Title: STATE OF OKLAHOMA
Author: Craig Thompson
Last saved by: Shriley Harrison
Company: Senate

ENROLLED SENATE
BILL NO. 1073	By:	Crain of the Senate

			and

		Sullivan of the House

An Act relating to civil procedure; amending 12 O.S. 2001, Sections 139, 706, 842, as amended by Section 2, Chapter 450, O.S.L. 2004, 936, as amended by Section 5, Chapter 468, O.S.L. 2002, 1173, 1173.4, as amended by Section 5, Chapter 450, O.S.L. 2004, 1183, 1190, as amended by Section 1, Chapter 26, O.S.L. 2002, and 1554 (12 O.S. Supp. 2009, Sections 842, 936, 1173.4 and 1190), which relate to venue, judgment, debtor’s appearance, attorney fees, garnishment, costs, and powers of receiver; modifying venue for certain actions; modifying requirement for release of certain lien; requiring certain order under specified circumstances; providing for service and payment of costs; modifying venue; increasing certain fee; allowing award of attorney fee under certain circumstances; authorizing suspension or modification of certain garnishment; requiring mailing of certain agreement; modifying certain time period; modifying requirements for attachment of certain lien; modifying time period for certain garnishment; deleting certain discovery requirement; increasing certain fee; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1.     AMENDATORY     12 O.S. 2001, Section 139, is amended to read as follows:

Section 139.  Every other action must be brought in the county in which the defendant or some one of the defendants resides or resided at the time the claim arose, or may be summoned; except claims against makers of notes, claims, or other indebtedness which have been assigned, sold or transferred by or from the original payee or obligee, which claims against such original maker of such notes, claims or indebtedness can only be brought in the county in which the said maker of such note, claim or indebtedness or some one of the original makers of such note, claim or indebtedness resides or in the county in which the claim arose.  Provided, however, this section shall not in any way change or limit Section ~~4671 of the Revised Laws of Oklahoma, 1910~~ 131 of this title.

SECTION 2.     AMENDATORY     12 O.S. 2001, Section 706, is amended to read as follows:

Section 706.  A.  Scope.  This section applies to all judgments of courts of record of this state, and judgments of courts of record of the United States not subject to the registration procedures of the Uniform Federal Lien Registration Act~~, Section 3401 et seq. of Title 68 of the Oklahoma Statutes~~, which award the payment of money, regardless of whether such judgments also include other orders or relief.

B.  Creation of Lien.  A judgment to which this section applies shall be a lien on the real estate of the judgment debtor within a county only from and after a Statement of Judgment made by the judgment creditor or the judgment creditor's attorney, substantially in the form prescribed by the Administrative Director of the Courts, has been filed in the office of the county clerk in that county.

1.  Presentation of a Statement of Judgment and tender of the filing fee, shall, upon acceptance by the county clerk, constitute filing under this section.

2.  A lien created pursuant to this section shall affect and attach to all real property, including the homestead, of judgment debtors whose names appear in the Statement of Judgment; however, judgment liens on a homestead are exempt from forced sale pursuant to Section 1 of Title 31 of the Oklahoma Statutes and Section 2 of Article XII of the Oklahoma Constitution.

C.  Judgment Index.  A judgment index shall be kept by each county clerk in which the name of each person named as a judgment debtor in a Statement of Judgment filed with the county clerk shall appear in alphabetical order.

1.  It shall be the duty of the county clerk, immediately after the filing of the Statement of Judgment, to make in the judgment index a separate entry in alphabetical order of the name of each judgment debtor named therein, which entry shall also contain the name(s) of the judgment creditor(s), the name of the court which granted the judgment, the number and style of the case in which the judgment was filed, the amount of the judgment, including interest, costs and attorney's fees if shown on the Statement of Judgment, the date of the filing of the judgment with the court clerk of the court which granted it, and the date of filing of the Statement of Judgment with the county clerk.

2.  It shall also be the duty of the county clerk, immediately after the filing of a Release of Judgment Lien, to make a notation in each entry in the judgment index made when any Statement of Judgment was filed with respect to the judgment being released, of the date of filing of the Release with the county clerk, the name of the judgment creditor on whose behalf the Release is filed, and whether the Release states that it is only a partial Release.

