As Reported by the Senate Judiciary Committee 1
122nd General Assembly 4
Regular Session Sub. H. B. No. 108 5
1997-1998 6
REPRESENTATIVES TIBERI-CORBIN-TAYLOR-HOOD-CATES-FORD-GARCIA- 8
VAN VYVEN-VESPER-HODGES-OLMAN-GRENDELL-TERWILLEGER-BRADING- 9
HAINES-HARRIS-METZGER-BEATTY-SALERNO-MOTTLEY-LEWIS-REID- 10
O'BRIEN-SAWYER-ROBERTS-MASON-SENATORS CUPP-SHOEMAKER 11
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A B I L L
To amend sections 1317.08 and 2329.66 of the Revised 15
Code to remove a limitation on a person's right 16
to hold the assets in, and the payments from, an 17
individual retirement account or an individual 18
retirement annuity exempt from execution,
garnishment, or attachment and to modify the 19
Retail Installment Sales Act with respect to the 20
enforceability of retail installment contracts. 21
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 23
Section 1. That sections 1317.08 and 2329.66 of the 25
Revised Code be amended to read as follows: 26
Sec. 1317.08. No retail installment contract which THAT 35
evidences an indebtedness greater than that allowed by section 36
UNDER SECTIONS 1317.06 or, 1317.061, 1317.062, AND 1317.07 of the 38
Revised Code, and no retail installment contract in connection 39
with which any charge prohibited by sections 1317.01 to 1317.11, 40
inclusive, of the Revised Code, has been contracted for or 41
received, shall be enforceable WITH RESPECT TO THAT EXCESS 42
INDEBTEDNESS OR CHARGE against any retail buyer, or any other 43
person who as surety, indorser, guarantor, or otherwise is liable 44
on the obligation created by any retail buyer on any retail 45
installment contract, and no security interest created by any 46
such retail installment contract which THAT is greater than that 47
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allowed by UNDER sections 1317.06 and, 1317.07, AND 1317.071 of 49
the Revised Code or in connection with which any charge is 50
prohibited by sections 1317.01 to 1317.11, inclusive, of the 51
Revised Code, has been contracted for or received shall be
enforceable WITH RESPECT TO THAT EXCESS SECURITY INTEREST against 52
any retail buyer or any of the aforementioned persons, in default 54
under the terms of the retail installment contract. In order for 55
a retail buyer, or any of the aforementioned persons liable on 56
his THE RETAIL BUYER'S obligation, to avail himself THE RETAIL 57
BUYER OR OTHER PERSON of this section, he THE RETAIL BUYER OR 59
OTHER PERSON must prove that the retail seller or the holder of 60
the retail installment contract has been notified in writing of 61
the overcharge and has failed within ten days of such
notification to advise the retail buyer of a full credit, or he 62
THE RETAIL BUYER OR OTHER PERSON must prove that the overcharge 63
has been willful. A correction of any overcharge within sixty 65
days of the date of making of the retail installment contract is 66
conclusive proof of lack of willfulness. This section applies to 67
cases in which recovery is sought from the retail seller or 68
holder of the retail installment contract. 69
If charges greater in amount than those provided for in 71
sections 1317.01 to 1317.11, inclusive, of the Revised Code, are 72
CONTRACTED FOR OR received by the retail seller, his OR THE 73
RETAIL SELLER'S agent, assignee, or successor in interest, the 75
retail buyer, his OR THE RETAIL BUYER'S assignee, or successor in 76
interest may recover the total amount OF FINANCE CHARGES paid to 77
the retail seller, his OR THE RETAIL SELLER'S agent, assignee, or 79
successor in interest, from the retail seller or the holder IN 80
EXCESS of the retail installment contract INTEREST RATE THAT 81
OTHERWISE WOULD APPLY UNDER SECTION 1343.01 OF THE REVISED CODE. 82
No person shall enter into any agreement with any retail 84
seller regarding the purchase, assignment, or transfer of any 85
retail installment contract whereby the retail seller shall 86
receive or retain, directly or indirectly, any benefit from or 87
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part of any amount collected or received, or to be collected or 88
received, from any retail buyer as a finance charge or as the 89
cost of insurance or other benefits to the retail buyer, in 90
excess of two per cent of the principal balance of the retail 91
installment contract. No person shall, directly or indirectly, 92
pay to the retail seller, and no retail seller shall, directly or 93
indirectly, receive or retain any part of the amount collected, 94
or to be collected, as a finance charge or retail buyer's cost of 95
insurance or other benefits on any retail installment contract 96
purchased, assigned, or transferred from him THE RETAIL SELLER, 97
in excess of two per cent of the principal balance of the retail 99
installment contract, provided this paragraph does not apply in 100
case of a bona fide sale of a retail installment contract, if, as 101
part of the consideration for such sale and purchase, the retail 102
seller agrees to act, and does act, as agent for the purchaser in 103
making collection of all amounts due on and otherwise completely 104
servicing said THE retail installment contract, including 105
billing, posting, and maintaining complete records applicable 107
thereto.
