2001 OREGON LEGISLATION HIGHLIGHTS

Transcription

1 2001 OREGON LEGISLATION HIGHLIGHTS TABLE OF CONTENTS 1 Administrative and Government Law... Janice Krem 2 Business Law... Andrew J. Morrow, Jr. Scott L. Gilfillan 3 Civil Procedure and Dispute Resolution; Appellate Practice... Marilyn K. Odell Andrea B. Shartel 4 Civil Rights and Liberties...Jeff Carter Marcia Lynn Ohlemiller 5 Commercial, Consumer, Debtor-Creditor, and Lien Law... Mark B. Comstock Thomas W. Stilley 6 Criminal Law; Sentencing; Corrections... Craig A. Prins William C. Houser 7 Domestic Relations Law...Tammy Dentinger 8 Election Law; Government Ethics... Richard M. Botteri 9 Environmental and Natural Resources Law...Brendan J. McCarthy 10 Estate Planning and Administration; Guardianships; Conservatorships... Bernard F. Vail Jonathan A. Levy Ruth Simonis Dady Blake 11 Financial Institutions... Steven Patrick Rodeman Kenneth Sherman, Jr. 12 Health Law... Gwen M. Dayton Theodore C. (Ted) Falk

2 13 Insurance Law... Lewis C. Littlehales 14 Judicial Administration... Jacques DeKalb 15 Juvenile Law... Katherine A. Osborn Timothy M. Travis 16 Labor and Employment Law... Margaret S. Olney Jeffrey P. Chicoine 17 Land Use...Christopher Crean David Hunnicutt 18 Real Property; Landlord-Tenant Law.. Amy Humphreys Chandler Craig Chisholm Andrew Davis John T. Gibbon 19 State Bar Organization; Attorney Discipline... Sylvia E. Stevens 20 Taxation... Douglas M. Adair Jerry Bronner Melisse S. Cunningham Marilyn J. Harbur Michelle Teed 21 Torts... Anne M. Talcott 22 Workers Compensation... Ronald L. Bohy Christopher D. Moore Bill Number and ORCP/UTCR Index Oregon Laws Chapter Number Index

3 5 MARK B. COMSTOCK THOMAS W. STILLEY Commercial, Consumer, Debtor-Creditor, and Lien Law I. INTRODUCTION II. JUDGMENTS; JUDGMENT LIENS; COLLECTION OF JUDGMENTS A. HB 2382 (ch 418) Default Judgments B. HB 2175 (ch 538) Exemption for Earned Income Tax Credit C. HB 2386 (ch 249) Garnishment III. STATUTORY LIENS A. HB 3842 (ch 311) Construction Liens; Disclosures by Seller B. HB 2638 (ch 424) Vehicle Storage Lien Notice C. HB 2051 (ch 301) Agricultural Liens D. HB 4001 (ch 863) Molder Possessory Lien IV. SECURED TRANSACTIONS A. SB 171 (ch 445) Revised UCC Article 9; Title Loans B. SB 171 (ch 445) Title Loans V. COLLECTION ACTIONS A. SB 165 (ch 316) Probate Estate/Child Support Arrearages B. HB 2381 (ch 542) Attorney Fees in Small Claims Cases C. HB 2500 (ch 279) Attorney Fees in Action for Wages D. HB 2429 (ch 780) Civil Forfeiture MARK B. COMSTOCK, B.A., University of Oregon (1978); J.D., Willamette University (1981); member of the Oregon State Bar since 1981; member, Garrett, Hemann, Robertson, Jennings, Comstock & Trethewy, P.C., Salem. THOMAS W. STILLEY, B.B.A., University of Texas (1977); J.D., University of Houston (1988); member of the Oregon State Bar since 1988 and the Washington State Bar Association since 1992; partner, Sussman Shank LLP, Portland. Unless otherwise noted, all legislation is effective January 1,

4 VI. VII. SALES A. HB 2756 (ch 675) Titles for Manufactured Structures B. HB 3684 (ch 969) Manufactured Dwelling Sales Agreement C. HB 3917 (ch 917) Manufactured Dwelling Dealer Unlawful Trade Practices D. HB 2112 (ch 535) Uniform Electronic Transactions Act MISCELLANEOUS A. HB 2138 (ch 231) Prohibited Disclosure of Information B. HB 2254 (ch 163) Nonlawyer Representation Before Construction Contractors Board C. HB 3007 (ch 924) Mercury-Containing Items Unlawful Trade Practices Act D. SB 394 (ch 289) Credit Services Organization E. SB 755 (ch 502) Unlawful Internet Gambling I. INTRODUCTION The 2001 Legislature enacted several noteworthy laws that affect commercial transactions. Chief among them is the revised UCC Article 9. This legislation was drafted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. The Oregon version of the law differs in some respects from the uniform law, and the differences are explained here. For a chart that shows the differences, see A COMPARISON OF FORMER UCC ARTICLE 9 WITH NEW UCC ARTICLE 9, ANNOTATED FOR OREGON (Oregon CLE 2001). The 2001 Legislature also amended the garnishment laws, at the request of the Oregon Law Commission. Although the amendments are not substantive in most respects, the statutory forms have changed. II. JUDGMENTS; JUDGMENT LIENS; COLLECTION OF JUDGMENTS A. HB 2382 (ch 418) Default Judgments HB 2382 amends ORCP 69 B to delete the requirement that the judgment creditor must submit an affidavit stating that the judgment debtor is not a minor, incapacitated, or financially incapable. Instead, the judgment creditor must now submit an affidavit that states that to the best knowledge and belief of the party seeking the judgment, the judgment debtor is not incapacitated, a minor, a protected person, or a respondent as defined in ORS If the judgment creditor is unable to submit such an affidavit, the judgment may nevertheless be entered if a guardian, conservator, or guardian ad litem has been appointed for the judgment debtor. 5-4

