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To amend sections 2329.66, 2716.02, 2716.03, 2716.05, | 1 |
2716.11, and 2716.13 of the Revised Code to | 2 |
increase the exemptions for property that a debtor | 3 |
may hold exempt from execution, garnishment, | 4 |
attachment, or sale for the satisfaction of a | 5 |
judgment or order to reflect the higher exemptions | 6 |
available for such property under the United | 7 |
States Bankruptcy Code and to provide for | 8 |
automatic adjustments to those exemptions based on | 9 |
changes in the Consumer Price Index and to modify | 10 |
the garnishment procedure. | 11 |
Section 1. That sections 2329.66, 2716.02, 2716.03, 2716.05, | 12 |
2716.11, and 2716.13 of the Revised Code be amended to read as | 13 |
follows: | 14 |
Sec. 2329.66. (A) Every person who is domiciled in this | 15 |
state may hold property exempt from execution, garnishment, | 16 |
attachment, or sale to satisfy a judgment or order, as follows: | 17 |
(1)(a) In the case of a judgment or order regarding money | 18 |
owed for health care services rendered or health care supplies | 19 |
provided to the person or a dependent of the person, one parcel or | 20 |
item of real or personal property that the person or a dependent | 21 |
of the person uses as a residence. Division (A)(1)(a) of this | 22 |
section does not preclude, affect, or invalidate the creation | 23 |
under this chapter of a judgment lien upon the exempted property | 24 |
but only delays the enforcement of the lien until the property is | 25 |
sold or otherwise transferred by the owner or in accordance with | 26 |
other applicable laws to a person or entity other than the | 27 |
surviving spouse or surviving minor children of the judgment | 28 |
debtor. Every person who is domiciled in this state may hold | 29 |
exempt from a judgment lien created pursuant to division (A)(1)(a) | 30 |
of this section the person's interest, not to exceed | 31 |
thousand two hundred dollars, in the exempted property. | 32 |
(b) In the case of all other judgments and orders, the | 33 |
person's interest, not to exceed | 34 |
dollars, in one parcel or item of real or personal property that | 35 |
the person or a dependent of the person uses as a residence. | 36 |
(2) The person's interest, not to exceed | 37 |
two hundred twenty-five dollars, in one motor vehicle; | 38 |
(3) | 39 |
40 | |
41 | |
42 | |
43 |
| 44 |
dollars, in cash on hand, money due and payable, money to become | 45 |
due within ninety days, tax refunds, and money on deposit with a | 46 |
bank, savings and loan association, credit union, public utility, | 47 |
landlord, or other person. Division (A) | 48 |
applies only in bankruptcy proceedings. This exemption may include | 49 |
the portion of personal earnings that is not exempt under division | 50 |
(A)(13) of this section. | 51 |
| 52 |
The
person's interest, not to exceed | 53 |
dollars in any particular item or ten thousand seven hundred | 54 |
seventy-five dollars in aggregate value, in household furnishings, | 55 |
household goods, wearing apparel, appliances, books, animals, | 56 |
crops, musical instruments, firearms, and hunting and fishing | 57 |
equipment | 58 |
household use of the person; | 59 |
| 60 |
The person's aggregate interest in one or more items of jewelry, | 61 |
not to exceed
| 62 |
63 | |
64 |
| 65 |
66 | |
67 |
| 68 |
69 | |
70 | |
71 | |
72 | |
73 | |
74 | |
75 | |
76 | |
77 | |
household use of the person or any of the person's dependents. | 78 |
(5) The person's interest, not to exceed an aggregate of | 79 |
80 | |
implements, professional books, or tools of the person's | 81 |
profession, trade, or business, including agriculture; | 82 |
(6)(a) The person's interest in a beneficiary fund set apart, | 83 |
appropriated, or paid by a benevolent association or society, as | 84 |
exempted by section 2329.63 of the Revised Code; | 85 |
(b) The person's interest in contracts of life or endowment | 86 |
insurance or annuities, as exempted by section 3911.10 of the | 87 |
Revised Code; | 88 |
(c) The person's interest in a policy of group insurance or | 89 |
the proceeds of a policy of group insurance, as exempted by | 90 |
section 3917.05 of the Revised Code; | 91 |
(d) The person's interest in money, benefits, charity, | 92 |
relief, or aid to be paid, provided, or rendered by a fraternal | 93 |
benefit society, as exempted by section 3921.18 of the Revised | 94 |
Code; | 95 |
(e) The person's interest in the portion of benefits under | 96 |
policies of sickness and accident insurance and in lump sum | 97 |
payments for dismemberment and other losses insured under those | 98 |
policies, as exempted by section 3923.19 of the Revised Code. | 99 |
(7) The person's professionally prescribed or medically | 100 |
necessary health aids; | 101 |
(8) The person's interest in a burial lot, including, but not | 102 |
limited to, exemptions under section 517.09 or 1721.07 of the | 103 |
Revised Code; | 104 |
(9) The person's interest in the following: | 105 |
(a) Moneys paid or payable for living maintenance or rights, | 106 |
as exempted by section 3304.19 of the Revised Code; | 107 |
(b) Workers' compensation, as exempted by section 4123.67 of | 108 |
the Revised Code; | 109 |
(c) Unemployment compensation benefits, as exempted by | 110 |
section 4141.32 of the Revised Code; | 111 |
(d) Cash assistance payments under the Ohio works first | 112 |
program, as exempted by section 5107.75 of the Revised Code; | 113 |
(e) Benefits and services under the prevention, retention, | 114 |
and contingency program, as exempted by section 5108.08 of the | 115 |
Revised Code; | 116 |
(f) Disability financial assistance payments, as exempted by | 117 |
section 5115.06 of the Revised Code. | 118 |
(10)(a) Except in cases in which the person was convicted of | 119 |
or pleaded guilty to a violation of section 2921.41 of the Revised | 120 |
Code and in which an order for the withholding of restitution from | 121 |
payments was issued under division (C)(2)(b) of that section or in | 122 |
cases in which an order for withholding was issued under section | 123 |
2907.15 of the Revised Code, and only to the extent provided in | 124 |
the order, and except as provided in sections 3105.171, 3105.63, | 125 |
3119.80, 3119.81, 3121.02, 3121.03, and 3123.06 of the Revised | 126 |
Code, the person's right to a pension, benefit, annuity, | 127 |
retirement allowance, or accumulated contributions, the person's | 128 |
right to a participant account in any deferred compensation | 129 |
program offered by the Ohio public employees deferred compensation | 130 |
board, a government unit, or a municipal corporation, or the | 131 |
person's other accrued or accruing rights, as exempted by section | 132 |
145.56, 146.13, 148.09, 742.47, 3307.41, 3309.66, or 5505.22 of | 133 |
the Revised Code, and the person's right to benefits from the Ohio | 134 |
public safety officers death benefit fund; | 135 |
(b) Except as provided in sections 3119.80, 3119.81, 3121.02, | 136 |
3121.03, and 3123.06 of the Revised Code, the person's right to | 137 |
receive a payment under any pension, annuity, or similar plan or | 138 |
contract, not including a payment from a stock bonus or | 139 |
profit-sharing plan or a payment included in division (A)(6)(b) or | 140 |
(10)(a) of this section, on account of illness, disability, death, | 141 |
age, or length of service, to the extent reasonably necessary for | 142 |
the support of the person and any of the person's dependents, | 143 |
except if all the following apply: | 144 |
(i) The plan or contract was established by or under the | 145 |
auspices of an insider that employed the person at the time the | 146 |
person's rights under the plan or contract arose. | 147 |
(ii) The payment is on account of age or length of service. | 148 |
(iii) The plan or contract is not qualified under the | 149 |
"Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as | 150 |
amended. | 151 |
(c) Except for any portion of the assets that were deposited | 152 |
for the purpose of evading the payment of any debt and except as | 153 |
provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and | 154 |
3123.06 of the Revised Code, the person's right in the assets held | 155 |
in, or to receive any payment under, any individual retirement | 156 |
account, individual retirement annuity, "Roth IRA," or education | 157 |
individual retirement account that provides benefits by reason of | 158 |
illness, disability, death, or age, to the extent that the assets, | 159 |
payments, or benefits described in division (A)(10)(c) of this | 160 |
section are attributable to any of the following: | 161 |
(i) Contributions of the person that were less than or equal | 162 |
to the applicable limits on deductible contributions to an | 163 |
individual retirement account or individual retirement annuity in | 164 |
the year that the contributions were made, whether or not the | 165 |