Compensation received by the retail seller as commission 109
received by him THE RETAIL SELLER from an insurance company as 110
its licensed agent, is not a benefit received by the retail 112
seller out of the insurance charge to the retail buyer under the 113
installment contract. Any sale, assignment, or transfer of a 114
retail installment contract in violation of this section is void. 115
Except as specifically limited by this paragraph all instruments 116
which THAT are a part of a retail installment contract are freely 118
assignable and transferable.
Sec. 2329.66. (A) Every person who is domiciled in this 127
state may hold property exempt from execution, garnishment, 128
attachment, or sale to satisfy a judgment or order, as follows: 129
(1)(a) In the case of a judgment or order regarding money 131
owed for health care services rendered or health care supplies 132
provided to the person or a dependent of the person, one parcel 133
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or item of real or personal property that the person or a 134
dependent of the person uses as a residence. Division (A)(1)(a) 135
of this section does not preclude, affect, or invalidate the 136
creation under this chapter of a judgment lien upon the exempted 137
property but only delays the enforcement of the lien until the 138
property is sold or otherwise transferred by the owner or in 139
accordance with other applicable laws to a person or entity other 140
than the surviving spouse or surviving minor children of the 141
judgment debtor. Every person who is domiciled in this state may 142
hold exempt from a judgment lien created pursuant to division 143
(A)(1)(a) of this section the person's interest, not to exceed 144
five thousand dollars, in the exempted property. 145
(b) In the case of all other judgments and orders, the 147
person's interest, not to exceed five thousand dollars, in one 148
parcel or item of real or personal property that the person or a 149
dependent of the person uses as a residence. 150
(2) The person's interest, not to exceed one thousand 152
dollars, in one motor vehicle; 153
(3) The person's interest, not to exceed two hundred 155
dollars in any particular item, in wearing apparel, beds, and 156
bedding, and the person's interest, not to exceed three hundred 157
dollars in each item, in one cooking unit and one refrigerator or 158
other food preservation unit; 159
(4)(a) The person's interest, not to exceed four hundred 161
dollars, in cash on hand, money due and payable, money to become 162
due within ninety days, tax refunds, and money on deposit with a 163
bank, savings and loan association, credit union, public utility, 164
landlord, or other person. Division (A)(4)(a) of this section 165
applies only in bankruptcy proceedings. This exemption may 166
include the portion of personal earnings that is not exempt under 167
division (A)(13) of this section. 168
(b) Subject to division (A)(4)(d) of this section, the 170
person's interest, not to exceed two hundred dollars in any 171
particular item, in household furnishings, household goods, 172
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appliances, books, animals, crops, musical instruments, firearms, 173
and hunting and fishing equipment, that are held primarily for 174
the personal, family, or household use of the person. 175
(c) Subject to division (A)(4)(d) of this section, the 177
person's interest in one or more items of jewelry, not to exceed 178
four hundred dollars in one item of jewelry and not to exceed two 179
hundred dollars in every other item of jewelry. 180
(d) Divisions (A)(4)(b) and (c) of this section do not 182
include items of personal property listed in division (A)(3) of 183
this section. 184
If the person does not claim an exemption under division 186
(A)(1) of this section, the total exemption claimed under 187
division (A)(4)(b) of this section shall be added to the total 188
exemption claimed under division (A)(4)(c) of this section, and 189
the total shall not exceed two thousand dollars. If the person 190
claims an exemption under division (A)(1) of this section, the 191
total exemption claimed under division (A)(4)(b) of this section 192
shall be added to the total exemption claimed under division 193
(A)(4)(c) of this section, and the total shall not exceed one 194
thousand five hundred dollars. 195
(5) The person's interest, not to exceed an aggregate of 197
seven hundred fifty dollars, in all implements, professional 198
books, or tools of the person's profession, trade, or business, 199
including agriculture; 201
(6)(a) The person's interest in a beneficiary fund set 203
apart, appropriated, or paid by a benevolent association or 204
