Bill Text: OR SB926 | 2011 | Regular Session | Enrolled
Bill Title: Relating to garnishment; and declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2011-08-09 - Effective date, August 5, 2011. [SB926 Detail]
Download: Oregon-2011-SB926-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 926
Sponsored by Senator BONAMICI
CHAPTER ................
AN ACT
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
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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;
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(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
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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. + }
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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
Enrolled Senate Bill 926 (SB 926-C) Page 5
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
Enrolled Senate Bill 926 (SB 926-C) Page 6
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).
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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
Enrolled Senate Bill 926 (SB 926-C) Page 8
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
Enrolled Senate Bill 926 (SB 926-C) Page 9
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.
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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.
Enrolled Senate Bill 926 (SB 926-C) Page 11
(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
Enrolled Senate Bill 926 (SB 926-C) Page 12
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
Enrolled Senate Bill 926 (SB 926-C) Page 13
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: ______ + }
Enrolled Senate Bill 926 (SB 926-C) Page 14
{ + 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 + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
AcAmount in Amount Amount SubGarnishment
Number Account Protected to garnishmenfee charged
(now frozen/
removed) + }
{ +
_____
Enrolled Senate Bill 926 (SB 926-C) Page 15
_____
_____
_____
_____ + }
{ +
_____
_____
_____
_____
_____ + }
{ +
(If the account holder has multiple accounts, use a separate row for each account) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + 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: + }
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 + }
{ + What should I do if I think that additional funds in my
account are from protected benefit payments? + }
Enrolled Senate Bill 926 (SB 926-C) Page 16
{ + 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. + }
----------
Passed by Senate May 19, 2011
Repassed by Senate June 21, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 17, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 926 (SB 926-C) Page 17
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 Senate Bill 926 (SB 926-C) Page 18
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