person was eligible to deduct the contributions on the person's | 166 |
federal tax return for the year in which the contributions were | 167 |
made; | 168 |
(ii) Contributions of the person that were less than or equal | 169 |
to the applicable limits on contributions to a Roth IRA or | 170 |
education individual retirement account in the year that the | 171 |
contributions were made; | 172 |
(iii) Contributions of the person that are within the | 173 |
applicable limits on rollover contributions under subsections 219, | 174 |
402(c), 403(a)(4), 403(b)(8), 408(b), 408(d)(3), 408A(c)(3)(B), | 175 |
408A(d)(3), and 530(d)(5) of the "Internal Revenue Code of 1986," | 176 |
100 Stat. 2085, 26 U.S.C.A. 1, as amended. | 177 |
(d) Except for any portion of the assets that were deposited | 178 |
for the purpose of evading the payment of any debt and except as | 179 |
provided in sections 3119.80, 3119.81, 3121.02, 3121.03, and | 180 |
3123.06 of the Revised Code, the person's right in the assets held | 181 |
in, or to receive any payment under, any Keogh or "H.R. 10" plan | 182 |
that provides benefits by reason of illness, disability, death, or | 183 |
age, to the extent reasonably necessary for the support of the | 184 |
person and any of the person's dependents. | 185 |
(11) The person's right to receive spousal support, child | 186 |
support, an allowance, or other maintenance to the extent | 187 |
reasonably necessary for the support of the person and any of the | 188 |
person's dependents; | 189 |
(12) The person's right to receive, or moneys received during | 190 |
the preceding twelve calendar months from, any of the following: | 191 |
(a) An award of reparations under sections 2743.51 to 2743.72 | 192 |
of the Revised Code, to the extent exempted by division (D) of | 193 |
section 2743.66 of the Revised Code; | 194 |
(b) A payment on account of the wrongful death of an | 195 |
individual of whom the person was a dependent on the date of the | 196 |
individual's death, to the extent reasonably necessary for the | 197 |
support of the person and any of the person's dependents; | 198 |
(c) Except in cases in which the person who receives the | 199 |
payment is an inmate, as defined in section 2969.21 of the Revised | 200 |
Code, and in which the payment resulted from a civil action or | 201 |
appeal against a government entity or employee, as defined in | 202 |
section 2969.21 of the Revised Code, a payment, not to
exceed | 203 |
twenty thousand two hundred dollars, on account of personal bodily | 204 |
injury, not including pain and suffering or compensation for | 205 |
actual pecuniary loss, of the person or an individual for whom the | 206 |
person is a dependent; | 207 |
(d) A payment in compensation for loss of future earnings of | 208 |
the person or an individual of whom the person is or was a | 209 |
dependent, to the extent reasonably necessary for the support of | 210 |
the debtor and any of the debtor's dependents. | 211 |
(13) Except as provided in sections 3119.80, 3119.81, | 212 |
3121.02, 3121.03, and 3123.06 of the Revised Code, personal | 213 |
earnings of the person owed to the person for services in an | 214 |
amount equal to the greater of the following amounts: | 215 |
(a) If paid weekly, thirty times the current federal minimum | 216 |
hourly wage; if paid biweekly, sixty times the current federal | 217 |
minimum hourly wage; if paid semimonthly, sixty-five times the | 218 |
current federal minimum hourly wage; or if paid monthly, one | 219 |
hundred thirty times the current federal minimum hourly wage that | 220 |
is in effect at the time the earnings are payable, as prescribed | 221 |
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 | 222 |
U.S.C. 206(a)(1), as amended; | 223 |
(b) Seventy-five per cent of the disposable earnings owed to | 224 |
the person. | 225 |
(14) The person's right in specific partnership property, as | 226 |
exempted by division (B)(3) of section 1775.24 of the Revised | 227 |
Code; | 228 |
(15) A seal and official register of a notary public, as | 229 |
exempted by section 147.04 of the Revised Code; | 230 |
(16) The person's interest in a tuition unit or a payment | 231 |
under section 3334.09 of the Revised Code pursuant to a tuition | 232 |
payment contract, as exempted by section 3334.15 of the Revised | 233 |
Code; | 234 |
(17) Any other property that is specifically exempted from | 235 |
execution, attachment, garnishment, or sale by federal statutes | 236 |
other than the "Bankruptcy Reform Act of 1978," 92 Stat. 2549, 11 | 237 |
U.S.C.A. 101, as amended; | 238 |
(18) The person's aggregate interest in any property, not to | 239 |
exceed | 240 |
241 | |
hundred twenty-five dollars, of the exemption provided under | 242 |
division (A)(1) of this section, except that division (A)(18) of | 243 |
this section applies only in bankruptcy proceedings. | 244 |
(B) On April 1, 2010, and on the first day of April in each | 245 |
third calendar year after 2010, each dollar amount set forth in | 246 |
this section shall be adjusted, when determining the amount that | 247 |
is exempt from execution, garnishment, attachment, or sale | 248 |
pursuant to this section, to reflect the change in the consumer | 249 |
price index for all urban consumers, as published by the United | 250 |
States department of labor, or, if that index is no longer | 251 |
published, a generally available comparable index, for the | 252 |
three-year period ending on the thirty-first day of December of | 253 |
the preceding year. Any adjustments required by this division | 254 |
shall be rounded to the nearest twenty-five dollars. | 255 |
(C) As used in this section: | 256 |
(1) "Disposable earnings" means net earnings after the | 257 |
garnishee has made deductions required by law, excluding the | 258 |
deductions ordered pursuant to section 3119.80, 3119.81, 3121.02, | 259 |
3121.03, or 3123.06 of the Revised Code. | 260 |
(2) "Insider" means: | 261 |
(a) If the person who claims an exemption is an individual, a | 262 |
relative of the individual, a relative of a general partner of the | 263 |
individual, a partnership in which the individual is a general | 264 |
partner, a general partner of the individual, or a corporation of | 265 |
which the individual is a director, officer, or in control; | 266 |
(b) If the person who claims an exemption is a corporation, a | 267 |
director or officer of the corporation; a person in control of the | 268 |
corporation; a partnership in which the corporation is a general | 269 |
partner; a general partner of the corporation; or a relative of a | 270 |
general partner, director, officer, or person in control of the | 271 |
corporation; | 272 |
(c) If the person who claims an exemption is a partnership, a | 273 |
general partner in the partnership; a general partner of the | 274 |
partnership; a person in control of the partnership; a partnership | 275 |
in which the partnership is a general partner; or a relative in, a | 276 |
general partner of, or a person in control of the partnership; | 277 |
(d) An entity or person to which or whom any of the following | 278 |
applies: | 279 |
(i) The entity directly or indirectly owns, controls, or | 280 |
holds with power to vote, twenty per cent or more of the | 281 |
outstanding voting securities of the person who claims an | 282 |
exemption, unless the entity holds the securities in a fiduciary | 283 |
or agency capacity without sole discretionary power to vote the | 284 |
securities or holds the securities solely to secure to debt and | 285 |
the entity has not in fact exercised the power to vote. | 286 |
(ii) The entity is a corporation, twenty per cent or more of | 287 |
whose outstanding voting securities are directly or indirectly | 288 |
owned, controlled, or held with power to vote, by the person who | 289 |
claims an exemption or by an entity to which division | 290 |
291 |
(iii) A person whose business is operated under a lease or | 292 |
operating agreement by the person who claims an exemption, or a | 293 |
person substantially all of whose business is operated under an | 294 |
operating agreement with the person who claims an exemption. | 295 |
(iv) The entity operates the business or all or substantially | 296 |
all of the property of the person who claims an exemption under a | 297 |
lease or operating agreement. | 298 |
(e) An insider, as otherwise defined in this section, of a | 299 |
person or entity to which division | 300 |
or (iv) of this section applies, as if the person or entity were a | 301 |
person who claims an exemption; | 302 |
(f) A managing agent of the person who claims an exemption. | 303 |
(3) "Participant account" has the same meaning as in section | 304 |
148.01 of the Revised Code. | 305 |
(4) "Government unit" has the same meaning as in section | 306 |
148.06 of the Revised Code. | 307 |
| 308 |
determined as follows: | 309 |
(1) In bankruptcy proceedings, as of the date a petition is | 310 |