D.  Execution of Judgment.  Execution shall be issued only from the court which granted the judgment being enforced.

E.  Release of Lien of Judgment.  The lien of a judgment upon the real estate of judgment debtor in any county, which has not become unenforceable by operation of law, is released only upon the filing in the office of the county clerk in that county of a Release of Judgment Lien, or a copy thereof certified by the court clerk of the court which granted the judgment.

1.  A judgment lien may be released, in whole or in part, by filing a Release of Judgment Lien with the county clerk by the judgment creditor or his or her attorney.

a.	A Release of Judgment Lien shall either recite the name of the court which granted the judgment, the number and style of the case, the name of each judgment debtor with respect to whom the lien is being released, the name of each judgment creditor in favor of whom the lien was created, or otherwise adequately identify the judgment lien being released and the judgment debtor against whom the lien is indexed.  The Administrative Director of the Courts shall prescribe a form of Release of Judgment which may be used at the option of the judgment creditor.

b.	If the release is only partial, it shall also contain a description of the lands then being released from the judgment lien or identify the particular judgment debtors, if less than all, with respect to whom the lien is then being released, or both, as the case may be.

c.	A Release of Judgment Lien may also be filed with the court clerk of the court which granted the judgment but filing with the court clerk does not release any judgment lien created pursuant to this section.

2.  The lien of any judgment which has been satisfied ~~by payment~~ in full, vacated or become dormant or otherwise ~~discharged~~ unenforceable and which has not been released by the judgment creditor shall be released by the court upon written motion.

a.	The motion shall be accompanied by an affidavit stating the grounds for the motion, and shall contain or be accompanied by a notice to the judgment creditor that, if the judgment creditor does not file with the court a response or objection to the motion within fifteen (15) days after the mailing of a copy of the motion to the judgment creditor, the court will order the judgment lien released.

b.	A copy of the motion shall be mailed by certified mail by the party seeking release of the lien to the judgment creditor at the last‑known address of the judgment creditor, and to the attorney of record of the judgment creditor, if any.  There shall be attached to the filed motion, and to each copy of the motion to be mailed, a Certificate of Mailing showing to whom copies of the motion were mailed, the addresses to which they were mailed, and the date of mailing.

c.	If the judgment creditor does not file a response or objection to the motion within fifteen (15) days after the mailing of a copy of the motion, the court shall order the judgment lien released.

d.	When a judgment lien is ordered released by the court, the court shall cause a Release of Judgment Lien, in the form provided by the Administrative Director of the Courts, to be prepared.  Instructions shall be printed on such form advising the judgment debtor to file the Release in the office of the county clerk of the county in which the real estate is situated in order to obtain the release of the lien of the judgment upon the real estate of the judgment debtor in such county.

e.	The party filing the motion for release shall pay all costs of the proceeding and any recording fees.

F.  Effect of Filing or Recording a Judgment.  The filing or recording of a judgment itself in the office of a county clerk on or after October 1, 1993, shall not be effective to create a general money judgment lien upon real estate, but a certified copy of a judgment may be recorded in such office for the purpose of giving notice of its contents whether or not recording is required by law.

G.  Acceptance by County Clerk.  The county clerk shall accept for filing and file any Statement of Judgment or Release of Judgment Lien without requiring any formalities of execution other than those provided in this section.

SECTION 3.     AMENDATORY     12 O.S. 2001, Section 842, as amended by Section 2, Chapter 450, O.S.L. 2004 (12 O.S. Supp. 2009, Section 842), is amended to read as follows:

Section 842.  A.  At any time after a final judgment, order, or decree is filed, on application of the judgment creditor, a judge of the court in which the final judgment, order, or decree was rendered shall ~~order~~:

