redeemed before the date the notice by certified mail required by ORS 312.125 is given, $50.

          (b) If the property is redeemed on or after the date the notice by certified mail required by ORS 312.125 is given, the greater of $50 or the actual cost to the county for a title search and other expenses related to obtaining a title search.

 

          SECTION 421. ORS 312.122 is amended to read:

          312.122. (1) A county may by ordinance provide the means to require the tax collector of the county to deed to the county pursuant to ORS 312.200 any real property sold to the county under ORS 312.100 after the expiration of the 30-day period provided in subsection (2) of this section if:

          (a) The property is subjected to waste which results in a forfeiture to the county of the right to possession of the property under ORS 312.180; or

          (b) The property is not occupied by the owner or any person or entity that appears in the records of the county to have a lien or other interest in the property for a period of six consecutive months, and the property has suffered a substantial depreciation in value or will suffer a substantial depreciation in value if not occupied.

          (2)(a) Upon determining that real property sold to the county under ORS 312.100 may be subject to waste or abandonment as provided in subsection (1) of this section, the county shall set a date, time and place within the county for a hearing for the purpose of determining whether the property should be deeded to the county pursuant to subsection (1) of this section.

          (b) The owner and any person or entity that appears in the records of the county to have a lien or other interest in the property shall be given an opportunity to be heard at the hearing provided in paragraph (a) of this subsection.

          (c) If the county determines after the hearing provided in paragraph (a) of this subsection that the property is subject to waste or abandonment as provided in subsection (1) of this section, the county governing body shall provide that any rights of possession the owner may have in the property are forfeited and direct the property be deeded to the county by the tax collector of the county after expiration of a period of 30 days from the date of the action of the county governing body determining property subject to forfeiture unless it is sooner redeemed by the owner or any person or entity that then appears in the records of the county to have a lien or other interest in the property. All rights of redemption with respect to the real property described in that deed shall terminate on the execution of the deed to the county.

          (d) The county shall, in its ordinance, provide for procedures for the hearing required under this subsection that are compatible with the requirements of due process of law.

          (3) Not less than 30 days prior to the hearing provided in subsection (2) of this section, the county shall notify the owner and any person or entity that then appears in the records of the county to have a lien or other interest in the property of the hearing. The notice shall contain:

          (a) The date, time and place of the hearing provided for in subsection (2) of this section;

          (b) The date of the judgment [and decree];

          (c) The normal date of expiration of the period of redemption under ORS 312.120;

          (d) Warning to the effect that if the county determines that the property is subject to waste or abandonment as provided in subsection (1) of this section, the property will be deeded to the county immediately after the expiration of 30 days from the date of the county governing body action so determining and that every right or interest of any person in the property will be forfeited forever to the county unless the property is redeemed within that 30-day period;

          (e) A legal description of the property and a tax account number; and

          (f) The name of the owner as it appears on the latest tax roll.

          (4) The notice required to be given under subsection (3) of this section shall be given by both certified mail and by regular first class mail.

          (5)(a) If the notice required under subsection (3) of this section is to be given to an owner, the notice shall be addressed to the owner or owners, as reflected in the county records of deeds, at the true and correct address of the owner as appearing on the instrument of conveyance under ORS 93.260 or as furnished under ORS 311.555 or as otherwise ascertained by the tax collector of the county pursuant to ORS 311.560.

          (b) If the person or entity to whom the notice is required under subsection (3) of this section to be given is a lienholder, or person or entity other than the owner, having or appearing to have a lien or other interest in the property, the notice shall be addressed to the lienholder, person or entity at the address which the county knows or after reasonable inquiry, has reason to believe to be the address at which the lienholder, person or entity will most likely receive actual notice.

          (6) For purposes of subsection (5)(b) of this section, if the lienholder is a corporation or a limited partnership, the county shall be considered to have made reasonable inquiry if the notice is mailed to the registered agent or last registered office of the corporation or limited partnership, if any, as shown by the records on file in the office of the Corporation Commissioner, or if the corporation or limited partnership is not authorized to transact business in this state, to the principal office or place of business of the corporation or limited partnership.

          (7) As used in this section, “records of the county” has that meaning given in ORS 312.125 (7).

 

          SECTION 422. ORS 312.125 is amended to read:

          312.125. (1) Not less than one year prior to the expiration of the period of redemption of any real property ordered sold to the county under a judgment [and decree] under ORS 312.100, the tax collector shall provide notice of the expiration of the period of redemption to any person or entity entitled to redeem the property under ORS 312.120 (2) whose interest appears in the records of the county as of the date foreclosure proceedings were instituted. Any person or entity whose interest has terminated by any means other than a judgment [and decree] of foreclosure under ORS 312.120 shall not be entitled to such notice.

          (2) The notice shall contain:

          (a) The date of the judgment [and decree];

          (b) The date of expiration of the period of redemption;

          (c) Warning to the effect that the property ordered sold under the judgment [and decree], unless sooner redeemed, will be deeded to the county immediately on expiration of the period of redemption and that every right or interest of any person in the property will be forfeited forever to the county;

          (d) A legal description of the property and a tax account number; and

          (e) The name of the owner as it appears on the latest tax roll.

          (3) The notice required to be given under subsections (1) and (2) of this section shall be given by both certified mail and by regular first class mail and subsections (4) and (5) of this section shall apply to both mailings.

          (4)(a) If the notice required under subsections (1) and (2) of this section is to be given to an owner, the notice shall be addressed to the owner or owners, as reflected in the county records of deeds, at the true and correct address of the owner as appearing on the instrument of conveyance under ORS 93.260 or as furnished under ORS 311.555 or as otherwise ascertained by the tax collector pursuant to ORS 311.560.

          (b) If the person or entity to whom the notice is required under subsection (1) of this section to be given is a lienholder, or person or entity other than the owner, having or appearing to have a lien or other interest in the property, the notice shall be addressed to the lienholder, person or entity at the address which the tax collector knows or after reasonable inquiry, has reason to believe to be the address at which the lienholder, person or entity will most likely receive actual notice. For the convenience of the county, any lien, instrument or other document, memorandum or writing, filed on or after September 27, 1987, that creates an interest with respect to which notice is required to be given under this paragraph, shall contain:

          (A) The address of the person or entity holding lien or other interest created by the instrument or other document, memorandum or writing; and

          (B) The tax account number, if any, and if known, of the property subject to the lien or in which the interest is created.

          (5) Failure of a lien, instrument or other document, memorandum or other writing to contain the address and tax account number information required under subsection (4)(b) of this section does not invalidate the lien, instrument or other document, memorandum or writing, nor shall the failure of the writing to contain the information relieve the tax collector of the duty to obtain and mail the notice required under subsection (4)(b) of this section to the address that the tax collector believes to be the address at which the lienholder, person or entity is most likely to receive actual notice.

          (6) For purposes of subsection (4)(b) of this section, if the lienholder is a corporation or a limited partnership, the tax collector shall be considered to have made reasonable inquiry if the notice is mailed to the registered agent or last registered office of the corporation or limited partnership, if any, as shown by the records on file in the office of the Corporation Commissioner, or if the corporation or limited partnership is not authorized to transact business in this state, to the principal office or place of business of the corporation or limited partnership.

          (7)(a) As used in this section, “records of the county” means the following:

          (A) The grantor-grantee indexes.

          (B) Other records of deeds, mortgages, powers of attorney, contracts and other instruments, documents or memorandum of conveyance or otherwise of real property that are described in ORS 205.130 (1) and (2).

          (C) The County Clerk Lien Record described in ORS 205.130 (3).

          (D) Records of federal tax liens and other liens, instruments or other documents or writings reflecting an interest in real property described in ORS 205.246, if those records are kept separately from the records described in paragraph (b) of this subsection.

          (E) Records of statutory liens on real property described in ORS 87.372.

          (F) Any other records of interests in real property required to be kept by the county clerk, if the records contain a legal description of the property and an address specifically designated as indicated on the instrument, document or other memorandum or writing for purposes of mailing the notice required by this section.

          (b) For purposes of this section only, “records of the county” includes:

          (A) The appropriate records of the courts described in ORS 7.010 in the custody of the clerk of the appropriate court or court administrator under ORS 7.110; and

          (B) Probate records in the custody of the clerk of the appropriate court or court administrator under ORS 7.230 and 7.240. Notwithstanding any provision to the contrary in ORS chapter 7 or other law, the clerk of the appropriate court or the court administrator shall make available to and assist the tax collector in the examination of the records described in this paragraph for purposes of carrying out the obligations of the tax collector under this section without charge.

 

          SECTION 423. ORS 312.130 is amended to read:

          312.130. The receipt of redemption money by the tax collector shall operate to release all claims of the county, under the judgment [and decree] of foreclosure, to the property so redeemed. The tax collector, on receipt of the redemption money, immediately shall make the proper entries in the records of the office of the tax collector showing that the delinquent taxes, interest and penalty have been paid and that the property has been redeemed from the sale to the county, and the tax collector shall deliver to the person redeeming the property a certificate of redemption. The certificate shall contain a description of the property so redeemed, the total amount of taxes, interest and penalty paid, and the date of entry of the judgment [and decree] of foreclosure. The certificate shall be signed by the tax collector or deputy and shall be filed by the redemptioner with the clerk of the court that issued the judgment [and decree] of foreclosure. The clerk then shall enter the filing of the certificate of redemption in the court register and thereafter file the certificate of redemption as part of the case file in the foreclosure proceeding. No fee shall be charged for the issuance of a certificate of redemption.

 

          SECTION 424. ORS 312.170 is amended to read:

          312.170. (1) The governing body of any municipal or other public corporation, having a lien on any real property included in a foreclosure list or proceeding, may use its funds to remove the property from the list or proceeding, or to redeem the property after judgment [and decree] of foreclosure. Such corporation shall have the same right of redemption as the owner of the property.

          (2) Where any municipal or other public corporation so removes or redeems any real property on which it claims a lien, or pays any taxes thereon, the corporation may add to its lien the amount so disbursed and cause that amount to be noted on its lien docket. The amount so disbursed shall be recoverable as part of the lien of the municipal or other public corporation. In case of foreclosure of the original lien claimed by such corporation, the amount so disbursed may be added to the original lien and recovered as part thereof.

          (3) Any county and municipal or other public corporation may enter into a cooperative agreement to facilitate foreclosure sales for the collection of delinquent property taxes and municipal liens.

 

          SECTION 425. ORS 312.190 is amended to read:

          312.190. Not more than 30 days nor less than 10 days prior to the expiration of the period of redemption of any real property ordered sold to the county under a judgment [and decree] under ORS 312.100, the tax collector shall publish a general notice relative to the expiration of the period of redemption. The notice shall contain the date of the judgment [and decree], the date of expiration of the period of redemption, and warning to the effect that all the properties ordered sold under the judgment [and decree], unless sooner redeemed, will be deeded to the county immediately on expiration of the period of redemption and that every right or interest of any person in the properties will be forfeited forever to the county. The notice shall be published in two weekly issues of a duly designated newspaper of general circulation in the county within the period of 20 days as specified in this section. Proof of publication shall be attached to and made a part of the deed issued to the county. The published notice may be a general notice and it shall not be necessary to include therein descriptions of the several properties or the names of the respective owners.

 

          SECTION 426. ORS 312.210 is amended to read:

          312.210. Appeal from any judgment [and decree] under ORS 312.010 to 312.120 and 312.130 to 312.240, or from any final order in the proceeding, may be taken to the Court of Appeals by giving notice thereof orally in open court at the time of the judgment [and decree] or final order, or by giving written notice thereof at any time within 30 days after the date of the judgment [and decree] or final order. The manner of perfecting appeals to the Court of Appeals and the proceedings thereon, and the determination and disposition thereof, shall be governed by the statutes on appeals in equitable cases.

 

          SECTION 427. ORS 312.220 is amended to read:

          312.220. Any judgment [and decree] for the sale of real property to the county, on foreclosure for delinquent taxes, is conclusive evidence of its regularity and validity in all collateral proceedings, except where the taxes have been paid or the property was not liable to assessment and taxation. The judgment [and decree] is prima facie evidence that the taxes have not been paid and that the property was subject to taxation at the time it was assessed. The judgment [and decree] shall estop all persons raising objections thereto, or to the title based thereon, which existed at or before the date of the judgment [and decree] and could have been presented as an objection or defense to the application for the judgment [and decree].

 

          SECTION 428. ORS 312.230 is amended to read:

          312.230. (1) Every action, suit or proceeding, commenced for the purpose of determining the validity of a sale of real property on foreclosure for delinquent taxes, or to quiet title against such sale, or to remove the cloud thereof, or to recover possession of the property, shall be commenced within two years from the date of the judgment [and decree] of foreclosure and sale to the county, or within six months from June 1, 1961, whichever is the later.

          (2) Notwithstanding any other provisions of law, in every such action, suit or proceeding any person claiming to be the owner of the property, as against the county or grantee, shall pay into court with the first pleading the amount charged against the property in the judgment [and decree] of foreclosure, plus the amount or amounts that would otherwise have been assessed and levied against said property as taxes from the date of the said judgment [and decree] to the time of the filing of such action, suit or proceeding, together with any penalties and interest that would have accrued thereon as by statute provided. In every such action, suit or proceeding any person claiming to be the owner of the property as against any person holding title from the county, shall pay into court with the first pleading the amount charged against the property in the judgment [and decree] of foreclosure, together with interest thereon at the rate of six percent per year from the date of the judgment [and decree] to the date of filing the pleading.

          (3) For all purposes this section shall be construed as a statute of prescription as well as a statute of limitation.

 

          SECTION 429. ORS 312.240 is amended to read:

          312.240. Whenever the court vacates or sets aside a judgment [and decree] of foreclosure with respect to any particular property, the court shall determine the value of any improvements placed on the property by the county or by any purchaser from the county, and shall give judgment therefor and collect the same from the claimant before putting the claimant in possession.

 

          SECTION 430. ORS 312.300 is amended to read:

          312.300. No proceedings subsequent to a judgment [or decree] foreclosing a tax lien or liens upon property purchased under ORS 312.270 or 312.290, whether by a private purchaser or by a municipal corporation, shall be invalidated and no deed shall be declared void or set aside for irregularities, omissions or defects, unless the record owner of the property sold actually has been misled by the irregularities, omissions or defects to the injury of the record owner.

 

          SECTION 431. ORS 312.360 is amended to read:

          312.360. (1) All sales of land for taxes made to counties or other public corporations are declared legal and valid and shall pass good title to the lands assessed.

          (2) No proceedings subsequent to a judgment [or decree] foreclosing a tax lien or liens shall be invalidated and no tax deed declared void or set aside for irregularities, omissions or defects unless the record owner of the land sold has been actually misled by the irregularities, omissions or defects to the injury of the record owner.

 

          SECTION 432. ORS 316.567 is amended to read:

          316.567. (1) Except as provided in subsection (2) of this section, a husband and wife may make a single declaration jointly under ORS 316.557 to 316.589. The liability of the husband and wife making such a declaration shall be joint and several.

          (2) A husband and wife may not make a joint declaration:

          (a) If either the husband or the wife is a nonresident alien;

          (b) If they are separated under a [decree] judgment of divorce or of separate maintenance; or

          (c) If they have different taxable years.

          (3) If a husband and wife make a joint declaration but not a joint return for the taxable year, the husband and wife may, in such manner as they may agree, and after giving notice of the agreement to the Department of Revenue:

          (a) Treat the estimated tax for the year as the estimated tax of either the husband or of the wife; or

          (b) Divide the estimated tax between them.

          (4) If a husband and wife fail to agree, or fail to notify the department of the manner in which they agree, to the treatment of estimated tax for a taxable year for which they make a joint declaration but not a joint return, the payments shall be allocated between them according to rules adopted by the department. Notwithstanding ORS 314.835, 314.840 or 314.991, the department may disclose to either the husband or the wife the information upon which an allocation of estimated tax was made under this section.

 

          SECTION 433. ORS 327.480 is amended to read:

          327.480. (1) Where the [court decree] judgment in a suit instituted by the State of Oregon to cancel and set aside any deed of lands from the State of Oregon alleged to have been procured by fraud and in violation of law grants relief to the State of Oregon which is conditioned on the payment of money, the Division of State Lands may pay from the Common School Fund the sum necessary to comply with the conditions of the [decree] judgment.

          (2) This section shall not be considered as a legislative interpretation relieving the defendants in such suit from applying to the legislature for repayment of the purchase price of such land, or that the State of Oregon is not entitled to an accounting from the purchaser, the assignee, or successor in interest, for school or other lands obtained in violation of law, or that the State of Oregon must repay the purchase price of such lands, with or without interest as a condition of obtaining relief. This section is intended to prevent the loss to the State of Oregon of lands obtained in violation of law, where the court imposes as a condition for granting relief the payment of money.

 

          SECTION 434. ORS 332.030 is amended to read:

          332.030. (1) The district school board shall declare the office of a director vacant upon the happening of any of the following:

          (a) The death or resignation of the incumbent.

          (b) When an incumbent is removed from office or the election of the incumbent thereto has been declared void by the judgment [or decree] of any [competent] court.

          (c) Subject to the provisions of subsections (2) and (3) of this section, when an incumbent ceases to be a resident of the district or zone from which nominated.

          (d) When an incumbent ceases to discharge the duties of office for two consecutive months unless prevented therefrom by sickness or other unavoidable cause.

          (e) When an incumbent ceases to discharge the duties of office for four consecutive months for any reason.

          (f) When an incumbent is recalled.

          (2) A director of a union high school board who changes the director’s permanent residence from one component common school district to another component common school district in which another director resides shall continue to serve as director to June 30 next following the next regular district election. At that election, a successor shall be elected to serve the remainder, if any, of the unexpired term to which the director was elected. If the term to which the director was elected expires June 30 next following the election of the successor, the successor shall be elected to a full term. In either case, the successor shall take office July 1 next following the election.

          (3) A director of a common school district nominated from a zone who changes the director’s permanent residence from one zone to another zone in which another director resides shall continue to serve as director to June 30 next following the next regular district election. At that election, a successor shall be elected to serve the remainder, if any, of the unexpired term to which the director was elected. If the term to which the director was elected expires June 30 next following the election of the successor, the successor shall be elected to a full term. In either case, the successor shall take office July 1 next following the election.

          (4) When a vacancy is declared under subsection (1) of this section, the remaining member or members of the board shall meet and appoint a person to fill the vacancy. The person must satisfy the eligibility requirements under ORS 332.018 and, if the district is zoned, reside in the zone in which the vacancy occurs. A director appointed under this subsection shall serve to June 30 next following the next regular district election. At that election, a successor shall be elected to serve the remainder, if any, of the unexpired term to which the director was appointed. If the term to which the director was appointed expires June 30 next following the election of the successor, the successor shall be elected to a full term. In any case, the successor shall take office July 1 next following the election.

          (5) If the offices of a majority of the directors of any district are vacant at the same time, the education service district board, or if there is none, the governing body of the county shall appoint persons to fill the vacancies. The persons must satisfy the eligibility requirements under ORS 332.018 and, if the district is zoned, reside in the zones in which the vacancies occur. If the vacancies occur in a joint district that is not included in an education service district, the governing body of the county containing the greater portion of the pupils in average daily membership shall appoint the directors. Each director appointed under this subsection shall serve to June 30 next following the next regular district election. At that election, a successor shall be elected to serve the remainder, if any, of the unexpired term to which the director was appointed. If the term to which the director was appointed expires June 30 next following the election of the successor, the successor shall be elected to a full term. In any case, the successor shall take office July 1 next following the election.

 

          SECTION 435. ORS 334.095 is amended to read:

          334.095. (1) The education service district board shall declare the office of director vacant upon the happening of any of the following:

          (a) When an incumbent dies or resigns;

          (b) When an incumbent is removed from office or the election thereto has been declared void by the judgment [or decree] of any [competent] court;

          (c) When an incumbent ceases to be a resident of the education service district;

          (d) Subject to the provision of subsection (2) of this section, when an incumbent ceases to be a resident of the zone from which nominated;

          (e) When an incumbent ceases to discharge the duties of office for two consecutive months unless prevented therefrom by sickness or other unavoidable cause; or

          (f) When an incumbent is recalled.

          (2) A director nominated from a zone who changes permanent residence from one zone to another zone in which another director resides shall continue to serve as director until the next regular election when a successor shall be elected to serve for the remainder of the unexpired term.

          (3) A director guilty of misfeasance or malfeasance in office, by the appropriate proceeding, may be removed from office by a court of competent jurisdiction.

          (4) Members may be recalled in the manner provided in ORS 249.865 to 249.877. If the member was elected by a zone, the recall petition shall be signed by electors from that zone and electors from the zone are the only electors eligible to vote in the recall election. If the member was elected at large, the recall petition shall be signed by electors from the district and electors from the district are eligible to vote in the recall election.

 

          SECTION 436. ORS 341.335 is amended to read:

          341.335. (1) The board shall declare the office of a board member vacant if it finds any of the following:

          (a) The incumbent has died or resigned.

          (b) The incumbent has been removed or recalled from office or the election of the incumbent thereto has been declared void by the judgment [or decree] of a court [of competent jurisdiction].

          (c) The incumbent has ceased to be a resident of the district from which the incumbent was nominated or elected.

          (d) The incumbent has ceased to discharge the duties of office for two consecutive months unless prevented therefrom by sickness or other unavoidable cause or unless excused by the chairperson of the board.

          (2) A board member who is nominated or elected by zone and who changes permanent residence from one zone of a district to another zone or who by a change in zone boundaries no longer resides in the zone of nomination or election is entitled to continue to serve as board member until June 30 following the next regular district election at which a successor shall be elected by the electors to serve for the remainder of the unexpired term, if any. The successor shall take office July 1 next following the election.

          (3) When a vacancy is declared under subsection (1) of this section, the remaining board members shall meet and appoint a person to fill the vacancy from any of the electors of the district if the position is one filled by both nomination and election at-large, and otherwise from any of the electors of the zone from which the vacancy occurs.

          (4) If the offices of a majority of the board members are vacant at the same time, the governing body of the principal county shall appoint persons to fill the vacancies from any of the electors of the district if the positions are filled by both nomination and election at-large, and otherwise from any of the electors of the zone from which the vacancy occurs.

          (5) The period of service of a board member appointed under subsection (3) or (4) of this section commences upon appointment and expires June 30 next following the next regular district election at which a successor is elected. The successor shall be elected to serve the remainder, if any, of the term for which the appointment was made. If the term for which the appointment was made expires June 30 after the election of the successor, the successor shall be elected to a full term. In either case, the successor shall take office on July 1.

 

          SECTION 437. ORS 358.925 is amended to read:

          358.925. (1) Violation of ORS 358.920 or 390.235 is prohibited conduct for the purposes of ORS chapter 475A. Proceeds and instrumentalities of a violation of ORS 358.920 or 390.235 may be seized and forfeited in the manner provided by ORS chapter 475A. An action for civil forfeiture under this section may be commenced by the Attorney General or by the district attorney for the county in which any of the property is seized.

          (2) Property subject to forfeiture under this section may be seized by a police officer upon court process. Seizure without process may be made if:

          (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

          (b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

          (3) In the event of a seizure under subsection (1) of this section, a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the police officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the police officer may:

          (a) Place the property under seal;

          (b) Remove the property to a place designated by the court; or

          (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

          (4) In any action brought under this section, the circuit court shall give priority to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions as the court may deem proper.

          (5) A [final judgment or decree] judgment rendered in favor of the state in any criminal proceeding for a violation of ORS 358.920 or 390.235 shall estop the defendant in any subsequent civil action or proceeding brought by the state or any other person as to all matters as to which such judgment [or decree] would be an estoppel as between the state and the defendant.

          (6) Notwithstanding any provision of ORS chapter 475A, after entry of a judgment of forfeiture in an action under this section, a forfeiting agency shall deliver the forfeited property and proceeds of the forfeited property to the Commission on Indian Services after making any deductions allowed for costs incurred by the forfeiting agency. The commission shall deliver the property and proceeds to the appropriate Indian tribe, as designated by the commission. If there is no appropriate Indian tribe, the commission shall use the property and proceeds for Indian historic preservation.

 

          SECTION 438. ORS 358.928 is amended to read:

          358.928. (1) All instrumentalities or proceeds from the violation of the provisions of ORS [358.910] 358.920 to 358.955 or 390.235 are subject to civil forfeiture to the appropriate Indian tribe, as designated by the Commission on Indian Services. All forfeitures under this section shall be made with due provision for the rights of innocent persons.

          (2) Property subject to forfeiture under this section may be seized by a police officer upon court process. Seizure without process may be made if:

          (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

          (b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

          (3) Any police officer seizing property under this section shall promptly contact the Commission on Indian Services. The commission shall designate the appropriate tribe, and give notice to the tribe of the seizure. A civil forfeiture proceeding under ORS 358.925 may not be commenced if the tribe gives written notice that the tribe intends to seek forfeiture under this section. Notice by the tribe must be given within 30 days after the commission gives notice to the tribe of the seizure.

          (4) Property seized under this section shall be held by the police agency that employs the police officer pending judgment in an action under this section. The property shall not be subject to replevin. Pending judgment in the action, the police agency may:

          (a) Place the property under seal;

          (b) Remove the property to a place designated by the court; or

          (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

          (5) In any action brought under this section, the circuit court shall give priority to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.

          (6) The defendant or the tribe may demand a trial by jury in any civil action brought under this section.

          (7) A [final judgment or decree] judgment rendered in favor of the state in any criminal proceeding for a violation of ORS 358.920 to 358.955 or 390.235 shall estop the defendant in any action under this section as to all matters as to which such judgment [or decree] would be an estoppel as between the state and the defendant.

 

          SECTION 439. ORS 407.135 is amended to read:

          407.135. The Director of Veterans’ Affairs is authorized and empowered, in the name and in behalf of the state to commence and prosecute to [final judgment or decree] judgment all suits, actions and proceedings necessary to protect the interest of the state; to bid in property offered for sale under such proceedings and to acquire title to property for and in behalf of the state as a result of such proceedings; to accept deeds from borrowers in lieu of foreclosure; to sell, transfer, convey, lease or assign any property acquired by the director for and in behalf of the state; to make repairs and improvements or alterations; to pay taxes, liens and charges of every kind superior to the lien of the state; and otherwise to administer such property in such manner as the director deems to the best interest of the state. All money received by the director from the sale, leasing or other disposition of any property shall be paid over to the State Treasurer and deposited in the Oregon War Veterans’ Bond Sinking Account.

 

          SECTION 440. ORS 407.215 is amended to read:

          407.215. No applicant is entitled to borrow more than the maximum amount allowed under ORS 407.205 other than for reasons specified in ORS 407.205 except that when the property on which the loan was made becomes the property of the applicant’s spouse as a result of a [decree] judgment declaring a marriage void or dissolved and the loan is repaid or remains unrepaid and there is an assumption of primary liability on the loan by a party, such loan may be excluded from consideration in computing the maximum loan allowable under ORS 407.205.

 

          SECTION 441. ORS 407.295 is amended to read:

          407.295. When an ownership interest or possession of a home or farm securing a loan received under this chapter is transferred to the spouse or former spouse of the original borrower as a result of any judicial order[,] or judgment [or decree], the Director of Veterans’ Affairs shall be notified in writing of the transfer by the transferee not later than 30 days after the transfer occurs. If the original borrower remains obligated under the order[,] or judgment [or decree] to make the payments on the principal and interest of the loan, the director shall notify the transferee when any such loan payment is not received by the 30th day after the payment is due.

 

          SECTION 442. ORS 411.650 is amended to read:

          411.650. (1) Every person 18 years of age or over who applies for or receives any type of general assistance or public assistance, as defined in ORS 411.010, whether such general assistance or public assistance is applied for or received for the benefit of the person or of another individual, shall execute to the Department of Human Services at the time of making such application, and at such times as may be required by the department in any case, written statements relating to each individual for whose benefit such general assistance or public assistance is applied for or received, and to any person who has a duty to support such individual, or to whom such individual owes a duty of support. Such statements shall include, but need not be limited to, so much of the following information, relating to each such individual or other person, as may be specified or required by the department:

          (a) The name of the individual, address, date and place of birth, residence, family relationships, and the composition of the household in which the individual lives;

          (b) The financial circumstances of the individual and means of and ability for support of the individual and other individuals, including but not limited to information concerning:

          (A) The employment of the individual and the nature and amount of the income of the individual, from whatever source derived;

          (B) The tangible and intangible assets of the individual, property and resources of any nature including, but not limited to, money, real and personal property, rights and expectancies as an heir, devisee, legatee, trustee or cestui que trust, and any rights, benefits, claims or choses in action, whether arising in tort or based upon statute, contract[,] or judgment [or decree];

          (C) The receipt of the individual, transfer or disposal of any assets, property or resources, referred to in subparagraph (B) of this paragraph, within three years immediately preceding such application and during any period with respect to which such general assistance or public assistance is granted; and

          (D) Such other information as may be required pursuant to state or federal laws applicable to such general assistance or public assistance.

          (2) All applications for such general assistance or public assistance and all statements referred to in subsection (1) of this section shall be upon forms prescribed and furnished by the department. Each such statement shall be subscribed by each individual who executes or joins in the execution of such statement.

