Bill Text: OR HB2692 | 2011 | Regular Session | Enrolled
Bill Title: Relating to execution.
Spectrum: Unknown
Status: (Passed) 2011-06-01 - Chapter 195, (2011 Laws): Effective date January 1, 2012. [HB2692 Detail]
Download: Oregon-2011-HB2692-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 2692
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim Committee on Judiciary
for Sheriff's Civil Command Council)
CHAPTER ................
AN ACT
Relating to execution; creating new provisions; and amending ORS
18.618, 18.755, 18.792, 18.860, 18.862, 18.875, 18.888, 18.924,
18.926, 18.930 and 18.936.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.618 is amended to read:
18.618. (1)(a) Notwithstanding ORS 18.615, the following are
not garnishable property:
(A) Equitable interests, except to the extent allowed under ORS
chapter 130.
(B) Property in the custody of the law.
(C) Property in the possession of a conservator.
(D) Property in the possession of a personal representative
that constitutes the subject matter of a trust contained in a
duly probated will of a decedent.
(E) If a residential landlord is the garnishee, property in the
possession of a residential landlord that is held as a security
deposit or prepaid rent under ORS 90.300.
(F) The right of a seller under a land sale contract, as
defined by ORS 18.960, to receive payments that are due more than
45 days after the writ of garnishment is delivered.
(G) Amounts in an account in a financial institution that are
not subject to garnishment under ORS 18.619.
{ + (H) An identification document, such as a driver license,
passport, birth certificate or Social Security card. + }
(b) If a garnishee holds any property described in paragraph
(a) of this subsection, the garnishee must note in the garnishee
response required by ORS 18.680 that the garnishee holds the
property, but may not deliver the property to the garnishor.
(2)(a) Notwithstanding ORS 18.615, wages owing by a garnishee
to a debtor for a specific pay period are not garnishable
property if:
(A) The writ is delivered within two business days before the
debtor's normal payday for the pay period;
(B) When the writ is delivered to the garnishee, the debtor's
wages are paid by direct deposit to a financial institution, or
the garnishee uses the Oregon Department of Administrative
Services or an independent contractor as defined in ORS 670.600
as payroll administrator for the garnishee's payroll; and
Enrolled House Bill 2692 (HB 2692-INTRO) Page 1
(C) Before the writ is delivered to the garnishee, the
garnishee issued instructions to the financial institution or the
payroll administrator to pay the debtor for the pay period.
(b) If a garnishee owes any wages as described in paragraph (a)
of this subsection, the garnishee must so note in the garnishee
response required by ORS 18.680.
(3) Notwithstanding any other provision of law, if a voluntary
or involuntary bankruptcy petition has been filed by or on behalf
of the debtor after a writ of garnishment could be issued under
ORS 18.605, the garnishment of any property of the debtor in the
garnishee's possession, control or custody is stayed pursuant to
section 362 of the United States Bankruptcy Code (11 U.S.C. 101
to 1330).
SECTION 2. ORS 18.860 is amended to read:
18.860. (1) A writ of execution may direct a sheriff to:
(a) Levy on and sell real property of the judgment debtor and
deliver the proceeds to the court for application against amounts
owing on a money award.
(b) Levy on and sell personal property of the judgment debtor
in the possession of the judgment debtor, and deliver the
proceeds to the court for application against amounts owing on a
money award.
(c) Levy on and deliver possession of specific real or personal
property pursuant to the terms of the judgment.
(d) Levy on and sell specific real or personal property
pursuant to the terms of the judgment.
(e) Levy on currency that is in the possession of the judgment
debtor and deliver the currency to the court for application
against amounts owing on a money award.
(2) A single writ of execution may be issued for two or more of
the purposes specified in this section.
(3) A single writ of execution may be issued for two or more
judgments as long as the judgments are against the same judgment
debtor or debtors and are entered in the same case.
