Chapter 733
Oregon Laws 2011
AN ACT
SB 926
Relating to
garnishment; creating new provisions; amending ORS 18.600, 18.619, 18.790 and
18.838; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.600 is amended to
read:
18.600. As used in ORS 18.600 to
18.850:
(1) “Account” means an account at a
financial institution, including a master account or subaccount, to which an
electronic payment may be directly routed.
[(1)]
(2) “Check” has the meaning given that term in ORS 73.0104.
[(2)]
(3) “Creditor” means a person to whom a debt is owed by a debtor.
[(3)]
(4) “Debt” means any monetary obligation for which a garnishment may be
issued under ORS 18.605.
[(4)]
(5) “Debtor” means a person whose property is being garnished for the
purpose of paying a debt owed to a creditor.
(6) “Federal benefit payment”
means:
(a) A benefit payment from the United
States Social Security Administration that is protected under 42 U.S.C. 407 and
1383(d)(1);
(b) A benefit payment from the United
States Department of Veterans Affairs that is protected under 38 U.S.C.
5301(a);
(c) A benefit payment from the
Railroad Retirement Board that is protected under 45 U.S.C. 231m(a) and 352(e);
or
(d) A benefit payment from the United
States Office of Personnel Management that is protected under 5 U.S.C. 8346 and
8470.
[(5)]
(7) “Financial institution” means a financial institution or trust
company as those terms are defined in ORS 706.008.
[(6)]
(8) “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)]
(9) “Garnishee” means a person to whom a writ of garnishment has been
delivered.
(10) “Garnishment account review”
means the process of examining deposits to an account to determine whether
benefit payments described in ORS 18.619 (3) have been deposited in the account
during the lookback period.
[(8)]
(11) “Garnishor” means:
(a) The creditor, if the writ is
issued by 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 court administrator.
[(9)]
(12) “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)]
(13) “Wages” includes all amounts paid for the services of an employee
by an employer, including amounts paid as a commission or bonus.
[(11)]
(14) “Writ” means a writ of garnishment.
SECTION 2. ORS 18.619 is amended to
read:
18.619. (1) Except as provided in
subsection (6) of this section, if a writ of garnishment is delivered to a
financial institution that has an account of the debtor, [and] the financial institution shall conduct a garnishment
account review of all accounts in the name of the debtor before taking any
other action that may affect funds in those accounts. If the financial
institution determines from the garnishment account review that one or more
payments described in subsection [(2)]
(3) of this section were deposited in [the]
an account of the debtor by direct deposit or electronic payment
during the [calendar month that preceded
the month in which the writ of garnishment is delivered to the financial
institution] lookback period described in subsection (2) of this section,
an amount equal to the lesser of the sum of those payments or the total balance
in the debtor’s account is not subject to garnishment.
(2) The provisions of this section
apply only to payments described in subsection (3) of this section that are
deposited during the lookback period that ends on the day before the day on
which the garnishment account review is conducted and begins on:
(a) The day in the second calendar
month preceding the month in which the garnishment account review is conducted,
that has the same number as the day on which the period ends; or
(b) If there is no day as described in
paragraph (a) of this subsection, the last day of the second calendar month
preceding the month in which the garnishment account review is conducted.
[(2)]
(3) The provisions of this section apply only to:
(a) Federal benefit payments;
[(a)]
(b) Payments from a public or private retirement plan as defined in ORS
18.358;
[(b)
Payments from the Social Security Administration;]
[(c)
Public assistance payments from the state or a state agency;]
[(d)
Unemployment compensation payments from the state or a state agency;]
(c) Public assistance payments from
the State of Oregon or an agency of the State of Oregon;
(d) Unemployment compensation payments
from the State of Oregon or an agency of the State of Oregon;
(e) Black lung benefits payments from
the United States Department of Labor; and
[(f)
Veteran benefits payments from the Veterans Benefits Administration; and]
[(g)]
(f) Workers’ compensation payments from a workers’ compensation carrier.
[(3)]
(4) The provisions of this section apply only to[:]
[(a)]
a payment that a financial institution can identify as being one of the types
of payments described in subsection [(2)]
(3) of this section from information transmitted to the financial
institution by the payor[; or].