1.  Order the judgment debtor to appear before the judge, or a referee appointed by the judge, at a time and place specified in the order, to answer concerning the judgment debtor’s property.  The judge may, by order, enjoin the judgment debtor from alienating, concealing, or encumbering any of the judgment debtor’s nonexempt property pending the hearing and further order of the court.  Upon the judgment debtor’s disclosure of any nonexempt property, proceedings as provided by law may be had for the application of the property to the satisfaction of the judgment.  If the judgment debtor is personally served with an order to appear pursuant to this section, the judge issuing the order may authorize the issuance of either a contempt citation or a bench warrant for the judgment debtor’s failure to comply with the order.  If the judgment debtor is served by other than personal service, the judge may authorize the issuance of a contempt citation for the judgment debtor’s failure to comply with the order; and

2.  Issue an order authorizing the Oklahoma Employment Security Commission to release to the judgment creditor any employment information maintained by the Commission concerning the judgment debtor if such authority was not granted in the judgment.  Service of the application on the judgment debtor by the judgment creditor shall be in accordance with Section 2005 of this title.  The judgment creditor shall be entitled to any costs paid to the Commission pursuant to Section 4-508 of Title 40 of the Oklahoma Statutes.

B.  At any time after a final judgment, order, or decree is filed, an attorney for a judgment creditor may:

1.  Subpoena the judgment debtor, pursuant to Section 2004.1 of this title, to appear at any place in the county in which the judgment, order, or decree was rendered, ~~or~~ the judgment debtor’s county of residence, to answer concerning the judgment debtor’s property, income, or liabilities, or to produce documents concerning the debtor’s property, income, or liabilities.  The judgment debtor shall not be entitled to an attendance fee or mileage;

2.  Subpoena any person, pursuant to Section 2004.1 of this title, to appear at any place in the county where the person is located, or where service may otherwise be had on the person, to answer concerning the judgment debtor’s property, income, or liabilities, or to produce documents concerning the judgment debtor’s property, income, or liabilities; or

3.  Serve interrogatories, requests for admissions, or request for production of documents, pursuant to Section 3224 et. seq. of this title, upon the judgment debtor, concerning the judgment debtor’s property, income, or liabilities.

C.  Failure by any person, without good cause, to obey a subpoena issued and served pursuant to this section by personal service may be deemed a contempt of the court from which the subpoena issued.

D.  In addition to sums otherwise due under a final judgment, order, or decree if an order, subpoena, citation for failure to obey an order to appear or discovery request is served upon the judgment debtor or any person under this section, the judgment creditor shall be entitled to costs of service and, if represented by an attorney, to an attorney fee of ~~Seventy-five Dollars ($75.00)~~ One Hundred Dollars ($100.00) for each order or subpoena to appear, citation for failure to obey an order or subpoena to appear, and discovery request; provided, attorney fees awarded pursuant to this subsection relating to a judgment, order, or decree shall not exceed ~~One Hundred Fifty Dollars ($150.00)~~ Three Hundred Dollars ($300.00) in any calendar year.

SECTION 4.     AMENDATORY     12 O.S. 2001, Section 936, as amended by Section 5, Chapter 468, O.S.L. 2002 (12 O.S. Supp. 2009, Section 936), is amended to read as follows:

Section 936.  A.  In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

B.  In any civil action to recover unpaid fees, fines, costs, expenses or any other debt owed to this state or its agencies, as defined pursuant to Section 152 of Title 51 of the Oklahoma Statutes, unless otherwise provided by law, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

SECTION 5.     AMENDATORY     12 O.S. 2001, Section 1173, is amended to read as follows:

Section 1173.  A.  Any judgment creditor may obtain a noncontinuing lien on earnings.  For the purposes of this section, "earnings" means any form of payment to an individual including, but not limited to, salary, commission, or other compensation, but does not include reimbursements for travel expenses for state employees.

B.  A noncontinuing earnings garnishment shall be commenced by filing the affidavit provided for by Section 1172 of this title.

C.  The form for the summons required by this section shall be prescribed by the Administrative Office of the Courts.

D.  The summons shall be served upon the garnishee, together with a copy of the judgment creditor's affidavit, a garnishee's answer form, notice of garnishment and request for hearing, and claim for exemptions, in the manner provided for in Section 2004 of this title and shall be returned with proof of service within ten (10) days of its date.