          (3) The spouse of any individual who applies for or receives such general assistance or public assistance may be required by the department to join in the execution of, or separately to execute, any statement referred to in subsection (1) of this section, under oath or affirmation, except during any period in which it appears to the department that:

          (a) Such individual and the spouse of the individual are estranged and are living apart;

          (b) The spouse is absent from this state or the whereabouts of the spouse is unknown; or

          (c) The spouse is physically or mentally incapable of executing such statement or of providing any information referred to in subsection (1) of this section.

 

          SECTION 443. ORS 416.400 is amended to read:

          416.400. As used in ORS 416.400 to 416.470, unless the context requires otherwise:

          (1) “Administrator” has the meaning given that term in ORS 25.010.

          (2) “Court” shall mean any circuit court of this state and any court in another state having jurisdiction to determine the liability of persons for the support of another person.

          (3) “Court order” means any judgment[, decree] or order of any Oregon court that orders payment of a set or determinable amount of support money by the subject parent and does not include an order or [decree] judgment in any proceeding in which the court did not order support.

          (4) “Department” means the Department of Human Services of this state or its equivalent in any other state from which a written request for establishment or enforcement of a support obligation is received under ORS 416.415. When support is sought for a youth offender in the physical or legal custody of the Oregon Youth Authority, “department” includes the Oregon Youth Authority.

          (5) “Dependent child” means any person under the age of 18 who is not otherwise emancipated, self-supporting, married or a member of the Armed Forces of the United States. “Dependent child” also means a child attending school as defined in ORS 107.108.

          (6) “Office” means the office of the Division of Child Support or the office of the district attorney.

          (7) “Parent” means the natural or adoptive father or mother of a dependent child or youth offender. “Parent” also means stepparent when such person has an obligation to support a dependent child pursuant to ORS 109.053.

          (8) “Past support” means the amount of child support that could have been ordered and accumulated as arrears against a parent for the benefit of a child for any period of time during which the child was not supported by the parent and for which period no support order was in effect.

          (9) “Public assistance” means any money payments made by the department which are paid to or for the benefit of any dependent child or youth offender, including but not limited to payments made so that food, shelter, medical care, clothing, transportation or other necessary goods, services or items may be provided, and payments made in compensation for the provision of such necessities.

          (10) “Youth offender” has the meaning given that term in ORS 419A.004.

 

          SECTION 444. ORS 417.060 is amended to read:

          417.060. The Juvenile Compact Administrator may recover from parents or guardians any moneys expended by this state or any of its subdivisions in returning a delinquent or nondelinquent juvenile to this state, for care pending the return of the juvenile to this state or for care provided pursuant to any supplementary agreement. Proceedings to recover such moneys shall be brought before the juvenile court, which shall, upon the parent, parents or guardian being duly summoned or voluntarily appearing, enter such order or [decree] judgment as is equitable in the premises. The order or [decree] judgment may be enforced by execution or in any manner in which a court of equity may enforce its orders or [decrees] judgments. No property belonging to persons subject to the order or [decree] judgment shall be exempt from levy and sale under execution.

 

          SECTION 445. ORS 418.032 is amended to read:

          418.032. (1) Whenever the Department of Human Services has accepted custody of a child under the provisions of ORS 418.015 and is required to provide financial assistance for the care and support of the child, it shall, by operation of law, be assignee of and subrogated to any right to support from any other person including any sums that may have accrued, up to the amount of assistance provided by the department. If the right to support is contained in a [decree] judgment or order that requires a single gross monthly payment for the support of two or more children, the assignment and right of subrogation shall be of such child’s proportionate share of the gross amount. The assignment shall be as provided in ORS 418.042.

          (2) The department shall attempt to enter into agreements with any person who voluntarily gives custody of a child with mental or physical disabilities to the department. Any agreement entered into shall set out the timely and nonadversarial settlement of child support obligations that the person may have with respect to the child.

 

          SECTION 446. ORS 419A.004 is amended to read:

          419A.004. As used in this chapter and ORS chapters 419B and 419C, unless the context requires otherwise:

          (1) “CASA Volunteer Program” means a program approved or sanctioned by the juvenile court to recruit, train and supervise volunteer persons to serve as court appointed special advocates.

          (2) “Child” means a person within the jurisdiction of the juvenile court as provided in ORS 419B.100.

          (3) “Child care center” means a residential facility for the care and supervision of children that is licensed under the provisions of ORS 418.240.

          (4) “Community service” has the meaning given that term in ORS 137.126.

          (5) “Conflict of interest” means a person appointed to a local citizen review board who has a personal or pecuniary interest in a case being reviewed by that board.

          (6) “Counselor” means a juvenile department counselor.

          (7) “Court” means the juvenile court.

          (8) “Court appointed special advocate” or “CASA” means a person appointed by the court pursuant to a CASA Volunteer Program to act as special advocate for a child pursuant to ORS 419A.170.

          (9) “Court facility” has the meaning given that term in ORS 166.360.

          (10) “Department” means the Department of Human Services.

          (11) “Detention” or “detention facility” means a facility established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063 for the detention of dependent children or delinquent youth pursuant to a judicial commitment or order.

          (12) “Director” means the director of a juvenile department established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063.

          (13) “Guardian” means guardian of the person and not guardian of the estate.

          (14) “Indian child” means any unmarried person less than 18 years of age who is:

          (a) A member of an Indian tribe; or

          (b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

          (15) “Juvenile court” means the court having jurisdiction of juvenile matters in the several counties of this state.

          (16) “Local citizen review board” means the board specified by ORS 419A.090 and 419A.092.

          (17) “Parent” means the biological or adoptive mother of the child and the legal or adoptive father of the child. A legal father includes:

          (a) A nonimpotent, nonsterile man who was cohabiting with his wife, who is the mother of the child, at the time of conception;

          (b) A man married to the mother of the child at the time of birth, where there is no [decree] judgment of separation and the presumption of paternity has not been disputed;

          (c) A biological father who marries the mother of the child after the birth of the child;

          (d) A biological father who has established or declared paternity through filiation proceedings or under ORS 416.400 to 416.470; and

          (e) A biological father who has, with the mother, established paternity through a voluntary acknowledgment of paternity under ORS 109.070.

          (18) “Permanent foster care” means an out-of-home placement in which there is a long-term contractual foster care agreement between the foster parents and the department that is approved by the juvenile court and in which the foster parents commit to raise a foster child until the age of majority.

          (19) “Planned permanent living arrangement” means an out-of-home placement other than by adoption, placement with a relative or placement with a legal guardian that is consistent with the case plan and in the best interests of the child.

          (20) “Public building” has the meaning given that term in ORS 166.360.

          (21) “Reasonable time” means a period of time that is reasonable given a child’s emotional and developmental needs and ability to form and maintain lasting attachments.

          (22) “Records” means any information in written form, pictures, photographs, charts, graphs, recordings or documents pertaining to a case.

          (23) “Resides” or “residence,” when used in reference to the residence of a child or youth, means the place where the child or youth is actually living or the jurisdiction in which wardship of the child or youth has been established.

          (24) “Restitution” has the meaning given that term in ORS 137.103.

          (25) “Serious physical injury” means:

          (a) A serious physical injury as defined in ORS 161.015; or

          (b) A physical injury that:

          (A) Has a permanent or protracted significant effect on a child’s daily activities;

          (B) Results in substantial and recurring pain; or

          (C) In the case of a child under 10 years of age, is a broken bone.

          (26) “Shelter care” means a home or other facility suitable for the safekeeping of a child who is taken into temporary custody pending investigation and disposition where the circumstances are such that the child does not need to be kept in secure custody.

          (27) “Short-term detention facility” means a facility established under ORS 419A.050 (3) for holding youths pending further placement.

          (28) “Substitute care” means an out-of-home placement directly supervised by the department or other agency, including placement in a foster family home, group home or other child caring institution or facility. “Substitute care” does not include care in:

          (a) A detention facility, forestry camp or youth correction facility;

          (b) A family home which the court has approved as a child’s permanent placement, where a private child caring agency has been appointed guardian of the child and where the child’s care is entirely privately financed; or

          (c) In-home placement subject to conditions or limitations.

          (29) “Surrogate” means a person appointed by the court to protect the right of the child to receive procedural safeguards with respect to the provision of free appropriate public education.

          (30) “Tribal court” means a court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code of custom of an Indian tribe or any other administrative body of a tribe that is vested with authority over child custody proceedings.

          (31) “Youth” means a person under 18 years of age who is alleged to have committed an act that is a violation, or, if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.

          (32) “Youth care center” has the meaning given that term in ORS 420.855.

          (33) “Youth offender” means a person at least 12 years of age who has been found to be within the jurisdiction of the juvenile court under ORS 419C.005 for an act committed when the person was under 18 years of age.

 

          SECTION 447. ORS 419B.328 is amended to read:

          419B.328. (1) A child found to be within the jurisdiction of the court as provided in ORS 419B.100, may be made a ward of the court.

          (2) The court’s wardship over a child found to be within the jurisdiction of the court as provided in ORS 419B.100 continues, and the child is subject to the court’s jurisdiction, until one of the following occurs:

          (a) The court dismisses the petition concerning the child;

          (b) The court transfers jurisdiction over the child as provided in ORS 419B.127, 419B.130 and 419B.132;

          (c) The court enters an order terminating the wardship;

          (d) A [decree] judgment of adoption of the child is entered by a court of competent jurisdiction; or

          (e) The child becomes 21 years of age.

 

          SECTION 448. ORS 419B.406 is amended to read:

          419B.406. When a child is in the legal custody of the Department of Human Services and such child is the beneficiary of an existing order of support in a [decree] judgment of dissolution or other order and the department is required to provide financial assistance for the care and support of such child, the department shall be assignee of and subrogated to such child’s proportionate share of any such support obligation including sums that have accrued whether or not the support order or [decree] judgment provides for separate monthly amounts for the support of each of two or more children or a single monthly gross payment for the benefit of two or more children, up to the amount of assistance provided by the department. The assignment shall be as provided in ORS 418.042.

 

          SECTION 449. ORS 419B.529 is amended to read:

          419B.529. (1) Notwithstanding ORS 109.309, a prospective adoptive parent is not required to file a petition for adoption when:

          (a) A juvenile court that is a circuit court has entered an order of permanent commitment of a child to the Department of Human Services under ORS 419B.527 or the parent has signed and the department has accepted a release and surrender to the department and a certificate of irrevocability and waiver as provided in ORS 418.270 regarding the child;

          (b) The department has completed a home study as defined in ORS 109.304 that finds the prospective parent is suitable to adopt the child and the department consents to the adoption of the child by the prospective parent;

          (c) A home study and a placement report requesting the juvenile court to enter a [decree] judgment of adoption have been filed in the juvenile court proceeding; and

          (d) At the time the placement report is filed under paragraph (c) of this subsection, the prospective adoptive parent files the adoption report form required under ORS 109.400.

          (2) Notwithstanding ORS 21.114, the clerk of the juvenile court may not charge or collect first appearance or hearing fees for a proceeding under this section.

          (3) After the filing of the home study and the placement report requesting the court to enter a [decree] judgment of adoption, the juvenile court that entered the order of permanent commitment may proceed as provided in ORS 109.307 and 109.350 and may enter a [decree] judgment of adoption.

          (4) Records of adoptions filed and established under this section shall be kept in accordance with, and are subject to, ORS 7.211.

 

          SECTION 450. ORS 419B.552 is amended to read:

          419B.552. (1) A juvenile court, upon the written application of a minor who is domiciled within the jurisdiction of such court, is authorized to enter a [decree] judgment of emancipation in the manner provided in ORS 419B.558. A [decree] judgment of emancipation shall serve only to:

          (a) Recognize the minor as an adult for the purposes of contracting and conveying, establishing a residence, suing and being sued, and recognize the minor as an adult for purposes of the criminal laws of this state.

          (b) Terminate as to the parent and child relationship the provisions of ORS 109.010 until the child reaches the age of majority.

          (c) Terminate as to the parent and child relationship the provisions of ORS 109.053, 109.100, 419B.373, 419B.400, 419B.402, 419B.404, 419B.406, 419B.408, 419C.550, 419C.590, 419C.592, 419C.595, 419C.597 and 419C.600.

          (2) A [decree] judgment of emancipation shall not affect any age qualification for purchasing alcoholic liquor, the requirements for obtaining a marriage license, nor the minor’s status under ORS 109.510.

 

          SECTION 451. ORS 419B.555 is amended to read:

          419B.555. (1) The juvenile court shall conduct a preliminary hearing on the minor’s application for emancipation within 10 days of the date on which it is filed or as soon as possible thereafter. At the time of the preliminary hearing, the court may issue a temporary custody [decree] order, stay any pending proceedings or enter any other temporary order appropriate to the circumstances. No action of the court pursuant to this subsection may be extended beyond the date set for a final hearing.

          (2) The final hearing shall be held no later than 60 days or as soon as possible after the date on which the application is filed.

          (3) Notice to the parent or parents of the applicant shall be made pursuant to ORS 419B.812 to 419B.839.

          (4) At the preliminary hearing, the court shall advise the minor of the civil and criminal rights and civil and criminal liabilities of an emancipated minor. This advice shall be recited in the [decree] judgment of emancipation.

          (5) The hearing mentioned in subsection (2) of this section may be waived by the minor and parent or parents.

          (6) A uniform filing fee of $70 shall be charged and collected by the court for each application for emancipation. In addition, the court shall collect any other fees required by law.

 

          SECTION 452. ORS 419B.558 is amended to read:

          419B.558. (1) The juvenile court in its discretion may enter a [decree] judgment of emancipation where the minor is at least 16 years of age and the court finds that the best interests of the minor will be served by emancipation. In making its determination, the court shall take into consideration the following factors:

          (a) Whether the parent of the minor consents to the proposed emancipation;

          (b) Whether the minor has been living away from the family home and is substantially able to be self-maintained and self-supported without parental guidance and supervision; and

          (c) Whether the minor can demonstrate to the satisfaction of the court that the minor is sufficiently mature and knowledgeable to manage the minor’s affairs without parental assistance.

          (2) Upon entry of a [decree] judgment of emancipation by the court, the applicant shall be given a copy of the [decree] judgment. The [decree] judgment shall instruct that the applicant obtain an Oregon driver’s license or an Oregon identification card through the Department of Transportation and that the Department of Transportation make a notation of the minor’s emancipated status on the license or identification card.

          (3) An emancipated minor shall be subject to the jurisdiction of the adult courts for all criminal offenses.

 

          SECTION 453. ORS 419C.597 is amended to read:

          419C.597. When a youth offender or other offender is in the legal or physical custody of the Oregon Youth Authority and the offender is the beneficiary of an existing order of support in a [decree] judgment of dissolution or other order and the youth authority is required to provide financial assistance for the care and support of the offender, the youth authority shall be assignee of and subrogated to the offender’s proportionate share of any such support obligation including sums that have accrued whether or not the support order or [decree] judgment provides for separate monthly amounts for the support of each of two or more children or a single monthly gross payment for the benefit of two or more children, up to the amount of assistance provided by the youth authority. The assignment shall be as provided in ORS 418.042.

 

          SECTION 454. ORS 432.230 is amended to read:

          432.230. (1) The State Registrar of the Center for Health Statistics shall establish a new certificate of birth for a person born in this state when the state registrar receives either of the following:

          (a) A report of adoption as provided in ORS 432.415 or a report of adoption prepared and filed in accordance with the laws of another state or foreign country, or a certified copy of the [decree] judgment of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth, except that a new certificate of birth shall not be established if so requested by the court [decreeing the] entering the judgment of adoption, the adoptive parents or the adopted person.

          (b) A request that a new certificate of birth be established as prescribed by rule and the evidence required by rule of the state registrar proving that:

          (A) The person has been legitimated;

          (B) A court of competent jurisdiction has determined the paternity of the person;

          (C) An administrative determination of paternity has been filed; or

          (D) Both parents have voluntarily acknowledged the paternity of the person and requested that the surname be changed from that shown on the original certificate.

          (2) When a new certificate of birth is established, the actual city or county, or both, and date of birth shall be shown. The new certificate shall be substituted for the original certificate of birth in the files, and the original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, administrative determination of paternity, voluntary acknowledgment of paternity or other form prescribed in ORS 432.287 shall not be subject to inspection except upon order of a court [of competent jurisdiction] or as provided by rule of the state registrar.

          (3) Upon receipt of a report of an amended [decree] judgment of adoption, the certificate of birth shall be amended as provided by rule of the state registrar.

          (4) Upon receipt of a report or [decree] judgment of annulment of adoption, the original certificate of birth shall be restored to its place in the files and the adoption certificate and evidence shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar.

          (5) Upon written request of both parents and receipt of a voluntary acknowledgment of paternity form or other form prescribed in ORS 432.287 signed by both parents of a child born out of wedlock, the state registrar shall issue a new certificate of birth to show such paternity if paternity is not already shown on the certificate of birth. Such certificate shall not be marked “Amended.”

          (6) If no certificate of birth is on file for the person for whom a new birth certificate is to be established under this section, and the date and place of birth have not been determined in the adoption or paternity proceedings, a delayed certificate of birth shall be filed with the state registrar as provided in ORS 432.140 and 432.142, before a new certificate of birth is established. The new birth certificate shall be prepared on the delayed birth certificate form.

          (7) When a new certificate of birth is established by the state registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state registrar as the state registrar shall direct.

          (8) The state registrar, upon request, shall prepare and register a certificate in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this state. The certificate shall be established upon receipt of a report of a judgment of adoption from the court [decreeing the adoption], proof of the date and place of the person’s birth, and a request from the court, the adopting parents or the adopted person, if 18 years of age or over, that such a certificate be prepared. The certificate shall be labeled “Certificate of Foreign Birth” and shall show the actual country of birth. A statement shall also be included on the certificate indicating that it is not evidence of United States citizenship for the person for whom it is issued. After registration of the birth certificate in the new name of the adopted person, the state registrar shall seal the report of adoption, which shall not be subject to inspection except upon order of a court of competent jurisdiction.

 

          SECTION 455. ORS 432.235 is amended to read:

          432.235. (1) A certificate or report registered under this chapter may be amended only in accordance with this chapter and rules adopted by the State Registrar of the Center for Health Statistics to protect the integrity and accuracy of vital records and vital reports.

          (2) A certificate or report that is amended under this section shall indicate that it has been amended, except as otherwise provided in ORS 432.230, this section or by rule of the state registrar. A record shall be maintained that identifies the evidence upon which the amendment was based, the date of the amendment and the identity of the person making the amendment. The state registrar shall prescribe by rule the conditions under which additions or minor corrections may be made to certificates or [records] reports within one year without the certificate or [record] report indicating that it has been amended.

          (3) Upon receipt of a certified copy of an order of a court [of competent jurisdiction] changing the name of a person born in this state and upon request of such person or if the person is a minor or incompetent, the parents, guardian or legal representative of the person, the state registrar shall amend the certificate of birth to show the new name.

          (4) Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual born in this state has been changed by surgical procedure and whether such individual’s name has been changed, the certificate of birth of such individual shall be amended as prescribed by rule of the state registrar.

          (5) When an applicant does not submit the minimum documentation required by rule of the state registrar for amending a vital record or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statements or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not amend the vital record and shall advise the applicant of the reason for this action and shall further advise the applicant of the right of appeal under ORS 183.480 and 183.484.

          (6) When a certificate or report is amended under this section by the state registrar, the state registrar shall report the amendment to any other custodian of the vital record and the record of the other custodian shall be amended accordingly.

          (7) When an amendment is made to a certificate of marriage by the local official issuing the marriage license, copies of the amendment shall be forwarded to the state registrar.

          (8)(a) When a party or legal representative proposes to set aside or change any information recorded in a dissolution of marriage [decree] judgment filed pursuant to ORS 432.408, the party or legal representative seeking the amendment or set aside order shall prepare a summary of the changes in the form prescribed or furnished by the state registrar and shall present the form to the clerk of the court along with the proposed [amended decree or set aside order] supplemental judgment. In all cases the completed form shall be a prerequisite to the entry of the [amended decree or set aside order] supplemental judgment.

          (b) The clerk of the court shall complete and forward to the Center for Health Statistics the records of each such [amended decree or set aside order] supplemental judgment in the same manner prescribed by ORS 432.408.

 

          SECTION 456. ORS 432.408 is amended to read:

          432.408. (1) A record of each dissolution of marriage [decree] judgment by any court in this state shall be filed by the clerk of the court with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section. The record shall be prepared by the petitioner or a legal representative of the petitioner in the form prescribed or furnished by the State Registrar of the Center for Health Statistics and shall be presented to the clerk of the court with the petition. In all cases the completed record shall be prerequisite to the entry of the [decree] judgment.

          (2) The clerk of the court shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of each dissolution of marriage [decree] judgment granted during the preceding calendar month.

          (3) A dissolution of marriage record not filed within the time prescribed by subsection (2) of this section may be registered in accordance with rules adopted by the state registrar.

 

          SECTION 456a. If House Bill 3015 becomes law, section 456 of this 2003 Act (amending ORS 432.408) is repealed and ORS 432.408, as amended by section 9, chapter 380, Oregon Laws 2003 (Enrolled House Bill 3015), is amended to read:

          432.408. (1) A record of each dissolution of marriage [decree] judgment by any court in this state shall be filed by the clerk of the court with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section. The record shall be prepared by the petitioner or a legal representative of the petitioner in the form prescribed or furnished by the State Registrar of the Center for Health Statistics and shall be presented to the clerk of the court with the petition. In all cases the completed record shall be prerequisite to the entry of the [decree] judgment. The state registrar shall design the record so that, for [decrees] judgments or orders issued in proceedings under ORS 107.085 or 107.485, the state registrar, county clerks, county recording officers and state courts may keep Social Security numbers confidential and exempt from public inspection.

          (2) The clerk of the court shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of each dissolution of marriage [decree] judgment granted during the preceding calendar month. The clerk shall comply with procedures established under section 1, chapter 380, Oregon Laws 2003 (Enrolled House Bill 3015), [of this 2003 Act] to ensure that, in the records completed and forwarded under this subsection, the Social Security numbers of parties to a proceeding under ORS 107.085 or 107.485 are kept confidential and exempt from public inspection.

          (3) A dissolution of marriage record not filed within the time prescribed by subsection (2) of this section may be registered in accordance with rules adopted by the state registrar.

 

          SECTION 457. ORS 432.415 is amended to read:

          432.415. (1) For each judgment of adoption [decreed] entered by a court [of competent jurisdiction] in this state, the court shall require the preparation of a report of adoption on a form prescribed and furnished by the State Registrar of the Center for Health Statistics. The report shall:

          (a) Include such facts as are necessary to locate and identify the certificate of birth of the person adopted or, in the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the court as to the date and place of birth of the person;

          (b) Provide information necessary to establish a new certificate of birth of the person adopted; and

          (c) Identify the order of adoption and be certified by the clerk of the court.

          (2) Information necessary to prepare the report of adoption shall be furnished by each petitioner for adoption or the attorney of the petitioner. The Department of Human Services or any person having knowledge of the facts shall supply the court with such additional information as may be necessary to complete the report of adoption. The provision of such information shall be prerequisite to the issuance of a [final decree in the matter by the court] judgment of adoption.

          (3) Whenever an adoption [decree] judgment is amended or annulled, the clerk of the court shall prepare a report thereof, which shall include such facts as are necessary to identify the original adoption report and the facts amended in the adoption [decree] judgment as shall be necessary to properly amend the birth record.

          (4) Not later than the 10th day of each calendar month or more frequently, as directed by the state registrar, the clerk of the court shall forward to the state registrar reports of adoption, reports of annulment of adoption and amendments of [decrees] judgments of adoption that were entered in the preceding month, together with such related reports as the state registrar shall require.

          (5) When the state registrar receives a report of adoption, report of annulment of adoption or amendment of a [decree] judgment of adoption for a person born outside this state, the state registrar shall forward such report to the state registrar in the state of birth.

          (6) If the birth occurred in a foreign country, except Canada, and the person is not a citizen of the United States at the time of birth, the state registrar shall prepare a certificate of foreign birth as provided by ORS 432.230. If the person was born in Canada, the state registrar shall forward the report of adoption, report of annulment of adoption or amendment of a [decree] judgment of adoption to the appropriate registration authority in Canada.

          (7) If the person was born in a foreign country but was a citizen of the United States at the time of birth, the state registrar shall not prepare a certificate of foreign birth and shall notify the adoptive parents of the procedures for obtaining a revised birth certificate for the person through the United States Department of State.

 

          SECTION 458. ORS 453.065 is amended to read:

          453.065. (1) Whenever the Director of Human Services or a designated representative finds or has probable cause to believe that any hazardous household substance is misbranded, or is a banned hazardous substance, the director or designated representative shall affix to such article a tag or other appropriate marking, giving notice that such article is or is suspected of being misbranded or is a banned hazardous substance, and has been detained or embargoed, and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court.

          (2) When an article detained or embargoed under subsection (1) of this section has been found to be misbranded or a banned hazardous substance, the director shall petition the circuit court of the county within which the article is detained or embargoed for a label of condemnation of such article. However, if the director or a designated representative finds that an article so detained or embargoed is not misbranded or a banned hazardous substance, the director or designated representative shall remove the tag or other marking.

          (3) If the court finds that a detained or embargoed article is misbranded or a banned hazardous substance, after entry of the [decree] judgment, the article shall be destroyed at the expense of the owner or claimant thereof, under supervision of the director or a designated representative, and all court costs and fees, and storage and other proper expenses, shall be taxed against the owner or claimant of such article or the owner or claimant agent. However, when the misbranding can be corrected by proper labeling of the article, after entry of the [decree] judgment and after such costs, fees, and expenses have been paid and a good and sufficient bond or irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008, conditioned that such article shall be so labeled, has been executed, the court may order that such article be delivered to the owner or claimant thereof for such labeling under the supervision of an agent of the director. The expense of such supervision shall be paid by claimant. The article shall be returned to the claimant on the representation to the court by the director that the article is no longer in violation of ORS 453.005 to 453.135 and 453.990 (2), and that the expenses of such supervision have been paid.

 

          SECTION 459. ORS 465.235 is amended to read:

          465.235. (1) The Director of the Department of Environmental Quality shall make the inventory available to the public at the office of the Department of Environmental Quality.

          (2) The inventory shall include but need not be limited to:

          (a) The following information, if known:

          (A) A general description of the facility;

          (B) Address or location;

          (C) Time period during which a release occurred;

          (D) Name of current owner and operator and names of any past owners and operators during the time period of a release of a hazardous substance;

          (E) Type and quantity of a hazardous substance released at the facility;

          (F) Manner of release of the hazardous substance;

          (G) Levels of a hazardous substance, if any, in ground water, surface water, air and soils at the facility;

          (H) Hazard ranking and narrative information regarding threats to the environment and public health;

          (I) Status of removal or remedial actions at the facility; and

          (J) Other items the director determines necessary; and

          (b) Information that indicates whether the remedial action at the facility will be funded primarily by:

          (A) The department through the use of moneys in the Hazardous Substance Remedial Action Fund;

          (B) An owner or operator or other person under an agreement, order or consent [decree] judgment under ORS 465.200 to 465.510; or

          (C) An owner or operator or other person under other state or federal authority.

          (3) The department may organize the inventory into categories of facilities, including but not limited to the types of facilities listed in subsection (2) of this section.

          (4) On or before January 15 of each year, the department shall submit the inventory and a report to the Governor, the Legislative Assembly and the Environmental Quality Commission. The annual report shall include a quantitative and narrative summary of the department’s accomplishments during the previous fiscal year and the department’s goals for the current fiscal year, including but not limited to each of the following areas:

          (a) Facilities with a suspected release added to the department’s database;

          (b) Facilities with a confirmed release added to the department’s list;

          (c) Facilities added to and removed from the inventory;

          (d) Removals initiated and completed;

          (e) Preliminary assessments initiated and completed;

          (f) Remedial investigations initiated and completed;

          (g) Feasibility studies initiated and completed; and

          (h) Remedial actions, including long-term environmental controls and institutional controls, initiated and completed.

          (5) Beginning in 1991, and every fourth year thereafter, the report required under subsection (4) of this section shall include a four-year plan of action for those items under subsection (4)(e) to (h) of this section. The four-year plan shall include projections of funding and staffing levels necessary to implement the four-year plan.

 

          SECTION 460. ORS 465.325 is amended to read:

          465.325. (1) The Director of the Department of Environmental Quality, in the director’s discretion, may enter into an agreement with any person including the owner or operator of the facility from which a release emanates, or any other potentially responsible person to perform any removal or remedial action if the director determines that the actions will be properly done by the person. Whenever practicable and in the public interest, as determined by the director, the director, in order to expedite effective removal or remedial actions and minimize litigation, shall act to facilitate agreements under this section that are in the public interest and consistent with the rules adopted under ORS 465.400. If the director decides not to use the procedures in this section, the director shall notify in writing potentially responsible parties at the facility of such decision. Notwithstanding ORS 183.310 to 183.550, a decision of the director to use or not to use the procedures described in this section shall not be appealable to the Environmental Quality Commission or subject to judicial review.