[(b)
Payments for which the debtor has given a financial institution written
notification under subsection (4) of this section.]
[(4)(a)
At the time a person opens a new account with a financial institution in this
state, the financial institution may require that the person sign an affidavit
indicating whether the person is receiving any of the payments described in
subsection (2) of this section that will be deposited in the account by direct
deposit or electronic payment.]
[(b)
A financial institution in this state shall make available a form of affidavit
that a person may use when opening an account, or may use at any time while the
account is open, to indicate that the person is receiving any of the payments
described in subsection (2) of this section that will be deposited in the
account by direct deposit or electronic payment.]
[(c)
Without regard to whether an affidavit has been signed under this subsection,
payments that are subject to subsection (1) of this section and that can be
readily identified by the financial institution as one of the types of payments
described in subsection (2) of this section are not subject to garnishment.]
[(5)
A financial institution is not liable to any person for any determination made
in good faith, as defined in ORS 73.0103, with respect to whether amounts are
subject to garnishment under this section.]
(5) A financial institution shall
perform a garnishment account review only one time for a specific garnishment.
If the same garnishment is served on a financial institution more than once,
the financial institution may not perform a garnishment account review or take
any other action relating to the garnishment based on the second and subsequent
service of the garnishment.
(6) A financial institution may not
conduct a garnishment account review under this section if a Notice of Right to
Garnish Federal Benefits from the United States Government or from a state
child support enforcement agency is attached to or included in the garnishment
as provided in 31 C.F.R. part 212. If a Notice of Right to Garnish Federal
Benefits is attached to or included in the garnishment, the financial
institution shall proceed on the garnishment as otherwise provided in ORS
18.600 to 18.850.
[(6)]
(7) The provisions of this section do not affect the ability of a debtor
to claim any exemption that otherwise may be available to the debtor under law
for any amounts in an account in a financial institution [in excess of the amount specified in subsection (1) of this section].
SECTION 3. Sections 4 to 6 of this
2011 Act are added to and made a part of ORS 18.600 to 18.850.
SECTION 4. (1) Except as provided
in this section, if a financial institution determines from a garnishment
account review conducted under ORS 18.619 (1) that one or more payments
described in ORS 18.619 (3) have been deposited into the debtor’s account by
direct deposit or electronic payment during the lookback period described in
ORS 18.619 (2), and there is a positive balance in the account at the time the
garnishment account review is conducted, the financial institution shall:
(a) Immediately calculate and
establish the amount in the debtor’s account that is not subject to garnishment
and ensure that the debtor has full customary access to that amount; and
(b) Issue a notice to the account
holder in substantially the form set forth in section 10 of this 2011 Act.
(2) A financial institution shall
issue the notice required by this section directly to the account holder or to
a fiduciary who administers the account and receives communications on behalf
of the account holder.
(3) The notice required by this
section must be sent separately to the debtor and may not be included with
other materials being provided to the debtor by the financial institution that
do not relate to the garnishment.
(4) The notice required by this
section must be sent to the account holder within three business days after the
financial institution completes the garnishment account review required by ORS
18.619 (1).
(5) A financial institution shall
perform the calculation described in subsection (1) of this section for each
account of the account holder. However, the financial institution may issue a
single notice under this section for multiple accounts of the same account
holder.
(6) Issuance of a notice under this
section does not constitute the giving of legal advice and a financial
institution is not obligated to provide legal advice by reason of issuing a
notice required by this section.
SECTION 5. A financial institution
is not liable to any account holder, garnishor or other financial institution,
and may not be assessed any penalty, by reason of any action taken by the
financial institution in good faith under section 4 of this 2011 Act or ORS
18.619, including:
(1) Delivery or refusal to deliver any
funds that are not subject to garnishment under ORS 18.619 to a garnishor;
(2) Providing the notice required by
this section to an account holder;
(3) Customary clearing and settlement
adjustments made to a debtor’s account that affect the balance in the debtor’s
account; and
(4) Any bona fide errors that occur
under section 4 of this 2011 Act or ORS 18.619 despite reasonable procedures
implemented by the financial institution to prevent those errors.