filed with the bankruptcy court commencing a case under Title 11 | 311 |
of the United States Code; | 312 |
(2) In all cases other than bankruptcy proceedings, as of the | 313 |
date of an appraisal, if necessary under section 2329.68 of the | 314 |
Revised Code, or the issuance of a writ of execution. | 315 |
An interest, as determined under division | 316 |
this section, shall not include the amount of any lien otherwise | 317 |
valid pursuant to section 2329.661 of the Revised Code. | 318 |
Sec. 2716.02. (A) Any person seeking an order of garnishment | 319 |
of personal earnings, after obtaining a judgment, shall make the | 320 |
following demand in writing for the excess of the amount of the | 321 |
judgment over the amount of personal earnings that may be exempt | 322 |
from execution, garnishment, attachment, or sale to satisfy a | 323 |
judgment or order, or for so much of the excess as will satisfy | 324 |
the judgment. The demand shall be made after the judgment is | 325 |
obtained and at least fifteen days and not more than forty-five | 326 |
days before the order is sought by delivering it to the judgment | 327 |
debtor by personal service by the court, by sending it to the | 328 |
judgment debtor by certified mail, return receipt requested, or by | 329 |
sending it to the judgment debtor by regular mail evidenced by a | 330 |
properly completed and stamped certificate of mailing by regular | 331 |
mail, addressed to the judgment debtor's last known place of | 332 |
residence. | 333 |
The demand shall be in substantially the following form: | 334 |
335 | |
Date of mailing or date of service by the court .............. | 336 |
337 | |
338 | |
339 | |
340 | |
You owe the undersigned ....................... (Name of | 341 |
Judgment Creditor) $.........., including interest and court | 342 |
costs, for which a judgment was obtained against you or certified | 343 |
in the .......... court on .........., payment of which is hereby | 344 |
demanded. | 345 |
If you do not do one of the three things listed below within | 346 |
fifteen days of the date of the mailing of this notice or of its | 347 |
service by the court, we will go to court, unless we are otherwise | 348 |
precluded by law from doing so, and ask that your employer be | 349 |
ordered to withhold money from your earnings until the judgment is | 350 |
paid in full or, if applicable, is paid to a certain extent and to | 351 |
pay the withheld money to the court in satisfaction of your debt. | 352 |
This is called garnishment of personal earnings. | 353 |
It is to your advantage to avoid garnishment of personal | 354 |
earnings because the placing of the extra burden on your employer | 355 |
possibly could cause you to lose your job. | 356 |
YOU CAN AVOID THE GARNISHMENT BY DOING ONE OF THESE THREE | 357 |
THINGS WITHIN THE FIFTEEN-DAY PERIOD: | 358 |
(1) Pay to us the amount due; | 359 |
(2) Complete the attached form entitled "Payment to Avoid | 360 |
Garnishment" and return it to us with the payment, if any, shown | 361 |
due on it; or | 362 |
(3) Apply to your local municipal or county court or, if you | 363 |
are not a resident of Ohio, to the municipal or county court in | 364 |
whose jurisdiction your place of employment is located, for the | 365 |
appointment of a trustee to receive the part of your earnings that | 366 |
is not exempt from garnishment, and notify us that you have | 367 |
applied for the appointment of a trustee. You will be required to | 368 |
list your creditors, the amounts of their claims, and the amounts | 369 |
due on their claims, and the amount you then will pay to your | 370 |
trustee each payday will be divided among them until the debts are | 371 |
paid off. This can be to your advantage because in the meantime | 372 |
none of those creditors can garnish your wages. | 373 |
You also may contact a budget and debt counseling service | 374 |
described in division (D) of section 2716.03 of the Revised Code | 375 |
for the purpose of entering into an agreement for debt scheduling. | 376 |
There may not be enough time to set up an agreement for debt | 377 |
scheduling in order to avoid a garnishment of your wages based | 378 |
upon this demand for payment, but entering into an agreement for | 379 |
debt scheduling might protect you from future garnishments of your | 380 |
wages. Under an agreement for debt scheduling, you will have to | 381 |
regularly pay a portion of your income to the service until the | 382 |
debts subject to the agreement are paid off. This portion of your | 383 |
income will be paid by the service to your creditors who are owed | 384 |
debts subject to the agreement. This can be to your advantage | 385 |
because these creditors cannot garnish your wages while you make | 386 |
your payments to the service on time. | 387 |
.............................. | 388 | |||
(Name of Judgment Creditor) | 389 | |||
.............................. | 390 | |||
(Signature of Judgment Creditor | 391 | |||
or Judgment Creditor's Attorney) | 392 | |||
.............................. | 393 | |||
.............................. | 394 | |||
.............................. | 395 | |||
(Address of Judgment Creditor) | 396 |
397 | |
398 | |
399 | |
400 | |
401 | |
402 | |
To avoid the garnishment of personal earnings of which you | 403 |
have given me notice, I enclose $ ............... to apply toward | 404 |
my indebtedness to you. The amount of the payment was computed as | 405 |
follows: | 406 |
1. | Total amount of indebtedness demanded: | (1) $.......... | 407 | |
2. | Enter the amount of your personal earnings, | 408 | ||
after deductions required by law, earned by | 409 | |||
you during the current pay period (that is, | 410 | |||
the pay period in which this demand is | 411 | |||
received by you): | (2) $.......... | 412 | ||
3. | (A) Enter your pay period (weekly, biweekly, | 413 | ||
semimonthly, monthly): | (3)(A) ........ | 414 | ||
(B) Enter the date when your present pay | 415 | |||
period ends: | (3)(B) ........ | 416 | ||
4. | Enter an amount equal to 25% of the amount | 417 | ||
on line (2): | (4) ........... | 418 | ||
5. | (A) The current federal minimum hourly wage | 419 | ||
is .......... (to be filled in by Judgment | 420 | |||
Creditor) (You should use the above figure | 421 | |||
to complete this portion of the form.) | 422 | |||
If you are paid weekly, enter thirty | 423 | |||
times the current federal minimum hourly | 424 | |||
wage; if paid biweekly, enter sixty times | 425 | |||
the current federal minimum hourly wage; | 426 | |||
if paid semimonthly, enter sixty-five | 427 | |||
times the current federal minimum | 428 | |||
hourly wage; if paid monthly, enter | 429 | |||
one hundred thirty times the current | 430 | |||
federal minimum hourly wage: | (5)(A) ........ | 431 | ||
(B) Enter the amount by which the amount on | 432 | |||
line (2) exceeds the amount on line 5(A): | (5)(B) ........ | 433 | ||
6. | Enter the smallest of the amounts on line | 434 | ||
(1), (4), or 5(B). Send this amount to the | 435 | |||
judgment creditor along with this form after | 436 | |||
you have signed it: | (6) $.......... | 437 |
I certify that the statements contained above are true to the | 438 |
best of my knowledge and belief. | 439 |
....................................... | 440 | |||
(Signature of Judgment Debtor) | 441 | |||
....................................... | 442 | |||
....................................... | 443 | |||
....................................... | 444 | |||
(Print Name and Residence Address of Judgment Debtor) | 445 |
(To verify that the amount shown on line (2) is a true | 446 |
statement of your earnings, you must either have your employer | 447 |
certify below that the amount shown on line (2) is a true | 448 |
statement of your earnings or you may submit copies of your pay | 449 |
stubs for the two pay periods immediately prior to your receiving | 450 |
this notice.) | 451 |
I certify that the amount shown on line (2) is a true | 452 |
statement of the judgment debtor's earnings. | 453 |
....................................... | 454 | |||
(Print Name of Employer) | 455 | |||
....................................... | 456 | |||
(Signature of Employer or Agent) | 457 |
I certify that I have attached copies of my pay stubs for the | 458 |
two pay periods immediately prior to my receiving this notice. | 459 |
...................................... | 460 | |||
(Signature of Judgment Debtor)" | 461 |
(B) If a judgment debtor properly completes a payment to | 462 |
avoid garnishment and returns it with the required funds to the | 463 |
judgment creditor or the judgment creditor's attorney, the | 464 |
judgment creditor or the judgment creditor's attorney who issued | 465 |
the notice of court proceeding to collect debt may not issue | 466 |
another notice of court proceeding to collect debt to the judgment | 467 |
debtor until the expiration date of the judgment debtor's present | 468 |