E.  The garnishee's answer shall be on a form prescribed by the Administrative Office of the Courts.

F.  Within seven (7) days after the end of the defendant's then-current pay period or thirty (30) days from the date of service of the garnishment summons, whichever is earlier, the garnishee shall file the answer with the court clerk and the garnishee shall pay the amount withheld from the pay period to the judgment creditor's attorney or to the judgment creditor, if there is no attorney, with a copy of the answer which shall state:

1.  Whether the garnishee was the employer of or indebted or under any liability to the defendant named in the notice in any manner or upon any account for earnings or wages, specifying, as applicable, the beginning and ending dates of the pay period existing at the time of the service of the affidavit and summons, the total amounts earned in the pay period, and all of the facts and circumstances necessary to a complete understanding of the indebtedness or liability.  When the garnishee shall be in doubt respecting the liability or indebtedness, the garnishee may set forth all of the facts and circumstances concerning the same, and submit the question to the court;

2.  If the garnishee shall claim any setoff, defense, other indebtedness, liability, lien, or claim to the property, the facts and circumstances in the affidavit;

3.  At the garnishee's option, any claim of exemption from execution on the part of the defendant or other objection known to the garnishee against the right of the judgment creditor to apply the indebtedness or property disclosed;

4.  If the garnishee shall disclose any indebtedness or the possession of any property to which the defendant or any other person makes claim, at the garnishee's option, the names and addresses of other claimants and, so far as known, the nature of the claims; and

5.  That the garnishee has mailed or hand-delivered a copy of the notice of garnishment and exemptions, application for hearing, and the manner and date of compliance.

G.  The garnishment summons served on the garnishee under this section is a lien on the defendant's property due at the time of service or the effective date of the summons to the extent the property is not exempt from garnishment.

H.  1.  A garnishment lien under this section has priority over any subsequent garnishment lien or garnishment summons served on the garnishee.

2.  When a garnishment summons is served under this section on a garnishee while a previous garnishment lien is still in effect, the garnishee shall answer the subsequent garnishment lien or garnishment summons by stating that the garnishee is presently holding defendant's property under a previous garnishment lien or garnishment summons and by giving the date when all previous garnishment liens or garnishment summonses are expected to end.

I.  1.  When a postjudgment noncontinuing earnings garnishment under Section 1173 of this title or a continuing earnings garnishment under Section 1173.4 of this title is issued against a defendant already subject to an income assignment for child support, the garnishee shall determine the maximum percentage of the defendant's disposable earnings according to the provisions of Section 1171.2 of this title and then deduct from that percentage the actual percentage of the defendant's disposable earnings actually withheld under the income assignment.  The resulting percentage shall be the amount to be withheld by the garnishee, not to exceed twenty-five percent (25%).

2.  For any involuntary legal or equitable procedures through which the earnings of any individual are required to be withheld for the payment of any debt which has statutory priority over this section, the amount withheld pursuant to a garnishment under this section shall be reduced by the actual sums withheld pursuant to such other involuntary process.

J.  A noncontinuing earnings garnishment may be suspended or modified by the judgment creditor upon agreement with the judgment debtor, which agreement shall be in writing and filed by the judgment creditor with the clerk of the court in which the judgment was entered.  A copy of such agreement shall be mailed by first class mail to the garnishee, postage prepaid by judgment creditor.

SECTION 6.     AMENDATORY     12 O.S. 2001, Section 1173.4, as amended by Section 5, Chapter 450, O.S.L. 2004 (12 O.S. Supp. 2009, Section 1173.4), is amended to read as follows:

Section 1173.4  A.  Any judgment creditor may obtain a continuing lien on earnings.  For the purposes of this section, “earnings” means any form of payment to an individual including, but not limited to, salary, wages, commission, or other compensation, but does not include reimbursements for travel expenses for state employees.

B.  A continuing earnings garnishment shall be commenced by filing the affidavit provided for by Section 1172 of this title.

C.  The summons required by this section shall be on a form prescribed by the Administrative Office of the Courts.

D.  The summons required by this section shall be served upon each of the garnishees, together with a copy of the judgment creditor’s affidavit, a garnishee’s answer form, notice of garnishment and request for hearing, and claim for exemptions, in the manner provided for in Section 2004 of this title and shall be returned with proof of service within ten (10) days of its date.