SECTION 6. A financial institution
shall maintain records of account activity and actions taken by the financial
institution in response to a garnishment that are adequate to demonstrate compliance
with the requirements of section 4 of this 2011 Act and ORS 18.619 for a period
of not less than two years after the financial institution receives the writ of
garnishment.
SECTION 7. ORS 18.790 is amended to
read:
18.790. (1) Except as provided in
subsection (4) of this section, at the time of delivery of any writ of
garnishment on a financial institution or at the time a notice of garnishment
is delivered to the financial institution under ORS 18.854:
(a) A search fee of $10 must be paid
to the financial institution if the garnishor is the Department of Revenue.
(b) A search fee of $15 must be paid
to the financial institution if the garnishor is a person other than the
department.
(2) A separate search fee must be paid
under this section to the financial institution for each debtor if the writ is
issued for more than one debtor under ORS 18.607 (5).
(3) If the search fee required under
this section is not paid:
(a) The garnishment is not effective
to garnish any property of the debtor; and
(b) The financial institution need not
file a garnishee response.
(4) The search fee required under this
section need not be paid to a financial institution if the debtor is an
employee of the financial institution.
(5) Notwithstanding subsection (1) of
this section, a financial institution may enter into an agreement with any
state agency authorized to garnish pursuant to ORS 18.645 or 18.854 for
periodic billing and payment of garnishee search fees required under this
section.
(6) The right of a financial
institution to receive the search fee required under this section does not in
any way restrict or impair the right of the financial institution to charge and
collect an additional garnishment processing fee from any debtor whose property
the financial institution holds, or to whom the financial institution owes
money. However, a financial institution may not charge or collect a garnishment
processing fee in violation of ORS 652.610. If a financial institution charges
a garnishment processing fee, the financial institution may collect the fee by
deducting the amount of the fee from any amount that the financial institution
owes to the debtor.
[(7)
A financial institution may not charge or collect a garnishment processing fee
under subsection (6) of this section for a writ of garnishment if none of the
debtor’s property held by the financial institution is subject to garnishment.]
(7) If a garnishment account review
reveals that a payment was made by direct deposit or electronic payment to the
debtor’s account during the lookback period described in ORS 18.619 (2), the
financial institution may not charge or collect a garnishment processing fee
under subsection (6) of this section against the amount that is not subject to
garnishment, and may not charge or collect a garnishment processing fee under
subsection (6) of this section against any amounts in the account after the
date of the garnishment account review.
SECTION 8. ORS 18.838 is amended to
read:
18.838. Instructions to garnishees
must be in substantially the following form:
______________________________________________________________________________
INSTRUCTIONS
TO GARNISHEE
Except as specifically provided in
these instructions, you must complete and deliver the Garnishee Response
within seven calendar days after you receive the writ of garnishment. If
the writ does not comply with Oregon law, the writ is not effective to garnish
any property of the Debtor, but you still must complete and deliver the
Garnishee Response. You must complete and deliver the response even though you
cannot determine from the writ whether you hold any property or owe any debt to
the Debtor. If the seventh calendar day is a Saturday, Sunday or legal holiday,
you must deliver your response on or before the next following day that is not
a Saturday, Sunday or legal holiday.
The writ is not effective, and you
need not make a Garnishee Response, if:
___• You do not receive the writ within 60 days
after the date of issuance shown on the face of the writ.
___• You do not receive an original writ of
garnishment 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. Except as
provided below, 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).
The writ does not garnish any wages
you owe to a Debtor for a specific pay period if:
(a) The writ is delivered to you
within two business days before the Debtor’s normal payday for the pay period;
(b) When the writ is delivered to you,
the Debtor’s wages are paid by direct deposit to a financial institution, or
you use an independent contractor as payroll administrator for your payroll;
and
(c) Before the writ was delivered to
you, you issued instructions to the financial institution or the payroll
administrator to pay the Debtor for the pay period.
If any wages are not garnishable by
reason of the issuance of instructions to a financial institution or a payroll
administrator as described above, you must so note in the Garnishee Response.
Thereafter, you must pay to the Garnishor all wages that are subject to
garnishment that are attributable to services performed by the Debtor during
the 90-day period following the date you received 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).