society, as exempted by section 2329.63 of the Revised Code; 205
(b) The person's interest in contracts of life or 207
endowment insurance or annuities, as exempted by section 3911.10 208
of the Revised Code; 209
(c) The person's interest in a policy of group insurance 211
or the proceeds of a policy of group insurance, as exempted by 212
section 3917.05 of the Revised Code; 213
(d) The person's interest in money, benefits, charity, 215
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relief, or aid to be paid, provided, or rendered by a fraternal 216
benefit society, as exempted by section 3921.18 of the Revised 217
Code; 218
(e) The person's interest in the portion of benefits under 220
policies of sickness and accident insurance and in lump-sum 221
payments for dismemberment and other losses insured under those 222
policies, as exempted by section 3923.19 of the Revised Code. 223
(7) The person's professionally prescribed or medically 225
necessary health aids; 226
(8) The person's interest in a burial lot, including, but 228
not limited to, exemptions under section 517.09 or 1721.07 of the 229
Revised Code; 230
(9) The person's interest in the following: 232
(a) Moneys paid or payable for living maintenance or 234
rights, as exempted by section 3304.19 of the Revised Code; 235
(b) Workers' compensation, as exempted by section 4123.67 238
of the Revised Code; 239
(c) Unemployment compensation benefits, as exempted by 241
section 4141.32 of the Revised Code; 242
(d) Aid to dependent children payments, as exempted by 244
section 5107.12 of the Revised Code; 245
(e) Disability assistance payments, as exempted by section 247
5115.07 of the Revised Code. 248
(10)(a) Except in cases in which the person was convicted 250
of or pleaded guilty to a violation of section 2921.41 of the 251
Revised Code and in which an order for the withholding of 252
restitution from payments was issued under division (C)(2)(b) of 253
that section or in cases in which an order for withholding was 254
issued under section 2907.15 of the Revised Code, and only to the 255
extent provided in the order, and except as provided in sections 259
2929.181, 3105.171, 3105.63, 3111.23, and 3113.21 of the Revised 261
Code, the person's right to a pension, benefit, annuity, 262
retirement allowance, or accumulated contributions, the person's 263
right to a participant account in any deferred compensation 264
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program offered by the Ohio public employees deferred 265
compensation board, a government unit, or a municipal 266
corporation, or the person's other accrued or accruing rights, as 267
exempted by section 145.56, 145.75, 146.13, 742.47, 3307.71, 268
3309.66, or 5505.22 of the Revised Code, and the person's right 269
to benefits from the firemen and policemen's death benefit fund; 270
(b) Except as provided in sections 3111.23 and 3113.21 of 273
the Revised Code, the person's right to receive a payment under 274
any pension, annuity, or similar plan or contract, not including 275
a payment from a stock bonus or profit-sharing plan or a payment 276
included in division (A)(6)(b) or (10)(a) of this section, on 277
account of illness, disability, death, age, or length of service, 278
to the extent reasonably necessary for the support of the person 279
and any of the person's dependents, except if all the following 280
apply: 281
(i) The plan or contract was established by or under the 283
auspices of an insider that employed the person at the time the 284
person's rights under the plan or contract arose. 285
(ii) The payment is on account of age or length of 287
service. 288
(iii) The plan or contract is not qualified under the 290
"Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as 291
amended. 292
(c) Except for any portion of the assets that were 294
deposited for the purpose of evading the payment of any debt and 295
except as provided in sections 3111.23 and 3113.21 of the Revised 297
Code, the person's right in the assets held in, or to receive any 299
payment under, any individual retirement account, individual 300
retirement annuity, or Keogh or "H.R. 10" plan "ROTH IRA," OR 301
EDUCATION INDIVIDUAL RETIREMENT ACCOUNT that provides benefits by 303
reason of illness, disability, death, or age, to the extent
reasonably necessary for the support of the person and any of the 305
person's dependents THAT THE ASSETS, PAYMENTS, OR BENEFITS 306
DESCRIBED IN DIVISION (A)(10)(c) OF THIS SECTION ARE ATTRIBUTABLE 307
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TO ANY OF THE FOLLOWING: 308
(i) CONTRIBUTIONS OF THE PERSON THAT WERE LESS THAN OR 311
EQUAL TO THE APPLICABLE LIMITS ON DEDUCTIBLE CONTRIBUTIONS TO AN 312