pay period that is set forth by the judgment debtor and the | 469 |
judgment debtor's employer in the answer to (3)(B) in the payment | 470 |
to avoid garnishment. | 471 |
(C) If an order of garnishment of personal earnings issued | 472 |
pursuant to this chapter has not been paid in full when it ceases | 473 |
to remain in effect because of the operation of division (C)(1) of | 474 |
section 2716.041 of the Revised Code, the garnishee's duties under | 475 |
the order of garnishment are complete with the filing of the final | 476 |
report and answer of the garnishee. The judgment creditor must | 477 |
institute new garnishment proceedings if the judgment creditor | 478 |
wants an additional garnishment. | 479 |
Sec. 2716.03. (A) Subject to the limitation on the | 480 |
commencement of proceedings contained in division (B) of section | 481 |
124.10 of the Revised Code, a proceeding in garnishment of | 482 |
personal earnings may be commenced after a judgment has been | 483 |
obtained by a judgment creditor by the filing of an affidavit in | 484 |
writing made by the judgment creditor or the judgment creditor's | 485 |
attorney setting forth all of the following: | 486 |
(1) The name of the judgment debtor whose personal earnings | 487 |
the judgment creditor seeks to garnish; | 488 |
(2) | 489 |
490 | |
491 | |
and address of the garnishee who may be an employer of the | 492 |
judgment debtor and who may have personal earnings of the judgment | 493 |
debtor | 494 |
495 |
(3) That the demand in writing, as required by section | 496 |
2716.02 of the Revised Code, has been made; | 497 |
(4) That the payment demanded in the notice required by | 498 |
section 2716.02 of the Revised Code has not been made, and a | 499 |
sufficient portion of the payment demanded has not been made to | 500 |
prevent the garnishment of personal earnings as described in | 501 |
section 2716.02 of the Revised Code; | 502 |
(5) That the affiant has no knowledge of any application by | 503 |
the judgment debtor for the appointment of a trustee so as to | 504 |
preclude the garnishment of the judgment debtor's personal | 505 |
earnings; | 506 |
(6) That the affiant has no knowledge that the debt to which | 507 |
the affidavit pertains is the subject of a debt scheduling | 508 |
agreement of a nature that precludes the garnishment of the | 509 |
personal earnings of the judgment debtor under division (B) of | 510 |
this section. | 511 |
(B) No proceeding in garnishment of personal earnings shall | 512 |
be brought against a judgment debtor for the collection of a debt | 513 |
that is the subject of an agreement for debt scheduling between | 514 |
the judgment debtor and a budget and debt counseling service, | 515 |
unless any payment to be made by the judgment debtor, or by a | 516 |
budget and debt counseling service to the judgment creditor under | 517 |
the agreement for debt scheduling between the judgment debtor and | 518 |
the budget and debt counseling service, is due and unpaid for more | 519 |
than forty-five days after the date on which the payment became | 520 |
due, or unless the judgment creditor previously was notified by | 521 |
the service that the debt scheduling agreement between the | 522 |
judgment debtor and the service was terminated. | 523 |
(C) Upon a court's issuance of an order of garnishment of | 524 |
personal earnings following a judgment creditor's filing of an | 525 |
affidavit under this section and compliance with section 2716.04 | 526 |
of the Revised Code, the garnishee and the judgment debtor shall | 527 |
be notified of the proceeding in garnishment of personal earnings | 528 |
in accordance with sections 2716.05 and 2716.06 of the Revised | 529 |
Code. | 530 |
(D) As used in this chapter: | 531 |
(1) A "budget and debt counseling service" or "service" means | 532 |
a corporation organized under Chapter 1702. of the Revised Code | 533 |
for the purpose of counseling consumers with respect to their | 534 |
financial obligations and assisting them in dealing with their | 535 |
creditors. | 536 |
(2) "Debt scheduling" means counseling and assistance | 537 |
provided to a consumer by a budget and debt counseling service | 538 |
under all of the following circumstances: | 539 |
(a) The counseling and assistance is manifested in an | 540 |
agreement between the consumer and the service under which the | 541 |
consumer regularly pays that portion of the consumer's income to | 542 |
the service that has been determined not to be required for the | 543 |
maintenance of health or the essentials of life. | 544 |
(b) The payments are made to the service until the debts of | 545 |
the consumer that are the subject of the agreement are fully | 546 |
retired. | 547 |
(c) The service has sent written notice, by certified mail, | 548 |
return receipt requested, or by regular mail evidenced by a | 549 |
properly completed and stamped certificate of mailing by regular | 550 |
mail, to the creditors of the consumer that are disclosed by the | 551 |
consumer to the service. The notice shall contain all of the | 552 |
following: | 553 |
(i) A statement of the consumer's intent to participate in | 554 |
debt scheduling; | 555 |
(ii) A summary of the consumer's income, proposed itemized | 556 |
budget, schedule of creditors, and proposed debt retirement plan; | 557 |
(iii) A statement of the particular creditor's duty to | 558 |
respond, in writing, to the service regarding the consumer's | 559 |
participation in debt scheduling within fifteen days after | 560 |
receiving the notice. | 561 |
(d) The debts of the consumer that are the subject of the | 562 |
agreement for debt scheduling are determined as follows: | 563 |
(i) Any debt owed to a creditor that was notified of the | 564 |
consumer's intent to participate is a subject of the agreement if | 565 |
the creditor responds to the service and enters into an agreement | 566 |
with the service, pursuant to which the creditor agrees not to | 567 |
attempt to collect the debts of the consumer as long as the | 568 |
consumer regularly pays to the service the amount previously | 569 |
agreed upon by the service and the consumer, and no payment to be | 570 |
made by the judgment debtor to the service or by the service to | 571 |
the creditor is due and unpaid for more than forty-five days after | 572 |
the date on which the payment became due, as long as the debt | 573 |
scheduling agreement between the consumer and the service has not | 574 |
been terminated, and as long as the service regularly pays to the | 575 |
creditor a mutually acceptable amount that is either the amount | 576 |
agreed upon by the service and the creditor on the date they | 577 |
entered into their original agreement or an amount agreed upon by | 578 |
both the service and the creditor on a date after the date of the | 579 |
original agreement. | 580 |
(ii) Any debt owed to a creditor that was notified of the | 581 |
consumer's intent to participate is a subject of the agreement if | 582 |
the creditor does not respond to the service and state the | 583 |
creditor's objection, in writing, to the consumer's participation | 584 |
in debt scheduling within fifteen days after receiving notice of | 585 |
the consumer's intention to do so; however, no debt that is | 586 |
subject to a lien or security interest of any type, other than a | 587 |
judgment lien or execution lien, shall be a subject of the | 588 |
agreement unless the creditor specifically assents, in writing, to | 589 |
the debt being a subject of the agreement. The creditor shall be | 590 |
considered to have entered into an agreement of the type described | 591 |
in division (D)(2)(d)(i) of this section, and the amount to be | 592 |
regularly paid by the service to the creditor shall be an amount | 593 |
determined to be reasonable by the service or an amount agreed | 594 |
upon by both the service and the creditor on a date after the | 595 |
expiration of the fifteen-day period. | 596 |
(iii) Any debt owed to a creditor that was not notified of | 597 |
the consumer's intent to participate, or a debt owed to a creditor | 598 |
that was notified of the consumer's intent to participate and that | 599 |
responded to the service and stated its objection, in writing, to | 600 |
the consumer's participation in debt scheduling within fifteen | 601 |
days after receiving notice of the consumer's intention to do so, | 602 |
is not a subject of the agreement. | 603 |
(e) The service agrees that, if the consumer fails to make a | 604 |
payment under the agreement within forty-five days of its due date | 605 |
or if the agreement is terminated, the service will notify each | 606 |
creditor that is owed a debt that is subject to the agreement of | 607 |
the failure or termination by regular mail within two business | 608 |
days of the failure or termination, and the service provides that | 609 |
notice in accordance with the agreement. | 610 |
Sec. 2716.05. The garnishee shall be served, in the same | 611 |