5 COMMERCIAL, CONSUMER, DEBTOR-CREDITOR, AND LIEN LAW B. HB 2175 (ch 538) Exemption for Earned Income Tax Credit HB 2175 amends ORS (1), which lists the items that are exempt from execution. The amendment adds an exemption for the debtor s right to receive an earned income tax credit or any money traceable to such credit. Section 2a of the bill, in conjunction with HB 2386 (described below) amends the garnishment forms to accommodate the new exemption. C. HB 2386 (ch 249) Garnishment HB 2386 completely revises the garnishment provisions in ORS The bill was a product of an Oregon Law Commission interim workgroup, which included representatives of various affected groups. The bill does not significantly change the existing substantive law, but clarifies the garnishment process and forms. The new provisions will be codified in ORS chapter 22. Some major revisions are described below. Definitions. Section 1 of HB 2386 sets forth definitions. Most of the definitions in ORS are retained in 1. However, the terms plaintiff and defendant, which referred to the judgment creditor and judgment debtor, respectively, have been replaced with the terms creditor and debtor. The word garnishor includes the issuer of the writ of garnishment, if other than the clerk of the court. The word debt means any monetary obligation for which a garnishment may be issued. The word wages includes all amounts paid for services of an employee by an employer, including commissions and bonus payments. Debts subject to garnishment. Section 3 of HB 2386 specifically sets forth when a writ of garnishment may be issued and the monetary debts that will support issuance of a writ of garnishment. These include: (1) A judgment requiring payment of money, after the judgment is entered in the register of the court or docketed in the court s docket; (2) A support arrearage shown on the support records of the Department of Justice. (3) Monetary obligations imposed under agency orders or warrants recorded in the County Clerk Lien Record. (4) A provisional process order under ORCP 83 or 84. Form of writ. HB 2386 distills the various forms of writs of garnishment (writ, continuing writ, clerk-issued writ, and attorney-issued writ) into one statutory form. A notice of garnishment used by state agencies and county tax collectors is still available, but in a new format and under new provisions. Section 4 of the bill sets forth the requirements of the form of writ of garnishment, which is included in the bill in 59. The requirements include the following: (1) The name of the court (circuit, municipal, or justice); (2) The names of the creditor and debtor; 5-5

6 COMMERCIAL, CONSUMER, DEBTOR-CREDITOR, AND LIEN LAW (3) The name of the garnishor; (4) The date on which judgment was entered or the debt became subject to garnishment; (5) The debtor s Social Security number or employer identification number, if known to the garnishor, unless the garnishor is a public body; (6) The amount subject to garnishment determined by completing the debt calculation form (the debt calculation form is 60 of HB 2386); (7) The date that the writ is issued; (8) All addresses required in the form; and (9) The signature of the issuer. Validity and duration of writ. The writ is valid if it is delivered within 60 days after the date of issuance. The duration of a writ depends on the type of property held by the garnishee when the writ is delivered. If the property in the possession of the garnishee is other than wages, the writ s duration is only over the property in the garnishee s possession when the writ was delivered. If the property is wages owned by the garnishee, the duration of the writ is (1) 90 days from the date that the writ is delivered (as long as the writ is delivered within 60 days after it is issued) or (2) until the debt is satisfied or the writ is released. A writ of garnishment issued on behalf of a county or county agency (not state agency) has an unlimited duration, that is, until the debt is paid or the writ is released or subject to other court order. A county-issued writ must also contain language that reasonably notifies the garnishee of the unlimited duration. Courts with authority over writs. Section 6 of HB 2386 clarifies which courts have authority over the writ. Choices include: (1) The circuit court in which the judgment was originally entered or first registered or docketed; (2) The circuit court for the county in which the debtor resides, if the requirements of ORS have been met; or (3) The circuit court in which the debtor filed a challenge to the garnishment for support arrearage, that is, the tribunal in which the judgment was originally entered or the circuit court in the county in which the property was located (see 36a). If an agency order or warrant is the basis of the writ, jurisdiction lies only in the circuit court for the county in which the warrant or agency order was first recorded or, if recorded in another county, the circuit court for the county in which the debtor resides. 5-6