{ + (4) An identification document, such as a driver license,
passport, birth certificate or Social Security card, is not
subject to execution and a writ of execution may not direct a
sheriff to levy on an identification document except for the
purpose of delivering the document pursuant to the terms of a
judgment under subsection (1)(c) of this section. + }
SECTION 3. ORS 18.755 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
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.
Enrolled House Bill 2692 (HB 2692-INTRO) Page 2
(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 court administrator for the court with authority
over the writ.
{ + (6) A sheriff is not liable to the garnishor, the debtor
or any other person for loss of, or damage to, property that is
not delivered to the sheriff pending sale of the property. + }
SECTION 4. { + The amendments to ORS 18.755 by section 3 of
this 2011 Act apply to all writs of execution, whether issued
before, on or after the effective date of this 2011 Act. + }
SECTION 5. ORS 18.792 is amended to read:
18.792. { + (1) + } Notwithstanding any other provision of ORS
18.600 to 18.850, but subject to the provisions of ORS 18.854,
the duty of a financial institution that is a garnishee to
deliver any property of the debtor that may be contained in a
safe deposit box that is in the garnishee's possession, control
or custody at the time the writ of garnishment is delivered is
conditioned upon the garnishor first paying to the garnishee, in
addition to the search fee provided for in ORS 18.790, all
reasonable costs incurred by the garnishee in gaining entry to
the safe deposit box. The costs must be paid to the garnishee by
the garnishor before access to the safe deposit box is granted.
If the garnishor fails to pay such costs to the garnishee within
20 days after the delivery of the garnishee response, the
garnishment shall not be effective to garnish any property of the
debtor that may be contained in the safe deposit box and the
garnishee may proceed to deal with the safe deposit box and its
contents as though the writ of garnishment had not been issued.
Nothing in this section limits the right of a garnishor to reach
the contents of any safe deposit box in any manner otherwise
provided by law.
Enrolled House Bill 2692 (HB 2692-INTRO) Page 3
{ + (2) If a sheriff is instructed to seize and sell the
contents of a safe deposit box, and the box is found to contain
an identification document, such as a driver license, passport,
birth certificate or Social Security card, the sheriff shall take
possession of the identification document, but the document may
not be sold to satisfy the debt. + }
SECTION 6. ORS 18.862 is amended to read:
18.862. (1) A writ of execution must be directed to a sheriff
and must contain the name of the court, the names of the parties
to the action and the case number for the action. The writ must
contain a mailing address for the judgment creditor. 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 owing on the money
award
{ - when the writ is issued - } { + , including interest, as
of the date that the request for issuance of the writ is mailed
or delivered to the court administrator + }. { + The writ must
also state the amount of interest accruing on the money award
each day. + }
(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.
(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.
SECTION 7. { + The amendments to ORS 18.862 by section 6 of
this 2011 Act apply only to writs of execution issued on or after
the effective date of this 2011 Act. + }
SECTION 8. ORS 18.875 is amended to read:
18.875. (1) The judgment creditor shall provide instructions to
the sheriff with a writ of execution. The instructions must be
signed by the judgment creditor or the judgment creditor's
attorney. The instructions may be delivered to the sheriff after
the writ is delivered to the sheriff. The instructions must
include:
(a) The names and addresses of the judgment creditor and all
debtors to whom notice must be given under ORS 18.888;
(b) The names and addresses of any other persons to whom notice
must be given under ORS 18.918;
(c) A description of any personal property to be levied on;
(d) A street address or other description of the place where
any tangible personal property may be found;
(e) A legal description for any real property or interest in
real property to be levied on;
(f) A statement indicating whether any property to be levied on
is residential property as defined by ORS 18.901;
(g) A statement indicating whether any condominium unit,
manufactured dwelling or floating home to be levied on is
inventory held for sale or lease in the regular course of
business; and
(h) A statement identifying any portion of the property to be
levied on that is intangible personal property, and any special
instructions required to implement an order entered pursuant to
ORS 18.884.