          (2)(a) An agreement under this section may provide that the director will reimburse the parties to the agreement from the fund, with interest, for certain costs of actions under the agreement that the parties have agreed to perform and the director has agreed to finance. In any case in which the director provides such reimbursement and, in the judgment of the director, cost recovery is in the public interest, the director shall make reasonable efforts to recover the amount of such reimbursement under ORS 465.200 to 465.510 and 465.900 or under other relevant authority.

          (b) Notwithstanding ORS 183.310 to 183.550, the director’s decision regarding fund financing under this subsection shall not be appealable to the commission or subject to judicial review.

          (c) When a remedial action is completed under an agreement described in paragraph (a) of this subsection, the fund shall be subject to an obligation for any subsequent remedial action at the same facility but only to the extent that such subsequent remedial action is necessary by reason of the failure of the original remedial action. Such obligation shall be in a proportion equal to, but not exceeding, the proportion contributed by the fund for the original remedial action. The fund’s obligation for such future remedial action may be met through fund expenditures or through payment, following settlement or enforcement action, by persons who were not signatories to the original agreement.

          (3) If an agreement has been entered into under this section, the director may take any action under ORS 465.260 against any person who is not a party to the agreement, once the period for submitting a proposal under subsection (5)(c) of this section has expired. Nothing in this section shall be construed to affect either of the following:

          (a) The liability of any person under ORS 465.255 or 465.260 with respect to any costs or damages which are not included in the agreement.

          (b) The authority of the director to maintain an action under ORS 465.200 to 465.510 and 465.900 against any person who is not a party to the agreement.

          (4)(a) Whenever the director enters into an agreement under this section with any potentially responsible person with respect to remedial action, following approval of the agreement by the Attorney General and except as otherwise provided in the case of certain administrative settlements referred to in subsection (8) of this section, the agreement shall be entered in the appropriate circuit court as a consent [decree] judgment. The director need not make any finding regarding an imminent and substantial endangerment to the public health, safety, welfare or the environment in connection with any such agreement or consent [decree] judgment.

          (b) The entry of any consent [decree] judgment under this subsection shall not be construed to be an acknowledgment by the parties that the release concerned constitutes an imminent and substantial endangerment to the public health, safety, welfare or the environment. Except as otherwise provided in the Oregon Evidence Code, the participation by any party in the process under this section shall not be considered an admission of liability for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding, including a subsequent proceeding under this section.

          (c) The director may fashion a consent [decree] judgment so that the entering of the [decree] judgment and compliance with the [decree] judgment or with any determination or agreement made under this section shall not be considered an admission of liability for any purpose.

          (d) The director shall provide notice and opportunity to the public and to persons not named as parties to the agreement to comment on the proposed agreement before its submittal to the court as a proposed consent [decree] judgment, as provided under ORS 465.320. The director shall consider any written comments, views or allegations relating to the proposed agreement. The director or any party may withdraw, withhold or modify its consent to the proposed agreement if the comments, views and allegations concerning the agreement disclose facts or considerations which indicate that the proposed agreement is inappropriate, improper or inadequate.

          (5)(a) If the director determines that a period of negotiation under this subsection would facilitate an agreement with potentially responsible persons for taking removal or remedial action and would expedite removal or remedial action, the director shall so notify all such parties and shall provide them with the following information to the extent the information is available:

          (A) The names and addresses of potentially responsible persons including owners and operators and other persons referred to in ORS 465.255.

          (B) The volume and nature of substances contributed by each potentially responsible person identified at the facility.

          (C) A ranking by volume of the substances at the facility.

          (b) The director shall make the information referred to in paragraph (a) of this subsection available in advance of notice under this subsection upon the request of a potentially responsible person in accordance with procedures provided by the director. The provisions of ORS 465.250 (5) regarding confidential information apply to information provided under paragraph (a) of this subsection.

          (c) Any person receiving notice under paragraph (a) of this subsection shall have 60 days from the date of receipt of the notice to submit to the director a proposal for undertaking or financing the action under ORS 465.260. The director may grant extensions for up to an additional 60 days.

          (6)(a) Any person may seek contribution from any other person who is liable or potentially liable under ORS 465.255. In resolving contribution claims, the court shall allocate remedial action costs among liable parties in accordance with ORS 465.257.

          (b) A person who has resolved its liability to the state in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

          (c)(A) If the state has obtained less than complete relief from a person who has resolved its liability to the state in an administrative or judicially approved settlement, the director may bring an action against any person who has not so resolved its liability.

          (B) A person who has resolved its liability to the state for some or all of a removal or remedial action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (b) of this subsection.

          (C) In any action under this paragraph, the rights of any person who has resolved its liability to the state shall be subordinate to the rights of the state.

          (7)(a) In entering an agreement under this section, the director may provide any person subject to the agreement with a covenant not to sue concerning any liability to the State of Oregon under ORS 465.200 to 465.510 and 465.900, including future liability, resulting from a release of a hazardous substance addressed by the agreement if each of the following conditions is met:

          (A) The covenant not to sue is in the public interest.

          (B) The covenant not to sue would expedite removal or remedial action consistent with rules adopted by the commission under ORS 465.400 (2).

          (C) The person is in full compliance with a consent [decree] judgment under subsection (4)(a) of this section for response to the release concerned.

          (D) The removal or remedial action has been approved by the director.

          (b) The director shall provide a person with a covenant not to sue with respect to future liability to the State of Oregon under ORS 465.200 to 465.510 and 465.900 for a future release of a hazardous substance from a facility, and a person provided such covenant not to sue shall not be liable to the State of Oregon under ORS 465.255 with respect to such release at a future time, for the portion of the remedial action:

          (A) That involves the transport and secure disposition offsite of a hazardous substance in a treatment, storage or disposal facility meeting the requirements of section 3004(c) to (g), (m), (o), (p), (u) and (v) and 3005(c) of the federal Solid Waste Disposal Act, as amended, P.L. 96-482 and P.L. 98-616, if the director has rejected a proposed remedial action that is consistent with rules adopted by the commission under ORS 465.400 that does not include such offsite disposition and has thereafter required offsite disposition; or

          (B) That involves the treatment of a hazardous substance so as to destroy, eliminate or permanently immobilize the hazardous constituents of the substance, so that, in the judgment of the director, the substance no longer presents any current or currently foreseeable future significant risk to public health, safety, welfare or the environment, no by-product of the treatment or destruction process presents any significant hazard to public health, safety, welfare or the environment, and all by-products are themselves treated, destroyed or contained in a manner that assures that the by-products do not present any current or currently foreseeable future significant risk to public health, safety, welfare or the environment.

          (c) A covenant not to sue concerning future liability to the State of Oregon shall not take effect until the director certifies that the removal or remedial action has been completed in accordance with the requirements of subsection (10) of this section at the facility that is the subject of the covenant.

          (d) In assessing the appropriateness of a covenant not to sue under paragraph (a) of this subsection and any condition to be included in a covenant not to sue under paragraph (a) or (b) of this subsection, the director shall consider whether the covenant or conditions are in the public interest on the basis of factors such as the following:

          (A) The effectiveness and reliability of the remedial action, in light of the other alternative remedial actions considered for the facility concerned.

          (B) The nature of the risks remaining at the facility.

          (C) The extent to which performance standards are included in the order or [decree] judgment.

          (D) The extent to which the removal or remedial action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility.

          (E) The extent to which the technology used in the removal or remedial action is demonstrated to be effective.

          (F) Whether the fund or other sources of funding would be available for any additional removal or remedial action that might eventually be necessary at the facility.

          (G) Whether the removal or remedial action will be carried out, in whole or in significant part, by the responsible parties themselves.

          (e) Any covenant not to sue under this subsection shall be subject to the satisfactory performance by such party of its obligations under the agreement concerned.

          (f)(A) Except for the portion of the removal or remedial action that is subject to a covenant not to sue under paragraph (b) of this subsection or de minimis settlement under subsection (8) of this section, a covenant not to sue a person concerning future liability to the State of Oregon:

          (i) Shall include an exception to the covenant that allows the director to sue the person concerning future liability resulting from the release or threatened release that is the subject of the covenant if the liability arises out of conditions unknown at the time the director certifies under subsection (10) of this section that the removal or remedial action has been completed at the facility concerned; and

          (ii) May include an exception to the covenant that allows the director to sue the person concerning future liability resulting from failure of the remedial action.

          (B) In extraordinary circumstances, the director may determine, after assessment of relevant factors such as those referred to in paragraph (d) of this subsection and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value and the inequities and aggravating factors, not to include the exception referred to in paragraph (f)(A) of this subsection if other terms, conditions or requirements of the agreement containing the covenant not to sue are sufficient to provide all reasonable assurances that public health, safety, welfare and the environment will be protected from any future release at or from the facility.

          (C) The director may include any provisions allowing future enforcement action under ORS 465.260 that in the discretion of the director are necessary and appropriate to assure protection of public health, safety, welfare and the environment.

          (8)(a) Whenever practicable and in the public interest, as determined by the director, the director shall as promptly as possible reach a final settlement with a potentially responsible person in an administrative or civil action under ORS 465.255 if such settlement involves only a minor portion of the remedial action costs at the facility concerned and, in the judgment of the director, both of the following are minimal in comparison to any other hazardous substance at the facility:

          (A) The amount of the hazardous substance contributed by that person to the facility; and

          (B) The toxic or other hazardous effects of the substance contributed by that person to the facility.

          (b) The director may provide a covenant not to sue with respect to the facility concerned to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public interest as determined under subsection (7) of this section.

          (c) The director shall reach any such settlement or grant a covenant not to sue as soon as possible after the director has available the information necessary to reach a settlement or grant a covenant not to sue.

          (d) A settlement under this subsection shall be entered as a consent [decree] judgment or embodied in an administrative order setting forth the terms of the settlement. The circuit court for the county in which the release or threatened release occurs or the Circuit Court of Marion County may enforce any such administrative order.

          (e) A party who has resolved its liability to the state under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other potentially responsible persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

          (f) Nothing in this subsection shall be construed to affect the authority of the director to reach settlements with other potentially responsible persons under ORS 465.200 to 465.510 and 465.900.

          (9)(a) Notwithstanding ORS 183.310 to 183.550, except for those covenants required under subsection (7)(b)(A) and (B) of this section, a decision by the director to agree or not to agree to inclusion of any covenant not to sue in an agreement under this section shall not be appealable to the commission or subject to judicial review.

          (b) Nothing in this section shall limit or otherwise affect the authority of any court to review, in the consent [decree] judgment process under subsection (4) of this section, any covenant not to sue contained in an agreement under this section.

          (10)(a) Upon completion of any removal or remedial action under an agreement under this section, or pursuant to an order under ORS 465.260, the party undertaking the removal or remedial action shall notify the department and request certification of completion. Within 90 days after receiving notice, the director shall determine by certification whether the removal or remedial action is completed in accordance with the applicable agreement or order.

          (b) Before submitting a final certification decision to the court that approved the consent [decree] judgment, or before entering a final administrative order, the director shall provide to the public and to persons not named as parties to the agreement or order notice and opportunity to comment on the director’s proposed certification decision, as provided under ORS 465.320.

          (c) Any person aggrieved by the director’s certification decision may seek judicial review of the certification decision by the court that approved the relevant consent [decree] judgment or, in the case of an administrative order, in the circuit court for the county in which the facility is located or in Marion County. The decision of the director shall be upheld unless the person challenging the certification decision demonstrates that the decision was arbitrary and capricious, contrary to the provisions of ORS 465.200 to 465.510 and 465.900 or not supported by substantial evidence. The court shall apply a presumption in favor of the director’s decision. The court may award attorney fees and costs to the prevailing party if the court finds the challenge or defense of the director’s decision to have been frivolous. The court may assess against a party and award to the state, in addition to attorney fees and costs, an amount equal to the economic gain realized by the party if the court finds the only purpose of the party’s challenge to the director’s decision was delay for economic gain.

 

          SECTION 461. ORS 465.327 is amended to read:

          465.327. (1) In order to facilitate cleanup and reuse of contaminated property, the Department of Environmental Quality may, through a written agreement, provide a party with a release from potential liability to the state under ORS 465.255, if:

          (a) The party is not currently liable under ORS 465.255 for an existing release of hazardous substance at the facility;

          (b) Removal or remedial action is necessary at the facility to protect human health or the environment;

          (c) The proposed redevelopment or reuse of the facility will not contribute to or exacerbate existing contamination, increase health risks or interfere with remedial measures necessary at the facility; and

          (d) A substantial public benefit will result from the agreement, including but not limited to:

          (A) The generation of substantial funding or other resources facilitating remedial measures at the facility in accordance with this section;

          (B) A commitment to perform substantial remedial measures at the facility in accordance with this section;

          (C) Productive reuse of a vacant or abandoned industrial or commercial facility; or

          (D) Development of a facility by a governmental entity or nonprofit organization to address an important public purpose.

          (2) In determining whether to enter an agreement under this section, the department shall consult with affected land use planning jurisdictions and consider reasonably anticipated future land uses at the facility and surrounding properties.

          (3) An agreement under this section may be set forth in an administrative consent order or other administrative agreement or in a judicial consent [decree] judgment entered in accordance with ORS 465.325. Any such agreement may include provisions considered necessary by the department, and shall include:

          (a) A commitment to undertake the measures constituting a substantial public benefit;

          (b) If remedial measures are to be performed under the agreement, a commitment to perform any such measures under the department’s oversight;

          (c) A waiver by the party of any claim or cause of action against the State of Oregon arising from contamination at the facility existing as of the date of acquisition of ownership or operation of the facility;

          (d) A grant of an irrevocable right of entry to the department and its authorized representative for purposes of the agreement or for remedial measures authorized under this section;

          (e) A reservation of rights as to an entity not a party to the agreement; and

          (f) A legal description of the property.

          (4) Subject to the satisfactory performance by the party of its obligations under the agreement, the party shall not be liable to the State of Oregon under ORS 465.200 to 465.510 and 465.900 for any release of a hazardous substance at the facility existing as of the date of acquisition of ownership or operation of the facility. The party shall bear the burden of proving that any hazardous substance release existed before the date of acquisition of ownership of the facility. This release from liability shall not affect a party’s liability for claims arising from any:

          (a) Release of a hazardous substance at the facility after the date of acquisition of ownership or operation;

          (b) Contribution to or exacerbation of a release of a hazardous substance;

          (c) Interference or failure to cooperate with the department or other persons conducting remedial measures under the department’s oversight at the facility;

          (d) Failure to exercise due care or take reasonable precautions with respect to any hazardous substance at the facility; and

          (e) Violation of federal, state or local law.

          (5) Any agreement entered under this section shall be recorded in the real property records from the county in which the facility is located. The benefits and burdens of the agreement, including the release from liability, shall run with the land, but the release from liability shall limit or otherwise affect the liability only of persons who are not potentially liable under ORS 465.255 for a release of a hazardous substance at the facility as of the date of acquisition of ownership or operation of the facility and who assume and are bound by terms of the agreement applicable to the facility as of the date of acquisition of ownership or operation.

 

          SECTION 462. ORS 471.650 is amended to read:

          471.650. If a [final decree] judgment against the defendants is granted, the court shall order that the place constituting the nuisance be closed for a period not exceeding two years, or closed for a part of said time, and until the owner, lessee, tenant or occupant thereof gives a bond or letter of credit identical to the bond or letter of credit required under ORS 471.645. If any condition of the bond or letter of credit is violated, the whole amount may be recovered as a penalty for the use of the county wherein the premises are situated. In any such suit process to nonresident defendants may be served by publication in a newspaper of general circulation in the county having jurisdiction of the injunction proceedings. Notice shall be published once each week for two consecutive weeks or for such time as the court, by order, may prescribe.

 

          SECTION 463. ORS 471.655 is amended to read:

          471.655. (1) The owner of any property closed or restrained, or to be closed or restrained, may appear at any time between the filing of the complaint and the trial and show cause why the court should cancel or refrain from issuing any [decree] judgment orders as against the owner. In order to obtain such relief, the owner must prove to the satisfaction of the court that the owner is the lawful owner of the property and, further, that with reasonable care and diligence the owner could not have known of the illegal use of the owner’s property.

          (2) Evidence of the general reputation of the premises upon which a nuisance is alleged to exist is admissible in evidence for the purpose of proving the existence of the nuisance, and of knowledge of, and of acquiescence and participation therein, on the part of persons charged with maintaining or assisting in the maintenance of a nuisance.

 

          SECTION 464. ORS 475A.110 is amended to read:

          475A.110. A judgment of forfeiture shall recite the basis for the judgment.

          (1) If no financial institutions have filed the affidavit described in ORS 475A.075 (2)(b), and if the court has failed to uphold the claim or affidavit of any other claimant, the effect of the judgment shall be that:

          (a) Title to the property shall pass to the forfeiting agency free of any interest or encumbrance thereon in favor of any person who has been given notice;

          (b) The forfeiting agency may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts, by the state, by the departments and agencies of the state, and by any political subdivision. In the case of real property, the forfeiting agency shall warrant the title against constitutional defect. A warranty under this section is limited to the purchase price of the real property; and

          (c) Any department, agency or officer of the state or any political subdivision whose official functions include the issuance of certificates or other evidence of title shall be immune from civil or criminal liability when such issuance is pursuant to a judgment of forfeiture.

          (2) If any affidavits are filed by financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants file an appearance and claim as provided in ORS 475A.075 (2)(a) or an affidavit as provided in ORS 475A.075 (2)(c):

          (a) The court shall foreclose all security interests, liens and vendor’s interests of financial institutions and claimants as to which the court determines that there is a legal or equitable basis for foreclosure; and

          (b) All other interests applicable to the property, which are not foreclosed or otherwise eliminated through a judgment [and decree] of foreclosure, shall, if and to the extent that they are valid and subsisting, remain in effect, and the property shall remain subject to those interests upon completion of the civil forfeiture proceeding.

          (3) Notwithstanding the provisions of this chapter or other law, if a financial institution or other person has filed an affidavit described in ORS 475A.075, or if the court has upheld the claim of any claimant, then as to each item of property seized:

          (a) If the court has determined that the property should not be forfeited and has not foreclosed the security interests, liens or other interests covering the property, the court shall render judgment in favor of the owner of the property, the property shall be returned to the owner and all security interests, liens and other interests applicable to the property shall remain in effect as though the property had never been seized. Upon the return of the property to the owner, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure.

          (b) If the court has determined that the property should not be forfeited and has foreclosed one or more interests covering the property, including security interests or liens covering the property or contracts for the transfer or conveyance of the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court within such time as may be prescribed by the court following entry of the judgment. If any interests covering the property have not been foreclosed, including any liens or security interests of a claimant whose claim has been upheld, or of a financial institution that has filed the affidavit described in ORS 475A.075, the property shall be sold subject to those interests. The judgment shall also order the proceeds of such sale applied in the following order:

          (A) To the payment of the costs of the sale;

          (B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and

          (C) The excess, if any, to the owner of the property.

          (c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold in a commercially reasonable manner at a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property shall be sold subject to the interest. The sale of the property shall be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale to be first applied to the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority and the excess, if any, to be awarded to the forfeiting agency for distribution as required by ORS 475A.120.

          (d) If the court has determined that the property should be forfeited and has not foreclosed the interests of any party in the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall enter a judgment awarding the property to the forfeiting agency, subject to the interests of any claimants whose claims or affidavits were upheld by the court, and subject to the interests of any financial institutions that filed affidavits under ORS 475A.075 (2)(b), which shall remain in full force and effect.

          (4) The forfeiting agency shall not be liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.

          (5) A copy of the judgment, including any judgment entered under the provisions of ORS 475A.055 (4), shall be sent by forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.

          (6) On entry of judgment for a claimant in any proceeding to forfeit property under this chapter, unless the court has foreclosed one or more security interests, liens or other interests covering the property, such property or interest in property shall be returned or conveyed immediately to the claimant designated by the court. The court, in the manner provided by ORCP 68, shall award costs, disbursements and attorney fees to the prevailing claimants and financial institutions, to be paid by the forfeiting agency.

          (7) Nothing contained in this section shall prevent a claimant or financial institution from obtaining any deficiency to which such claimant or financial institution would otherwise be entitled.

          (8) Nothing in this section or in ORS 475A.045 shall prevent a seizing agency from entering into an agreement with a claimant or other person for the reimbursement of the seizing agency for the costs and expenses relating to towing and storage of property or the cost of discharging any possessory chattel lien on the property arising under ORS 87.152 to 87.162 that attached to the property between seizure of the property and release or civil forfeiture of the property.

 

          SECTION 465. ORS 475A.110, as amended by section 12a, chapter 780, Oregon Laws 2001, is amended to read:

          475A.110. A judgment of forfeiture shall recite the basis for the judgment.

          (1) If no financial institutions have filed the affidavit described in ORS 475A.075 (2)(b), and if the court has failed to uphold the claim or affidavit of any other claimant, the effect of the judgment shall be that:

          (a) Title to the property shall pass to the forfeiting agency free of any interest or encumbrance thereon in favor of any person who has been given notice;

          (b) The forfeiting agency may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts, by the state, by the departments and agencies of the state, and by any political subdivision. In the case of real property, the forfeiting agency shall warrant the title against constitutional defect. A warranty under this section is limited to the purchase price of the real property; and

          (c) Any department, agency or officer of the state or any political subdivision whose official functions include the issuance of certificates or other evidence of title shall be immune from civil or criminal liability when such issuance is pursuant to a judgment of forfeiture.

          (2) If any affidavits are filed by financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants file an appearance, claim and bond as provided in ORS 475A.075 (2)(a) or an affidavit as provided in ORS 475A.075 (2)(c):

          (a) The court shall foreclose all security interests, liens and vendor’s interests of financial institutions and claimants as to which the court determines that there is a legal or equitable basis for foreclosure; and

          (b) All other interests applicable to the property, which are not foreclosed or otherwise eliminated through a judgment [and decree] of foreclosure, shall, if and to the extent that they are valid and subsisting, remain in effect, and the property shall remain subject to them upon completion of the forfeiture proceeding.

          (3) Notwithstanding the provisions of this chapter or other law, if a financial institution or other person has filed an affidavit described in ORS 475A.075, or if the court has upheld the claim of any claimant, then as to each item of property seized:

          (a) If the court has determined that the property should not be forfeited and has not foreclosed the security interests, liens or other interests covering the property, the court shall render judgment in favor of the owner of the property, the property shall be returned to the owner and all security interests, liens and other interests applicable to the property shall remain in effect as though the property had never been seized. Upon the return of the property to the owner, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure.

          (b) If the court has determined that the property should not be forfeited and has foreclosed one or more interests covering the property, including security interests or liens covering the property or contracts for the transfer or conveyance of the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court within such time as may be prescribed by the court following entry of the judgment. If any interests covering the property have not been foreclosed, including any liens or security interests of a claimant whose claim has been upheld, or of a financial institution that has filed the affidavit described in ORS 475A.075, the property shall be sold subject to those interests. The judgment shall also order the proceeds of such sale applied in the following order:

          (A) To the payment of the costs of the sale;

          (B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and

          (C) The excess, if any, to the owner of the property.

          (c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property shall be sold subject to the interest. The sale of the property shall be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale applied in the following order:

          (A) To the payment of the costs of the sale;

          (B) To the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority; and

          (C) The excess, if any, to the forfeiting agency to be disposed of as provided in ORS 475A.120.

          (d) If the court has determined that the property should be forfeited and has not foreclosed the interests of any party in the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall enter a judgment awarding the property to the forfeiting agency, subject to the interests of any claimants whose claims or affidavits were upheld by the court, and subject to the interests of any financial institutions that filed affidavits under ORS 475A.075 (2)(b), which shall remain in full force and effect.

          (4) The forfeiting agency shall not be liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.

          (5) A copy of the judgment, including any judgment entered under the provisions of ORS 475A.055 (4), shall be sent by forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.

          (6)(a) On entry of judgment for a claimant in any proceeding to forfeit property under this chapter, unless the court has foreclosed one or more security interests, liens or other interests covering the property, such property or interest in property shall be returned or conveyed immediately to the claimant designated by the court. The court, in the manner provided by ORCP 68, shall award costs, disbursements and attorney fees to the prevailing claimants and financial institutions, to be paid by the forfeiting agency.

          (b) If it appears that there was reasonable suspicion that the property was subject to forfeiture, the court shall cause a finding to be entered, and no claimant or financial institution shall be entitled to damages, nor is the person who made the seizure, the seizing or forfeiting agency or forfeiture counsel liable to suit or judgment on account of such seizure or action. An order directing seizure issued under ORS 475A.035 (4) shall constitute a finding of reasonable suspicion that the property was subject to forfeiture.

          (7) Nothing contained in this section shall prevent a claimant or financial institution from obtaining any deficiency to which such claimant or financial institution would otherwise be entitled.

          (8) Nothing in this section or in ORS 475A.045 shall prevent a seizing agency from entering into an agreement with a claimant or other person for the reimbursement of the seizing agency for the costs and expenses relating to towing and storage of property or the cost of discharging any possessory chattel lien on the property arising under ORS 87.152 to 87.162 that attached to the property between seizure of the property and release or forfeiture of the property.

 

          SECTION 466. ORS 517.100 is amended to read:

          517.100. In case of redemption from sale under judgment [or decree], the redemptioner shall pay such sums as are now required by law for redemption under execution sale, and such additional sum as may have been expended upon the property so redeemed by the purchaser under execution, or the assigns of the purchaser, in order to keep alive the possessory right thereto after the execution sale, not exceeding $100 for each claim, with 10 percent interest thereon from date of such expenditures.

 

          SECTION 467. ORS 517.320 is amended to read:

          517.320. If prior to the issuing of the certificate there has been filed with the county clerk an affidavit by the delinquent coowner that the payment has been made, the clerk shall not issue a certificate, but the parties shall be left to establish such fact by suit to quiet the title to the premises. If in the suit it appears either that the assessment work was not performed by the coowners claiming to have performed it, or that the delinquent coowner has performed or paid the delinquent coowner’s proportion of the assessment work, a [decree] judgment shall be entered in the suit to that effect; but if it is established that the assessment has been performed by or has been caused to be performed by the coowners so claiming and that the delinquent coowner has not performed or paid the delinquent coowner’s proportion, a [decree] judgment shall be entered [decreeing] providing that the coowners who performed the assessment work to be the owners of all the interest of the delinquent coowner in the premises. The [decree] judgment shall be entitled to record in the Mineral and Mining Record kept by the county clerk in the county, and shall be indexed in the Mineral and Mining Record for the county.

 

          SECTION 468. ORS 523.420 is amended to read:

          523.420. When an attempt has been made to organize a district under the provisions of this chapter and subsequently by a [decree] judgment of a court [of competent jurisdiction] it has been declared that the organization is invalid, but prior to such [decree] judgment the invalid organization has levied taxes, the funds derived from the levy shall be disposed of as follows:

          (1) If the area embraced in the invalid organization is embraced in a subsequently created organization composed of unincorporated or incorporated territory, or combinations thereof, for the purpose of furnishing geothermal heat to the inhabitants thereof, the custodian of the taxes collected for the invalid organization shall turn them over to the subsequent organization to be used only for the purpose of furnishing geothermal heat to such inhabitants.

          (2) If the subsequent organization does not embrace all territory embraced in the invalid organization, such taxes as have been collected from the levy upon property in areas not embraced in the subsequent organization shall be refunded to the payers thereof by the custodian of the taxes before the balance is turned over to the subsequent organization.

          (3) If no such subsequent organization is created to provide geothermal heat for the inhabitants of such an area, within a period of two years after the entry of the [decree] judgment of invalidation, the taxes collected shall be refunded by the custodian of them to the taxpayers who paid them.

          NOTE: Sections 469 through 495 were deleted by amendment. Subsequent sections were not renumbered.

 

          SECTION 496. ORS 543.550 is amended to read:

          543.550. No lien for labor, services, materials, machinery or equipment shall exist or be acquired or enforced upon any property acquired, constructed or made a part of any project under license issued pursuant to ORS 543.010 to 543.610. No property shall be put into or made part of any such project unless owned by the licensee free and clear of all liens and claims whatsoever, except a lien created by the licensee upon the whole property embraced in the project by mortgage or deed of trust, to the end that the entire property embraced in the project be kept and maintained as an indivisible whole. The mortgage or deed of trust may include other property. Any voluntary sale or any sale upon a [decree] judgment of foreclosure, execution or otherwise, shall be of the whole property embraced in the project unless the Water Resources Commission, by an order in writing, consents to and approves of a sale of a part of the property. If less than the whole of any property embraced in a project is sold with the consent and approval of the commission, the commission shall determine at the time of the sale the actual net investment in the part sold, as well as the actual net investment in the part remaining unsold.

 

          SECTION 497. ORS 545.253 is amended to read:

          545.253. The legal title to all property acquired under ORS 545.239, 545.241, 545.245 and 545.249 shall immediately vest in the irrigation district and shall be held by it in trust for and hereby is dedicated and set apart to the uses and purposes set forth in the Irrigation District Law. The board is authorized and empowered to hold, use, acquire, manage, occupy, possess and dispose of the property as provided in the Irrigation District Law. The title acquired by an irrigation district under ORS 545.239, 545.241, 545.245 and 545.249 shall be the fee simple or such lesser estate as shall be designated in the [decree] judgment of appropriation.

