Bill Text: OR SB518 | 2013 | Regular Session | Introduced
Bill Title: Relating to execution on property; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB518 Detail]
Download: Oregon-2013-SB518-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2248
Senate Bill 518
Sponsored by COMMITTEE ON GENERAL GOVERNMENT, CONSUMER AND SMALL
BUSINESS PROTECTION
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Exempts certain student assistance payments and child care tax
credits from execution.
Provides that at least $400 in debtor's account at financial
institution is not subject to garnishment.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to execution on property; creating new provisions;
amending ORS 18.345, 18.600, 18.784, 18.785, 18.790, 18.838 and
18.847; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 18.345 is amended to read:
18.345. (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. The following
property, or rights or interest therein of the judgment debtor,
except as provided in ORS 18.305, 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 $5,000.
(d) A vehicle to the value of $3,000. 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 right to receive a grant, a loan or work
assistance exempt from garnishment under 20 U.S.C. 1095a(d) and
any moneys that are traceable to a grant, a loan or work
assistance exempt from garnishment under 20 U.S.C. 1095a(d).
(p) The debtor's right to receive a child care tax credit under
state or federal tax laws and any moneys that are traceable to
receipt of a child care tax credit under state or federal tax
laws. + }
{ - (o) - } { + (q) + } 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 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 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. 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 joint judgment
debtors, each judgment debtor shall be entitled to claim the
exemptions in subsection (1)(a), (b), (c), (d) and { - (o) - }
{ + (q) + } of this section in the same or different properties.
The exemptions provided by subsection (1)(a), (b), (c), (d), (j),
(k) and { - (o) - } { + (q) + } of this section, when claimed
for jointly owned property, may be combined at the option of the
debtors.
(4) Notwithstanding any other provision of law except ORS
657.855, if a writ of garnishment or other execution is issued to
collect past due support as defined in ORS 18.600, 50 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 related to unemployment compensation
benefits provided by this subsection is subject to ORS 657.855.
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 50 percent of the payment or $7,500 is exempt.
SECTION 2. ORS 18.784 is amended to read:
18.784. { + (1) If a writ of garnishment is delivered to a
financial institution that has an account of the debtor, the
greater of $400 or the amount described in subsection (2) of this
section is not subject to garnishment.
+ } { - (1) - } { + (2) + } Except as provided in
subsection { - (6) - } { + (7) + } of this section, if a writ
of garnishment is delivered to a financial institution that has
an account of the debtor, 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 { - (3) - } { + (4) + } of this section were
deposited in an account of the debtor by direct deposit or
electronic payment during the lookback period described in
subsection { - (2) - } { + (3) + } 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) - } { + (3) + } The provisions of { + subsection
(2) of + }this section apply only to payments described in
subsection { - (3) - } { + (4) + } 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.
{ - (3) - } { + (4) + } The provisions of this section
apply only to:
(a) Federal benefit payments;
(b) Payments from a public or private retirement plan as
defined in ORS 18.358;
(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) Workers' compensation payments from a workers' compensation
carrier { - . - } { + ;
(g) Payments from grants, loans or work assistance exempt from
garnishment under 20 U.S.C. 1095a(d); and
(h) Payments of child care tax credits under state or federal
tax laws. + }
{ - (4) - } { + (5) + } The provisions of this section
apply only to a payment that a financial institution can identify
as being one of the types of payments described in subsection
{ - (3) - } { + (4) + } of this section from information
transmitted to the financial institution by the payor.
{ - (5) - } { + (6) + } 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) - } { + (7) + } 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.
{ - (7) - } { + (8) + } 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.
SECTION 3. 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:
o You do not receive the writ within 60 days after the date of
issuance shown on the face of the writ.
o 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 - } { + at
least $400 is not subject to garnishment, and you may not deliver
that amount to the garnishor. If + } any of the payments listed
below has been deposited in the account by direct deposit or
electronic payment during the lookback period described in ORS
18.784 { - (2) - } { + (3) + } (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) { + and the sum of those
payments is greater than $400 + }, 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);
(b) Payments from a public or private retirement plan as
defined in ORS 18.358;
(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) Workers' compensation payments from a workers' compensation
carrier { - . - } { + :
(g) Payments from grants, loans or work assistance exempt from
garnishment under 20 U.S.C. 1095a(d); and
(h) Payments of child care tax credits under state or federal
tax laws. + }
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. 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 18.784 { - (3) - } { + (4) + } have been
deposited into the debtor's account by direct deposit or
electronic payment during the lookback period described in ORS
18.784 { - (2) - } { + (3) + }, 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 ORS 18.847. 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 4. ORS 18.847 is amended to read:
18.847. The notice given by a financial institution to a
debtor under ORS 18.785 (1) 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 { + some of the funds in the account are
protected from garnishment or + } one or more payments identified
by ORS 18.784
{ - (1) - } { + (2) + } have 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
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Amount
Accountin Amount
Number AccountProtected
___
___
___
___
___
___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Amount
Subject to
garnish-
ment (nowGarnish-
frozen/ment fee
removed)charged
___
___
___
___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(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, { + at least $400 in your account is protected
from garnishment and + } you have protections from garnishment if
the funds in your account include one or more of the following
benefit payments:
o Social Security benefits
o Supplemental Security Income benefits
o Veterans' benefits
o Railroad retirement benefits
o Railroad Unemployment Insurance benefits
o Civil Service Retirement System benefits
o Federal Employees Retirement System benefits
o Payments from a public or private retirement plan as defined
in ORS 18.358
o Public assistance payments from the State of Oregon or an
agency of the State of Oregon
o Unemployment compensation payments from the State of Oregon
or an agency of the State of Oregon
o Black lung benefits payments from the United States
Department of Labor
o Workers' compensation payments from a workers' compensation
carrier
o { + Payments from grants, loans or work assistance exempt
from garnishment under 20 U.S.C. 1095a(d) + }
o { + Payments of child care tax credits under state or
federal tax laws + }
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 may contact us at ______ (telephone number of
financial institution).
_________________________________________________________________
SECTION 5. 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.
(2) 'Check' has the meaning given that term in ORS 73.0104.
(3) 'Creditor' means a person to whom a debt is owed by a
debtor.
(4) 'Debt' means any monetary obligation for which a
garnishment may be issued under ORS 18.605.
(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.
(7) 'Financial institution' means a financial institution or
trust company as those terms are defined in ORS 706.008.
(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.
(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 18.784 { - (3) - } { + (4) + } have
been deposited in the account during the lookback period.
(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.
(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.
(13) 'Wages' includes all amounts paid for the services of an
employee by an employer, including amounts paid as a commission
or bonus.
(14) 'Writ' means a writ of garnishment.
SECTION 6. ORS 18.785 is amended to read:
18.785. (1) Except as provided in this section, if a financial
institution determines from a garnishment account review
conducted under ORS 18.784 { - (1) - } that { - one or more
payments described in ORS 18.784 (3) have been deposited into the
debtor's account by direct deposit or electronic payment during
the lookback period described in ORS 18.784 (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 ORS 18.847.
(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 18.784 { - (1) - } { + (2) + }.
(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 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) 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 - }
{ + funds in an account are not subject to garnishment under + }
ORS 18.784 { + (1) or + } (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. { + The amendments to ORS 18.345, 18.600, 18.784,
18.785, 18.790, 18.838 and 18.847 by sections 1 to 7 of this 2013
Act apply only to executions as defined in ORS 18.005 issued on
or after the effective date of this 2013 Act. + }
SECTION 9. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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