manner as a summons is served, with three copies of the order of | 612 |
garnishment of personal earnings and of a written notice that the | 613 |
garnishee answer as provided in division (E) of section 2716.041 | 614 |
of the Revised Code, this section, and section 2716.21 of the | 615 |
Revised Code and with the garnishee's fee required by section | 616 |
2716.04 of the Revised Code. The garnishee also shall be served, | 617 |
at that time, with two copies of the notice to the judgment debtor | 618 |
form and of the request for hearing form described in section | 619 |
2716.06 of the Revised Code, one copy of the interim report and | 620 |
answer form described in section 2716.07 of the Revised Code, one | 621 |
copy of the employer guide to processing continuous orders of | 622 |
garnishment, and one copy of the final report and answer form | 623 |
described in section 2716.08 of the Revised Code. | 624 |
A court of common pleas or municipal or county court that | 625 |
issues an order of garnishment of personal earnings has | 626 |
jurisdiction to serve process pursuant to this section upon a | 627 |
garnishee who does not reside within the territorial jurisdiction | 628 |
of the court. If the garnishee does not reside within the | 629 |
territorial jurisdiction of the court that issued the order, the | 630 |
process may be served upon the garnishee by the proper officer of | 631 |
the county in which the garnishee resides or may be served upon | 632 |
the garnishee by personal service by the court, by sending it to | 633 |
the garnishee by certified mail, return receipt requested, or by | 634 |
sending it to the garnishee by regular mail evidenced by a | 635 |
properly completed and stamped certificate of mailing by regular | 636 |
mail. | 637 |
The order of garnishment of personal earnings shall bind the | 638 |
personal earnings of the judgment debtor due from the garnishee at | 639 |
the time of service in accordance with this section. The order of | 640 |
garnishment of personal earnings and notice to answer shall be in | 641 |
substantially the following form: | 642 |
643 | |
644 | |
Docket No. ................... | 645 | ||
Case No. ..................... | 646 | ||
In the ................. Court | 647 | ||
........................, Ohio | 648 |
The State of Ohio | 649 |
County of ....................., ss | 650 |
......................., Judgment Creditor | 651 |
vs. | 652 |
......................., Judgment Debtor | 653 |
654 | |
To: ............................................, Garnishee | 655 |
The judgment creditor in the above case has filed an | 656 |
affidavit, satisfactory to the undersigned, in this court stating | 657 |
that you may owe the judgment debtor money for personal earnings | 658 |
659 | |
660 | |
661 |
You are therefore ordered to complete the "ANSWER OF EMPLOYER | 662 |
(GARNISHEE)" in section B of this form. Return one completed and | 663 |
signed copy of this form to the clerk of this court within five | 664 |
(5) business days after you receive this order of garnishment. | 665 |
Deliver one completed and signed copy of this form and the | 666 |
accompanying documents entitled "NOTICE TO THE JUDGMENT DEBTOR" | 667 |
and "REQUEST FOR HEARING" to the judgment debtor. Keep the other | 668 |
completed and signed copy of this form for your files. | 669 |
(The total probable amount now due on this judgment is | 670 |
$................... The total probable amount now due includes | 671 |
the unpaid portion of the judgment in favor of the judgment | 672 |
creditor, which is $........; interest on that judgment and, if | 673 |
applicable, prejudgment interest relative to that judgment at the | 674 |
rate of .....% per annum payable until that judgment is satisfied | 675 |
in full; and court costs in the amount of $..........) | 676 |
This order of garnishment of personal earnings is a | 677 |
continuous order that generally requires you to withhold a | 678 |
specified amount, calculated each pay period at the statutory | 679 |
percentage, of the judgment debtor's personal disposable earnings | 680 |
during each pay period, as determined in accordance with the | 681 |
"INTERIM REPORT AND ANSWER OF GARNISHEE," from the judgment | 682 |
debtor's personal disposable earnings during each pay period of | 683 |
the judgment debtor commencing with the first full pay period | 684 |
beginning after you receive the order until the judgment in favor | 685 |
of the judgment creditor and the associated court costs, judgment | 686 |
interest, and, if applicable, prejudgment interest awarded to the | 687 |
judgment creditor as described above have been paid in full. You | 688 |
generally must pay that specified amount, calculated each pay | 689 |
period at the statutory percentage, to the clerk of this court | 690 |
within thirty (30) days after the end of each pay period of the | 691 |
judgment debtor and must include with that specified amount | 692 |
calculated each pay period at the statutory percentage an "INTERIM | 693 |
REPORT AND ANSWER OF GARNISHEE" substantially in the form set | 694 |
forth in section 2716.07 of the Ohio Revised Code. A copy of the | 695 |
"INTERIM REPORT AND ANSWER OF GARNISHEE" is attached to this order | 696 |
of garnishment of personal earnings, and you may photocopy it to | 697 |
use each time you pay the specified amount to the clerk of this | 698 |
court. You are permitted to deduct a processing fee of up to three | 699 |
dollars from the judgment debtor's personal disposable earnings | 700 |
for any pay period of the judgment debtor that an amount was | 701 |
withheld for that order (the processing fee is not a part of the | 702 |
court costs). You are not required to file with the court the | 703 |
"INTERIM REPORT AND ANSWER OF GARNISHEE" for any pay period of the | 704 |
judgment debtor for which an amount from the judgment debtor's | 705 |
personal disposable earnings during that pay period was not | 706 |
withheld for that order. | 707 |
This order of garnishment of personal earnings generally will | 708 |
remain in effect until one of the following occurs: | 709 |
(1) The total probable amount due on the judgment as | 710 |
described above is paid in full as a result of your withholding of | 711 |
the specified amount, calculated each pay period at the statutory | 712 |
percentage, from the judgment debtor's personal disposable | 713 |
earnings during each pay period of the judgment debtor that | 714 |
commenced with the first full pay period beginning after you | 715 |
received the order. | 716 |
(2) The judgment creditor or the judgment creditor's attorney | 717 |
files with this court a written notice that the total probable | 718 |
amount due on the judgment as described above has been satisfied | 719 |
or the judgment creditor or the judgment creditor's attorney files | 720 |
a written request to terminate this order of garnishment and | 721 |
release you from the mandate of this order of garnishment. | 722 |
(3) A municipal or county court appoints a trustee for the | 723 |
judgment debtor and issues to you an order that stays this order | 724 |
of garnishment of personal earnings. | 725 |
(4) A federal bankruptcy court issues to you an order that | 726 |
stays this order of garnishment of personal earnings. | 727 |
(5) A municipal or county court or a court of common pleas | 728 |
issues to you another order of garnishment of personal earnings | 729 |
that relates to the judgment debtor and a different judgment | 730 |
creditor, and Ohio or federal law provides the other order with a | 731 |
higher priority than this order. | 732 |
(6) A municipal or county court or a court of common pleas | 733 |
issues to you another order of garnishment of personal earnings | 734 |
that relates to the judgment debtor and a different judgment | 735 |
creditor and that does not have a higher priority than this order. | 736 |
(7) The judgment creditor or the judgment creditor's attorney | 737 |
files with this court a written request to terminate and release | 738 |
the order of garnishment, and as a result, the order of | 739 |
garnishment will cease to remain in effect. | 740 |
Under any of the circumstances listed above, you are required | 741 |
to file with this court a "FINAL REPORT AND ANSWER OF GARNISHEE" | 742 |
substantially in the form set forth in section 2716.08 of the Ohio | 743 |
Revised Code. A copy of the "FINAL REPORT AND ANSWER OF GARNISHEE" | 744 |
is attached to this order of garnishment of personal earnings. | 745 |
Under the circumstances listed in (5) and (6) above, you must | 746 |
cease processing this order of garnishment after the expiration of | 747 |
the full pay period within which the one hundred eighty-second | 748 |
(182) day after you began processing it falls. | 749 |
Special stacking, priority of payment, and manner of payment | 750 |
rules apply when a garnishee receives multiple orders of | 751 |