INDIVIDUAL RETIREMENT ACCOUNT OR INDIVIDUAL RETIREMENT ANNUITY IN 313
THE YEAR THAT THE CONTRIBUTIONS WERE MADE, WHETHER OR NOT THE 314
PERSON WAS ELIGIBLE TO DEDUCT THE CONTRIBUTIONS ON THE PERSON'S 315
FEDERAL TAX RETURN FOR THE YEAR IN WHICH THE CONTRIBUTIONS WERE 316
MADE;
(ii) CONTRIBUTIONS OF THE PERSON THAT WERE LESS THAN OR 319
EQUAL TO THE APPLICABLE LIMITS ON CONTRIBUTIONS TO A ROTH IRA OR 320
EDUCATION INDIVIDUAL RETIREMENT ACCOUNT IN THE YEAR THAT THE 321
CONTRIBUTIONS WERE MADE;
(iii) CONTRIBUTIONS OF THE PERSON THAT ARE WITHIN THE 325
APPLICABLE LIMITS ON ROLLOVER CONTRIBUTIONS UNDER SUBSECTIONS 326
219, 402(c), 403(a)(4), 403(b)(8), 408(b), 408(d)(3), 328
408A(c)(3)(B), 408A(d)(3), AND 530(d)(5) OF THE "INTERNAL REVENUE 330
CODE OF 1986," 100 STAT. 2085, 26 U.S.C.A. 1, AS AMENDED. 332
(d) EXCEPT FOR ANY PORTION OF THE ASSETS THAT WERE 335
DEPOSITED FOR THE PURPOSE OF EVADING THE PAYMENT OF ANY DEBT AND 336
EXCEPT AS PROVIDED IN SECTIONS 3111.23 AND 3113.21 OF THE REVISED 337
CODE, THE PERSON'S RIGHT IN THE ASSETS HELD IN, OR TO RECEIVE ANY 338
PAYMENT UNDER, ANY KEOGH OR "H.R. 10" PLAN THAT PROVIDES BENEFITS 339
BY REASON OF ILLNESS, DISABILITY, DEATH, OR AGE, TO THE EXTENT 340
REASONABLY NECESSARY FOR THE SUPPORT OF THE PERSON AND ANY OF THE 341
PERSON'S DEPENDENTS. 342
(11) The person's right to receive spousal support, child 344
support, an allowance, or other maintenance to the extent 345
reasonably necessary for the support of the person and any of the 346
person's dependents; 348
(12) The person's right to receive, or moneys received 350
during the preceding twelve calendar months from, any of the 351
following: 352
(a) An award of reparations under sections 2743.51 to 354
2743.72 of the Revised Code, to the extent exempted by division 355
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(D) of section 2743.66 of the Revised Code; 356
(b) A payment on account of the wrongful death of an 358
individual of whom the person was a dependent on the date of the 359
individual's death, to the extent reasonably necessary for the 360
support of the person and any of the person's dependents; 361
(c) Except in cases in which the person who receives the 363
payment is an inmate, as defined in section 2969.21 of the 364
Revised Code, and in which the payment resulted from a civil 365
action or appeal against a government entity or employee, as 366
defined in section 2969.21 of the Revised Code, a payment, not to
exceed five thousand dollars, on account of personal bodily 368
injury, not including pain and suffering or compensation for 369
actual pecuniary loss, of the person or an individual for whom 370
the person is a dependent;
(d) A payment in compensation for loss of future earnings 372
of the person or an individual of whom the person is or was a 373
dependent, to the extent reasonably necessary for the support of 374
the debtor and any of the debtor's dependents. 375
(13) Except as provided in sections 3111.23 and 3113.21 of 378
the Revised Code, personal earnings of the person owed to the
person for services rendered within thirty days before the 380
issuing of an attachment or other process, the rendition of a 381
judgment, or the making of an order, under which the attempt may 382
be made to subject those earnings to the payment of a debt, 383
damage, fine, or amercement, in an amount equal to the greater of 384
the following amounts:
(a) If paid weekly, thirty times the current federal 386
minimum hourly wage; if paid biweekly, sixty times the current 387
federal minimum hourly wage; if paid semimonthly, sixty-five 388
times the current federal minimum hourly wage; or if paid 389
monthly, one hundred thirty times the current federal minimum 390
hourly wage that is in effect at the time the earnings are 391
payable, as prescribed by the "Fair Labor Standards Act of 1938," 392
52 Stat. 1060, 29 U.S.C. 206(a)(1), as amended; 393
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(b) Seventy-five per cent of the disposable earnings owed 395
to the person. 396
(14) The person's right in specific partnership property, 398
as exempted by division (B)(3) of section 1775.24 of the Revised 399
Code; 400
(15) A seal and official register of a notary public, as 402
exempted by section 147.04 of the Revised Code; 403
(16) The person's interest in a tuition credit or a 405
payment under section 3334.09 of the Revised Code pursuant to a 406
tuition credit contract, as exempted by section 3334.15 of the 407
Revised Code;
(17) Any other property that is specifically exempted from 409
execution, attachment, garnishment, or sale by federal statutes 410
other than the "Bankruptcy Reform Act of 1978," 92 Stat. 2549, 11 411