E.  The garnishee’s answer shall be on a form prescribed by the Administrative Office of the Courts.

F.  Within seven (7) days after the end of each pay period, or, if the judgment debtor does not have regular pay periods or is not paid by the garnishee within thirty (30) days from the date of the garnishment summons, and after any payment by the garnishee to the judgment debtor, the garnishee shall file an answer with the court clerk, and pay the amount withheld to the judgment creditor’s attorney or to the judgment creditor, if there is no attorney, together with a copy of the answer which shall state:

1.  Whether the garnishee was the employer of the defendant named in the notice, was indebted to the defendant, or was under any liability to the defendant in any manner or upon any account for earnings, specifying the beginning and ending dates of the pay period, if applicable, existing at the time of the service of the affidavit and summons, the total amounts earned in the entire pay period, and all of the facts and circumstances necessary to a complete understanding of any indebtedness or liability.  When the garnishee shall be in doubt respecting the liability or indebtedness, the garnishee may set forth all of the facts and circumstances concerning the same, and submit the question to the court;

2.  If the garnishee shall claim any setoff, defense, other indebtedness, liability, lien, or claim to the property, the facts and circumstances in the affidavit;

3.  At the garnishee’s option, any claim of exemption from execution on the part of the defendant or other objection known to the garnishee against the right of the judgment creditor to apply the indebtedness or property disclosed;

4.  If the garnishee shall disclose any indebtedness or the possession of any property to which the defendant or any other person makes claim, at the garnishee’s option, the names and addresses of other claimants and, so far as known, the nature of their claims; and

5.  That the garnishee has mailed or hand‑delivered a copy of the notice of garnishment and exemptions, application for hearing, and the manner and date of compliance.

G.  The garnishment summons served on the garnishee under this section is a lien on the defendant’s property due at the time of service or the effective date of the summons, to the extent the property is not exempt from garnishment.  This lien attaches to subsequent nonexempt earnings until one of the following occurs:

1.  ~~The total earnings subject to the lien equals the balance of the judgment against the defendant owing to the plaintiff;~~

~~2.  The employment relationship is terminated;~~

~~3.~~  The judgment against the defendant is vacated, modified, or satisfied in full;

~~4.~~ 2.  The summons is dismissed; or

~~5.~~ 3.  One hundred eighty (180) days from the effective date of ~~service of~~ the ~~affidavit and~~ summons have elapsed; provided, an affidavit and summons shall continue in effect and shall apply to a pay period beginning before the end of the one-hundred-eighty-day period even if the conclusion extends beyond the end of the period.

H.  1.  A garnishment lien under this section has priority over any subsequent garnishment lien or garnishment summons served on the garnishee during the period it is in effect, regardless of whether the amounts withheld by the garnishee are reduced by the court or by agreement of the parties.

2.	a.	When a garnishment summons is served under this section on a garnishee while a previous garnishment lien is still in effect, the garnishee shall answer the subsequent garnishment lien or garnishment summons by stating that the garnishee is presently holding defendant’s property under a previous garnishment lien or garnishment summons, and by giving the date when all previous garnishment liens or garnishment summons are expected to end.

b.	The subsequent summons is not effective if a summons or lien on the same cause of action is pending at the time of service unless the subsequent summons in the same cause of action is served after the one-hundred-fiftieth day of the previous garnishment lien.

I.  1.  When a postjudgment wage garnishment under Section 1173 of this title or a continuing earnings garnishment under this section is issued against a defendant already subject to an income assignment for child support, the garnishee shall determine the maximum percentage of the defendant’s disposable earnings according to the provisions of Section 1171.2 of this title and then deduct from that percentage the actual percentage of the defendant’s disposable earnings actually withheld under the income assignment.  The resulting percentage shall be the amount to be withheld by the garnishee, not to exceed twenty-five percent (25%).

2.  For any involuntary legal or equitable procedures through which the earnings of any individual are required to be withheld for the payment of any debt which has statutory priority over this section, the amount withheld pursuant to a garnishment under this section shall be reduced by the actual sums withheld pursuant to such other involuntary process.