 

          SECTION 498. ORS 545.502 is amended to read:

          545.502. (1) At any time after the delinquency date fixed by the resolution and upon the filing of the notice of claim of lien under ORS 545.494, the board by resolution may direct that all delinquent incurred charges then unpaid shall be foreclosed by the district. The foreclosure shall follow the general procedure of a suit in equity and be filed in the circuit court for the county in which the land to be foreclosed is situated. If land in two or more counties is to be foreclosed, separate proceedings shall be commenced in each county as to the lands in that county. In addition to such incurred charges being foreclosed, the district may recover in the suit the costs and disbursements and expenses of foreclosure, including but not limited to recording and filing fees, title search fees, foreclosure reports and a reasonable administrative fee. Any number of tracts of land may be foreclosed in the same suit, without regard to whether they are delinquent for the same or different incurred charges, or for the same or several years. The [decree] judgment shall order the sale of the property, fix the time for holding the sale, which shall not be more than four weeks from the date of the [decree] judgment, and order the sheriff of the county to hold the sale in the same manner as other foreclosure sales. The sheriff shall give notice of the sale for two consecutive weeks prior to the day of sale by publication of notice once each week in a newspaper published in the county in which the land to be sold is situated. The sheriff shall also post notices in three public and conspicuous places within the county at least two weeks prior to the day of sale. The irrigation district may be a bidder and purchaser of the property at the sale. Upon sale of the property the sheriff shall issue deed to the property immediately. No right of redemption thereafter shall exist.

          (2) The court may award reasonable attorney fees to the prevailing party in a foreclosure action under this section.

 

          SECTION 499. ORS 545.504 is amended to read:

          545.504. At any time prior to sale, or at the time of sale, as provided by ORS 545.502, the former owner, incurred charge payer, or holder of legal or equitable title or lien upon or to any tract of land included in the foreclosure and [decree] judgment may withdraw the tract of land from the foreclosure and sale by paying the amount of the lien foreclosed, together with the amount of state and county taxes that the irrigation district may have paid, and a proportionate amount of the costs incurred in the foreclosure proceeding. If the payment is to be made prior to the [decree] judgment, the payment shall be tendered to the clerk of the court, together with written appearance in the suit. If the payment is to be made after the [decree] judgment is entered, the payment shall be tendered to the sheriff ordered to hold the sale. If payment is made before [decree] judgment, the tract shall be dismissed from the foreclosure proceeding. If payment is made after [decree] judgment, the district shall issue satisfaction of lien to the former owner, incurred charge payer, or holder of legal or equitable title or lien upon the tract, and file the satisfaction of lien for record.

 

          SECTION 500. ORS 545.577 is amended to read:

          545.577. (1) All persons interested in any lands within the district shall be charged with notice of all proceedings at the hearing and proceedings subsequent to the hearing. Any person or landowner aggrieved by the action of the board of directors may within 30 days from the entry of the resolution appeal to the circuit court of the county in which the lands of the district are situated. If the district is situated in two or more counties and an appeal is taken to the circuit court of each county, then all appeals shall be consolidated in one action. If the counties are situated in more than one judicial district, the presiding judge of the Court of Appeals shall determine the judicial district in which the appeal shall be tried. The appeals shall be taken by giving a notice in writing and leaving a true copy of the notice with the secretary of the irrigation district.

          (2) Upon the expiration of the time for service and filing of notices of appeal to the circuit court, if no appeal is taken from the resolution of the board, the resolution becomes final. If an appeal is taken, the circuit judge of the county in which the appeal is to be heard shall make an order directing the trial court administrator to have published once a week for four consecutive weeks in each county in which the lands in the district are situated, a notice and summons reading substantially as follows:

______________________________________________________________________________

 

       In the Circuit Court of ________

           County, State of Oregon

       In the matter of Bonds and                         Notice

           Assessments of _________

           Irrigation District.

 

          All persons owning or claiming to own any lands within the above named irrigation district are notified that appeal has been made to the above entitled court from the resolution made and entered by the board of directors of the irrigation district on the __ day of____, 2__, in which an assessment was made against certain lands in the district and described in the resolution together with a determination of the benefits accruing to the lands, and that bonds may be issued in the sum of __ by the district. All persons owning lands within the district affected by the assessment or bonds are required to appear before this court on or before the __ day of____, 2__, and show cause, if any, why the assessment or determination of benefits should not be approved and the bonds not issued.

__________________

Trial Court Administrator

for _________ County.

______________________________________________________________________________

 

          (3) The date required for appearance in the cause shall be a date to be fixed by the court, adjudged reasonable, and not less than 30 days from the date of the first publication of the notice. The proceeding shall be a proceeding in rem. All persons owning or claiming any interest in lands in the irrigation district shall appear and show cause why the assessment or determination of benefits should not be ratified and approved, and shall be bound by all subsequent [decrees] judgments and orders made in the cause, without further notice.

 

          SECTION 501. ORS 545.637 is amended to read:

          545.637. (1) After the expiration of 90 days from the date of the first publication of the notice, the district shall file in the proceeding in the circuit court its verified return of its acts made under the order of the court, attaching affidavits of the publication of the notice in three newspapers. Thereupon the court shall promptly hear the cause and shall enter a [decree adjudging] judgment providing that all the owners and holders of the evidences of indebtedness to be retired or refunded by the plan of the district, who have not within 90 days after the date of the first publication of the notice filed in the court their written dissent and objections to the proceedings, have consented to having their evidences of indebtedness retired or refunded under the proposed plan.

          (2) In the [decree] judgment the court shall direct the officers of the district to deposit with the county treasurer of the county in which the district is headquartered, as trustee for the persons entitled thereto, the pro rata part of the cash or refunding bonds, or both, which, under the settlement, belongs to the holders of the evidences of indebtedness whose consent was obtained by the court proceedings. The [decree] judgment shall provide that upon payment to the county treasurer as trustee, the evidences of indebtedness shall be considered paid and shall no longer be an obligation of the district. The [decree] judgment shall further provide that upon the surrender to the county treasurer of the bonds, together with the unpaid interest coupons belonging to the bonds, the county treasurer shall pay on demand to the holders their pro rata part of the moneys or bonds deposited with the county treasurer as trustee, shall mark the bonds canceled and shall deliver them to the irrigation district.

          (3) All holders of evidences of indebtedness to be retired or refunded shall be considered to have notice of all steps and proceedings taken under this section, ORS 545.629, 545.631, 545.633 and 545.635.

 

          SECTION 502. ORS 545.639 is amended to read:

          545.639. The procedure in the circuit court under ORS 545.629 to 545.637 shall be in the nature of an equitable proceeding in rem. Any holder of evidences of indebtedness affected by any court procedure under ORS 545.629, 545.631, 545.633, 545.635 and 545.637, or any other interested party, may appeal to the Court of Appeals at any time within 30 days after the entry of the [decree] judgment of the circuit court. The appeal must be heard and determined within three months from the time of taking the appeal. The court, in inquiring into the regularity, legality or correctness of the proceedings, shall disregard any error, irregularity or omission that does not affect the substantial rights of the parties and may approve the proceedings in part and disapprove the remainder. The costs of the proceedings may be allowed and apportioned between the parties in the discretion of the court.

 

          SECTION 503. ORS 545.659 is amended to read:

          545.659. (1) After 90 days from the date of the first publication of the notice, the district shall file in the proceeding in the circuit court its verified return of its acts made under the order of the court. The district shall attach affidavits of the publication of the notice in three newspapers. After the district files its verified return, the court shall hear the cause and shall enter a [decree adjudging] judgment providing that all the owners or holders of the evidences of indebtedness who have not, within 90 days after the date of the first publication of the notice, filed in the court their written dissent and objections to the proceedings and contract, have consented to their evidences of indebtedness being liquidated in accordance with the terms of the contract.

          (2) In the [decree] judgment, the court shall direct that the pro rata part of the cash received that, under the contract, belongs to the owners or holders of the evidences of indebtedness whose consent was obtained by the court proceedings be deposited with the county treasurer of the county in which the office of the district is located. The county treasurer shall be trustee for the persons entitled to the moneys. The court shall direct the deposit to be made by the officers of the district, the landowners within the district or the protective committee acting for the consenting owners or holders, as the court may consider most expedient and practicable under the terms of the contract.

          (3) The [decree] judgment shall also provide that, upon the payment of the money to the county treasurer as trustee, the evidences of indebtedness held by the owners or holders shall be considered paid and no longer shall be an obligation as provided in the contract. The [decree] judgment shall further provide that, upon surrender to the county treasurer of the bonds with the unpaid interest coupons or other evidences of indebtedness, the county treasurer shall pay on demand to the owners or holders their pro rata part of the moneys deposited with the county treasurer as trustee. When paid in accordance with the contract, the county treasurer shall mark the evidences of indebtedness canceled and deliver the evidences of indebtedness to the district.

          (4) All owners or holders of the evidences of indebtedness to be liquidated shall be considered to have notice of all steps taken and proceedings under ORS 545.643 to 545.667.

 

          SECTION 504. ORS 545.663 is amended to read:

          545.663. The procedure in the circuit court under ORS 545.651, 545.655 and 545.659 shall be in the nature of an equitable proceeding in rem. Any owner or holder of evidences of indebtedness affected by the court proceeding or any other interested party may appeal to the Court of Appeals at any time within 30 days after issuance of the [decree] judgment of the circuit court. The appeal must be heard and determined within three months from the time of taking the appeal. The court, in inquiring into the regularity, legality or correctness of the proceedings, shall disregard any error, irregularity or omission that does not affect the substantial rights of the parties. The Court of Appeals may approve the proceedings in part and disapprove the remainder. The costs of the proceedings may be allowed and apportioned between the parties in the discretion of the court.

 

          SECTION 505. ORS 547.055 is amended to read:

          547.055. No action, suit or proceeding, under ORS 30.570 or otherwise, shall be maintained for the purpose of avoiding, setting aside or otherwise questioning or affecting the validity of the organization of any district organized under the Drainage District Act, unless such action, suit or proceeding is commenced within nine months from the date of the proclamation in such matter made by the county judge; nor for the purpose of questioning the legality of the boundaries established for such corporation in such proclamation unless similarly commenced within nine months therefrom; nor for the purpose of questioning the legality of any altered boundaries of the district which may be subsequently established as provided for by ORS 547.250 to 547.260 unless commenced within nine months from the date of the [decree] judgment.

 

          SECTION 506. ORS 547.215 is amended to read:

          547.215. Upon adoption of the plan for reclamation, the county judge shall, by order, appoint three commissioners (who shall not be landowners in the district nor of kin within the fourth degree of consanguinity to any person owning land in the district), one of whom shall be a civil engineer and two of whom shall be freeholders residing within the state. A majority of the commissioners shall constitute a quorum and shall control the action of the board on all questions. Such commissioners shall constitute a body which shall continue in office and may be convened at any time by the county court for the purpose of correcting any errors, omissions or other mistakes that shall have been discovered in its original report as the same may have been amended and supplemented from time to time or for any other good cause shown. The court shall fill any vacancy occurring in such body of commissioners by appointment of a person who has the qualifications required by this section of the commissioner the person is to replace. Whenever said body of commissioners has been reconvened by the court, it shall thereafter make its report in response to the directions of the court and such report when completed shall be subject to ORS 547.245, with reference to a hearing thereon and a confirmation thereof by order or [decree] judgment of the court before such supplemental report shall go into effect.

 

          SECTION 507. ORS 547.220 is amended to read:

          547.220. The county clerk upon the filing of the order of appointment shall notify each commissioner of appointment by written or printed notice, and in the notice the county clerk shall state the time and place for the first meeting of the commissioners. The secretary of the board of supervisors shall attend the meeting, and shall furnish the commissioners a complete list of all lands in the district, and the names of the owners thereof, as were contained in the petition, at the date of the [decree] judgment of the court incorporating the district. The secretary shall also furnish the commissioners a copy of the plan for reclamation, with maps and profiles in the office of the secretary. The commissioners at the meeting, or within 10 days thereafter, shall each take and subscribe to an oath that they will faithfully and impartially discharge their duties as commissioners and make a true report of the work done by them. They shall also at the meeting elect one of their own number chairperson. The secretary of the board of supervisors shall be ex officio secretary of the commissioners.

 

          SECTION 508. ORS 547.235 is amended to read:

          547.235. The drainage district or any owner of land in the district may file exceptions to the report or to any assessment of either benefits or damages, within 10 days after the last day of publication of the notice provided for in ORS 547.230. All exceptions shall be heard by the court and such amendments and modifications made to the report of the commissioners as may in the court’s judgment be equitable. When it appears to the satisfaction of the court, after having heard and determined all the exceptions, that the estimated cost of the improvement contemplated in the plan for reclamation is less than the benefits to be derived therefrom, the court shall approve and confirm the commissioners’ report, as so amended and modified. The county clerk shall transmit a certified copy of the [court decree] judgment and copy of the commissioners’ report, as confirmed or amended by the court, to the secretary of the board of supervisors of the district and to the clerk of each county having lands in the district, or affected by the report, where the same shall become a permanent record. Each such county clerk shall receive a fee of $3.75 for receiving, filing and preserving the same. Any person may appeal from the judgment of the court.

 

          SECTION 509. ORS 547.240 is amended to read:

          547.240. If after determining the objections made to the commissioners’ report, the court finds that the estimated costs of works and improvements as reported by the commissioners, or as amended by the court, exceed the estimated benefits, the court shall then render [its decree] a judgment, declaring the incorporation of the district to be dissolved as soon as all costs incurred, which shall include court costs and all obligations and expenses incurred in behalf of the district by the board of supervisors, are paid. If the uniform charge made under ORS 547.140 is found insufficient to pay all the costs, the board of supervisors shall make such additional uniform charges as will be necessary to pay the deficiency.

 

          SECTION 510. ORS 547.245 is amended to read:

          547.245. At any time after the expiration of five years from the confirmation of the report of the commissioners, as provided by ORS 547.235, and upon the filing of a petition with the county clerk signed by at least one-tenth of the owners of the lands within the drainage district or the owners of at least one-tenth of the lands within such district, setting forth that the original assessments or benefits are inequitable and unjust, the county court shall appoint three commissioners, as provided by ORS 547.215, to reassess the benefits in the district. The commissioners shall report the reassessment to the court. Upon the filing of the report of the commissioners, the county clerk shall give notice of hearing thereon by publication once a week for three consecutive weeks in some newspaper published in each county in the district, the last insertion to be made at least 15 days prior to the hearing. At least 10 days before the day set for hearing, exceptions may be filed by any interested person, and upon hearing the same the court shall approve the report or direct how it shall be modified and, when so modified or approved, shall confirm it. The assessment as confirmed shall take the place of all prior assessments; provided, that in no case shall the total amount of assessments be less than the outstanding obligations. The county clerk shall transmit a certified copy of the court’s [decree] judgment and copy of the commissioners’ report, as confirmed or amended by the court, to the secretary of the board of supervisors of the district and to the county clerk of each county having lands in the district.

 

          SECTION 511. ORS 547.250 is amended to read:

          547.250. The board of supervisors shall have power to make any change in the plan for reclamation by action of the board until such time as the commissioners have filed their report. After that all changes shall be made as follows:

          (1) The board of supervisors, for and in behalf of the district, or the owners of land adjacent to the district, may file a petition in the office of the clerk of the court which organized the district, praying the court to amend its former [decree] judgment incorporating the district, by correcting the names of landowners, by striking out any such names, by adding, striking out or correcting the descriptions of any lands within or alleged to be within the boundary lines of the district, or in any other manner.

          (2) The petition may ask permission of the court to amend or change the plan for reclamation or to correct any errors, omissions or other mistakes that have been discovered in the plan or may ask that the boundary lines of the district be extended so as to include lands not described by and included in the petition and [decree] judgment of the court incorporating the district. However, in no case shall any lands be included in the district other than the lands described in the original petition for the creation of the district and in the [decree] judgment of the court incorporating it, unless the persons shown by the records of the county to be the owners of not less than 60 percent of the acreage sought to be brought within the boundary lines of the district and not described in and included in the original petition and [decree] judgment of the court incorporating such district, shall first sign and file with the court a petition therefor.

          (3) If the petition asks that the lines of the district be in any manner changed, it shall also ask the court to appoint three commissioners, as provided for under ORS 547.215, to appraise the land that shall be taken for rights of way, holding basins, or other works, or assess the benefits and damages to any lands, public highways, railroad and other property already in the district, or that may be annexed to the district by the proposed amendments and changes to the plan for reclamation or the proposed change in the boundary lines. As soon as the petition is filed the clerk of the court shall give notice in the manner and for the time provided for in ORS 547.020, the notice to be substantially in the following form:

______________________________________________________________________________

Notice of Drainage Hearing.

          To the owners and all persons interested in the lands corporate and other property in and adjacent to ________ Drainage District:

          You are notified that (here state by whom petition was filed) has filed in the office of the county clerk of ________ County, ________, a petition praying the county court for permission to (here insert the prayer of the petition), and unless you show cause to the contrary on or before the first day of the next term of the ________ County Court to be held on the ____ day of ________, 2___, the prayer of the petition may be granted.

__________________

County Clerk of ________ County.

______________________________________________________________________________

 

          SECTION 512. ORS 547.255 is amended to read:

          547.255. Any owner of land located in the district, or any owner of land located outside of the district that will be affected by the proposed changes, amendments, and corrections enumerated in the petition, may file objections to the granting of the prayer of the petition, on or before the first day of the term of court at which the petition is to be heard. The court shall hear the petition and all objections filed against it in a summary manner and enter [its decree] a judgment according to its findings. The clerk of the court shall, within 15 days after the granting of the [decree] judgment, transmit a certified copy of the [decree] judgment and of the petition to the secretary of the board of supervisors, and to the recorder of deeds of each county having land in the district. Each such recorder shall file and preserve the same in the recorder’s office, for which the recorder shall receive a fee of $3.75.

 

          SECTION 513. ORS 547.260 is amended to read:

          547.260. (1) If the [decree] judgment of the court provides that the plan for reclamation may be amended, changed or corrected or the boundary lines of the district extended, the court shall appoint three commissioners, possessing the same qualifications as the commissioners appointed under ORS 547.215, to appraise property to be taken, assess benefits and damages, and estimate the cost of improvements the same as is required of commissioners acting under ORS 547.225. The commissioners shall make their report in writing and file it with the county clerk, after which the case shall be proceeded with in the same manner as is provided for the organization of drainage districts.

          (2) If the petition is dismissed the district shall pay the cost; but if the petition is sustained in whole or in part the objectors shall pay the court costs.

 

          SECTION 514. ORS 548.120 is amended to read:

          548.120. In all cases where the board of directors of any irrigation district or the board of supervisors of any drainage district has instituted proceedings for the purpose of having an adjudication of the court as to the regularity and legality of the proceedings in connection with any of the matters specified in ORS 548.105, and where notice has been published directed to the parties specified by ORS 548.110, for the length of time specified by that section, and the full time provided by that section has elapsed after publication before any [decree] judgment has been entered therein, all such [decrees] judgments so rendered by the courts hereby are validated and declared to be effective and sufficient for all purposes, notwithstanding any other defects in the proceedings and notice upon which such [decrees] judgments are based.

 

          SECTION 515. ORS 548.350 is amended to read:

          548.350. (1) After the expiration of 90 days from the date of the first publication of the notice and the service and mailing thereof, as set forth in ORS 548.345, the district shall file in the proceeding in the circuit court its verified return of its acts made under the order of the court, attaching affidavits of the publication of the notice in three newspapers, and proof of service of the notice upon the holders of the evidences of indebtedness whose names and places of residence are known to the district and who reside within the state, and of the mailing thereof to such known holders residing without the state.

          (2) Thereupon the court shall hear the cause and shall enter a [decree adjudging] judgment providing that all the holders of the evidences of indebtedness to be refunded and compromised by the plan or proceeding of the district, who within 90 days after the date of the first publication of the notice and the serving and mailing thereof did not file in the court their written dissent and objections to the proceedings, have consented that their evidences of indebtedness be refunded and compromised under the proposed plan.

          (3) In the [decree] judgment the court shall direct the officers of the district to deposit with the county treasurer of the county in which the district is headquartered, as trustee for the persons entitled thereto, the cash or refunding bonds which under the plan of refunding and compromise belong to the holders of the evidences of indebtedness whose consent was so obtained by the court proceedings. The [decree] judgment shall further provide that upon the payment of said money or bonds to the county treasurer as trustee, the evidences of indebtedness so held by the holders shall be deemed paid and no longer shall be an obligation of the district; and that upon the surrender to the county treasurer of the evidences of indebtedness, together with any unpaid interest coupons belonging to the same, the county treasurer shall pay on demand to the holders the money or bonds so deposited with the county treasurer as trustee, and shall mark the evidences of indebtedness canceled and deliver them to the district. All holders of the evidences of indebtedness to be refunded and compromised shall be deemed to have notice of all steps and proceedings had.

 

          SECTION 516. ORS 548.510 is amended to read:

          548.510. If any such levy of assessment is declared void by a court of competent jurisdiction, then all similar assessments levied in the same or other years by the drainage or irrigation district which under the decision of the court are also void, may be reassessed, relisted and relevied against the property affected, in the manner provided by law and in conformity with such [court decree] judgment, within five years from the date of the rendition of the [decree] judgment of the court declaring such assessment void. In the case of a relisting or relevying of such drainage or irrigation district assessment on any property affected thereby, proper credit in the collection of the same shall be given to all owners of any such property for all payments theretofore made by them on the void assessments.

 

          SECTION 517. ORS 548.945 is amended to read:

          548.945. If a contract authorized by law has been made between the district and the United States for the construction, operation or maintenance of necessary works or for a water supply, a [final decree] judgment may not be entered by the court until written assent to the [decree] judgment by the Secretary of the Interior has been filed with the court.

 

          SECTION 518. ORS 548.955 is amended to read:

          548.955. The [final decree] judgment of the court shall order the clerk of the court to file certified copies of the [decree] judgment with the county treasurer and the county assessor of each county in which any property located within or assessed by the district is located, and with the Secretary of State and the Water Resources Commission.

 

          SECTION 519. ORS 552.710 is amended to read:

          552.710. (1) When a district has adopted a plan under ORS 552.403, subdistricts may be created as provided by this section.

          (2) Proceedings to create subdistricts, located totally or partially within or outside of a district, may be initiated by a petition of the landowners within the subdistrict. Except as otherwise provided by this section, the petition shall fulfill the same requirements concerning the subdistrict as a petition is, by ORS 552.118, required to fulfill concerning the creation of the main district. The petition shall be filed with the county board of the county where the greater portion of land within the boundaries of the subdistrict is located, and shall be accompanied by an undertaking as provided by ORS 552.118. Proceedings to create a subdistrict shall conform in all things to the provisions relating to the creation of a district. However, the owners of 50 percent or more of the total acreage within the proposed subdistrict shall be required to sign the petition for the creation of a subdistrict.

          (3) If the county board adopts an order creating a subdistrict, the clerk of the county board shall give notice of the order to the district board. The district board of the main district is the governing board of each subdistrict of the district. For the purpose of qualifying to be a member of a district board, under ORS 552.208 (1), ownership of land within a subdistrict, regardless of the location of the subdistrict, is considered ownership of land within the district. The territory within one subdistrict may be included within another subdistrict or subdistricts.

          (4) After the creation of a subdistrict, proceedings in reference to a subdistrict shall in all matters conform to the provisions of this chapter applicable to districts. In all matters affecting only a subdistrict, provisions of this chapter applicable to a district apply to the subdistrict as though it were an independent district.

          (5) The petition for creation of a subdistrict shall include a statement of the amount or quantity of water for which the subdistrict desires to acquire the perpetual use and the amount of money the subdistrict is willing to pay therefor. Prior to the entry of [its decree] a judgment creating a subdistrict, the county board shall be furnished the verified consent of the district board to furnish such perpetual use of water for the purposes specified to the subdistrict at a price and upon the terms mentioned in the petition.

 

          SECTION 520. ORS 553.560 is amended to read:

          553.560. (1) After the date fixed as the time when an assessment shall become due, the board, by resolution, shall direct that all delinquent assessments then unpaid, whether for operation and maintenance, improvement, construction, or other purposes, shall be foreclosed by the district. Such foreclosure shall follow the general procedures of a suit in equity and shall be filed in the circuit court of the county in which the land to be foreclosed is situated. If land in two or more counties is to be foreclosed, separate proceedings shall be commenced in each county as to the lands therein. The district may recover in such suit the costs and disbursements and other expenses of foreclosure. Any number of tracts of lands, whether they are delinquent for the same or any number of assessments or for the same or several years, may be foreclosed in the same suit. The court may award reasonable attorney fees to the district if the district prevails in a foreclosure action under this section. The court may award reasonable attorney fees to a defendant who prevails in a foreclosure action under this section if the court determines that the district had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court.

          (2) The [decree] judgment in such suit shall order the sale of such property and fix the time for holding the sale, which shall be not more than four weeks from the date of the [decree] judgment, and shall order the sheriff of the county to hold the same as other foreclosure sales, upon giving notice thereof for two consecutive weeks prior to the day of sale, by publication of notice once each week in a newspaper published in the county in which the land to be sold is situated and by posting notices in three public and conspicuous places in the county at least two weeks prior to the day of sale.

          (3) The district may be a bidder and purchaser of property upon such sale. Upon such sale the sheriff immediately shall issue a deed to the property sold, and no right of redemption shall exist.

 

          SECTION 521. ORS 553.570 is amended to read:

          553.570. At any time prior to sale or at the time of sale as provided by ORS 553.560, the former owner, assessment payer or holder of legal or equitable title or lien upon or to any tract of land included in the foreclosure and [decree] judgment may pay the amount of the lien foreclosed, together with such amount of state and county taxes as the district may have paid and a proportionate amount of the costs incurred in such foreclosure proceedings, and withdraw the tract of land from the foreclosure sale. If made prior to the [decree] judgment, the payment shall be tendered to the clerk of the court, together with a written appearance in the suit. If made after the [decree] judgment is entered, the payment shall be tendered to the sheriff ordered to hold the sale. If payment is made before [decree] judgment, the tract of land then shall be excluded from the foreclosure proceedings. If payment is made after [decree] judgment, the district shall issue satisfaction of lien to such former owner, assessment payer or holder of equitable or legal title upon the tract of land and file the same for record.

 

          SECTION 522. ORS 558.345 is amended to read:

          558.345. When an attempt has been made to organize a district under the provisions of ORS 558.200 to 558.440 and subsequently by a [decree] judgment of a court [of competent jurisdiction] it has been declared that the organization is invalid, but prior to such [decree] judgment the invalid organization has levied taxes, the funds derived from the levy shall be disposed of as follows:

          (1) If the area embraced in the invalid organization is embraced in a subsequently created organization composed of unincorporated or incorporated territory, or combinations thereof, for the purpose of weather modification, the custodian of the taxes collected for the invalid organization shall turn them over to the subsequent organization to be used only for the purpose of weather modification.

          (2) If the subsequent organization does not embrace all territory embraced in the invalid organization, such taxes as have been collected from the levy upon property in areas not embraced in the subsequent organization shall be refunded to the payers thereof by the custodian of the taxes before the balance is turned over to the subsequent organization.

          (3) If no such subsequent organization is created for weather modification, within a period of two years after the entry of the [decree] judgment of invalidation, the taxes collected shall be refunded by the custodian of them to the taxpayers who paid them.

 

          SECTION 523. ORS 583.106 is amended to read:

          583.106. (1) The State Department of Agriculture shall file an injunction action in the circuit court for the county in which the handler or person resides or has the principal business office of the handler or person, based upon the findings of the department against a handler or other person whose records have been audited, if:

          (a) The handler or such person has not made payment or corrected violations of law or regulations promulgated thereunder as required by the provisions of ORS 583.086 (3)(a) and if such handler or producers have not filed additional information, facts or figures with the department within the time prescribed as authorized by ORS 583.086 (3)(b); or

          (b) The handler or such person has not made payment or correction of violations of law or regulations promulgated thereunder as set out in the reaudit as provided by ORS 583.086 (3)(b) and has not filed an appeal to the circuit court within the time prescribed by ORS 583.096.

          (2) In any judicial proceeding under this section, the findings of the department as to the facts if supported by substantial evidence, in the absence of fraud, are conclusive and the jurisdiction of the court shall be confined to questions of law. Such action shall be heard in a summary manner without a jury and shall be given precedence on the docket over all other civil cases except those given equal status by statute.

          (3) If the findings of the department include a requirement that the handler or person make payment to producers or persons for milk, the court shall order such handler or person to make payment. If the order is not carried out within the time prescribed by the court, then upon motion or notification from the department, the court shall proceed against such handler or person for contempt of court. If the findings of the department include violations of law or regulations, the court may, in the same order, enjoin such handler or person from further violation of law or regulations. The court may take such action as it deems necessary and proper in regard to any complaint filed under this section.

          (4) The court may adopt, modify or set aside the decision and the findings of the department. In the case of reversal or modification, the court shall make special findings of the conclusions of law indicating clearly all respects in which the decision and the findings of the department are erroneous.

          (5) An appeal may be taken from the order or [decree] judgment of the circuit court to the Court of Appeals as in other cases, regardless of the amount of money involved.