Processing fee. You may collect
a $2 processing fee for each week of wages, or fraction of a week of wages, for
which a payment is made under the writ. The fee must be collected after you
make the last payment under the writ. The fee must be withheld from the wages
of the debtor, and is in addition to the amounts withheld for payment to the
garnishor under the writ or under any other writ you have received.
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 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 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
Unless a Notice of Right to Garnish
Federal Benefits from the United States Government or from a state child
support enforcement agency is attached to or included in the garnishment, you
must conduct a garnishment account review for each account that you hold for
the debtor. If a Notice of Right to Garnish Federal Benefits from the United
States Government or from a state child support enforcement agency is attached
to or included in the garnishment, you should not conduct a garnishment account
review, and should proceed upon the garnishment in the normal manner.
If you hold an account for the debtor,
and any of the [following] payments listed
below has been [identified by the debtor,
or can be identified by you from information transmitted to you by the payor,
as having been] deposited in the account by direct deposit or electronic
payment during the [calendar month that
preceded the month in which the writ of garnishment was delivered to you]
the lookback period described in ORS 18.619 (2) (the period that begins on the
date preceding the date of your garnishment account review and that ends on the
corresponding date of the month two months earlier, or on the last day of the
month two months earlier if the corresponding date does not exist), an
amount equal to the lesser of the sum of those payments or the total balance in
the debtor’s account is not subject to garnishment, and you may not deliver
that amount to the garnishor:
(a) Federal benefit payments as
defined in ORS 18.600 (payments from the United States Social Security
Administration, the United States Department of Veterans Affairs, the United
States Office of Personnel Management or the Railroad Retirement Board);
[(a)]
(b) Payments from a public or private retirement plan as defined in ORS
18.358;
[(b)
Payments from the Social Security Administration;]
[(c)
Public assistance payments from the state or a state agency;]
[(d)
Unemployment compensation payments from the state or a state agency;]
(c) Public assistance payments from
the State of Oregon or an agency of the State of Oregon;
(d) Unemployment compensation payments
from the State of Oregon or an agency of the State of Oregon;
(e) Black lung benefits payments from
the United States Department of Labor; and
[(f)
Veteran benefits payments from the Veterans Benefits Administration; and]
[(g)]
(f) Workers’ compensation payments from a workers’ compensation carrier.
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 may not deduct a processing fee if all
amounts held by you for the debtor are not subject to garnishment.]
[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.]
[____________________________________________________________________________]
Before making a payment under the
writ, you may first deduct any processing fee that you are allowed under ORS
18.790. If you are required to conduct a garnishment account review, you may
not charge or collect a processing fee against any amount that is not subject to
garnishment, and may not charge or collect a garnishment processing fee against
any amounts in the account after the date that you conduct the review.
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.
If you are required to conduct a
garnishment account review and you determine from the review that one or more
of the payments listed in ORS 18.619 (3) have been deposited into the debtor’s
account by direct deposit or electronic payment during the lookback period
described in ORS 18.619 (2), and that there is a positive balance in the
account, you must issue a notice to the account holder in substantially the
form set forth in section 10 of this 2011 Act. The notice must be issued
directly to the account holder or to a fiduciary who administers the account
and receives communications on behalf of the account holder. The notice must be
sent separately to the account holder and may not be included with other
materials being provided to the account holder that do not relate to the
garnishment. You must send the notice to the account holder within three
business days after you complete the garnishment account review. You may issue
one notice with information related to multiple accounts of a single account
holder.
____________________________________________________________________________
SECTION 9. ORS 18.619 and section
10 of this 2011 Act are added to and made a part of ORS 18.600 to 18.850.
SECTION 10. The notice given by a
financial institution to a debtor under section 4 (1) of this 2011 Act must be
in substantially the following form:
____________________________________________________________________________
____________________
____________________
____________________
(Name, address
of financial institution)
IMPORTANT
INFORMATION ABOUT
YOUR ACCOUNT
Date: __________
Notice to: __________
Account Number: __________
Why am
I receiving this notice?
On __________ [date on which garnishment order was served], __________
[name of financial institution] received a garnishment order from a court to
garnish funds in your account. The amount of the garnishment order was for $_______
[amount of garnishment order]. We are sending you this notice to let you know
what we have done in response to the garnishment order.