(2) If instructions to the sheriff direct the sale of tangible
personal property, the judgment creditor may request in the
Enrolled House Bill 2692 (HB 2692-INTRO) Page 4
instructions that the property not be seized by the sheriff and
that the property be secured in the manner provided by ORS
18.880. The instructions may request that the property be
rendered temporarily inoperable, and the manner in which the
property should be rendered inoperable.
(3) If a judgment creditor seeks sale of real property under a
writ of execution and the real property has a street address, the
instructions to the sheriff must include the street address of
the real property to be sold. If the real property is residential
property that is subject to ORS 18.904, a copy of the court order
authorizing the sale, or a copy of the judgment directing sale or
foreclosure of the property, must be attached to the
instructions.
{ - (4) If a judgment creditor seeks sale of real property
under a writ of execution, the instructions to the sheriff must
direct the sheriff to include the following notice in conspicuous
language in the notice of sale required by ORS 18.924: - }
? _____________________________________________________________ ?
{ - Before bidding at the sale a prospective bidder should
independently investigate:
{ - (a) The priority of the lien or interest of the judgment
creditor;
{ - (b) Land use laws and regulations applicable to the
property;
{ - (c) Approved uses for the property;
{ - (d) Limits on farming or forest practices on the
property;
{ - (e) Rights of neighboring property owners; and
{ - (f) Environmental laws and regulations that affect the
property. - }
? _____________________________________________________________ ?
{ - (5) - } { + (4) + } In addition to the instructions
required by this section, a sheriff may require that a judgment
creditor provide all other instructions as may be necessary to
allow the sheriff to levy on and to sell or deliver property
pursuant to a writ of execution.
SECTION 9. { + The amendments to ORS 18.875 by section 8 of
this 2011 Act apply only to writs of execution issued on or after
the effective date of this 2011 Act. + }
SECTION 10. ORS 18.888 is amended to read:
18.888. (1) After levying on property, a sheriff shall mail or
deliver a copy of the writ of execution to each judgment debtor.
If the writ is issued pursuant to an in rem judgment against
personal property, the sheriff shall mail or deliver a copy of
the writ to the person from whom the property was seized. If the
writ is issued pursuant to an in rem judgment against real
property, the sheriff shall mail or deliver a copy of the writ to
the occupants of the property. The sheriff shall mail the copy of
the writ to the addresses included in the instructions to the
sheriff. If the judgment { - debtor - } { + creditor + } has
not provided an address for a person, the sheriff need not mail a
copy of the writ to the person.
(2) If the sheriff has levied on intangible property, in
addition to the copy of the writ required under subsection (1) of
this section, the sheriff shall mail or deliver to the persons
described in subsection (1) of this section a copy of the notice
of levy filed with the court pursuant to ORS 18.878 (1)(d).
Enrolled House Bill 2692 (HB 2692-INTRO) Page 5
(3) Unless the writ directs the sheriff to sell or deliver
specific real or personal property pursuant to the terms of the
judgment, in addition to the copy of the writ required under
subsection (1) of this section the sheriff shall mail or deliver
to each judgment debtor:
(a) A copy of the notice of levy or a statement of the date and
time of the levy; and
(b) A challenge to execution form as provided by ORS 18.896.
SECTION 11. ORS 18.924 is amended to read:
18.924. (1) Before conducting an execution sale of real
property, a sheriff shall give written notice of the sale in the
manner provided by this section. The notice must identify the
property to be sold and the time and place of the sale { - . - }
{ + , and must include the following notice: + }
________________________________________________________________
{ + Before bidding at the sale, a prospective bidder should
independently investigate:
(a) The priority of the lien or interest of the judgment
creditor;
(b) Land use laws and regulations applicable to the property;
(c) Approved uses for the property;
(d) Limits on farming or forest practices on the property;
(e) Rights of neighboring property owners; and
(f) Environmental laws and regulations that affect the
property. + }
________________________________________________________________
(2) Before any execution sale of real property, the sheriff
shall:
(a) Mail copies of the notice of sale by first class mail and
by certified mail, return receipt requested, to the judgment
debtor at the address provided in the instructions to the
sheriff;
(b) Mail a copy of the notice of sale by first class mail to
any attorney for the judgment debtor identified in the
instructions at the address provided in the instructions; and
(c) Mail a copy of the notice of sale by first class mail to
any other person listed in the instructions pursuant to ORS
18.918 at the address provided in the instructions.