garnishment with respect to the same judgment debtor. These rules | 752 |
are set forth in section 2716.041 of the Ohio Revised Code. An | 753 |
employer guide to processing continuous orders of garnishment is | 754 |
included with this order of garnishment. You should become | 755 |
familiar with these rules. | 756 |
Witness my hand and the seal of this court this ........... | 757 |
day of ..................., ...... | 758 |
.............................. |
Judge |
759 | |
(An employer is one who is required to withhold payroll taxes out | 760 |
of payments of personal earnings made to the judgment debtor.) | 761 |
762 | |
Now comes ..............................., the employer | 763 |
(garnishee) herein, who says: | 764 |
1. | This order of garnishment of personal | 765 | |||
earnings was received on ............ | 766 | ||||
Yes | No | 767 | |||
2. | The judgment debtor is in my/our employ. | ..... | ..... | 768 | |
If answer is "No," give date of last | 769 | ||||
employment. | (2) ........... | 770 | |||
Yes | No | 771 | |||
3. | (A) Is the debt to which this order of | 772 | |||
garnishment of personal earnings pertains | 773 | ||||
the subject of an existing agreement for | 774 | ||||
debt scheduling between the judgment | 775 | ||||
debtor and a budget and debt counseling | 776 | ||||
service and has the judgment debtor | 777 | ||||
made every payment that was due under | 778 | ||||
the agreement for debt scheduling no | 779 | ||||
later than forty-five days after the | 780 | ||||
date on which the payment was due? | ..... | ..... | 781 | ||
If the answer to both parts of this | 782 | ||||
question is "Yes," give all available | 783 | ||||
details of the agreement, sign this | 784 | ||||
form, and return it to the court. | 3(A).............. | 785 | |||
............................................................. | 786 | ||||
............................................................. | 787 | ||||
Yes | No | 788 | |||
(B) Were you, on the date that you | 789 | ||||
received this order of garnishment of | 790 | ||||
personal earnings, withholding | 791 | ||||
moneys from the judgment debtor's | 792 | ||||
personal disposable earnings | 793 | ||||
pursuant to another order of | 794 | ||||
garnishment of personal earnings that | 795 | ||||
Ohio or federal law provides with a | 796 | ||||
higher priority than this order of | 797 | ||||
garnishment of personal earnings | 798 | ||||
(such as a support order or Internal | 799 | ||||
Revenue
|
..... | ..... | 800 | ||
If the answer to this question is | 801 | ||||
"Yes," give the name of the court | 802 | ||||
that issued the higher priority order, | 803 | ||||
the associated case number, the date | 804 | ||||
upon which you received that order, | 805 | ||||
and the balance due to the relevant | 806 | ||||
judgment creditor under that order. | 3(B).............. | 807 | |||
............................................................. | 808 | ||||
Yes | No | 809 | |||
(C) Did you receive prior to the date | 810 | ||||
that you received this order of | 811 | ||||
garnishment of personal earnings one | 812 | ||||
or more other orders of garnishment | 813 | ||||
of personal earnings that are not | 814 | ||||
described in question 3(B), and are | 815 | ||||
you currently processing one or more | 816 | ||||
of those orders for the statutorily | 817 | ||||
required time period or holding one or | 818 | ||||
more of those orders for processing | 819 | ||||
for a statutorily required period in | 820 | ||||
the sequence of their receipt by you? | ..... | ..... | 821 | ||
If the answer to this question is | 822 | ||||
"Yes," give the name of the court | 823 | ||||
that issued each of those previously | 824 | ||||
received orders, the associated case | 825 | ||||
numbers, the date upon which you | 826 | ||||
received each of those orders, and | 827 | ||||
the balance due to the relevant | 828 | ||||
judgment creditor under each of | 829 | ||||
those orders. List first the previously | 830 | ||||
received order(s) that you are | 831 | ||||
currently processing, and list each | 832 | ||||
of the other previously received orders | 833 | ||||
in the sequence that you are required | 834 | ||||
to process them. | 3(C).............. | 835 | |||
............................................................. | 836 | ||||
............................................................. | 837 | ||||
............................................................. | 838 |
I certify that the statements above are true. | 839 |
.............................. | 840 | ||
(Print Name of Employer) | 841 | ||
.............................. | 842 | ||
(Print Name and Title of | 843 | ||
Person Who Completed Form on | 844 | ||
behalf of the Employer) | 845 |
Signed ........................................................ | 846 |
847 | |
Dated this ........... day of ..........., ....." | 848 |
Section A of the form described in this section shall be | 849 |
completed before service. Section B of the form shall be completed | 850 |
by the garnishee, and the garnishee shall file one completed and | 851 |
signed copy of the form with the clerk of the court as the | 852 |
garnishee's answer. The garnishee may keep one completed and | 853 |
signed copy of the form and shall deliver the other completed and | 854 |
signed copy of the form to the judgment debtor not later than the | 855 |
time that the garnishee otherwise would pay the judgment debtor | 856 |
the personal earnings that the garnishee instead is paying to the | 857 |
court. The garnishee also shall deliver at that time the two | 858 |
copies of the notice to the judgment debtor form and of the | 859 |
request for hearing form described in section 2716.06 of the | 860 |
Revised Code that were served on the garnishee. | 861 |
No employer shall discharge an employee solely because of the | 862 |
successful garnishment of the employee's personal earnings by only | 863 |
one judgment creditor in any twelve-month period. | 864 |
If several affidavits seeking orders of garnishment of | 865 |
personal earnings are filed against the same judgment debtor in | 866 |
accordance with section 2716.03 of the Revised Code, the court | 867 |
involved shall issue the requested orders in the same order in | 868 |
which the clerk received the associated affidavits. | 869 |
The garnishee also shall be served with a copy of the | 870 |
employer guide to processing continuous orders of garnishment at | 871 |
the same time that the forms as provided in this section are | 872 |
served upon the garnishee. | 873 |
Sec. 2716.11. A proceeding for garnishment of property, | 874 |
other than personal earnings, may be commenced after a judgment | 875 |
has been obtained by a judgment creditor by the filing of an | 876 |
affidavit in writing made by the judgment creditor or the judgment | 877 |
creditor's attorney setting forth all of the following: | 878 |
(A) The name of the judgment debtor whose property | 879 |
880 |
(B) | 881 |
882 | |
883 | |
884 | |
885 |
| 886 |
(C) The name and address of the garnishee who may have in the | 887 |
garnishee's hands or control money, property, or credits, other | 888 |
than personal earnings, of the judgment debtor. | 889 |
Sec. 2716.13. (A) Upon the filing of a proceeding in | 890 |
garnishment of property, other than personal earnings, under | 891 |
section 2716.11 of the Revised Code, the court shall cause the | 892 |
matter to be set for hearing within twelve days after that filing. | 893 |
(B) Upon the scheduling of a hearing relative to a proceeding | 894 |
in garnishment of property, other than personal earnings, under | 895 |
division (A) of this section, the clerk of the court immediately | 896 |
shall issue to the garnishee three copies of the order of | 897 |
garnishment of property, other than personal earnings, and of a | 898 |
written notice that the garnishee answer as provided in section | 899 |
2716.21 of the Revised Code and the garnishee's fee required by | 900 |
section 2716.12 of the Revised Code. The copies of the order and | 901 |
of the notice shall be served upon the garnishee in the same | 902 |
manner as a summons is served and the clerk shall also mail a copy | 903 |
of the order and notice of garnishment to the garnishee by | 904 |
ordinary or regular mail service. The copies of the order and of | 905 |
the notice shall not be served later than seven days prior to the | 906 |
date on which the hearing is scheduled. The order shall bind the | 907 |
property, other than personal earnings, of the judgment debtor in | 908 |
the possession of the garnishee at the time of service. | 909 |
The order of garnishment of property, other than personal | 910 |
earnings, and notice to answer shall be in substantially the | 911 |
following form: | 912 |
913 | |
914 | |
915 | |
Docket No. ................... | 916 | ||
Case No. ..................... | 917 | ||
In the ................. Court | 918 | ||
........................, Ohio | 919 |