 

          SECTION 524. ORS 608.310 is amended to read:

          608.310. (1) Every person, or the lessee or agent of the person, owning or operating any railroad, shall erect and maintain good and sufficient lawful fences on both sides of the railroad line, except at the crossings of and upon public roads and highways, within such portions of cities as are or may be laid out and platted in lots and blocks and at railroad station grounds. Such person shall also at the same time erect and maintain necessary farm crossings and gates and sufficient cattle guards at all public crossings.

          (2) Railroad lines shall be so fenced and farm crossings, gates and cattle guards installed, within three months from the time such lines are put in operation. However, the Department of Transportation may prescribe by rule the number, location and character of farm crossings which may be necessary and the manner in which they shall be constructed so that they are reasonably adequate, safe, sufficient and convenient, but not so as to impair the terms of any contract between the landowner and the railroad or [decree] judgment in condemnation relative to such crossings.

          (3) The Department of Transportation may, by rule, determine and prescribe any other description of fence than that designated as a lawful fence, which shall be constructed and maintained by any such railroad company between the points which are designated in such rule, and may provide for the apportionment of the costs of reconstruction necessitated thereby as between the parties interested.

          (4) The Department of Transportation by rule may suspend the operation of this section as to any particular portion of any line of railroad.

 

          SECTION 525. ORS 616.295 is amended to read:

          616.295. (1) The State Department of Agriculture may cause to be published from time to time reports summarizing all judgments[, decrees] and court orders which have been rendered under ORS 616.205 to 616.295, 616.305 to 616.315, and 616.992, including the nature of the charge and the disposition thereof.

          (2) The department also may cause to be disseminated such information regarding food as the department deems necessary in the interest of public health and the protection of the consumer against fraud.

          (3) Nothing in this section shall be construed to prohibit the department from collecting, reporting and illustrating the results of its investigations.

 

          SECTION 526. ORS 618.516 is amended to read:

          618.516. (1) Any person who purchases or leases goods or services and thereby suffers any ascertainable loss of money or property, real or personal, as a result of a willful security seal violation may bring an individual action in an appropriate court to recover actual damages or $200, whichever is greater. The court or the jury, as the case may be, may award punitive damages and the court may provide such equitable relief as it considers necessary or proper.

          (2) Upon commencement of any action brought under subsection (1) of this section, the clerk of the court shall mail a copy of the complaint or other initial pleading to the Attorney General and, upon entry of any judgment [or decree] in the action, shall mail a copy of such judgment [or decree] to the Attorney General.

          (3) In any action brought by a person under this section, the court may award to the prevailing party reasonable attorney fees at trial and on appeal and costs.

          (4) Any permanent injunction or [final] judgment or order of the court made under ORS 618.506 or 618.511 is prima facie evidence, in an action brought under this section, that the respondent committed a security seal violation, but an assurance of voluntary compliance, whether or not approved by the court, shall not be evidence of such violation.

          (5) Actions brought under this section shall be commenced within one year from the discovery of the security seal violation. However, whenever any complaint is filed by a prosecuting attorney to prevent, restrain or punish security seal violations, the running of the statute of limitations with respect to every private right of action under this section and based in whole or in part on any matter complained of in the proceeding shall be suspended during the pendency thereof.

 

          SECTION 527. ORS 645.220 is amended to read:

          645.220. (1) A person aggrieved by an order of the director which has been the subject of a timely application for hearing before the director shall be entitled to judicial review of the order under ORS 183.310 to 183.550.

          (2) No [decree] judgment of a reviewing court under ORS 183.310 to 183.550 shall bar the director from thereafter vacating or modifying an order involved in the proceeding for review, or entering any new order, for a proper cause which was not decided by the reviewing court.

 

          SECTION 528. ORS 646.189 is amended to read:

          646.189. (1) An association of sellers of travel shall be eligible for certification as a certified association if the Director of the Department of Consumer and Business Services determines that:

          (a) The rules or bylaws of the association require members of the association to:

          (A) Maintain adequate financial security;

          (B) Maintain errors and omissions insurance; or

          (C) Maintain accreditation by the Airlines Reporting Corporation, its successor or a similar entity designated by the association and approved by the director.

          (b) The rules or bylaws of the association require members of the association to participate in a program of mediation of disputes between members and consumers.

          (c) The rules or bylaws of the association require members of the association to comply with a written code of ethics that sets requirements for at least:

          (A) Advertising and promotion policies;

          (B) Disclosure of consumer rights;

          (C) Disclosure of policies and procedures for refunds to consumers; and

          (D) Disclosure of the limits of liability of the seller of travel in all transactions.

          (d) The rules, bylaws or code of ethics of the association provides that a seller of travel may not be admitted to the association or maintain membership in the association if, during the three years prior to application for membership in the association or at any time after admission to the association, the seller of travel, or the owner, principal or any person having control over the seller of travel, has been:

          (A) Convicted of any offense involving fraud, deception, misrepresentation, misappropriation of property or breach of trust or other fiduciary obligation;

          (B) The subject of an order of any federal, state or local court or administrative agency denying, suspending or revoking any license or any other authority to engage in business as a seller of travel; or

          (C) The subject of any civil judgment or penalty imposed by any federal, state or local court or administrative agency.

          (e) The rules or bylaws of the association provide for the suspension or revocation of membership in the association if a member does not comply with the rules or bylaws of the association, ORS 646.185 to 646.195 or rules adopted by the director under ORS 646.185 to 646.195.

          (2) The director by rule may establish additional requirements for certification.

          (3) As used in this section:

          (a) “Conviction” includes, but is not limited to, a plea of nolo contendere, a consent judgment, [a judicial or administrative decree or order and assurances of voluntary compliance.] a judgment, an administrative order and an assurance of voluntary compliance.

          (b) “Owner” means a person who owns or controls 10 percent or more of the equity of, or otherwise has claim to 10 percent or more of the net income of, the seller of travel.

          (c) “Principal” means an owner, an officer of a corporation, a general partner of a partnership or a sole proprietor of a sole proprietorship.

 

          SECTION 529. ORS 648.081 is amended to read:

          648.081. (1) No person shall procure or maintain the registration of an assumed business name with the Office of the Secretary of State by knowingly making any false or fraudulent representation or declaration, orally or in writing, or by any other fraudulent means. No person shall register or use an assumed business name with an intent to create a likelihood of confusion with another person.

          (2) A person that is not a corporation, limited liability company, business trust or limited partnership violates subsection (1) of this section if the person registers an assumed business name that contains the words “corporation,” “incorporated,” “limited liability company,” “limited partnership” or “business trust” or an abbreviation of any of those terms.

          (3) A foreign or domestic profit or nonprofit corporation may register as an assumed business name its corporate name minus the word, abbreviation or phrase that ORS 60.094 or 60.717 requires.

          (4) A foreign or domestic limited liability company may register as an assumed business name its limited liability company name minus the word, abbreviation or phrase that ORS 63.094 or 63.717 requires.

          (5) A foreign or domestic limited partnership may register as an assumed business name its limited partnership name minus the word, abbreviation or phrase that ORS 70.010 or 70.365 requires.

          (6) A foreign or domestic business trust may register as an assumed business name its business trust name minus the word, abbreviation or phrase that ORS 60.094 or 60.717 requires.

          (7) The Secretary of State shall cancel the registration of a conflicting assumed business name if a person other than the registrant submits to the Office of the Secretary of State a certified copy of a final [decree] judgment of a court [of competent jurisdiction] that finds that the person has a right superior to that of the registrant to use the name in this state. Nothing in this subsection shall preclude the Secretary of State from seeking a civil penalty under ORS 648.990 after cancellation if the former registrant continues to carry on, to conduct or to transact business under the assumed business name.

          (8) Nothing in this section shall limit any person’s right to seek a remedy under ORS 646.638 or to seek an injunction under ORS 647.107.

 

          SECTION 530. ORS 656.440 is amended to read:

          656.440. (1) Before revocation of certification under ORS 656.434 becomes effective, the Director of the Department of Consumer and Business Services shall give the employer notice that the certification will be revoked stating the grounds for the revocation. The notice shall be served on the employer in the manner provided by ORS 656.427 (3). The revocation shall become effective within 10 days after receipt of such notice by the employer unless within such period of time the employer corrects the grounds for the revocation or appeals in writing to the Department of Consumer and Business Services.

          (2) If the employer appeals, the director shall set a date for a hearing, which date shall be within 20 days after receiving the appeal request, and shall give the employer at least five days’ notice of the time and place of the hearing. A record of the hearing shall be kept but it need not be transcribed unless requested by the employer; and the cost of transcription shall be charged to the employer. Within five days after the hearing, the director shall either affirm or disaffirm the revocation and give the employer written notice thereof by registered or certified mail.

          (3) If revocation is affirmed on review by the director, the revocation is effective five days after the employer receives notice of the affirmance unless within such period of time the employer corrects the grounds for the revocation or petitions for judicial review of the affirmance pursuant to ORS 183.310 to 183.550.

          (4) If the revocation is affirmed following judicial review, the revocation is effective five days after entry of the final [decree] judgment of affirmance, unless within such period the employer corrects the grounds for the revocation.

 

          SECTION 531. ORS 656.566 is amended to read:

          656.566. (1) If any employer liable for the payment of premiums, fees and assessments to the Industrial Accident Fund is placed in default as provided by ORS 656.560, the amount due the fund, including interest and penalty, is a lien in favor of the State Accident Insurance Fund Corporation upon all property, whether real or personal, belonging to such employer.

          (2) The lien attaches upon the filing of a notice of claim of lien with the county clerk of the county in which the property is located. The notice of lien claim shall contain a true statement of the demand, after deducting all just credits and offsets, and the default of such employer. The county clerk shall record the claim of lien in the County Clerk Lien Record and shall receive the fee provided in ORS 205.320.

          (3) The employer against whose property the lien has been filed may cause the property to be released by filing with the county clerk of the county wherein the lien is recorded a bond in a sum double the amount claimed in the lien, executed by a surety company licensed to do business in Oregon or by two freeholders of this state, having the qualifications of bail upon arrest, to be approved by the circuit judge of the district in which the lien is filed, or in the event of absence from the county in which the lien is filed, then by the county judge of said county, running to the State Accident Insurance Fund Corporation and conditioned for the payment of all damages, costs, charges and disbursements that may be recovered by the State Accident Insurance Fund Corporation against the employer or that may be found to be a lien upon or against the property of such employer. The clerk shall record evidence that the bond is substituted in lieu of the property of the employer and that the lien on the property is forever released and discharged. If the State Accident Insurance Fund Corporation establishes the validity of its lien by a suit to foreclose the lien, it shall be entitled to judgment [or decree] against the sureties upon the bond.

          (4) The lien created by this section may be foreclosed by a suit in the circuit court in the manner provided by law for the foreclosure of other liens on real or personal property. Unless a suit is instituted by the State Accident Insurance Fund Corporation to foreclose such lien within two years from the date of filing, the lien shall expire.

          (5) The lien created by this section is prior to all liens and encumbrances recorded subsequent to the filing of notice of claim of lien, except taxes and labor liens.

 

          SECTION 532. ORS 657.545 is amended to read:

          657.545. (1) The employer against whose property a lien has been filed under ORS 657.540 may cause the property to be released by filing with the county clerk of the county wherein such lien is recorded a bond or an irrevocable letter of credit in a sum double the amount claimed in said lien, executed by a surety company licensed to do business in Oregon or by two freeholders of this state, having the qualifications of bail upon arrest or in the case of a letter of credit issued by an insured institution, as defined in ORS 706.008, to be approved by the circuit judge of the district in which said lien is filed, or, in the event of the absence of the circuit judge from the county in which said lien is filed, then by the county judge of said county, running to the Director of the Employment Department and conditioned for the payment of all damages, costs, charges and disbursements that may be recovered by the director against such employer or that may be found to be a lien upon or against the property of such employer.

          (2) The clerk shall issue to such employer a certificate stating that the bond or letter of credit is substituted in lieu of the property of said employer and that the lien on said property is forever released and discharged. A marginal entry of said release and bond or letter of credit shall be made in the lien docket containing the original record of statement of claim.

          (3) If the director establishes the validity of the lien by a suit to foreclose the same, the director is entitled to judgment [or decree] against the sureties upon said bond or against the issuer of the letter of credit.

 

          SECTION 533. ORS 657.557 is amended to read:

          657.557. (1) Remedies given to the Director of the Employment Department under this chapter for the collection of contributions, interest and penalties shall be cumulative and no action taken by the director or the duly authorized representative of the director, the Attorney General, or any other officer, shall be construed to be an election on the part of the state or any of its officers to pursue any remedy to the exclusion of any other.

          (2) In any civil action brought under this section, the prevailing party is entitled to recover from the opposing party or parties reasonable costs and attorney fees to be fixed by the court upon entry of a final [decree,] order or judgment in favor of the prevailing party in a court hearing, trial or on appeal.

 

          SECTION 534. ORS 658.415 is amended to read:

          658.415. (1) No person shall act as a farm labor contractor unless the person has first been licensed by the Commissioner of the Bureau of Labor and Industries under ORS 658.405 to 658.503. Any person may file an application for a license to act as a farm labor contractor at any office of the Bureau of Labor and Industries. The application shall be sworn to by the applicant and shall be written on a form prescribed by the commissioner. The form shall include, but not be limited to, questions asking:

          (a) The applicant’s name, Oregon address and all other temporary and permanent addresses the applicant uses or knows will be used in the future.

          (b) Information on all motor vehicles to be used by the applicant in operations as a farm labor contractor including license number and state of licensure, vehicle number and the name and address of vehicle owner for all vehicles used.

          (c) Whether or not the applicant was ever denied a license under ORS 658.405 to 658.503 within the preceding three years, or in this or any other jurisdiction had such a license denied, revoked or suspended within the preceding three years.

          (d) The names and addresses of all persons financially interested, whether as partners, shareholders, associates or profit-sharers, in the applicant’s proposed operations as a farm labor contractor, together with the amount of their respective interests, and whether or not, to the best of the applicant’s knowledge, any of these persons was ever denied a license under ORS 658.405 to 658.503 within the preceding three years, or had such a license denied, revoked or suspended within the preceding three years in this or any other jurisdiction.

          (2) Each applicant shall furnish satisfactory proof with the application of the existence of a policy of insurance in an amount adequate under rules issued by the commissioner for vehicles to be used to transport workers. For the purpose of this subsection the certificate of an insurance agent licensed in Oregon is satisfactory evidence of adequate insurance.

          (3) Each applicant shall submit with the application and shall continually maintain thereafter, until excused, proof of financial ability to promptly pay the wages of employees and other obligations specified in this section. The proof required in this subsection shall be in the form of a corporate surety bond of a company licensed to do such business in Oregon, a cash deposit or a deposit the equivalent of cash. For the purposes of this subsection it shall be deemed sufficient compliance if the farm labor contractor procures a savings account at a bank or savings and loan institution in the name of the commissioner as trustee for the employees of the farm labor contractor and others as their interests may appear and delivers the evidence of the account and the ability to withdraw the funds to the commissioner under the terms of a bond approved by the commissioner. The amount of the bond and the security behind the bond, or the cash deposit, shall be based on the maximum number of employees the contractor employs at any time during the year. The bond or cash deposit shall be:

          (a) $10,000 if the contractor employs no more than 20 employees; or

          (b) $30,000, or such lesser sum as may be authorized by the commissioner under ORS 658.416, if the contractor employs 21 or more employees.

          (4) In the event that a single business entity licensed as a farm labor contractor has more than one natural person who, as an owner or employee of the business entity, engages in activities that require the persons to be licensed individually as farm labor contractors, and each such person engages in such activities solely for that business entity, the commissioner may provide by rule for lower aggregate bonding requirements for the business entity and its owners and employees. If there is an unsatisfied [final] judgment of a court or final decision of an administrative agency against a license applicant, the subject of which is any matter that would be covered by the bond or deposit referred to in subsection (3) of this section, the commissioner shall not issue a license to the applicant until the judgment or decision is satisfied. As a condition of licensing any such applicant, the commissioner may require the applicant to submit proof of financial ability required by subsection (3) of this section in an amount up to three times that ordinarily required of a license applicant.

          (5) All corporate surety bonds filed under this section or ORS 658.419 shall be executed to cover liability for the period for which the license is issued. During the period for which it is executed, no bond may be canceled or otherwise terminated.

          (6) Each application must be accompanied by the fee established under ORS 658.413.

          (7) Any person who uses the services of a farm labor contractor who has failed to comply with any of the provisions of this section or ORS 658.419 shall:

          (a) Be personally and jointly and severally liable to any employee so far as such employee has not been paid wages in full for the work done for that person.

          (b) Be personally liable for all penalty wages that have occurred under ORS 652.150 for the wages due under this section.

          (8) Any person who suffers any loss of wages from the employer of the person or any other loss specified in subsection (16) of this section shall have a right of action in the name of the person against the surety upon the bond or against the deposit with the commissioner. The right of action:

          (a) Is assignable and must be included with an assignment of a wage claim, of any other appropriate claim, or of a judgment thereon.

          (b) Shall not be included in any suit or action against the farm labor contractor but must be exercised independently after first procuring a judgment[, decree,] or other form of adequate proof of liability established by rule and procedure under subsection (14) of this section establishing the farm labor contractor’s liability for the claim.

          (9) The surety company or the commissioner shall make prompt and periodic payments on the farm labor contractor’s liability up to the extent of the total sum of the bond or deposit. Payments shall be made in the following manner:

          (a) Payment shall be made based upon priority of wage claims over advances made by the grower or producer of agricultural commodities or the owner or lessee of land intended to be used for the production of timber, for advances made to or on behalf of the farm labor contractor.

          (b) Payment in full of all sums due to each person who presents adequate proof of the claim.

          (c) If there are insufficient funds to pay in full the person next entitled to payment in full, such person shall be paid in part.

          (10) A person may not bring any suit or action against the surety company or the commissioner on the bond or against the commissioner as the trustee for the beneficiaries of the farm labor contractor under any deposit made pursuant to this section or ORS 658.419 unless the person has first exhausted the procedures contained in subsections (8) and (12) of this section or in ORS 658.419 and contends that the surety company or the commissioner still has funds that are applicable to the person’s judgment or acknowledgment.

          (11) The commissioner may not be prevented from accepting assignments of wage claims and enforcing liability against the surety on the bond or from applying the deposit to just wage claims filed with the commissioner.

          (12) All claims against the bond or deposit shall be unenforceable unless request for payment of a judgment or other form of adequate proof of liability or a notice of the claim has been made by certified mail to the surety or the commissioner within six months from the end of the period for which the bond or deposit was executed and made.

          (13) If the commissioner has received no notice as provided in subsection (12) of this section within six months after a farm labor contractor is no longer required to provide and maintain a surety bond or deposit, the commissioner shall terminate and surrender any bond or any deposit under the control of the commissioner to the person who is entitled thereto upon receiving appropriate proof of such entitlement.

          (14) The commissioner shall adopt rules reasonably necessary for administration and enforcement of the provisions of this section and ORS 658.419.

          (15) Every farm labor contractor required by this section or ORS 658.419 to furnish a surety bond or make a deposit in lieu thereof shall keep conspicuously posted upon the premises where employees working under the contractor are employed a notice, in both English and any other language used by the farm labor contractor to communicate with workers, specifying the contractor’s compliance with the requirements of this section and ORS 658.419 and specifying the name and Oregon address of the surety on the bond or a notice that a deposit in lieu of the bond has been made with the commissioner together with the address of the commissioner.

          (16) The bond or deposit referred to in subsection (3) of this section shall be payable to the commissioner and shall be conditioned upon:

          (a) Payment in full of all sums due on wage claims of employees.

          (b) Payment by the farm labor contractor of all sums due to the grower or producer of agricultural commodities or the owner or lessee of land intended to be used for the production of timber for advances made to or on behalf of the farm labor contractor.

          (17) No license shall be issued until the applicant executes a written statement that shall be subscribed and sworn to and that shall contain the following declaration:

______________________________________________________________________________

 

          With regards to any action filed against me concerning my activities as a farm labor contractor, I appoint the Commissioner of the Bureau of Labor and Industries as my lawful agent to accept service of summons when I am not present in the jurisdiction in which such action is commenced or have in any other way become unavailable to accept service.

______________________________________________________________________________

 

          (18) A person who cosigns with a farm labor contractor for a bond required by subsection (3) of this section or by ORS 658.419 is not personally or jointly and severally liable for unpaid wages above the amount of the bond solely because the person cosigned for the bond.

          (19) The court may award reasonable attorney fees to the prevailing party in any action to enforce the provisions of this section or ORS 658.419.

 

          SECTION 535. ORS 658.735 is amended to read:

          658.735. (1) Each applicant shall submit with the application and shall continually maintain thereafter a bond approved by the Commissioner of the Bureau of Labor and Industries. The amount of the bond and the security behind the bond shall be $15,000 or the amount specified in ORS 658.415, whichever is greater. This bond shall satisfy the bond required by ORS 658.415. If there is an unsatisfied [final] judgment of a court or final decision of an administrative agency against an indorsee applicant, the subject of which is any matter which would be covered by the bond referred to in this subsection, the commissioner shall not issue an indorsement to the applicant until the judgment or decision is satisfied. As a condition of indorsement, the commissioner may require the applicant to submit proof of financial ability required by this subsection in an amount up to three times that ordinarily required of an indorsee applicant. In lieu of the bond required by this subsection, each applicant may file with the commissioner, under the same terms and conditions as when a bond is filed, a deposit in cash or negotiable securities acceptable to the commissioner.

          (2) All bonds or deposits filed under this section shall be executed to cover liability for the period for which the indorsement is issued. During the period for which executed, no bond can be canceled or otherwise terminated.

          (3) Any person who suffers any loss specified in subsection (9) of this section shall have a right of action in the name of the person against the surety upon the bond or against the deposit with the commissioner:

          (a) The right of action is assignable and must be included with the claim, or of a judgment thereon.

          (b) The right of action shall not be included in any suit or action against the farmworker camp operator but must be exercised independently after first procuring a judgment[, decree] or other form of adequate proof of liability established by rule establishing the farmworker camp operator’s liability for the claim.

          (4) The surety company or the commissioner shall make prompt and periodic payments on the farmworker camp operator’s liability up to the extent of the total sum of the bond or deposit. Payments shall be made in the following manner:

          (a) Payment shall be made based upon priority of wage claims over any other claims.

          (b) Payment shall be made in full of all sums due to each person who presents adequate proof of the claim.

          (c) If there are insufficient funds to pay in full the person next entitled to payment in full, such person will be paid in part.

          (5) No person shall bring any suit or action against the surety company or the commissioner on the bonding obligation or as trustee for the beneficiaries of the indorsee under any deposit made pursuant to this section unless the person has first exhausted the procedures contained in subsections (3) and (6) of this section and contends that the surety company or the commissioner still has funds which are applicable to the person’s judgment or acknowledgment.

          (6) All claims against the bond or deposit shall be unenforceable unless request for payment of a judgment or other form of adequate proof of liability or a notice of the claim has been made by certified mail to the surety company or the commissioner within six months from the end of the period for which the bond or deposit was executed and made.

          (7) If the commissioner has received no notice as provided in subsection (6) of this section within six months after a farm labor contractor is no longer required to provide and maintain a surety bond or deposit, the commissioner shall terminate and surrender any bond or any deposit under the control of the commissioner to the person who is entitled thereto upon receiving appropriate proof of such entitlement.

          (8) Every indorsee required by this section to furnish a surety bond, or make a deposit in lieu thereof, shall keep conspicuously posted in an exterior area of the camp which is open to all employees and in a manner easily visible to occupants of and visitors to the camp, a notice in both English and any other language used by the indorsee to communicate with workers specifying the indorsee’s compliance with the requirements of this section and specifying the name and Oregon address of the surety on the bond or a notice that a deposit in lieu of the bond has been made with the commissioner, together with the address of the commissioner.

          (9) The bond or deposit referred to in subsection (1) of this section shall be payable to the commissioner and shall be conditioned upon:

          (a) All sums legally owing to any person when the indorsee or the indorsee’s agents have received such sums;

          (b) All damages occasioned to any person by reason of any material misrepresentation, fraud, deceit or other unlawful act or omission by the indorsee, or the indorsee’s agents or employees acting within the scope of their employment; and

          (c) All sums legally owing to any employee of the indorsee.

 

          SECTION 536. ORS 663.205 is amended to read:

          663.205. (1) Until the record of a case has been filed in court as provided in ORS 663.210 or 663.220, the Employment Relations Board at any time, upon reasonable notice and in such manner as it considers proper, may modify or set aside in whole or in part any finding or order made or issued by it.

          (2) If an order of the board made pursuant to ORS 663.190, 663.195 and 663.200 is based in whole or in part upon facts certified following an investigation relating to a representation election and there is a petition for the enforcement or review of the order, the certification and the record of the investigation shall be included in the transcript of the entire record required to be filed under ORS 663.210 or 663.220. The [decree] judgment of the court enforcing, modifying or setting aside in whole or in part the order of the board shall be made and entered upon the pleadings, testimony and proceedings set forth in the transcript.

 

          SECTION 537. ORS 663.210 is amended to read:

          663.210. The Employment Relations Board may petition the Court of Appeals for the enforcement of an order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings. On the filing of the petition the court shall cause notice thereof to be served upon such person, and thereupon it has jurisdiction of the proceeding and the question determined therein. It may grant such temporary relief or restraining order as it considers just and proper, and make and enter a [decree] judgment enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the board.

 

          SECTION 538. ORS 663.220 is amended to read:

          663.220. (1) Any person aggrieved by a final order of the Employment Relations Board granting or denying in whole or in part the relief sought may obtain a review of the order in the Court of Appeals by filing in the court a written petition praying that the order of the board be modified or set aside. A copy of the petition shall be transmitted forthwith by the clerk of the court to the board and thereupon the aggrieved party shall file in the court the record in the proceeding, certified by the board.

          (2) On the filing of the petition, the court shall proceed in the same manner as in the case of an application by the board under ORS 663.210, and it has the same jurisdiction to grant to the board temporary relief or restraining order as it considers just and proper, and in like manner to make and enter a [decree] judgment enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the board. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, are in like manner conclusive.

 

          SECTION 539. ORS 663.230 is amended to read:

          663.230. When granting appropriate temporary relief or a restraining order, or making and entering a [decree] judgment enforcing, modifying and enforcing as so modified, or setting aside in whole or in part an order of the Employment Relations Board, as provided in ORS 663.175 to 663.260, the jurisdiction of the court is not limited by ORS 662.010 to 662.130.

 

          SECTION 540. ORS 673.732 is amended to read:

          673.732. (1) Except as provided in ORS 183.090, upon entry of a cease and desist order under ORS 673.605 to 673.740, the State Board of Tax Practitioners shall promptly give appropriate notice of the cease and desist order as provided in this section. The notice shall state that a hearing will be held on the cease and desist order if written demand for a hearing is filed with the board within 20 days after the date of service of the cease and desist order.

          (2) If timely demand for a hearing is filed under subsection (1) of this section, the board shall hold a contested case hearing on the cease and desist order as provided by ORS 183.310 to 183.550. In the event of a contested case hearing, the civil penalties assessed in the cease and desist order are suspended until issuance of a final order, but the remaining provisions of the cease and desist order shall remain in full force and effect until issuance of the final order. A person is not entitled to judicial review of a cease and desist order unless the person has made a timely demand for a hearing.

          (3) After the hearing, the board shall enter a final order vacating, modifying or affirming the cease and desist order.

          (4) A person aggrieved by a cease and desist order of the board that was the subject of a timely application for hearing shall be entitled to judicial review of the cease and desist order under ORS 183.310 to 183.550.

          (5) A [decree] judgment of a reviewing court under ORS 183.310 to 183.550 does not bar the board from thereafter vacating or modifying a cease and desist order involved in the proceeding for review, or entering any new order, for a proper cause that was not decided by the reviewing court.

          (6) The board may file an injunction against a person for failure to comply with a cease and desist order.

 

          SECTION 541. ORS 674.850 is amended to read:

          674.850. (1) Any person who violates any provision of ORS 674.130 to 674.150, 674.310 and 674.330, or any rule or final order of the Appraiser Certification and Licensure Board or any final [judgment or decree] judgment made by any court upon application of the board, may be required to forfeit and pay to the General Fund of the State Treasury a civil penalty in an amount determined by the board of not more than $500 for each offense. Each violation shall be deemed a separate offense.

          (2) Civil penalties under this section shall be imposed as provided in ORS 183.090.

          (3) The provisions of this section are in addition to and not in lieu of any other enforcement provision contained in ORS 674.130 to 674.150, 674.310 and 674.330.

          (4) The remedies provided in subsections (1) to (3) of this section are in addition to and not exclusive of any other remedies provided by law.

 

          SECTION 542. ORS 679.165 is amended to read:

          679.165. The entry of a [decree] judgment by any court [of competent jurisdiction] establishing the mental disorder of any person holding a license under this chapter operates as a suspension of such license. Such person may resume practice only upon a finding by the Oregon Board of Dentistry that the licensee has been declared restored to mental competence by an order of a court of competent jurisdiction.

 

          SECTION 543. ORS 689.135 is amended to read:

          689.135. (1) The State Board of Pharmacy shall have such other duties, powers and authority as may be necessary to the enforcement of this chapter and to the enforcement of board rules made pursuant thereto, which shall include, but are not limited to, the following:

          (a) Cause to have printed and circulated annually copies of any changes in the laws relating to pharmacy, controlled substances, drugs and poisons and the rules adopted to enforce such laws, and set reasonable charges therefor.