(3) The notices required by subsection (2) of this section must
be mailed not less than 28 days before an execution sale is
conducted.
(4) Before any execution sale of real property for which the
judgment creditor has provided a street address under ORS 18.875
(3), the sheriff shall post a notice of the sale in a conspicuous
place on the property. The notice must be posted not more than
seven days after the sheriff mails notices as required by
subsection (2) of this section.
(5) The sheriff shall publish a copy of the notice of sale of
real property once a week for four successive weeks in a
newspaper of general circulation in the county where the real
property is located. The sheriff may not conduct the sale until
the expiration of the four-week period.
(6) In lieu of publication in a newspaper under subsection (5)
of this section, a sheriff shall publish a notice of sale of real
property by Internet posting if a website has been established
under ORS 18.926 for the purpose of giving legal notices under
ORS 18.860 to 18.993, and the judgment creditor has requested
that notice be published by Internet posting in the instructions
Enrolled House Bill 2692 (HB 2692-INTRO) Page 6
provided to the sheriff under ORS 18.875. Subject to ORS 18.926
(3), the notice must be posted on the Internet not less than 28
days before the date identified in the notice of sale and remain
posted until that date.
SECTION 12. { + The amendments to ORS 18.924 by section 11 of
this 2011 Act apply only to notices of sale given under ORS
18.924 on or after the effective date of this 2011 Act. + }
SECTION 13. ORS 18.926 is amended to read:
18.926. (1) A website where legal notices under ORS 18.860 to
18.993 may be posted shall be established if { - all - } { +
a majority of the elected + } sheriffs in this state enter into
an intergovernmental agreement under ORS chapter 190 for the
purpose of establishing and maintaining the website.
(2) An intergovernmental agreement entered into under this
section may establish fees for posting legal notices on a website
maintained under this section.
(3) For the purpose of determining whether a legal notice has
been posted for the period of time required by law, an
interruption of service of a website maintained under this
section that does not exceed 48 hours does not affect the
continuity of the posting. An interruption of service of a
website maintained under this section does not prevent the
sheriff from conducting an execution sale unless the court orders
otherwise.
SECTION 14. ORS 18.930 is amended to read:
18.930. (1) The sheriff shall conduct an execution sale by
public oral auction. The sale must be conducted between 9 a.m.
and 4 p.m. All property shall be sold by the sheriff in such
parcels as are likely to bring the highest price. Any portion of
real property belonging to a person other than the judgment
debtor must be sold separately if the person requests a separate
sale.
(2) At least 10 days before the date first set for an execution
sale, a judgment creditor must provide the sheriff with any
report for real property to be sold at the execution sale that is
in the possession of the judgment creditor and that shows
interests of record in the property. The sheriff shall make the
report available to bidders who appear at the sale. No civil
action may be brought against a title company, the judgment
creditor, the sheriff or any other person by reason of omissions
or errors in the report, and the validity of the sale is not
affected by reason of any omissions or errors in the report.
(3) A judgment creditor that is a public body, as defined in
ORS 174.109, may set a minimum bid amount for property to be sold
at an execution sale.
(4) Tangible personal property to be sold at an execution sale
must be present at the place where the sale is conducted unless
the property is not in the possession of the sheriff.
(5) The county may establish a fee to be collected by the
sheriff at the time of sale. The amount of the fee shall be
established by the governing body of the county and may not be
greater than the amount necessary to pay the county for the
expenses incurred by the county for giving notice of the sale and
conducting the sale and for the anticipated expenses for any
notices required to be given after the sale and other post-sale
administration of the sale.