U.S.C.A. 101, as amended; 412
(18) The person's interest, not to exceed four hundred 414
dollars, in any property, except that division (A)(18) of this 415
section applies only in bankruptcy proceedings. 416
(B) As used in this section: 418
(1) "Disposable earnings" means net earnings after the 420
garnishee has made deductions required by law, excluding the 421
deductions ordered pursuant to section 3111.23 or 3113.21 of the 423
Revised Code. 424
(2) "Insider" means: 426
(a) If the person who claims an exemption is an 428
individual, a relative of the individual, a relative of a general 429
partner of the individual, a partnership in which the individual 430
is a general partner, a general partner of the individual, or a 431
corporation of which the individual is a director, officer, or in 432
control; 433
(b) If the person who claims an exemption is a 435
corporation, a director or officer of the corporation; a person 436
in control of the corporation; a partnership in which the 437
corporation is a general partner; a general partner of the 438
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corporation; or a relative of a general partner, director, 439
officer, or person in control of the corporation; 440
(c) If the person who claims an exemption is a 442
partnership, a general partner in the partnership; a general 443
partner of the partnership; a person in control of the 444
partnership; a partnership in which the partnership is a general 445
partner; or a relative in, a general partner of, or a person in 446
control of the partnership; 447
(d) An entity or person to which or whom any of the 449
following applies: 450
(i) The entity directly or indirectly owns, controls, or 452
holds with power to vote, twenty per cent or more of the 453
outstanding voting securities of the person who claims an 454
exemption, unless the entity holds the securities in a fiduciary 455
or agency capacity without sole discretionary power to vote the 456
securities or holds the securities solely to secure to debt and 457
the entity has not in fact exercised the power to vote. 458
(ii) The entity is a corporation, twenty per cent or more 460
of whose outstanding voting securities are directly or indirectly 461
owned, controlled, or held with power to vote, by the person who 462
claims an exemption or by an entity to which division 463
(B)(2)(d)(i) of this section applies. 464
(iii) A person whose business is operated under a lease or 466
operating agreement by the person who claims an exemption, or a 467
person substantially all of whose business is operated under an 468
operating agreement with the person who claims an exemption. 469
(iv) The entity operates the business or all or 471
substantially all of the property of the person who claims an 472
exemption under a lease or operating agreement. 473
(e) An insider, as otherwise defined in this section, of a 475
person or entity to which division (B)(2)(d)(i), (ii), (iii), or 476
(iv) of this section applies, as if the person or entity were a 477
person who claims an exemption; 478
(f) A managing agent of the person who claims an 480
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exemption. 481
(3) "Participant account" has the same meaning as in 483
section 145.71 of the Revised Code. 484
(4) "Government unit" has the same meaning as in section 486
145.74 of the Revised Code. 487
(C) For purposes of this section, "interest" shall be 489
determined as follows: 490
(1) In bankruptcy proceedings, as of the date a petition 492
is filed with the bankruptcy court commencing a case under Title 493
11 of the United States Code; 494
(2) In all cases other than bankruptcy proceedings, as of 496
the date of an appraisal, if necessary under section 2329.68 of 497
the Revised Code, or the issuance of a writ of execution. 498
An interest, as determined under division (C)(1) or (2) of 500
this section, shall not include the amount of any lien otherwise 501
valid pursuant to section 2329.661 of the Revised Code. 502
Section 2. That existing sections 1317.08 and 2329.66 of 504
the Revised Code are hereby repealed. 505
Section 3. (A) Section 1317.08 of the Revised Code, as 507
amended by this act, applies to and governs any action based upon 509
a claim against a retail seller or holder that is pending in any 510
court on the effective date of this section, and to all claims or
actions filed on or after that date, notwithstanding any 512
provision of Ohio law that was effective prior to that date. 513
(B) It is the intent of the General Assembly that the 515
amendment of section 1317.08 of the Revised Code by this act is 516
remedial in nature and not substantive. 517