What is
garnishment?
Garnishment is a legal process that
allows a creditor to remove funds from your bank/credit union account to
satisfy a debt that you have not paid. In other words, if you owe money to a
person or company, they can obtain a court order directing your bank/credit
union to take money out of your account to pay off your debt. If this happens,
you cannot use that money in your account.
What
has happened to my account?
On __________ [date of account review], we researched your account and
identified that one or more payments identified by ORS 18.619 (1) has been
deposited in the last two months (see below for a list of qualifying payments).
In most cases, these payments are protected from garnishment. As required by
state and federal regulations, therefore, we have established a “protected
amount” of funds that will remain available to you and that will not be frozen
or removed from your account in response to the garnishment order.
(Conditional
paragraph if funds have been frozen)
___(check if applicable) Your account contained
additional money that may not be protected from garnishment. As required by
law, we have placed a hold on or removed these funds in the amount of $_______ [amount frozen] and may have to
turn these funds over to your creditor as directed by the garnishment order.
The chart
below summarizes this information about your account(s):
ACCOUNT
SUMMARY AS OF __________ [DATE
OF ACCOUNT REVIEW]
Amount
Subject
to
garnish-
Amount ment
(now Garnish-
Account in Amount frozen/ ment fee
Number Account Protected removed) charged
_____ _____ _____ _____ _____
_____ _____ _____ _____ _____
(If the account holder has multiple
accounts, use a separate row for each account)
Please note that these amount(s)
may be affected by deposits or withdrawals after the protected amount was
calculated on __________ (date
of garnishment account review).
Do I
need to do anything to access my protected funds?
You may use the protected amount of
money in your account as you normally would.
There is nothing else you need to
do to make sure that the protected amount is safe.
Who
garnished my account?
The creditor who obtained a garnishment
order against you is __________
(name of creditor).
What
types of benefit payments are protected from garnishment?
In most cases, you have protections
from garnishment if the funds in your account include one or more of the
following benefit payments:
___• Social Security benefits
___• Supplemental Security Income benefits
___• Veterans’ benefits
___• Railroad retirement benefits
___• Railroad Unemployment Insurance benefits
___• Civil Service Retirement System benefits
___• Federal Employees Retirement System
benefits
___• Payments from a public or private
retirement plan as defined in ORS 18.358
___• Public assistance payments from the State
of Oregon or an agency of the State of Oregon
___• Unemployment compensation payments from
the State of Oregon or an agency of the State of Oregon
___• Black lung benefits payments from the
United States Department of Labor
___• Workers’ compensation payments from a
workers’ compensation carrier
What
should I do if I think that additional funds in my account are from protected
benefit payments?
If you believe that funds in your
account(s) should not have been frozen or removed, there are several things you
can do:
You can fill out a Challenge to
Garnishment form and submit it to the court.
You may contact the creditor that
garnished your account and explain that funds are from protected benefit
payments and should be released to you. The creditor may be contacted at __________ (address of creditor).
You may consult an attorney to help
you prove to the creditor that garnished your account that additional funds are
from protected benefit payments and cannot be taken. For information about how
to find an attorney, contact the Oregon State Bar’s Lawyer Referral Service at
(800) 452-7636 or go online to www.oregonlawhelp.org.
This notice contains all the
information that we have about the garnishment order. However, if you have a
question about your account, you many contact us at __________ (telephone number of financial institution).
____________________________________________________________________________
SECTION 11. (1) Sections 4, 5, 6
and 10 of this 2011 Act and the amendments to ORS 18.600, 18.619, 18.790 and
18.838 by sections 1, 2, 7 and 8 of this 2011 Act become operative 30 days
after the effective date of this 2011 Act.
(2) Sections 4, 5, 6 and 10 of this
2011 Act and the amendments to ORS 18.600, 18.619, 18.790 and 18.838 by
sections 1, 2, 7 and 8 of this 2011 Act apply only to garnishments issued on or
after the operative date specified in subsection (1) of this section.
SECTION 12. This 2011 Act being
necessary for the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2011 Act takes effect on
its passage.
Approved by
the Governor August 5, 2011
Filed in the
office of Secretary of State August 8, 2011
Effective date
August 5, 2011
__________