The State of Ohio | 920 |
County of ............, ss | 921 |
..................., Judgment Creditor | 922 |
vs. | 923 |
..................., Judgment Debtor | 924 |
925 | |
926 | |
The judgment creditor in the above case has filed an | 927 |
affidavit, satisfactory to the undersigned, in this Court stating | 928 |
that you may have money, property, or credits, other than personal | 929 |
earnings, in your hands or under your control that belong to the | 930 |
judgment debtor | 931 |
932 | |
933 |
You are therefore ordered to complete the "ANSWER OF | 934 |
GARNISHEE" in section (B) of this form. Return one completed and | 935 |
signed copy of this form to the clerk of this court together with | 936 |
the amount determined in accordance with the "ANSWER OF GARNISHEE" | 937 |
by the following date on which a hearing is tentatively scheduled | 938 |
relative to this order of garnishment: ............ Deliver one | 939 |
completed and signed copy of this form to the judgment debtor | 940 |
prior to that date. Keep the other completed and signed copy of | 941 |
this form for your files. | 942 |
The total probable amount now due on this judgment is | 943 |
$.......... The total probable amount now due includes the unpaid | 944 |
portion of the judgment in favor of the judgment creditor, which | 945 |
is $..........; interest on that judgment and, if applicable, | 946 |
prejudgment interest relative to that judgment at the rate of | 947 |
.....% per annum payable until that judgment is satisfied in full; | 948 |
and court costs in the amount of $........... | 949 |
You also are ordered to hold safely anything of value that | 950 |
belongs to the judgment debtor and that has to be paid to the | 951 |
court, as determined under the "ANSWER OF GARNISHEE" in section | 952 |
(B) of this form, but that is of such a nature that it cannot be | 953 |
so delivered, until further order of the court. | 954 |
Witness my hand and the seal of this court this .......... | 955 |
day of .........., .......... | 956 |
......................... | 957 | ||
Judge | 958 |
959 | |
Now comes .................... the garnishee, who says: | 960 |
1. That the garnishee has money, property, or credits, other | 961 |
than personal earnings, of the judgment debtor under the | 962 |
garnishee's control and in the garnishee's possession. | 963 |
............... | ............... | ................... | 964 | |
yes | no | if yes, amount | 965 |
2. That property is described as: | 966 |
3. If the answer to line 1 is "yes" and the amount is less | 967 |
than the probable amount now due on the judgment, as indicated in | 968 |
section (A) of this form, sign and return this form and pay the | 969 |
amount of line 1 to the clerk of this court. | 970 |
4. If the answer to line 1 is "yes" and the amount is greater | 971 |
than that probable amount now due on the judgment, as indicated in | 972 |
section (A) of this form, sign and return this form and pay that | 973 |
probable amount now due to the clerk of this court. | 974 |
5. If the answer to line 1 is "yes" but the money, property, | 975 |
or credits are of such a nature that they cannot be delivered to | 976 |
the clerk of the court, indicate that by placing an "X" in this | 977 |
space: ...... Do not dispose of that money, property, or credits | 978 |
or give them to anyone else until further order of the court. | 979 |
6. If the answer to line 1 is "no," sign and return this form | 980 |
to the clerk of this court. | 981 |
I certify that the statements above are true. | 982 |
.............................. | 983 | ||
(Print Name of Garnishee) | 984 | ||
.............................. | 985 | ||
(Print Name and Title of | 986 | ||
Person Who Completed Form) | 987 |
Signed........................................................ | 988 |
989 | |
Dated this .......... day of .........., ....." | 990 |
Section A of the form described in this division shall be | 991 |
completed before service. Section B of the form shall be completed | 992 |
by the garnishee, and the garnishee shall file one completed and | 993 |
signed copy of the form with the clerk of the court as the | 994 |
garnishee's answer. The garnishee may keep one completed and | 995 |
signed copy of the form and shall deliver the other completed and | 996 |
signed copy of the form to the judgment debtor. | 997 |
If several affidavits seeking orders of garnishment of | 998 |
property, other than personal earnings, are filed against the same | 999 |
judgment debtor in accordance with section 2716.11 of the Revised | 1000 |
Code, the court involved shall issue the requested orders in the | 1001 |
same order in which the clerk received the associated affidavits. | 1002 |
(C)(1) At the time of the filing of a proceeding in | 1003 |
garnishment of property, other than personal earnings, under | 1004 |
section 2716.11 of the Revised Code, the judgment creditor also | 1005 |
shall file with the clerk of the court a praecipe instructing the | 1006 |
clerk to issue to the judgment debtor a notice to the judgment | 1007 |
debtor form and a request for hearing form. Upon receipt of the | 1008 |
praecipe and the scheduling of a hearing relative to an action in | 1009 |
garnishment of property, other than personal earnings, under | 1010 |
division (A) of this section, the clerk of the court immediately | 1011 |
shall serve upon the judgment debtor, in accordance with division | 1012 |
(D) of this section, two copies of the notice to the judgment | 1013 |
debtor form and of the request for hearing form. The copies of | 1014 |
the notice to the judgment debtor form and of the request for | 1015 |
hearing form shall not be served later than seven days prior to | 1016 |
the date on which the hearing is scheduled. | 1017 |
(a) The notice to the judgment debtor that must be served | 1018 |
upon the judgment debtor shall be in substantially the following | 1019 |
form: | 1020 |
1021 | |
(Case Caption) ......................... Case No. ............. | 1022 |
1023 | |
You are hereby notified that this court has issued an order | 1024 |
in the above case in favor of (name and address of judgment | 1025 |
creditor), the judgment creditor in this proceeding, directing | 1026 |
that some of your money, property, or credits, other than personal | 1027 |
earnings, that now may be in the possession of (name and address | 1028 |
of garnishee), the garnishee in this proceeding, be used to | 1029 |
satisfy your debt to the judgment creditor. This order was issued | 1030 |
on the basis of the judgment creditor's judgment against you that | 1031 |
was obtained in (name of court) in (case number) on (date). Upon | 1032 |
your receipt of this notice, you are prohibited from removing or | 1033 |
attempting to remove the money, property, or credits until | 1034 |
expressly permitted by the court. Any violation of this | 1035 |
prohibition subjects you to punishment for contempt of court. | 1036 |
The law of Ohio and the United States provides that certain | 1037 |
benefit payments cannot be taken from you to pay a debt. Typical | 1038 |
among the benefits that cannot be attached or executed upon by a | 1039 |
creditor are the following: | 1040 |
(1) Workers' compensation benefits; | 1041 |
(2) Unemployment compensation payments; | 1042 |
(3) Cash assistance payments under the Ohio works first | 1043 |
program; | 1044 |
(4) Benefits and services under the prevention, retention, | 1045 |
and contingency program; | 1046 |
(5) Disability financial assistance administered by the Ohio | 1047 |
department of job and family services; | 1048 |
(6) Social security benefits; | 1049 |
(7) Supplemental security income (S.S.I.); | 1050 |
(8) Veteran's benefits; | 1051 |
(9) Black lung benefits; | 1052 |
(10) Certain pensions. | 1053 |
There may be other benefits not included in the above list | 1054 |
that apply in your case. | 1055 |
If you dispute the judgment creditor's right to garnish your | 1056 |
property and believe that the judgment creditor should not be | 1057 |
given your money, property, or credits, other than personal | 1058 |
earnings, now in the possession of the garnishee because they are | 1059 |
exempt or if you feel that this order is improper for any other | 1060 |
reason, you may request a hearing before this court by disputing | 1061 |
the claim in the request for hearing form, appearing below, or in | 1062 |
a substantially similar form, and delivering the request for | 1063 |
hearing to this court at the above address, at the office of the | 1064 |
clerk of this court no later than the end of the fifth business | 1065 |
day after you receive this notice. You may state your reasons for | 1066 |
disputing the judgment creditor's right to garnish your property | 1067 |
in the space provided on the form; however, you are not required | 1068 |
to do so. If you do state your reasons for disputing the judgment | 1069 |
creditor's right, you are not prohibited from stating any other | 1070 |