          (b) Appoint advisory committees.

          (2) The board may join such professional organizations and associations organized exclusively to promote the improvement of the standards of the practice of pharmacy for the protection of the health and welfare of the public and whose activities assist and facilitate the work of the board.

          (3) In addition to any statutory requirements, the board may require such surety bonds as it deems necessary to guarantee the performance and discharge of the duties of any officer or employee receiving and disbursing funds.

          (4) The executive director of the board shall keep the seal of the board and shall affix it only in such manner as may be prescribed by the board.

          (5) The board shall determine within 30 days prior to the beginning of each state fiscal year the fees to be collected for:

          (a) Examinations and reexaminations, which fee shall not exceed $400.

          (b) Pharmacist licenses, which fee shall not exceed $250.

          (c) Pharmacist licensing by reciprocity, which fee shall not exceed $300.

          (d) Intern license, which fee shall not exceed $50.

          (e) Duplicate pharmacist certificate, which fee shall not exceed $50.

          (f) Pharmacist license, delinquent renewal fee, which fee shall not exceed $50.

          (g) Certification of approved providers of continuing education courses, which fee shall not exceed $300.

          (h) Registration of drug outlets other than pharmacies and renewal of registration, which fee shall not exceed $500.

          (i) Initial pharmacy or institutional drug outlet, which fee shall not exceed $300.

          (j) Annual pharmacy or institutional drug outlet, which fee shall not exceed $300.

          (k) Pharmacy or institutional drug outlet delinquent renewal fee, which fee shall not exceed $200.

          (L) Nonprescription drug outlets, which fee shall not exceed $50.

          (m) Nonprescription drug outlet delinquent renewal fee, which fee shall not exceed $50.

          (n) Reinspection fee, which fee shall not exceed $100.

          (o) Drug outlets, other than pharmacies or institutional drug outlets, delinquent renewal fee, which fee shall not exceed $100.

          (6) All moneys collected either as costs or fines under ORS 435.010 to 435.130, 453.175, 453.185 and 453.990 and this chapter shall be paid by the magistrate or other officer receiving them to the treasurer of the county where the prosecution is conducted. These moneys shall be applied, first, to the payment of the costs of such prosecution; the remainder shall be paid by the county treasurer to the General Fund in the State Treasury and, in the case of:

          (a) All moneys except criminal fines, placed to the credit of the Public Health Account and such moneys hereby are appropriated continuously and shall be used only for the administration and enforcement of ORS 435.010 to 435.130 and this chapter.

          (b) Criminal fines, placed to the credit of the Criminal Fine and Assessment Account.

          (7) All moneys received by the Department of Human Services under ORS 435.010 to 435.130, 453.185 and 453.990 and this chapter shall be paid into the General Fund in the State Treasury and placed to the credit of the Public Health Account and such moneys hereby are appropriated continuously and shall be used only for the administration and enforcement of ORS 435.010 to 435.130 and this chapter.

          (8) The board may receive and expend funds, in addition to its annual biennial appropriation, from parties other than the state, provided:

          (a) Such moneys are awarded for the pursuit of a specific objective which the board is authorized to accomplish by this chapter, or which the board is qualified to accomplish by reason of its jurisdiction or professional expertise;

          (b) Such moneys are expended for the pursuit of the objective for which they are awarded;

          (c) Activities connected with or occasioned by the expenditures of such funds do not interfere with or impair the performance of the board’s duties and responsibilities and do not conflict with the exercise of the board’s powers as specified by this chapter;

          (d) Such moneys are kept in a separate, special state account; and

          (e) Periodic reports are made to the Governor concerning the board’s receipt and expenditure of such moneys.

          (9) The board may assign to each drug outlet under its jurisdiction, a uniform state number, coordinated where possible with all other states which adopt the same uniform numbering system.

          (10) The board or its authorized representatives shall also have power to investigate and gather evidence concerning alleged violations of the provisions of this chapter or of the rules of the board.

          (11) The president and vice president of the board may administer oaths in connection with the duties of the board.

          (12) The books, registers and records of the board as made and kept by the executive director or under the supervision of the executive director, subject to the direction of the board, shall be prima facie evidence of the matter recorded therein, in any court of law.

          (13) The board may administer oaths, issue notices and subpoenas in the name of the board, enforce subpoenas in the manner authorized by ORS 183.440, hold hearings and perform such other acts as are reasonably necessary to carry out its duties under this chapter.

          (14)(a) Notwithstanding anything in this chapter to the contrary, whenever a duly authorized representative of the board finds or has probable cause to believe that any drug or device is adulterated, misbranded or a new drug, as defined in Section 201(p) of the Federal Food, Drug and Cosmetic Act, for which there is no approval in effect pursuant to Section 505(b) of the federal Act nor an approved notice of claimed investigational exemption pursuant to Section 505(i) of the federal Act, or otherwise rendered unsafe for use as a result of fire, flood or other natural disaster, the representative shall affix to such drug or device a tag or other appropriate marking giving notice that such article is or is suspected of being adulterated, misbranded, or otherwise rendered unsafe and has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until provision for removal or disposal is given by the board, its agent or the court. No person shall remove or dispose of such embargoed drug or device by sale or otherwise without the permission of the board or its agent or, after summary proceedings have been instituted, without permission from the court.

          (b) When a drug or device detained or embargoed under paragraph (a) of this subsection has been declared by such representative to be adulterated, misbranded or a new drug, or rendered unsafe, the board shall, as soon as practical thereafter, petition the judge of the circuit court in whose jurisdiction the article is detained or embargoed for an order for condemnation of such article. If the judge determines that the drug or device so detained or embargoed is not adulterated or misbranded or rendered unsafe, the board shall direct the immediate removal of the tag or other marking.

          (c) If the court finds the detained or embargoed drug or device is adulterated or misbranded or rendered unsafe, such drug or device, after entry of the [decree] judgment, shall be destroyed at the expense of the owner under the supervision of a board representative and all court costs and fees, storage and other proper expense shall be borne by the owner of such drug or device. When the adulteration or misbranding can be corrected by proper labeling or processing of the drug or device, the court, after entry of the [decree] judgment and after such costs, fees and expenses have been paid and a good and sufficient bond has been posted, may direct that such drug or device be delivered to the owner thereof for such labeling or processing under the supervision of a board representative. Expense of such supervision shall be paid by the owner. Such bond shall be returned to the owner of the drug or device on representation to the court by the board that the drug or device is no longer in violation of the embargo and the expense of supervision has been paid.

          (d) It is the duty of the Attorney General to whom the board reports any violation of this subsection to cause appropriate proceedings to be instituted in the proper court without delay and to be prosecuted in the manner required by law. Nothing in this subsection shall be construed to require the board to report violations whenever the board believes the public’s interest will be adequately served in the circumstances by a suitable written notice or warning.

          (15) Except as otherwise provided to the contrary, the board shall exercise all of its duties, powers and authority in accordance with ORS 183.310 to 183.550.

 

          SECTION 544. ORS 696.585 is amended to read:

          696.585. (1) Any person who violates any provision of ORS 696.505 to 696.545, or any lawful rule or final order of the Real Estate Commissioner or any final [judgment or decree] judgment made by any court upon application of the commissioner, may be required to forfeit and pay to the General Fund of the State Treasury, a civil penalty in an amount determined by the commissioner of not more than $1,000 for each offense. Each violation shall be deemed a separate offense.

          (2) In addition to the civil penalty set forth in subsection (1) of this section, any person who violates any provision of ORS 696.505 to 696.590, any lawful rule or final order of the commissioner or any final [judgment or decree] judgment made by a court upon application to the commissioner, may be required to forfeit and pay to the General Fund of the State Treasury, a civil penalty in an amount determined by the commissioner but not to exceed the amount by which such person profited in any transaction which violates any such provision, rule, order[,] or judgment [or decree].

          (3) Civil penalties under this section shall be imposed as provided in ORS 183.090.

          (4) The provisions of this section are in addition to and not in lieu of any other enforcement provision contained in ORS 696.505 to 696.590.

 

          SECTION 545. ORS 708A.175 is amended to read:

          708A.175. An institution may purchase, hold, convey, sell or lease:

          (1) The real estate and improvements thereto in which the business of the institution is carried on, including, with its offices, other space in the same building to rent as a source of income.

          (2) Furniture, fixtures, vaults, safe deposit boxes and other personal property necessary or convenient to carrying on the business of the institution.

          (3) Real or personal property purchased by or conveyed to the institution in satisfaction of or on account of debts previously contracted in the course of its business, or otherwise acquired in the course of collecting debts.

          [(4) Real estate purchased at execution sale or under a decree conducted or issued by or on behalf of the institution.]

          (4) Real estate purchased at execution sale or under a judgment.

          (5) Real estate conveyed to the institution in connection with its purchase of a bona fide contract of sale covering the real estate conveyed.

          (6) Real estate purchased with the approval of the Director of the Department of Consumer and Business Services for the purpose of future location or expansion of the business of the institution.

          (7) Real estate held in trust and real estate purchased with assets other than those of the institution.

 

          SECTION 546. ORS 709.170 is amended to read:

          709.170. (1) “Common trust fund” as used in this section, means any fund maintained by a trust company exclusively for the collective investment and reinvestment of moneys contributed thereto by the trust company or an affiliated trust company as a fiduciary. For the purposes of this section, two or more trust companies are affiliated if they are members of the same affiliated group, within the meaning of section 1504 of the Internal Revenue Code.

          (2) A trust company may establish common trust funds for the purpose of furnishing investments to itself as fiduciary, to an affiliated trust company as fiduciary, or to itself or an affiliated trust company and others as cofiduciaries. A trust company may, as a fiduciary or cofiduciary, invest funds that it lawfully holds for investment, in interests in the common trust fund or a common trust fund of an affiliated trust company, if the investment is not prohibited by the instrument, judgment[, decree] or order creating the fiduciary relationship, and if, in the case of cofiduciaries, the trust company procures the consent of its cofiduciary or cofiduciaries to the investment.

          (3) The Director of the Department of Consumer and Business Services, in accordance with ORS 183.310 to 183.550, may adopt rules necessary to control the establishment and operation of common trust funds and to protect the investors. A trust company except a national bank that is qualified to conduct a trust business pursuant to the laws of the United States shall, in the operation of the common trust fund, comply with the rules.

          (4) Unless ordered by a court a trust company operating common trust funds is not required to render a court accounting with respect to the funds, but it may, upon application to the circuit court of the county in which it has its principal office in this state, obtain a settlement of its common trust fund accounts on conditions specified by the court. When application for the settlement is presented to a circuit court for approval, the circuit court shall assign a time and place for hearing and order notice thereof by:

          (a) Publication once a week for three successive publications, the first publication to be not less than 20 days prior to the date of hearing, of a notice in a newspaper having a general circulation in the county in which the trust company operating the common trust fund has its principal office;

          (b) Mailing, not less than 14 days prior to the date of the hearing, a copy of the notice to all beneficiaries of the trusts participating in the common trust fund whose names are known to the trust company from the records kept by it in the regular course of business in the administration of the trust, directed to them at the addresses shown by the records; and

          (c) Such further notice, if any, as the court may order.

 

          SECTION 547. ORS 709.350 is amended to read:

          709.350. (1) If a trust company goes into voluntary or involuntary liquidation or receivership, the appointment of a successor trustee for the trust shall be handled by the court hearing the liquidation proceedings upon petition by the Director of the Department of Consumer and Business Services, the trust company, any interested person or, in the case of a federal bank or extranational institution, by its receiver or liquidating agent.

          (2) Upon the filing of the petition, the court shall order all persons interested in any trust to designate and take all necessary steps to appoint a successor trustee within a time fixed in the order, or to show cause why a successor trustee should not be appointed by the court. The order may be general in its terms and need not designate the trusts involved or the nature, purpose or extent of the trusts, or give the name of any of the beneficiaries or interested persons.

          (3) In a trust where those interested in the trust fail to cause a successor trustee to be appointed prior to the time fixed in the order, the court shall appoint a successor trustee.

          (4) The successor trustee shall succeed to all the rights, powers, and obligations of the trust company in liquidation, except claims or liabilities arising out of the management of trusts prior to the date of transfer.

          (5) A copy of the order provided for in subsection (2) of this section shall be published once a week for four successive weeks in a newspaper of general circulation to be designated by the court and published in the county in which the liquidation proceedings of the trust company are carried on. If there is no newspaper published in the county, or if the court conducting the liquidation proceedings is located outside this state, publication shall be made in a newspaper of general circulation in the State of Oregon designated by the court. Proof of publication shall be made in the same manner as proof of publication of summons is made.

          (6) The filing of the petition and the making and entering of the order and the publishing of a copy of the order, gives the court full jurisdiction of the trusts and all parties interested in the trusts. A court having jurisdiction shall require the director to mail, by registered mail or by certified mail with return receipt, postage prepaid, a copy of the order to each living trustor of all private trusts in which the trust company is trustee or to the then directly participating beneficiaries of all private trusts in which there is no living trustor. The notice shall be mailed to the last-known address of each trustor or participating beneficiary as shown by the records of the trust company. Proof of mailing shall be in such form as the court may require. Failure to mail the notice or the nonreceipt of the notice by any trustor or participating beneficiary shall not affect the jurisdiction of the court or invalidate any order or [decree] judgment made in the proceedings.

          (7) It is unnecessary to require the appearance of minors or other incompetents by guardians ad litem or otherwise.

          (8) The provisions of subsections (2) to (6) of this section shall apply only to trust companies that are organized under the laws of this state and to trust companies that are the trust departments of banks having their principal places of business in this state. If any other trust company goes into voluntary or involuntary liquidation or receivership, the proceedings shall be governed by the laws of the state or country in which the proceedings are initiated. The director and any other interested person may participate in the proceedings. Any successor trustee appointed pursuant to the proceedings shall succeed to all the rights, powers and obligations of the trust company, except claims or liabilities arising out of the management of trusts prior to the date of transfer.

 

          SECTION 548. ORS 709.430 is amended to read:

          709.430. (1) If any actions on claims against the deposit mentioned in ORS 709.390 are begun within the six-month period, the Director of the Department of Consumer and Business Services shall not release and the court shall not order the payment of any part of the deposit until all actions are determined by final judgment.

          (2) When all actions on claims against the deposit are finally determined, so much of the deposit as is necessary shall be paid to the claimants who have established their claims in the sums allowed by the court or, if not sufficient, the deposit shall be distributed pro rata among the claimants establishing their claims.

          (3) The court, in the proceeding initiated by the director, shall [decree] enter a judgment providing that the balance of the deposit be paid to the trust company or if the trust company is in the process of liquidation, to the official in charge of the liquidation.

 

          SECTION 549. ORS 711.250 is amended to read:

          711.250. (1) An institution may not engage in banking business or transact trust business if the institution:

          (a) Goes into voluntary liquidation;

          (b) Is closed because of insolvency;

          (c) Sells all or substantially all of its assets to another institution that takes over and assumes all or substantially all of its deposit liabilities; or

          (d) Does not engage in banking business or transact trust business for a period of one year.

          (2) An institution shall, within one year after it ceases to do a banking business or trust business, amend its articles of incorporation by eliminating the power to engage in a banking business or trust business or it is dissolved and shall not be reinstated and shall surrender its charter. For the purpose of winding up its affairs, the institution may continue as a body corporate for a period of five years from the date it stops doing a banking business or trust business, and as such:

          (a) The dissolution of the institution shall not take away or impair any remedy available to or against such institution, its directors, officers or shareholders for any right or claim existing or any liability incurred prior to such dissolution if an action or other proceeding thereon is commenced within five years after the date of issuance of a certificate of dissolution or filing of a [decree] judgment of dissolution. Any other action or proceeding by or against the institution may be prosecuted or defended by the institution in its corporate name. The shareholders, directors and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right or claim. If such institution was dissolved by the expiration of its period of duration, such institution may amend its articles of incorporation at any time during such period of five years so as to extend its period of duration.

          (b) Whenever any such institution is the owner of real or personal property, or claims any interest or lien whatsoever in any real or personal property, such institution shall continue to exist during such five-year period for the purpose of conveying, transferring and releasing such real or personal property or interest or lien therein. Such institution shall continue, after the expiration of such five-year period, to exist as a body corporate for the purpose of being made a party to and being sued in any action, suit or proceeding against it involving the title to any such real or personal property or any interest therein, and not otherwise. Any such action, suit or proceeding may be instituted and maintained against any such institution as might have been had prior to the expiration of said five-year period. This section shall not be construed as affecting or suspending any statute of limitations applicable to any suit, action or proceeding instituted under this section.

          (c) For the purpose of service of any process, notice or demand within the prescribed time following such dissolution, the Director of the Department of Consumer and Business Services shall be an agent of the dissolved institution upon whom service may be made.

 

          SECTION 550. ORS 711.554 is amended to read:

          711.554. (1) After the filing of objections under ORS 711.545 or the filing of the notice and other papers under ORS 711.550 and upon the motion of any of the parties in interest, the supervising court, upon notice to all the parties, shall set the matter for trial.

          (2) The trial shall be held in a summary manner upon the documents filed with the court. The person filing the statement of objection or the claimant whose claim was rejected has the burden of proof.

          (3) An appeal from the decision of the supervising court to the appellate court may be taken by either party as from any other judgment [or decree] of the supervising court.

 

          SECTION 551. ORS 716.790 is amended to read:

          716.790. (1) To determine the amount of a guaranty fund of an Oregon nonstock bank, the total liabilities due and accrued, undivided profits and net earnings since the last declaration of dividends shall be subtracted from the total assets. In determining the value of the assets:

          (a) Securities, other evidences of indebtedness and other interest-bearing obligations shall be carried at a sum, not to exceed their cost to the Oregon nonstock bank, calculated according to accepted principles of accounting.

          (b) Real estate shall not be estimated above cost unless its fair market value has been determined by written appraisal made by a certified appraiser and approved by the board of the Oregon nonstock bank, in which case the real estate may be carried at the fair market value determined by the appraisal. If the real estate has been acquired by foreclosure[,] or judgment [or decree] at more than its actual fair market value, the value of the real estate shall be determined by written appraisal made by a certified appraiser and approved by the board of the Oregon nonstock bank and filed with the Oregon nonstock bank.

          (c) Except as provided in subsection (2) of this section, the following shall be excluded:

          (A) Assets that have been disallowed by the Director of the Department of Consumer and Business Services or the directors of the Oregon nonstock bank;

          (B) Debts owed to an Oregon nonstock bank that have remained due and upon which no interest has been paid for more than one year; [or] and

          (C) Debts on which a judgment has been recovered which has remained unsatisfied for more than two years.

          (2) A debt mentioned in subsection (1)(c) of this section may be carried as an asset and will not be excluded in determining the value of the assets if:

          (a) The director, upon application by the Oregon nonstock bank, fixes a valuation at which the debt may be carried as an asset; or

          (b) The debt is secured by a first mortgage upon real estate and is carried as an asset at the amount of the debt secured by the mortgage or at the actual fair market value of the real estate as determined by written appraisal made by a certified appraiser and approved by the board of the Oregon nonstock bank and filed with the Oregon nonstock bank, whichever is smaller.

 

          SECTION 552. ORS 722.068 is amended to read:

          722.068. (1) Upon the effective date of the conversion of a domestic association to a federal or foreign association or an Oregon savings bank, as defined in ORS 706.008, the converting domestic association shall cease to be a domestic association incorporated under the laws of this state. However, it is expressly declared that the resulting association or savings bank shall be merely a continuation of the converting domestic association under a new name and new jurisdiction and such revision of its corporate structure as may be considered necessary for its proper operation under such new jurisdiction. All property of the converted association, including its rights, titles and interests in and to all property of whatever kind, whether real, personal or mixed; and things in action, and every right, privilege, interest and asset of any conceivable value or benefit then existing or pertaining to it, or which would inure to it, shall immediately by operation of law and without any conveyance or transfer and without any further act or deed remain and be vested in and continue and be the property of the resulting association or bank. All the liabilities and obligations of the converting domestic association shall continue as valid and subsisting liabilities and obligations of the resulting association or bank. The resulting association or bank on the effective date of the conversion shall continue to have and succeed to all the rights, liabilities, obligations and relations of the converting association. A creditor of a domestic association shall not by reason of such conversion alone be deprived of or prejudiced with respect to any claim which the creditor may have against the converting domestic association.

          [(2) All pending actions and other judicial proceedings to which the converting domestic association is a party shall not abate or discontinue by reason of such conversion, but may be prosecuted to final judgment, order or decree in the same manner as if such conversion had not been made and such resulting association or bank may continue such action in its corporate name. Any judgment, order or decree may be rendered for or against it which might have been rendered for or against the converting domestic association theretofore involved in such judicial proceedings.]

          (2) All pending actions and other judicial proceedings to which the converting domestic association is a party shall not abate or discontinue by reason of such conversion, but may be prosecuted to order or judgment in the same manner as if such conversion had not been made and such resulting association or bank may continue such action in its corporate name. Any order or judgment may be rendered for or against it which might have been rendered for or against the converting domestic association theretofore involved in such judicial proceedings.

 

          SECTION 553. ORS 731.112 is amended to read:

          731.112. “Judgment” includes [decree or other] a final order.

 

          SECTION 554. ORS 732.529 is amended to read:

          732.529. (1) Following approval of a proposed activity by the Director of the Department of Consumer and Business Services or pursuant to a court order or [decree] judgment, the proposed activity shall be submitted for approval to the members of a domestic mutual insurer, the subscribers of a domestic reciprocal insurer or the shareholders of a domestic stock insurer.

          (2) A notice of the meeting at which the proposed activity will be submitted for approval shall set forth the time, place and purpose of the meeting. The notice, the procedure to be followed at the meeting, quorum requirements and voting at the meeting shall be governed by the provisions in the Insurance Code and the articles of incorporation and bylaws of the insurer applicable to annual or special meetings of members, subscribers or shareholders. The notice of the meeting must contain or be accompanied by a copy or summary of the statement filed under ORS 732.523.

          (3)(a) Unless the articles of incorporation require a greater number of affirmative votes, the proposed activity is approved:

          (A) By the subscribers of a domestic reciprocal insurer or the shareholders of a domestic stock insurer entitled to vote at a meeting duly called and held if the votes cast in favor of the proposed activity exceed the votes cast opposing the proposed activity; or

          (B) By the members of a domestic mutual insurer entitled to vote at a meeting duly called and held if the proposed activity is approved by two-thirds or more of the members voting on the proposed activity.

          (b) If provided in the statement filed under ORS 732.523 and approved by the director, voting on the proposed activity by the members of a domestic mutual insurer may be limited to eligible members determined in accordance with ORS 732.531 (2), and voting on the proposed activity by the subscribers of a domestic reciprocal insurer may be limited to eligible subscribers determined in accordance with ORS 732.531 (2).

          (c) The board of directors of a domestic mutual insurer may condition its submission of the proposed activity to the members on any legal basis.

          (4) If the proposed activity is approved by the members, subscribers or shareholders in accordance with this section and the activity is consummated, the activity shall bind all members of a domestic mutual insurer, all subscribers of a domestic reciprocal insurer and all shareholders of a domestic stock insurer.

          (5) Dissenters’ rights provided in ORS 60.551 to 60.594 are not available to any member of a domestic mutual insurer or any subscriber of a domestic reciprocal insurer with respect to an activity that is subject to the approval of the director.

          (6) An insurer, other than a domestic insurer, or another corporation that is a party to a proposed activity described in a statement filed under ORS 732.523 is subject to the laws of its domiciliary jurisdiction governing approval of its members, subscribers or shareholders.

 

          SECTION 555. ORS 733.610 is amended to read:

          733.610. (1) Except as otherwise provided in ORS 733.580 and 733.600, an insurer may invest in real property only if used for the purposes or acquired in the manner and within the limits as follows:

          (a) The insurer may invest in the land and the buildings thereon in which it has its principal office, and in such other real property as required for its convenient accommodation in the transaction of business. Such investments shall not exceed in the aggregate 10 percent of the assets of the insurer, except with the consent of the Director of the Department of Consumer and Business Services.

          (b) The insurer may invest in real property that is acquired in satisfaction of loans, mortgages, liens, judgments[, decrees] or debts previously owing to the insurer in the course of its business.

          (c) The insurer may invest in real property acquired in part payment of the consideration on the sale of other real property owned by the insurer if the transaction does not increase the investment of the insurer in real property.

          (d) The insurer may invest in real property acquired by gift or devise or through merger, consolidation or bulk reinsurance of another insurer under the Insurance Code.

          (e) The insurer may invest in the vendor’s interest in real property subject to a contract of sale. The amount invested in the vendor’s interest under such a contract shall not exceed, except with the consent of the director:

          (A) Ninety percent of the market value of the subject real property, when the real property is one or two family residential property.

          (B) Eighty percent of the market value of the subject real property, when the real property is other than that described in subparagraph (A) of this paragraph.

          (f) The insurer may invest in real property or any interest therein that is acquired or held by purchase, lease or otherwise, other than real property used primarily for agricultural, ranch, mining, development of oil or mineral resources, recreational, amusement or club purposes, if the real property or interest therein is acquired as an investment for the production of income or acquired to be improved or developed for such investment purposes pursuant to an existing program therefor. The insurer may hold, improve, develop, maintain, manage, lease, sell and convey real property acquired by it under this paragraph. Real property and interests therein so acquired may be leased or sublet. Except with the consent of the director, an insurer shall not have an amount exceeding five percent of its assets at any one time invested in real property and interests therein under this paragraph.

          (g) The insurer may invest in additional real property and in equipment incident to real property if necessary or convenient for the purpose of enhancing the sale or other value of real property previously acquired or held by the insurer under paragraph (b), (c), (d) or (f) of this subsection. The real property and equipment shall be included, together with the real property for the enhancement of which it was acquired, for the purpose of applicable investment limits.

          (h) The insurer may invest in real property without regard to whether the property is income-producing when acquired if the insurer intends to improve the property for resale or if the insurer intends that the property will be income-producing. The insurer may also invest in real property that is income-producing and used primarily for agricultural, ranch, mining, development of oil or mineral resources, recreational, amusement or club purposes. Funds invested under this paragraph shall not exceed the lesser of five percent of the insurer’s assets or 50 percent of the insurer’s capital and surplus, except with the consent of the director.

          (i) Except with the consent of the director, all real property owned by the insurer under this subsection, except as to properties described in paragraphs (a) and (e) of this subsection, shall not at any time exceed 10 percent of the assets of the insurer.

          (2) Except as otherwise provided in subsection (3) of this section:

          (a) Real property acquired under this section shall be disposed of within five years after it ceases to be income-producing or to be used by the insurer for its business operation, whichever is later.

          (b) Real property acquired under subsection (1)(h) of this section that is not income-producing when acquired shall be disposed of within five years after acquisition if the real property is not improved for resale or if the real property is not income-producing during the five years.

          (c) When an investment or any combination of investments by an insurer in real property exceeds any applicable limitation under this section other than a limitation of time, the insurer, not later than the fifth year after the limitation is exceeded, shall dispose of sufficient real property that is subject to the limitation to comply with the limitation.

          (3) Any real property acquired under this section that otherwise qualifies as an investment under ORS 733.510 to 733.780 may be retained and held if approved as an investment in the manner prescribed by ORS 733.730 and 733.740. The director may extend the time limit prescribed in subsection (2) of this section if the interests of the insurer will suffer by a “forced sale” of the property.

 

          SECTION 556. ORS 734.510 is amended to read:

          734.510. As used in ORS 734.510 to 734.710, unless the context requires otherwise:

          (1) “Association” means the Oregon Insurance Guaranty Association created by ORS 734.550.

          (2) “Board” means the board of directors of the association.

          (3) “Controlled insurer” means an insurer 70 percent or more of whose stock is owned by a corporation, or by two or more corporations that are under common ownership.

          (4)(a) “Covered claim” means an unpaid claim, including a claim for unearned premiums and a claim by the Workers’ Benefit Fund for payments made pursuant to ORS chapter 656, that arises out of and is within the coverage and limits of an insurance policy to which ORS 734.510 to 734.710 apply and which is in force at the time of the occurrence giving rise to the unpaid claim, made by a person insured under such policy or by a person suffering injury or damage for which a person insured under such policy is legally liable, if:

          (A) The insurer issuing the policy becomes an insolvent insurer after September 9, 1971; and

          (B) The claimant or insured is a resident of this state at the time of the occurrence giving rise to the unpaid claim, or the property for which claim arises is permanently located in this state.

          (b) “Covered claim” does not include:

          (A) Any amount in excess of the applicable limits of liability provided by an insurance policy to which ORS 734.510 to 734.710 apply;

          (B) Any amount due any reinsurer, insurer, insurance pool or underwriting association as subrogated recoveries or otherwise;

          (C) Except for claims arising out of workers’ compensation policies subject to ORS chapter 656, a claim filed with the association after the final date set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer; or

          (D) Any first party claim by an insured whose net worth exceeds $25 million on December 31 of the year next preceding the date the insurer becomes an insolvent insurer, provided that an insured’s net worth on such date is deemed to include the aggregate net worth of the insured and all of its subsidiaries as calculated on a consolidated basis.