(6) A person who purchases real property that is subject to
redemption at an execution sale must provide the sheriff with an
address to which a redemption notice may be sent and must notify
the sheriff of any change in address until the purchaser
Enrolled House Bill 2692 (HB 2692-INTRO) Page 7
transfers the purchaser's interest in the property, the property
is redeemed or the time allowed for redemption expires, whichever
occurs first. Any person who thereafter acquires the purchaser's
interest in the property must notify the sheriff of the transfer,
provide the sheriff with an address to which a redemption notice
may be sent and notify the sheriff of any change in address until
there is a another transfer, the property is redeemed or the time
allowed for redemption expires, whichever occurs first.
{ + (7) At any time before the sheriff conducts an execution
sale for personal property, the judgment debtor may pay to the
sheriff the full amount owing on the judgment as of the date the
payment is made along with the costs of sale as described in ORS
18.950 (2). The payment must be made in United States currency.
If payment is made under this subsection, the sheriff may not
sell the property, and shall deliver the property to the debtor.
The sheriff shall deliver the amount paid by the judgment debtor
to the court administrator with the sheriff's return on the writ.
The sheriff is not liable to any person by reason of accepting
payment under the provisions of this subsection. + }
SECTION 15. { + The amendments to ORS 18.930 by section 14 of
this 2011 Act apply to all writs of execution, whether issued
before, on or after the effective date of this 2011 Act. + }
SECTION 16. ORS 18.936 is amended to read:
18.936. (1) { - A - } { + The + } judgment creditor
{ + who requested issuance of the writ of execution + } may make
oral bids for property to be sold at an execution sale. If the
oral bid of the judgment creditor is the highest bid, the
judgment creditor need not make any payment to the sheriff other
than for:
(a) Any unpaid sheriff's fees for the execution sale;
(b) The amount of an exemption claimed by the debtor that the
judgment creditor agrees to or that a court has determined
applies to the property; and
(c) Any amount bid by the judgment creditor that exceeds the
full amount owing on the money award, calculated as of the date
that the sale is to be conducted, plus the costs of the sale as
described in ORS 18.950 (2) that have been paid by the judgment
creditor.
(2) { - A - } { + The + } judgment creditor { + who
requested issuance of the writ of execution + }may submit a
written bid for property to be sold in an execution sale before
the sale is conducted. A bid under this subsection may not be for
more than the full amount owing on the money award, calculated as
of the date that the sale is to be conducted, plus the costs of
the sale that are recoverable by the judgment creditor as
described in ORS 18.950 (2). A bid under this subsection must be
received by the sheriff not less than 48 hours before the sale is
conducted. The sheriff may rely on the judgment creditor's
calculation of the amount due under the money award and for the
costs of sale, and is not required to make a separate
calculation. If the written bid of the judgment creditor is the
highest bid, the judgment creditor need not make any payment to
the sheriff other than for:
(a) Any unpaid sheriff's fees for the execution sale; and
(b) The amount of an exemption claimed by the debtor that the
judgment creditor agrees to or that a court has determined
applies to the property.
(3) A judgment creditor { + who makes a bid under subsection
(2) of this section + } may instruct the sheriff to accept any
Enrolled House Bill 2692 (HB 2692-INTRO) Page 8
bid that matches the amount of the bid made by the judgment
creditor { - under subsection (2) of this section - } .
(4) A written bid under subsection (2) of this section is
irrevocable, but the judgment creditor who submits the written
bid may make an oral bid at the time of the sale that is higher
than the written bid.
(5) A judgment creditor { + who makes a bid under this
section + } must notify the sheriff of any amounts included in
{ - a - } { + the + } bid
{ - made by the judgment creditor - } that are attributable to
costs of sale under ORS 18.950 (2).
----------
Enrolled House Bill 2692 (HB 2692-INTRO) Page 9
Passed by House April 21, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate May 17, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 2692 (HB 2692-INTRO) Page 10
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 2692 (HB 2692-INTRO) Page 11