J.  A continuing earnings garnishment may be suspended or modified for a specific period of time within the effective period of the garnishment by the judgment creditor upon agreement with the judgment debtor, which agreement shall be in writing and filed by the judgment creditor with the clerk of the court in which the judgment was entered, and a copy of which shall be mailed by first-class mail, postage prepaid by the judgment creditor to the garnishee.

K.  Any garnishment issued against a debtor already subject to a continuing or noncontinuing earnings garnishment shall take effect immediately upon the conclusion of the prior garnishment, and shall be effective for its full one-hundred-eighty-day period of time or as otherwise provided in this section as specified in subsection G of this section.

SECTION 7.     AMENDATORY     12 O.S. 2001, Section 1183, is amended to read as follows:

Section 1183.  The garnishee may be examined by the judgment creditor in any manner prescribed by the Oklahoma Discovery Code.  Discovery may commence at any time after the service of the garnishee summons.  If the garnishee is a corporation, any principal officer thereof may be so examined.  Within forty-five (45) days after the filing of the answer affidavit by the garnishee, the judgment creditor may commence discovery concerning any matter contained in the answer or germane to any liability on the garnishee's part to the principal defendant.  ~~Attached to any discovery request or notice of deposition shall be a statement that, upon failure to answer or appear, a judgment may be taken against the garnishee by default for the amount of the judgment and costs which the judgment creditor shall recover or has recovered against the defendant in the principal action, together with costs of the garnishment, and that the garnishee may also be proceeded against for contempt.~~  A copy of the discovery request or notice of deposition and such statement shall be served upon the garnishee or the garnishee's attorney of record in the manner provided for service of summons.  The garnishee within twenty (20) days of the date of  service of a discovery request shall deliver by mail a copy to the judgment creditor or the judgment creditor’s attorney of record, full and true answers to all discovery requests, verified by affidavit, in the manner prescribed by the Oklahoma Discovery Code.

SECTION 8.     AMENDATORY     12 O.S. 2001, Section 1190, as amended by Section 1, Chapter 26, O.S.L. 2002 (12 O.S. Supp. 2009, Section 1190), is amended to read as follows:

Section 1190.  A.  A garnishee may deduct a fee of Ten Dollars ($10.00) from the funds of the defendant in the garnishee's possession as reimbursement for costs incurred in answering.  If the garnishee is not indebted to the defendant and the garnishee's answer evidencing that is filed and mailed or delivered to the judgment creditor or to the judgment creditor's attorney of record, the garnishee may assess the judgment creditor a fee of Ten Dollars ($10.00) as reimbursement for such costs.

B.  1.  In case of the trial of any issue between the judgment creditor and any garnishee, costs shall be awarded to the judgment creditor and against the garnishee, in addition to the garnishee's liability, if the judgment creditor recovered more than the garnishee admitted by the garnishee's answer; and if the judgment creditor does not, the garnishee shall recover costs from the judgment creditor.  The costs shall include a reasonable attorney's fee to be taxed in favor of the prevailing party.

2.  In the case of the trial to determine the amount to be recovered for due and owing child support, where any liability on the part of the garnishee is disclosed, costs shall be awarded to the judgment creditor and against the defendant, including a reasonable attorney's fee.

C.  In all other cases under this article not expressly provided for, the court may, in its discretion, award costs in favor of or against any party.

D.  In addition to sums otherwise due pursuant to a judgment, a judgment creditor, if represented by an attorney, shall be entitled to an attorney’s fee of Fifty Dollars ($50.00) for prosecuting a garnishment pursuant to subparagraphs b, c, and d of paragraph 2 of subsection B of Section 1171 of this title, and an attorney’s fee of One Hundred Dollars ($100.00) for prosecuting a garnishment pursuant to subparagraph e of paragraph 2 of subsection B of Section 1171 of this title, not to exceed a total of ~~One Hundred Fifty Dollars ($150.00)~~ Two Hundred Dollars ($200.00) in any ~~twelve-month period~~ calendar year.

SECTION 9.  This act shall become effective November 1, 2010.

Passed the Senate the 19th day of May, 2010.

	
Presiding Officer 	of the Senate

Passed the House of Representatives the 24th day of May, 2010.

	
Presiding Officer	of the House
	of Representatives

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