          (5) “Dividend” means any payment made to the stockholders of a controlled insurer, which payment is directly related to ownership of the stock.

          (6) “Insolvent insurer” means a member insurer:

          (a) Authorized to transact insurance in this state either at the time the policy was issued or at the time of the occurrence giving rise to the unpaid claim;

          (b) Against which a final order of liquidation, with a finding of insolvency, has been entered by a court of competent jurisdiction in the insurer’s domicile after September 9, 1971; and

          (c) With respect to which no order, [decree,] judgment or finding relating to the insolvency of the insurer, whether preliminary or temporary in nature or otherwise, has been issued by a court of competent jurisdiction or by any insurance commissioner, insurance department or similar official or body prior to September 9, 1971, or which was in fact insolvent prior to September 9, 1971, and such de facto insolvency was or should have been known by the chief insurance regulatory official of its domicile.

          (7) “Member insurer” means an insurer, including a reciprocal insurer, authorized to transact insurance in this state that writes any kind of insurance to which ORS 734.510 to 734.710 apply.

          (8) “Net direct written premiums” means direct gross premiums written in this state on insurance policies to which ORS 734.510 to 734.710 apply, less return premiums thereon and dividends paid or credited to policyholders on such direct business. “Net direct written premiums” does not include premiums on contracts between insurers or reinsurers.

          (9) “Plan” means the plan of operation of the association established pursuant to ORS 734.590.

 

          SECTION 557. ORS 743.601 is amended to read:

          743.601. (1) As used in subsections (1) to (6) of this section, “plan administrator” means:

          (a) The person designated as the plan administrator by the instrument under which the group health insurance plan is operated; or

          (b) If no plan administrator is designated, the plan sponsor.

          (2) Within 60 days of legal separation or the entry of a [decree] judgment of dissolution of marriage, a legally separated or divorced spouse eligible for continued coverage under ORS 743.600 who seeks such coverage shall give the plan administrator written notice of the legal separation or dissolution. The notice shall include the mailing address of the legally separated or divorced spouse.

          (3) Within 30 days of the death of a certificate holder whose surviving spouse is eligible for continued coverage under ORS 743.600, the group policyholder shall give the plan administrator written notice of the death and of the mailing address of the surviving spouse.

          (4) Within 14 days of receipt of notice under subsection (2) or (3) of this section, the plan administrator shall notify the legally separated, divorced or surviving spouse that the policy may be continued. The notice shall be mailed to the mailing address provided to the plan administrator and shall include:

          (a) A form for election to continue the coverage;

          (b) A statement of the amount of periodic premiums to be charged for the continuation of coverage and of the method and place of payment; and

          (c) Instructions for returning the election form by mail within 60 days after the date of mailing of the notice by the plan administrator.

          (5) Failure of the legally separated, divorced or surviving spouse to exercise the election in accordance with subsection (4) of this section shall terminate the right to continuation of benefits.

          (6) If a plan administrator fails to notify the legally separated, divorced or surviving spouse as required by subsection (4) of this section, premiums shall be waived from the date the notice was required until the date notice is received by the legally separated, divorced or surviving spouse.

          (7) The provisions of ORS 743.600 to 743.602 apply only to employers with 20 or more employees and group health insurance plans with 20 or more certificate holders.

 

          SECTION 558. ORS 756.600 is amended to read:

          756.600. (1) If, upon the trial of a suit, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good and substantial reasons for failure to present it in the proceeding before the Public Utility Commission, the court may order that the additional evidence be taken by the commission and shall stay further proceedings in the suit for such time as the court considers appropriate.

          (2) Upon taking such evidence the commission shall consider it and may alter, modify, amend or rescind the order in the proceeding or the findings of fact and conclusions of law with reference thereto. The commission shall report action on such additional evidence to such court within such time as the court may provide and with such report shall transmit the evidence so taken, unless the commission has rescinded the order.

          (3) If the commission rescinds the order complained of, the suit shall be dismissed. If the commission alters, modifies or amends the order, findings of fact or conclusions of law, such altered, modified or amended order, findings of fact or conclusions of law shall take the place of the original, and the judgment [or decree] shall be rendered in the suit as though the order, findings of fact or conclusions of law as so changed had been made in the first instance. If the original order, findings of fact or conclusions of law are not rescinded or changed by the commission, judgment [or decree] shall be rendered upon the original order, findings of fact or conclusions of law.

 

          SECTION 559. ORS 756.610 is amended to read:

          756.610. (1) Any party to a suit brought under ORS 756.580, within 30 days after the entry of the judgment [or decree] of the circuit court, may appeal to the Court of Appeals. Where an appeal is taken the cause shall, on the return of the papers to the Court of Appeals, immediately be placed on the calendar of the then pending term and shall be assigned and brought to a hearing in the same manner as other causes on the calendar, but shall have precedence over civil causes of a different nature pending in the Court of Appeals.

          (2) A judgment [or decree] of the Court of Appeals may be reviewed in the manner provided in ORS 2.520.

 

          SECTION 560. ORS 756.990 is amended to read:

          756.990. (1) Any public utility or telecommunications utility that fails to comply with an order or subpoena issued pursuant to ORS 756.090 shall forfeit, for each day it so fails, a sum of not less than $50 nor more than $500.

          (2) Except where a penalty is otherwise provided by law, any public utility, telecommunications utility or other person subject to the jurisdiction of the Public Utility Commission shall forfeit a sum of not less than $100 nor more than $10,000 for each time that the person:

          (a) Violates any statute administered by the commission;

          (b) Does any act prohibited, or fails to perform any duty enjoined upon the person;

          (c) Fails to obey any lawful requirement or order made by the commission; or

          (d) Fails to obey any judgment [or decree] made by any court upon the application of the commission.

          (3) Violation of ORS 756.115 is a Class A violation. A penalty of not less than $500 nor more than $1,000 shall be recovered from the public utility or telecommunications utility for each such offense when such officer, agent or employee acted in obedience to the direction, instruction or request of the public utility, telecommunications utility or any general officer thereof.

          (4) Violation of ORS 756.125 is punishable, upon conviction, by a fine of not more than $100 or imprisonment for not more than 30 days, or both. Any public utility or telecommunications utility that knowingly permits the violation of ORS 756.125 shall forfeit, upon conviction, not more than $1,000 for each offense.

          (5) Violation of ORS 756.543 (1) is punishable, upon conviction, by a fine of not less than $100 nor more than $1,000, or by imprisonment in the county jail for not more than one year, or both.

          (6) In construing and enforcing this section, the act, omission or failure of any officer, agent or other person acting for or employed by any public utility, telecommunications utility or other person subject to the jurisdiction of the commission acting within the scope of the person’s employment shall in every case be deemed to be the act, omission or failure of such public utility, telecommunications utility or other person subject to the jurisdiction of the commission. With respect to any violation of any statute administered by the commission, any penalty provision applying to such a violation by a public utility or telecommunications utility shall apply to such a violation by any other person.

          (7) Except when provided by law that a penalty, fine, forfeiture or other sum be paid to the aggrieved party, all penalties, fines or forfeitures or other sums collected or paid under the provisions of any law administered by the commission shall be paid into the General Fund and credited to the Public Utility Commission Account.

 

          SECTION 561. ORS 758.465 is amended to read:

          758.465. In the event a contract approved by the Public Utility Commission is breached or in the event an allocated territory is served by a person not authorized by such contract, or order of the commission, the aggrieved person or the commission may file an action in the circuit court for any county in which is located some or all of the allocated territory allegedly involved in said breach or invasion, for an injunction against said alleged breach or invasion. The trial of such action shall proceed as in an action not triable by right to a jury. Any party may appeal to the Court of Appeals from the court’s [decree] judgment, as in other equity cases. The remedy provided in this section shall be in addition to any other remedy provided by law.

 

          SECTION 562. ORS 759.565 is amended to read:

          759.565. In the event a contract approved by the Public Utility Commission is breached or in the event an allocated territory is served by a person not authorized by such contract or order of the commission, the aggrieved person or the commission may file an action in the circuit court for any county in which is located some or all of the allocated territory allegedly involved in said breach or invasion, for an injunction against said alleged breach or invasion. The trial of such action shall proceed as in an action not triable by right to a jury. Any party may appeal to the Court of Appeals from the court’s [decree] judgment, as in other equity cases. The remedy provided in this section shall be in addition to any other remedy provided by law.

 

          SECTION 563. ORS 759.990 is amended to read:

          759.990. (1) Any telecommunications utility violating ORS 759.260 commits a Class A violation, and upon conviction the court shall impose a fine of not less than $100. Violation of ORS 759.260 by an officer or agent of a telecommunications utility is a Class D violation.

          (2) Any person violating ORS 759.275 shall, upon conviction, forfeit and pay to the State Treasurer not less than $100 and not more than $10,000 for each offense. Violation of ORS 759.275 by any agent or officer of any telecommunications utility or person is punishable, upon conviction, by a fine of not less than $100 and not more than $1,000 for each offense.

          (3) Violation of ORS 759.280 is a Class A violation.

          (4) Violation of ORS 759.355 is punishable, upon conviction, by a fine of not less than $500 nor more than $20,000 for each offense.

          (5) Violation of ORS 759.360 is a felony and is punishable, upon conviction, by a fine of not less than $1,000 nor more than $20,000, or by imprisonment in the penitentiary for not less than one nor more than five years, or both.

          (6) A telecommunications carrier, as defined in ORS 759.400, shall forfeit a sum of not less than $100 nor more than $50,000 for each time that the carrier:

          (a) Violates any statute administered by the Public Utility Commission;

          (b) Commits any prohibited act, or fails to perform any duty enjoined upon the carrier by the commission;

          (c) Fails to obey any lawful requirement or order made by the commission; or

          (d) Fails to obey any judgment [or decree] made by any court upon the application of the commission.

          (7) In construing and enforcing subsection (6) of this section, the act, omission or failure of any officer, agent or other person acting on behalf of or employed by a telecommunications carrier and acting within the scope of the person’s employment shall in every case be deemed to be the act, omission or failure of such telecommunications carrier.

          (8) Except when provided by law that a penalty, fine, forfeiture or other sum be paid to the aggrieved party, all penalties, fines, forfeitures or other sums collected or paid under subsection (6) of this section shall be paid into the General Fund and credited to the Public Utility Commission Account.

 

          SECTION 564. ORS 772.030 is amended to read:

          772.030. (1) Any railroad company whose right of way passes through any canyon, pass or defile shall not prevent any other railroad company from the use and occupancy of said canyon, pass or defile for the purpose of its railroad in common with the railroad first located.

          (2) Any railroad company authorized by law to condemn property for right of way or any other corporate purpose, may commence an action for condemnation of a right of way through any canyon, pass or defile for the purpose of its railroad, where right of way has already been located, condemned or occupied by some other railroad company through such canyon, pass or defile for the purpose of its railroad.

          (3) Thereupon like proceedings shall be had as are provided by the laws of this state for the condemnation of land for right of way and other railroad purposes. At the time of rendering judgment for damages, the court or judge thereof shall enter a judgment [or decree] authorizing the railroad to occupy and use the right of way, roadbed and track, if necessary, in common with the railroad company already occupying or owning the same, and defining the terms and conditions upon which the same shall be so occupied and used in common.

 

          SECTION 565. ORS 802.179 is amended to read:

          802.179. (1) The Department of Transportation, upon request or as required by law, shall disclose personal information from a motor vehicle record to a government agency for use in carrying out its governmental functions.

          (2) The department shall disclose personal information from a motor vehicle record for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of nonowner records from the original owner records of motor vehicle manufacturers to carry out the purposes of any of the following federal Acts:

          (a) The Automobile Information Disclosure Act.

          (b) The Motor Vehicle Information and Cost Saving Act.

          (c) The National Traffic and Motor Vehicle Safety Act of 1966.

          (d) The Anti-Car Theft Act of 1992.

          (e) The Clean Air Act.

          (3)(a) If the department determines that a business is a legitimate business, the department shall disclose personal information to the business for use in the normal course of business in:

          (A) Verifying the accuracy of personal information submitted to the business; or

          (B) Correcting personal information submitted to the business, but only in order to:

          (i) Prevent fraud;

          (ii) Pursue legal remedies against the individual who submitted the personal information; or

          (iii) Recover a debt from, or satisfy a security interest against, the individual.

          (b) The department shall adopt rules specifying the kind of information that the department will accept as evidence that a business is a legitimate business.

          (4) The department shall disclose personal information to:

          (a) An attorney, a financial institution as defined in ORS chapter 706 or a collection agency registered under ORS 697.031 for use in connection with a civil, criminal, administrative or arbitration proceeding in any court, government agency or self-regulatory body. Permissible uses of personal information under this paragraph include but are not limited to service of process, investigation in anticipation of litigation and the execution and enforcement of judgments and orders.

          (b) A process server acting as an agent for an individual for use in serving documents in connection with an existing civil, criminal, administrative or arbitration proceeding, or a judgment [or decree], in any court, government agency or self-regulatory body. Nothing in this paragraph limits the activities of a process server when acting as an agent for an attorney, collection agency or like person or for a government agency.

          (5) The department shall disclose personal information other than names to a researcher for use in researching health and educational questions and providing statistical reports, as long as the personal information is not published, redisclosed or used to contact individuals. The department may disclose information under this subsection only for research sponsored by an educational institution or a health research institution.

          (6) The department shall disclose personal information to an insurer, an insurance support organization or a self-insured entity in connection with claims investigation activities, antifraud activities, underwriting or rating.

          (7) The department shall disclose personal information regarding ownership or other financial interests in a vehicle to a person who is required by the state or federal Constitution, a statute or an ordinance to give notice to another person concerning the vehicle. Personal information disclosed under this subsection may be used only for giving the required notice. Persons authorized to receive personal information under this subsection include, but are not limited to:

          (a) Tow companies;

          (b) Persons who have or are entitled to have liens on the vehicle; and

          (c) Persons taking an action that could affect ownership rights to the vehicle.

          (8) The department shall disclose personal information to any private security officer certified under ORS 181.878, to be used for the purpose of determining ownership of vehicles parked in a place over which the private security officer, acting within the scope of the officer’s employment, exercises control.

          (9) The department shall disclose personal information to the employer of an individual who holds a commercial driver license, or the insurer of the employer, to obtain or verify information about the holder of the commercial driver license.

          (10) The department shall disclose personal information to the operator of a private toll facility for use in collecting tolls.

          (11) The department may not disclose personal information for bulk distributors of surveys, marketing materials or solicitations except as provided in this subsection. The department shall implement methods and procedures to ensure:

          (a) That individuals are offered an opportunity to request that personal information about themselves be disclosed to bulk distributors; and

          (b) That the personal information provided by the department will be used, rented or sold solely for bulk distribution of surveys, marketing materials and solicitations.

          (12) The department shall disclose personal information to a person who requests the information if the requester provides the department with written permission from the individual whose personal information is requested. The written permission from the individual must be notarized.

          (13) The department shall disclose personal information to a person who is in the business of disseminating such information under the following conditions:

          (a) In addition to any other requirements under the contract executed pursuant to paragraph (b) of this subsection, the person requesting the information must file a performance bond with the department in the amount of $25,000. The bond must be executed in favor of the State of Oregon and its form is subject to approval by the Attorney General.

          (b) The disseminator shall enter into a contract with the department. A contract under this paragraph shall contain at least the following provisions:

          (A) That the disseminator will not reproduce or distribute the personal information in bulk but only in response to an individual record inquiry.

          (B) That the disseminator will provide the personal information only as provided in ORS 802.181.

          (C) That the disseminator will have a method of ensuring that the disseminator can delay for a period of up to two days the giving of personal information to a requester who is not a subscriber.

          (14) The department shall disclose personal information to representatives of the news media for the gathering or dissemination of information related to the operation of a motor vehicle or to public safety.

          (15) The department shall disclose personal information as provided in ORS 802.220 (5).

          (16) The department shall adopt rules providing for the release of personal information from motor vehicle records to a person who has a financial interest in the vehicle. Rules adopted under this subsection may include, but need not be limited to, rules establishing procedures for the department to verify the financial interest of the person making the request for personal information.

          (17) The department shall adopt rules providing for the release of personal information from motor vehicle records to a person who is injured by the unsafe operation of a vehicle or who owns property that is damaged because of the unsafe operation of a vehicle.

          (18) The department shall disclose personal information to a private investigator licensed by any licensing authority within the State of Oregon, to be used for any purpose permitted any person under this section. A licensed private investigator requesting information must prove to the department that the person has a corporate surety bond, an irrevocable letter of credit issued by an insured institution as defined in ORS 706.008 or such other security as the Oregon Board of Investigators may prescribe by rule in the minimum amount of $5,000 or errors and omissions insurance in the minimum amount of $5,000.

 

          SECTION 566. ORS 809.410 is amended to read:

          809.410. This section and ORS 809.407, 813.400 and 813.403 establish grounds for the suspension and revocation of driving privileges and commercial driver licenses by the Department of Transportation, whether the suspension or revocation is mandatory or permissive, the length of time the suspensions will be effective and special provisions relating to certain suspensions and revocations. Hearing and administrative review procedures for this section and ORS 809.407, 813.400 and 813.403 are established under ORS 809.440. The following apply as described:

          (1) Any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a motor vehicle and assault in the first degree resulting from the operation of a motor vehicle constitute grounds for revocation of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall revoke the driving privileges or right to apply for driving privileges.

          (b) A person whose driving privileges or right to apply for driving privileges are revoked under this subsection may apply for reinstatement of driving privileges eight years from the date the person is released from incarceration for the offense, if the sentence for the offense includes incarceration. If the sentence does not include incarceration, the person may apply for reinstatement eight years from the date the department revoked the privileges or right to apply for privileges under this subsection. The department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a revocation under this subsection.

          (d) The provisions of this subsection do not apply to a person whose driving privileges are ordered revoked under ORS 809.235.

          (2) Any degree of recklessly endangering another person, menacing or criminal mischief resulting from the operation of a motor vehicle constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall suspend the driving privileges or right to apply for driving privileges.

          (b) A person is entitled to administrative review of a suspension under this subsection.

          (c) A suspension under this subsection shall be for a period described under Schedule I of ORS 809.420, except that the department shall not reinstate any driving privileges to the person until the person has complied with future responsibility filings.

          (3) Perjury or the making of a false affidavit to the department under any law of this state requiring the registration of vehicles or regulating their operation on the highways constitutes grounds for revocation of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall revoke the driving privileges or right to apply for driving privileges.

          (b) The revocation shall be for a period of one year from the date of revocation except that the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a revocation under this subsection.

          (4) Any felony conviction with proof of a material element involving the operation of a motor vehicle constitutes grounds for revocation of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall revoke the driving privileges or right to apply for driving privileges.

          (b) The revocation shall be for a period of one year from the date of revocation except that the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a revocation under this subsection.

          (5) Failure to perform the duties of a driver to injured persons under ORS 811.705 constitutes grounds for revocation of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall revoke the driving privileges or right to apply for driving privileges.

          (b) Except as provided in paragraph (c) of this subsection, the revocation shall be for a period of one year from the date of revocation except that the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) If the court indicates on the record of conviction that a person was killed as a result of the accident, the revocation shall be for a period of five years. The person may apply for reinstatement of privileges five years after the date the person was released from incarceration. If the sentence does not include incarceration, the person may apply for reinstatement five years from the date the revocation was imposed under this subsection.

          (d) A person is entitled to administrative review of a revocation under this subsection.

          (6) Reckless driving constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall suspend the driving privileges or right to apply for driving privileges.

          (b) The suspension shall be for the periods of time described under Schedule I of ORS 809.420 except that the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (7) Failure to perform duties of a driver when property is damaged under ORS 811.700 constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a record of conviction of an offense described in this subsection, the department shall suspend the driving privileges or right to apply for driving privileges.

          (b) The suspension shall be for the periods of time described under Schedule I of ORS 809.420 except the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (8) Fleeing or attempting to elude a police officer under ORS 811.540 constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) Upon receipt of a conviction for an offense described in this subsection, the department shall suspend the driving privileges or right to apply for driving privileges.

          (b) The suspension shall be for a period described under Schedule I of ORS 809.420 except the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (9) Failure to file accident reports required under ORS 811.725 or 811.730 constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges or right to apply for driving privileges if the person fails to make the required accident reports.

          (b) The suspension shall continue until the person makes the required reports or for five years from the date of suspension, whichever is sooner.

          (10) Failure to make future responsibility filing described in this subsection constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges or right to apply for driving privileges of a person who fails to comply with future responsibility filings whenever required under the vehicle code or to provide new proof for future responsibility filings when requested by the department.

          (b) The suspension shall continue until the person complies with future responsibility filings.

          (c) A person whose initial obligation to make future responsibility filings is not based upon a conviction or other action by a court is entitled to a contested case hearing prior to a suspension under this subsection. A person whose obligation to make future responsibility filings is based upon a conviction or other action by a court is entitled to administrative review of a suspension under this subsection. A person whose suspension under this subsection is based on lapses in filing after the initial filing has been made is entitled to administrative review.

          (11) Failure to settle judgments as described in this subsection constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges or right to apply for driving privileges if a person has a judgment of the type described under ORS 806.040 rendered against the person and the person does not settle the judgment in the manner described under ORS 809.470 within 60 days after its entry.

          (b) A suspension under this subsection shall continue until the person does one of the following:

          (A) Settles the judgment in the manner described in ORS 809.470.

          (B) Has an insurer which has been found by the department to be obligated to pay the judgment provided that there has been no final adjudication by a court that such insurer has no such obligation.

          (C) Gives evidence to the department that a period of seven years has elapsed since the entry of the judgment.

          (D) Receives from the court that rendered the judgment an order permitting the payment thereof in installments.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (12) False certification of financial responsibility requirements constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges or right to apply for driving privileges if a person falsely certifies the existence of a motor vehicle liability insurance policy or the existence of some other means of satisfying financial responsibility requirements or if a person, after certifying the existence of a motor vehicle liability insurance policy or other means of satisfying the requirements, allows the policy to lapse or be canceled or otherwise fails to remain in compliance with financial responsibility requirements.

          (b) The department shall only suspend under this subsection if proof of compliance with financial responsibility requirements as of the date of the letter of verification from the department under ORS 806.150 is not submitted within 30 days after the date of the mailing of the department’s demand therefor under ORS 806.160.

          (c) The suspension shall continue until the person complies with future responsibility filings.

          (13) Failure to take examination upon request of the department under ORS 807.340 constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges or right to apply for driving privileges of a person if the department requests the person to submit to examination under ORS 807.340 and the person fails to appear within a reasonable length of time after being notified to do so or fails to satisfactorily complete the required examination.

          (b) The suspension shall continue until the examination required by the department is successfully completed.

          (c) Upon suspension under this subsection, the department may issue an identification card to the person for identification purposes as described under ORS 807.400.

          (14) Failure to obtain required medical clearance under ORS 807.070 or 807.090 upon request by the department constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department shall suspend the driving privileges of the person if the department requests the person to obtain medical clearance described by this subsection and the person fails to do so.

          (b) The suspension under this subsection shall continue until the required medical clearance is received by the department.

          (15) Causing or contributing to an accident resulting in death or injury to any other person or serious property damage through incompetence, recklessness, criminal negligence or unlawful operation of a motor vehicle constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department immediately may suspend the driving privileges of any person without hearing and without receiving a record of the conviction of such person of crime if the department has reason to believe that the person may endanger people or property if not immediately suspended. Any suspension under this paragraph shall be subject to a post-imposition hearing under ORS 809.440.

          (b) A suspension under this subsection shall continue for a period determined by the department and be subject to any conditions the department determines necessary.

          (16) Incompetence to drive a motor vehicle because of a mental or physical condition rendering it unsafe for a person to drive a motor vehicle upon the highways constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department immediately may suspend the driving privileges of any person without hearing and without receiving a record of the conviction of such person of crime if the department has reason to believe that the person may endanger people or property if not immediately suspended. A suspension under this paragraph shall be subject to a post-imposition hearing under ORS 809.440 except that a person who has submitted a certificate of eligibility under ORS 807.090 is entitled only to administrative review of a suspension.

          (b) A suspension under this subsection shall continue for a period determined by the department and be subject to any conditions the department determines necessary.

          (17) Habitual incompetence, recklessness or criminal negligence of a driver of a motor vehicle or committing a serious violation of the motor vehicle laws of this state constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department immediately may suspend the driving privileges of any person without hearing and without receiving a record of the conviction of such person of crime if the department has reason to believe that the person may endanger people or property if not immediately suspended. Any suspension under this paragraph shall be subject to a post-imposition hearing under ORS 809.440.

          (b) A suspension under this subsection shall continue for a period determined by the department and be subject to any conditions the department determines necessary.

          (18) A conviction under ORS 811.700 or 811.705 for failure to perform the duties of a driver while operating a commercial motor vehicle or any conviction of a crime punishable as a felony involving the operation of a commercial motor vehicle constitutes grounds for commercial driver license suspension. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall suspend the commercial driver license or right to apply for a commercial driver license of the person convicted.

          (b) The suspension shall be for a period of time according to the following:

          (A) If the person’s commercial driver license has not previously been suspended under this subsection, ORS 813.403 or 813.410 (2) and the person was not driving a commercial motor vehicle containing a hazardous material at the time the offense was committed, the suspension shall be for a period of one year.

          (B) If the person’s commercial driver license has not previously been suspended under this subsection, ORS 813.403 or 813.410 (2) and the person was driving a commercial motor vehicle containing a hazardous material at the time the offense was committed, the suspension shall be for a period of three years.

          (C) If the person’s commercial driver license has previously been suspended under this subsection, ORS 813.403 or 813.410 (2), the suspension shall be for the lifetime of the person.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (19) Use of a commercial motor vehicle in the commission of a crime punishable as a felony involving the manufacturing, distributing or dispensing of a controlled substance constitutes grounds for commercial driver license suspension. The following apply to this subsection:

          (a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall suspend the commercial driver license or right to apply for a commercial driver license of the person convicted.

          (b) The suspension shall be for the lifetime of the person.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (d) “Controlled substance” has the meaning given that term in ORS 475.005 (6).

          (20) Incompetence to operate a motorcycle constitutes grounds for revocation of a motorcycle indorsement. The following apply to this subsection:

          (a) Whenever the department has reason to believe an individual with a motorcycle indorsement under ORS 807.170 comes within the grounds described in this subsection, the department may revoke the indorsement.

          (b) Upon revocation under this subsection, the license shall be surrendered to the department.

          (c) Upon surrender of the indorsed license, the department may issue a license without indorsement for the unexpired period of the license.

          (21) The department forthwith shall suspend the driving privileges of any person for a period of time required by this subsection if the person is involved in a motor vehicle accident at any time when the department determines the person has been operating a vehicle in violation of ORS 806.010. A suspension under this subsection shall be for a period of one year except that the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filing requirements.

          (22) Upon notification by the superintendent of a hospital under ORS 807.700 that a person should not drive, the department shall immediately suspend the driving privileges of the released person. A suspension under this subsection is subject to administrative review and shall continue until such time as the person produces a judicial [decree] judgment of competency or a certificate from the superintendent of the hospital that the person is competent or establishes eligibility under ORS 807.090.

          (23) Upon notification by a court under ORS 810.375 that a person charged with a traffic offense has been found guilty except for insanity and committed to the jurisdiction of the Psychiatric Security Review Board, the department shall immediately suspend the driving privileges of the person. A suspension under this subsection is subject to administrative review and shall continue until such time as the person establishes eligibility under ORS 807.090.

          (24) The department shall suspend driving privileges when provided under ORS 809.290. The suspension shall continue until the earlier of the following:

          (a) The person establishes to the satisfaction of the department that the person has performed all acts necessary under ORS 809.290 to make the person not subject to suspension.

          (b) Five years from the date the suspension is imposed.

          (c) A person is entitled to administrative review of a suspension under this subsection.

          (25) Criminal trespass under ORS 164.245 that involves the operation of a motor vehicle constitutes grounds for suspension of driving privileges. The following apply to suspension on grounds described in this subsection:

          (a) Upon receipt of a conviction for an offense described in this subsection, the department shall suspend the driving privileges or right to apply for driving privileges of the person convicted for a period of six months from the date of suspension.

          (b) A person is entitled to administrative review of a suspension under this subsection.

          (26) Agreements entered under ORS 802.530 may establish grounds and procedures for the suspension of driving privileges.

          (27) Violation of restrictions placed on driving privileges under ORS 807.120 constitutes grounds for suspension of driving privileges. The following apply to this subsection:

          (a) The department immediately may suspend the driving privileges of any person without hearing and without receiving a record of the conviction of such person of crime if the department receives satisfactory evidence that the person has violated restrictions placed on the person’s driving privileges. Any suspension under this paragraph shall be subject to a post-imposition hearing under ORS 809.440.

          (b) A suspension under this subsection shall continue for a period determined by the department, but in no event for longer than one year, and shall be subject to any conditions the department determines necessary.

          (28) Upon receipt of a record of a person’s second conviction of a serious traffic violation within a three-year period, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license if the convictions arose out of separate incidents. A suspension under this subsection shall be for a period of 60 days. A person is entitled to administrative review of a suspension under this subsection.