reason at the hearing. If you do not state your reasons, it will | 1071 |
not be held against you by the court, and you can state your | 1072 |
reasons at the hearing. NO OBJECTIONS TO THE JUDGMENT ITSELF WILL | 1073 |
BE HEARD OR CONSIDERED AT THE HEARING. If you request a hearing, | 1074 |
the hearing will be limited to a consideration of the amount of | 1075 |
your money, property, or credits, other than personal earnings, in | 1076 |
the possession or control of the garnishee, if any, that can be | 1077 |
used to satisfy all or part of the judgment you owe to the | 1078 |
judgment creditor. | 1079 |
If you request a hearing by delivering your request for | 1080 |
hearing no later than the end of the fifth business day after you | 1081 |
receive this notice, it will be conducted in .......... courtroom | 1082 |
.........., (address of court), at ..... m. on .........., | 1083 |
.......... You may request the court to conduct the hearing before | 1084 |
this date by indicating your request in the space provided on the | 1085 |
form; the court then will send you notice of any change in the | 1086 |
date, time, or place of the hearing. If you do not request a | 1087 |
hearing by delivering your request for a hearing no later than the | 1088 |
end of the fifth business day after you receive this notice, some | 1089 |
of your money, property, or credits, other than personal earnings, | 1090 |
will be paid to the judgment creditor. | 1091 |
If you have any questions concerning this matter, you may | 1092 |
contact the office of the clerk of this court. If you want legal | 1093 |
representation, you should contact your lawyer immediately. If you | 1094 |
need the name of a lawyer, contact the local bar association. | 1095 |
.............................. | 1096 | ||
Clerk of the Court | 1097 | ||
.............................. | 1098 | ||
Date" | 1099 |
(b) The request for hearing form that must be served upon the | 1100 |
judgment debtor shall have attached to it a postage-paid, | 1101 |
self-addressed envelope or shall be on a postage-paid | 1102 |
self-addressed postcard, and shall be in substantially the | 1103 |
following form: | 1104 |
1105 | |
Case Number ........................... Date .................... | 1106 |
1107 | |
I dispute the judgment creditor's right to garnish my money, | 1108 |
property, or credits, other than personal earnings, in the above | 1109 |
case and request that a hearing in this matter be held | 1110 |
.................................................................. | 1111 |
1112 | |
the date and time set forth in the document entitled "NOTICE TO | 1113 |
THE JUDGMENT DEBTOR" that I received with this request form. | 1114 |
I dispute the judgment creditor's right to garnish my | 1115 |
property for the following reasons: | 1116 |
.................................................................. | 1117 |
(Optional) | 1118 |
.................................................................. | 1119 |
.................................................................. | 1120 |
I UNDERSTAND THAT NO OBJECTIONS TO THE JUDGMENT ITSELF WILL | 1121 |
BE HEARD OR CONSIDERED AT THE HEARING. | 1122 |
.............................. | 1123 | ||
(Name of Judgment Debtor) | 1124 | ||
.............................. | 1125 | ||
(Signature) | 1126 | ||
.............................. | 1127 | ||
(Date) | 1128 |
WARNING: IF YOU DO NOT DELIVER THIS REQUEST FOR HEARING OR A | 1129 |
REQUEST IN A SUBSTANTIALLY SIMILAR FORM TO THE OFFICE OF THE CLERK | 1130 |
OF THIS COURT WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF IT, | 1131 |
YOU WAIVE YOUR RIGHT TO A HEARING AND SOME OF YOUR MONEY, | 1132 |
PROPERTY, OR CREDITS, OTHER THAN PERSONAL EARNINGS, NOW IN THE | 1133 |
POSSESSION OF (GARNISHEE'S NAME) WILL BE PAID TO (JUDGMENT | 1134 |
CREDITOR'S NAME) TO SATISFY SOME OF YOUR DEBT TO (JUDGMENT | 1135 |
CREDITOR'S NAME)." | 1136 |
(2) The judgment debtor may receive a hearing in accordance | 1137 |
with this division by delivering a written request for hearing to | 1138 |
the court within five business days after receipt of the notice | 1139 |
provided pursuant to division (C)(1) of this section. The request | 1140 |
may set forth the judgment debtor's reasons for disputing the | 1141 |
judgment creditor's right to garnish the money, property, or | 1142 |
credits, other than personal earnings; however, neither the | 1143 |
judgment debtor's inclusion of nor failure to include those | 1144 |
reasons upon the request constitutes a waiver of any defense of | 1145 |
the judgment debtor or affects the judgment debtor's right to | 1146 |
produce evidence at the hearing. If the request is made by the | 1147 |
judgment debtor within the prescribed time, the hearing shall be | 1148 |
limited to a consideration of the amount of money, property, or | 1149 |
credits, other than personal earnings, of the judgment debtor in | 1150 |
the hands of the garnishee, if any, that can be used to satisfy | 1151 |
all or part of the debt owed by the judgment debtor to the | 1152 |
judgment creditor. If a request for a hearing is not received by | 1153 |
the court within the prescribed time, the hearing scheduled | 1154 |
pursuant to division (A) of this section shall be canceled unless | 1155 |
the court grants the judgment debtor a continuance in accordance | 1156 |
with division (C)(3) of this section. | 1157 |
(3) If the judgment debtor does not request a hearing in the | 1158 |
action within the prescribed time pursuant to division (C)(2) of | 1159 |
this section, the court nevertheless may grant a continuance of | 1160 |
the scheduled hearing if the judgment debtor, prior to the time at | 1161 |
which the hearing was scheduled, as indicated on the notice to the | 1162 |
judgment debtor required by division (C)(1) of this section, | 1163 |
establishes a reasonable justification for failure to request the | 1164 |
hearing within the prescribed time. If the court grants a | 1165 |
continuance of the hearing, it shall cause the matter to be set | 1166 |
for hearing as soon as practicable thereafter. The continued | 1167 |
hearing shall be conducted in accordance with division (C)(2) of | 1168 |
this section. | 1169 |
(4) The court may conduct the hearing on the matter prior to | 1170 |
the time at which the hearing was scheduled, as indicated on the | 1171 |
notice to the judgment debtor required by division (C)(1) of this | 1172 |
section, upon the request of the judgment debtor. The parties | 1173 |
shall be sent notice, by the clerk of the court, by regular mail, | 1174 |
of any change in the date, time, or place of the hearing. | 1175 |
(5) If the scheduled hearing is canceled and no continuance | 1176 |
is granted, the court shall issue an order to the garnishee to pay | 1177 |
all or some of the money, property, or credits, other than | 1178 |
personal earnings, of the judgment debtor in the possession of the | 1179 |
garnishee at the time of service of the notice and order into | 1180 |
court if they have not already been paid to the court. This order | 1181 |
shall be based on the answer of the garnishee filed pursuant to | 1182 |
this section. If the scheduled hearing is conducted or if it is | 1183 |
continued and conducted, the court shall determine at the hearing | 1184 |
the amount of the money, property, or credits, other than personal | 1185 |
earnings, of the judgment debtor in the possession of the | 1186 |
garnishee at the time of service of the notice and order, if any, | 1187 |
that can be used to satisfy all or part of the debt owed by the | 1188 |
judgment debtor to the judgment creditor, and issue an order, | 1189 |
accordingly, to the garnishee to pay that amount into court if it | 1190 |
has not already been paid to the court. | 1191 |
(D) The notice to the judgment debtor form and the request | 1192 |
for hearing form described in division (C) of this section shall | 1193 |
be sent by the clerk by ordinary or regular mail service unless | 1194 |
the judgment creditor requests that service be made in accordance | 1195 |
with the Rules of Civil Procedure, in which case the forms shall | 1196 |
be served in accordance with the Rules of Civil Procedure. Any | 1197 |
court of common pleas that issues an order of garnishment of | 1198 |
property, other than personal earnings, under this section has | 1199 |
jurisdiction to serve process pursuant to this section upon a | 1200 |
garnishee who does not reside within the jurisdiction of the | 1201 |
court. Any county court or municipal court that issues an order of | 1202 |
garnishment of property, other than personal earnings, under this | 1203 |
section has jurisdiction to serve process pursuant to this section | 1204 |
upon a garnishee who does not reside within the jurisdiction of | 1205 |
the court. | 1206 |
Section 2. That existing sections 2329.66, 2716.02, 2716.03, | 1207 |
2716.05, 2716.11, and 2716.13 of the Revised Code are hereby | 1208 |
repealed. | 1209 |