          (29) Upon receipt of a record of a person’s third or subsequent conviction of a serious traffic violation within a three-year period, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license if the convictions arose out of separate incidents. A suspension under this subsection shall be for a period of 120 days. A person is entitled to administrative review of a suspension under this subsection.

          (30)(a) Upon receipt of a record of conviction of an offense described in ORS 809.310, the department shall, or upon determination by the department that the person has committed an act that constitutes such an offense, the department may suspend any driving privileges, any right to apply for privileges or any identification card of the person convicted or determined to have committed the act.

          (b) A suspension under this subsection shall continue for a period of one year.

          (c) A person is entitled to administrative review of a suspension under this subsection if the suspension is based upon a conviction. If the suspension is based upon a determination by the department, the person is entitled to a hearing as described in ORS 809.440.

          (31) Except as otherwise provided in subsection (33) of this section, upon receipt of a first notice indicating that a person has violated an out-of-service order issued under ORS 813.050 or has knowingly violated any other out-of-service order or notice, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license for a period of 90 days. For purposes of this subsection, “notice” includes, but is not necessarily limited to, a record of conviction and a record of a determination by a state or federal agency with jurisdiction to make such determinations that the person has violated an out-of-service order or notice. A person is entitled to administrative review of a suspension under this subsection.

          (32) Except as otherwise provided in subsection (34) of this section, upon receipt of a second or subsequent notice within a 10-year period indicating that a person has violated an out-of-service order issued under ORS 813.050 or has knowingly violated any other out-of-service order or notice, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license for a period of three years. For purposes of this subsection, “notice” includes, but is not necessarily limited to, a record of conviction and a record of a determination by a state or federal agency with jurisdiction to make such determinations that the person has violated an out-of-service order or notice. A person is entitled to administrative review of a suspension under this subsection.

          (33) Upon receipt of a first notice indicating that a person has violated an out-of-service order while transporting hazardous materials required to be placarded, or while operating a motor vehicle designed to transport 16 or more persons, including the driver, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license for a period of one year. For purposes of this subsection, “notice” includes, but is not necessarily limited to, a record of conviction and a record of a determination by a state or federal agency with jurisdiction to make such determinations that the person has violated an out-of-service order or notice. A person is entitled to administrative review of a suspension under this subsection.

          (34) Upon receipt of a second or subsequent notice within a 10-year period indicating that a person has violated an out-of-service order, if the person was transporting hazardous materials required to be placarded, or was operating a motor vehicle designed to transport 16 or more persons, including the driver, then regardless of the load or kind of vehicle involved in the first notice, the department shall suspend the person’s commercial driver license or right to apply for a commercial driver license for a period of five years. For purposes of this subsection, “notice” includes, but is not necessarily limited to, a record of conviction and a record of a determination by a state or federal agency with jurisdiction to make such determinations that the person has violated an out-of-service order or notice. A person is entitled to administrative review of a suspension under this subsection.

          (35) Upon receipt of a record of a person’s conviction of reckless endangerment of highway workers under ORS 811.231 (1), the department shall suspend the person’s driving privileges or right to apply for driving privileges. The suspension shall be for periods of time described under Schedule I of ORS 809.420 except the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings. A person is entitled to administrative review of a suspension under this subsection.

          (36) Upon notification by a school superintendent or a school district board under ORS 339.254, the department shall suspend the driving privileges of a person or the right to apply for driving privileges. The suspension shall be for the amount of time stated in the notice. A person is entitled to administrative review of a suspension under this subsection.

          (37)(a) Assault in the second, third or fourth degree resulting from the operation of a motor vehicle constitutes grounds for suspension of driving privileges. Upon receipt of a record of conviction for assault in the second, third or fourth degree, the department shall suspend the driving privileges or right to apply for driving privileges of the person convicted.

          (b) A person who is convicted of assault in the second degree and whose driving privileges or right to apply for driving privileges are suspended under this subsection may apply for reinstatement of driving privileges eight years from the date the person is released from incarceration for the conviction, if the sentence includes incarceration. If the sentence for the conviction does not include incarceration, the person may apply for reinstatement of driving privileges eight years from the date the department suspended the privileges or right to apply for privileges under this subsection.

          (c) A person who is convicted of assault in the third degree and whose driving privileges or right to apply for driving privileges are suspended under this subsection may apply for reinstatement of driving privileges five years from the date the person is released from incarceration for the conviction, if the sentence includes incarceration. If the sentence for the conviction does not include incarceration, the person may apply for reinstatement of driving privileges five years from the date the department suspended the privileges or right to apply for privileges under this subsection.

          (d) A person who is convicted of assault in the fourth degree and whose driving privileges or right to apply for driving privileges are suspended under this subsection may apply for reinstatement of driving privileges one year from the date the person is released from incarceration for the conviction, if the sentence includes incarceration. If the sentence for the conviction does not include incarceration, the person may apply for reinstatement of driving privileges or right to apply for driving privileges one year from the date the department suspended the privileges or right to apply for privileges under this subsection.

          (e) The department shall not reinstate any driving privileges to the person whose privileges are suspended under this subsection until the person complies with future responsibility filings.

          (f) A person is entitled to administrative review of a suspension under this subsection.

          (38) Upon receipt of notification of a court order that a person’s driving privileges or right to apply for driving privileges be suspended for violation of ORS 167.401, the department shall suspend the driving privileges or the right to apply for driving privileges of the person subject to the order for the time specified in the order. A person is entitled to administrative review of a suspension under this subsection.

          (39) Withdrawal from school by a person under 18 years of age constitutes grounds for suspension of driving privileges. Upon receipt of a notice under ORS 339.257 that a person under 18 years of age has withdrawn from school, the department shall notify the person that driving privileges will be suspended on the 30th day following the date of the notice unless the person presents documentation that complies with ORS 807.066. A suspension under this subsection shall continue until the person reaches 18 years of age or until the person presents documentation that complies with ORS 807.066. Appeals of a suspension under this subsection shall be as provided by a school district or private school under a policy adopted in accordance with ORS 339.257.

 

          SECTION 566a. If Senate Bill 245 becomes law, section 566 of this 2003 Act (amending ORS 809.410) is repealed.

 

          SECTION 566b. If Senate Bill 245 becomes law, section 7, chapter 402, Oregon Laws 2003 (Enrolled Senate Bill 245), is amended to read:

          Sec. 7. (1)(a) The Department of Transportation shall suspend the driving privileges of a person if the department requests the person to submit to examination under ORS 807.340 and the person fails to appear within a reasonable length of time after being notified to do so or fails to satisfactorily complete the required examination. A suspension under this subsection shall continue until the examination required by the department is successfully completed.

          (b) Upon suspension under this subsection, the department may issue an identification card to the person for identification purposes as described under ORS 807.400.

          (2) The department shall suspend the driving privileges of a person if the department requests the person to obtain medical clearance under ORS 807.070 or 807.090 and the person fails to do so. The suspension under this subsection shall continue until the required medical clearance is received by the department.

          (3)(a) The department may suspend the driving privileges of a person who is incompetent to drive a motor vehicle because of a mental or physical condition that makes it unsafe for the person to drive on the highways.

          (b) A suspension under this subsection shall continue for a period determined by the department and shall be subject to any conditions the department determines to be necessary.

          (c) The department may impose an immediate suspension of driving privileges of any person described in paragraph (a) of this subsection without hearing and without receiving a record of the conviction of the person of a crime if the department has reason to believe that the person may endanger people or property if the person’s driving privileges are not immediately suspended. A suspension under this paragraph is subject to a post-imposition hearing under ORS 809.440, except that a person who is denied a certificate of eligibility under ORS 807.090 is entitled only to an administrative review under ORS 809.440 of the suspension.

          (4)(a) Whenever the department has reason to believe an individual with a motorcycle endorsement under ORS 807.170 is incompetent to operate a motorcycle, the department may revoke the endorsement.

          (b) Upon revocation under this subsection, the endorsed license shall be surrendered to the department.

          (c) Upon surrender of the endorsed license, the department may issue a license without endorsement for the unexpired period of the license.

          (5) Upon notification by the superintendent of a hospital under ORS 807.700 that a person should not drive, the department shall immediately suspend the driving privileges of the released person. A suspension under this subsection is subject to administrative review under ORS 809.440 and shall continue until such time as the person produces a judicial [decree] judgment of competency or a certificate from the superintendent of the hospital that the person is competent, or establishes eligibility under ORS 807.090.

          (6) Upon notification by a court under ORS 810.375 that a person charged with a traffic offense has been found guilty except for insanity and committed to the jurisdiction of the Psychiatric Security Review Board, the department shall immediately suspend the driving privileges of the person. A suspension under this subsection is subject to administrative review under ORS 809.440 and shall continue until such time as the person establishes eligibility under ORS 807.090.

 

          SECTION 567. ORS 823.991 is amended to read:

          823.991. (1) Any motor carrier or railroad that fails to comply with an order or subpoena issued pursuant to ORS 823.025 shall pay a civil penalty, for each day it so fails, of not less than $50 nor more than $500.

          (2) Except where a penalty is otherwise provided by law, any motor carrier or railroad shall pay a civil penalty of not less than $100 nor more than $10,000 for each time that the motor carrier or railroad:

          (a) Violates any statute regarding motor carriers or railroads, as appropriate, administered by the Department of Transportation;

          (b) Does any act prohibited, or fails to perform any duty enjoined upon the motor carrier or railroad;

          (c) Fails to obey any lawful requirement or order made by the department; or

          (d) Fails to obey any judgment [or decree] made by any court upon the application of the department.

          (3) Violation of ORS 823.029 is punishable after issuance of a final order by the department, by a civil penalty of not less than $1,000 for each offense. A penalty of not less than $500 nor more than $1,000 shall be recovered from the motor carrier or railroad for each such offense when such officer, agent or employee acted in obedience to the direction, instruction or request of the motor carrier or railroad, or any general officer thereof.

          (4) Violation of ORS 823.029 is a Class A violation.

          (5) Violation of ORS 823.051 is punishable, upon conviction, by a fine of not more than $100 or imprisonment for not more than 30 days, or both. Any motor carrier or railroad that knowingly permits the violation of ORS 823.051 shall forfeit, upon conviction, not more than $1,000 for each offense.

          (6) In construing and enforcing this section, the act, omission or failure of any officer, agent or other person acting for or employed by any motor carrier or railroad shall in every case be deemed to be the act, omission or failure of such motor carrier or railroad. With respect to any violation of any statute administered by the department regarding motor carriers or railroads, any penalty provision applying to such a violation by a motor carrier or railroad shall apply to such a violation by any other person.

          (7) Except as provided in ORS 824.019 and when provided by law that a penalty, fine, forfeiture or other sum be paid to the aggrieved party, all penalties, fines or forfeitures collected from persons subject to the regulatory authority of the department under ORS chapters 823, 824, 825 and 826 shall be paid into the General Fund and credited to the Motor Carrier Account if collected from a motor carrier and to the Railroad Fund created under ORS 824.014 (1) if collected from a railroad.

          (8) Violation of ORS 823.105 is punishable, after issuance of a final order by the department, by a civil penalty of not more than $5,000 for each offense.

          (9) Violation of ORS 823.105 is a violation punishable by a fine of not more than $5,000 for each offense.

          (10) Civil penalties under this section shall be imposed in the manner provided by ORS 183.090.

 

          SECTION 568. ORCP 67 A is amended to read:

          A Definitions. “Judgment” as used in these rules [is the final determination of the rights of the parties in an action; judgment includes a decree and a final judgment entered pursuant to section B or G of this rule] has the meaning given that term in section 1 of this 2003 Act. “Order” as used in these rules [is] means any other determination by a court or judge [which] that is intermediate in nature.

 

APPLICABILITY AND EFFECT

 

          SECTION 569. (1) Except as specifically provided by this 2003 Act, the deletions of statutory references to decrees and the substitutions of references to judgments that are made by the provisions of this 2003 Act do not affect the determination as to whether a person has a right to a jury trial, the scope of review of the court’s decision under ORS 19.250, or any other procedural or substantive aspect of the proceedings giving rise to the court’s decision in an action.

          (2) Except as specifically provided by this 2003 Act, the elimination of statutory references to dockets by this 2003 Act does not affect the validity, lien effect or enforceability of any judgment docketed before the effective date of this 2003 Act.

          (3) Except as provided in subsection (4) of this section, for the purpose of harmonizing and clarifying statute sections published in Oregon Revised Statutes, the Legislative Counsel may substitute “judgment” for “decree” wherever “decree” occurs in Oregon Revised Statutes.

          (4) The Legislative Counsel may not substitute “judgment” for “decree” in ORS chapter 536, 537, 538, 539, 540, 541 or 543.

 

MISCELLANEOUS AMENDMENTS

 

          SECTION 570. ORS 18.325 is amended to read:

          18.325. (1) Unless otherwise prescribed by law, a person recording a lien record abstract shall use substantially the following form:

______________________________________________________________________________

LIEN RECORD ABSTRACT

 

The undersigned states:

 

A.            Creditor/Prevailing Party Information:

__    1.     The creditor/prevailing party is:

                ___________________

                and the address of the creditor is:

                ___________________

                ___________________

                under judgment, [decree,] order or petition

                entered on _________ (date) in the ________

                Court for ________ (County) of ________ (State)

                under Case No. ________.

        __    2.     The Creditor’s attorney’s name is

                ___________________

                Attorney’s Address is:

                ___________________

                Attorney’s Phone No. is: _________

 

B.             Debtor/Losing Party Information:

        __    1.     The Debtor/losing party is:

                ___________________

        __    2.     Debtor’s address (if known):

                ___________________

                ___________________

        __    3.     Debtor’s Social Security No. or

                Taxpayer Identification No.

                (if known):

                ___________________

        __    4.     Debtor’s driver license no. and

                state of issuance for the license

                (if known):

                ___________________

        __    5.     Name of debtor’s attorney

                (if known):

                ___________________

 

C.            Judgment Information:

        __    1.     The amount of the judgment is:

                ___________________

        __    2.     The amount of the costs is:

                ___________________

        __    3.     The amount of attorney fees, if any

                is: ___________________

 

D.            The Real or Personal Property to Be

                Affected

                (Check appropriate box):

        __    All real property of the debtor/losing party,

                now or hereafter acquired, in __________

                County as provided under [ORS 18.320

                and 18.350] :BF9.section 15 of this 2003 Act.

        __    The following described real or personal

                property of debtor (legal description as set

                forth or on attached Exhibit):

                ___________________

                ___________________

                ___________________

                ___________________

 

                IN WITNESS WHEREOF, the

                undersigned person or persons have

                executed this abstract this ____ day

                of ______, 2___.

 

________________              _____________

________________              _____________

 

State of Oregon            )

                                    )           ss.

County of ________    )

 

          The foregoing instrument was acknowledged before me this ___ day of _______, 2____, by ___________.

______________________

Notary Public for Oregon

My commission expires: ___________

 

State of Oregon            )

                                    )           ss.

County of ________    )

 

          The foregoing instrument was acknowledged before me this ____ day of _______, 2___, by _____________ and by _____________ of _____________, a corporation on behalf of the corporation.

______________________

Notary Public for Oregon

My commission expires: ___________

______________________________________________________________________________

 

          (2) A lien record abstract that is the result of a judgment for unpaid child or spousal support entered in another state shall be on the form prescribed by rules adopted by the Department of Human Services in lieu of the form required by subsection (1) of this section.

 

          SECTION 571. ORS 18.420 is amended to read:

          18.420. (1) Any person discharged from debts pursuant to the federal bankruptcy laws may file in any court or tribunal in which a judgment has at any time been rendered against the person, either before or after such discharge, a motion in the suit, action or proceeding for the discharge of the judgment from the record. After notice to the judgment creditor, or to any assignee of the judgment creditor whose assignment has been filed or recorded [pursuant to ORS 18.400] under section 24 of this 2003 Act, the court shall enter a final order that the judgment be discharged and satisfied of record if the debtor establishes that:

          (a) The debtor has been discharged from the payment of the judgment or the claim upon which the judgment was based; and

          (b) Either there was no property [upon which the judgment became a lien under ORS 18.350,] to which a judgment lien had attached under section 14 or 15 of this 2003 Act or ORS 52.635 or 221.351, as of the date the petition for relief is filed under the federal bankruptcy laws, or if there was such property, the value of the property on the date of the filing of the petition was not more than the outstanding balance of any prior lien or liens upon the property.

          (2) If the debtor fails to meet the burden of proof established by subsection (1) of this section, the court shall enter a final order denying the debtor’s motion.

          (3) For the purposes of this section, [where] when notice was given in connection with bankruptcy proceedings to a creditor retaining a beneficial interest in an assigned judgment or claim, such notice shall provide the basis for the satisfaction of that portion of [said] the judgment in which the creditor retains a beneficial interest. [Where] When the bankrupt received notice prior to the adjudication of bankruptcy of the assignment of a judgment or claim, notice to the assignor retaining a beneficial interest [shall] may not provide the basis for satisfaction for that portion of the judgment which represents the amount actually paid by the assignee of [said] the judgment for [said] the claim and actual court costs incurred by [said] the assignee in prosecuting [said] the claim.

 

          SECTION 572. ORS 18.610 is amended to read:

          18.610. (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] section 30 of this 2003 Act have been met; and

          (c) The circuit court for the county in which a debtor has filed a challenge to the garnishment under ORS 18.718.

          (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.

 

          SECTION 572a. ORS 18.910 is amended to read:

          18.910. This section establishes the right of a plaintiff to recover certain moneys the plaintiff has expended to recover a debt under ORS 18.900 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 18.790.

          (B) Fees for delivery of writs of garnishment under ORS 18.652.

          (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.

          (H) Fees paid to an attorney for issuing a garnishment in an amount not to exceed $4 for each garnishment.

          (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 18.900.

 

          SECTION 573. ORS 19.215 is amended to read:

          19.215. The aggregate amount of the claims of all potential class members in a class action under ORCP 32 shall determine whether the amount in controversy is sufficient to satisfy the provisions of ORS 19.205 [(3)] (4) for the purposes of any appeal to the Court of Appeals.

 

          SECTION 574. ORS 24.129 is amended to read:

          24.129. At the time of filing of any foreign judgment as provided in ORS 24.115, the judgment creditor shall certify that the judgment creditor is filing such judgment in only one court in Oregon. Thereafter, a certified copy of the judgment or a lien record abstract may be recorded in the County Clerk Lien Record of any other county in this state as provided in [ORS 18.320 and 18.350] section 15 of this 2003 Act.

 

          SECTION 575. ORS 25.025 is amended to read:

          25.025. Once each year, the Department of Human Services shall notify the parties in child support cases receiving services under ORS 25.020 of all the following:

          (1) When physical custody of a child changes from the obligee to the obligor, the obligation to pay child support for the child is not automatically terminated.

          (2) When a physical change of custody of a child occurs, either party may request a modification of the support order to terminate support based on a substantial change of circumstances.

          (3) At the request of either party, child support may be established for the parent with current physical custody of the child.

          (4) If a change in the physical custody of a child is temporary, the obligee may satisfy support accruing for the child for periods that the child is in the physical custody of the obligor as provided in [ORS 18.400] sections 25, 26, 27 and 28 of this 2003 Act.

 

          SECTION 576. 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 18.600 to 18.850 or execution under ORS 23.050 (2) or] by execution as defined in section 1 of this 2003 Act or by 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 577. ORS 25.670 is amended to read:

          25.670. (1) Whenever there is a judgment for unpaid child or spousal support, a lien arises by operation of law on any personal property owned by the obligor, and the lien continues until the liability for the unpaid support is satisfied or the judgment or renewal thereof has expired. For purposes of this section and ORS 25.680 and 25.690, liability for the unpaid support includes the amount of unpaid support, with interest, and any costs that may be associated with lawful execution on the lien including, but not limited to, attorney fees, costs of notice and sale, storage and handling.

          (2)(a) A lien arising under subsection (1) of this section may be recorded [under ORS 18.320] by filing a written notice of claim of lien with the county clerk of the county in which the obligor resides or the property is located. The notice of claim of lien required under this subsection shall be a written statement and must include:

          (A) A statement of the total amount due, as of the date of the filing of the notice of claim of lien;

          (B) The name and address of the obligor and obligee;

          (C) The name and address of the office of the district attorney, Division of Child Support or other person or entity filing the notice;

          (D) A statement identifying the county where the underlying support order was entered and its case number;

          (E) A description of the personal property to be charged with the lien sufficient for identification; and

          (F) A statement of the date the lien expires under the laws of the issuing state. If no expiration date is provided, the lien expires in Oregon five years from the date of recording.

          (b) The county clerk shall record the notice of claim of lien filed under paragraph (a) of this subsection in the County Clerk Lien Record.

          (3)(a) When a notice of claim of lien is recorded pursuant to subsection (2) of this section, the person or entity filing the notice of claim of lien shall send forthwith a copy of the notice to the owner of the personal property to be charged with the lien by registered or certified mail sent to the owner’s last-known address.

          (b) A copy of the notice shall also be sent to the obligee by regular mail.

          (4) Liens described in subsection (1) of this section that arise by operation of law in another state shall be accorded full faith and credit if the state agency, party or other entity seeking to enforce the lien follows the applicable procedures for recording and service of notice of claim of lien set forth in this section. A state agency, party or other entity may not file an action to enforce a lien described in this section until the underlying judgment has been filed in Oregon as provided in ORS chapter 110.

 

          SECTION 577a. ORS 25.690 is amended to read:

          25.690. A lien arising pursuant to ORS 25.670 may be foreclosed in the manner set out in ORS 87.262[, ORS chapter 23] or sections 1 to 44 of this 2003 Act or in any other manner permitted under law.

 

          SECTION 577b. ORS 109.015 is amended to read:

          109.015. If public assistance, as defined in ORS 416.400, is provided for any dependent child, the Department of Human Services may initiate proceedings under ORS chapter [23,] 107, 108, 109, 110 or 125 or ORS 25.010 to 25.243, 25.378, 25.402, 416.400 to 416.470, 419B.400 or 419C.590 or sections 1 to 44 of this 2003 Act to obtain support for such child from either or both parents or from any other person legally responsible for the support of the child, including a guardian or conservator. In any proceeding under any statute cited in this section, the obligee is a party.

 

          SECTION 578. ORS 161.327 is amended to read:

          161.327. (1) Following the entry of a judgment pursuant to ORS 161.319 and the dispositional determination under ORS 161.325, if the court finds that the person would have been guilty of a felony, or of a misdemeanor during a criminal episode in the course of which the person caused physical injury or risk of physical injury to another, and if the court finds by a preponderance of the evidence that the person is affected by mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital designated by the Department of Human Services or conditional release, the court shall order the person placed under the jurisdiction of the Psychiatric Security Review Board for care and treatment. The period of jurisdiction of the board shall be equal to the maximum sentence provided by statute for the crime for which the person was found guilty except for insanity.

          (2) The court shall determine whether the person should be committed to a state hospital designated by the Department of Human Services or conditionally released pending any hearing before the board as follows:

          (a) If the court finds that the person presents a substantial danger to others and is not a proper subject for conditional release, the court shall order the person committed to a state hospital designated by the Department of Human Services for custody, care and treatment pending hearing before the board in accordance with ORS 161.341 to 161.351.

          (b) If the court finds that the person presents a substantial danger to others but that the person can be adequately controlled with supervision and treatment if conditionally released and that necessary supervision and treatment are available, the court may order the person conditionally released, subject to those supervisory orders of the court as are in the best interests of justice, the protection of society and the welfare of the person. The court shall designate a person or state, county or local agency to supervise the person upon release, subject to those conditions as the court directs in the order for conditional release. Prior to the designation, the court shall notify the person or agency to whom conditional release is contemplated and provide the person or agency an opportunity to be heard before the court. After receiving an order entered under this paragraph, the person or agency designated shall assume supervision of the person pursuant to the direction of the Psychiatric Security Review Board. The person or agency designated as supervisor shall be required to report in writing no less than once per month to the board concerning the supervised person’s compliance with the conditions of release.

          (3) For purposes of this section, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others.

          (4) In determining whether a person should be conditionally released, the court may order evaluations, examinations and compliance as provided in ORS 161.336 (4) and 161.346 (2).

          (5) In determining whether a person should be committed to a state hospital or conditionally released, the court shall have as its primary concern the protection of society.

          (6) Upon placing a person on conditional release, the court shall notify the board in writing of the court’s conditional release order, the supervisor appointed, and all other conditions of release, and the person shall be on conditional release pending hearing before the board in accordance with ORS 161.336 to 161.351. Upon compliance with this subsection and subsections (1) and (2) of this section, the court’s jurisdiction over the person is terminated and the board assumes jurisdiction over the person.

          (7) An order of the court under this section is a final order appealable by the person found guilty except for insanity in accordance with ORS 19.205 [(4)] (5). Notwithstanding ORS 19.255, notice of an appeal under this section shall be served and filed within 90 days after the order appealed from is entered in the register. The person shall be entitled on appeal to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is indigent, suitable counsel shall be appointed in the manner provided in ORS 138.500 (1), and the compensation for counsel and costs and expenses of the person necessary to the appeal shall be determined, allowed and paid as provided in ORS 138.500.

          (8) Upon placing a person under the jurisdiction of the board, the court shall notify the person of the right to appeal and the right to a hearing before the board in accordance with ORS 161.336 (7) and 161.341 (4).

 

          SECTION 579. ORS 161.327, as amended by section 89, chapter 962, Oregon Laws 2001, is amended to read:

          161.327. (1) Following the entry of a judgment pursuant to ORS 161.319 and the dispositional determination under ORS 161.325, if the court finds that the person would have been guilty of a felony, or of a misdemeanor during a criminal episode in the course of which the person caused physical injury or risk of physical injury to another, and if the court finds by a preponderance of the evidence that the person is affected by mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital designated by the Department of Human Services or conditional release, the court shall order the person placed under the jurisdiction of the Psychiatric Security Review Board for care and treatment. The period of jurisdiction of the board shall be equal to the maximum sentence provided by statute for the crime for which the person was found guilty except for insanity.

          (2) The court shall determine whether the person should be committed to a state hospital designated by the Department of Human Services or conditionally released pending any hearing before the board as follows:

          (a) If the court finds that the person presents a substantial danger to others and is not a proper subject for conditional release, the court shall order the person committed to a state hospital designated by the Department of Human Services for custody, care and treatment pending hearing before the board in accordance with ORS 161.341 to 161.351.

          (b) If the court finds that the person presents a substantial danger to others but that the person can be adequately controlled with supervision and treatment if conditionally released and that necessary supervision and treatment are available, the court may order the person conditionally released, subject to those supervisory orders of the court as are in the best interests of justice, the protection of society and the welfare of the person. The court shall designate a person or state, county or local agency to supervise the person upon release, subject to those conditions as the court directs in the order for conditional release. Prior to the designation, the court shall notify the person or agency to whom conditional release is contemplated and provide the person or agency an opportunity to be heard before the court. After receiving an order entered under this paragraph, the person or agency designated shall assume supervision of the person pursuant to the direction of the Psychiatric Security Review Board. The person or agency designated as supervisor shall be required to report in writing no less than once per month to the board concerning the supervised person’s compliance with the conditions of release.

          (3) For purposes of this section, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others.

          (4) In determining whether a person should be conditionally released, the court may order evaluations, examinations and compliance as provided in ORS 161.336 (4) and 161.346 (2).

          (5) In determining whether a person should be committed to a state hospital or conditionally released, the court shall have as its primary concern the protection of society.

          (6) Upon placing a person on conditional release, the court shall notify the board in writing of the court’s conditional release order, the supervisor appointed, and all other conditions of release, and the person shall be on conditional release pending hearing before the board in accordance with ORS 161.336 to 161.351. Upon compliance with this subsection and subsections (1) and (2) of this section, the court’s jurisdiction over the person is terminated and the board assumes jurisdiction over the person.

          (7) An order of the court under this section is a final order appealable by the person found guilty except for insanity in accordance with ORS 19.205 [(4)] (5). Notwithstanding ORS 19.255, notice of an appeal under this section shall be served and filed within 90 days after the order appealed from is entered in the register. The person shall be entitled on appeal to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is financially eligible, suitable counsel shall be appointed in the manner provided in ORS 138.500 (1), and the compensation for counsel and costs and expenses of the person necessary to the appeal shall be determined and paid as provided in ORS 138.500.

          (8) Upon placing a person under the jurisdiction of the board, the court shall notify the person of the right to appeal and the right to a hearing before the board in accordance with ORS 161.336 (7) and 161.341 (4).

 

REPEALS

 

          SECTION 580. ORS 7.040, 18.315, 18.320, 18.335, 18.350, 18.360, 18.400, 18.405, 18.410, 23.005, 23.030, 23.040, 23.050, 23.060, 23.070, 23.320, 23.330, 23.340, 23.350, 23.425, 23.710, 23.720, 23.730, 25.700, 107.126, 107.142, 137.073 and 137.180 and ORCP 70 are repealed.

 

          SECTION 581. The repeal of ORS 107.142 by section 580 of this 2003 Act does not affect the validation of any divorce, annulment or marriage, or legitimization of any child, effected by that statute.

 

CAPTIONS

 

          SECTION 582. The unit and section captions used in this 2003 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 2003 Act.

 

Approved by the Governor July 17, 2003

 

Filed in the office of Secretary of State July 18, 2003

 

Effective date January 1, 2004

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