The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
As Reported by the Senate Judiciary Committee
122nd General Assembly
Regular Session
1997-1998 | Sub. H. B. No. 108 |
REPRESENTATIVES TIBERI-CORBIN-TAYLOR-HOOD-CATES-FORD-GARCIA-
VAN VYVEN-VESPER-HODGES-OLMAN-GRENDELL-TERWILLEGER-BRADING-
HAINES-HARRIS-METZGER-BEATTY-SALERNO-MOTTLEY-LEWIS-REID-
O'BRIEN-SAWYER-ROBERTS-MASON-
SENATORS CUPP-SHOEMAKER
A BILL
To amend sections 1317.08 and 2329.66 of the Revised Code to remove
a limitation on a person's right to hold the assets in, and the
payments from, an individual retirement account or
an individual retirement annuity exempt from execution, garnishment, or
attachment and to modify the
Retail Installment Sales Act with respect to the enforceability of
retail installment contracts.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1317.08 and 2329.66 of the Revised Code be amended
to read as follows:
Sec. 1317.08. No retail installment contract which THAT
evidences an indebtedness greater than that allowed by section UNDER
SECTIONS 1317.06 or, 1317.061, 1317.062, AND
1317.07 of the Revised Code, and no retail installment
contract in connection with which any charge prohibited by
sections 1317.01 to 1317.11, inclusive, of the Revised Code, has
been contracted for or received, shall be enforceable WITH RESPECT
TO THAT EXCESS INDEBTEDNESS OR CHARGE against any
retail buyer, or any other person who as surety, indorser,
guarantor, or otherwise is liable on the obligation created by
any retail buyer on any retail installment contract, and no
security interest created by any such retail installment contract
which THAT is greater than that allowed by UNDER
sections 1317.06 and, 1317.07, AND
1317.071 of the Revised Code or in connection with which any
charge is prohibited by sections 1317.01 to 1317.11, inclusive,
of the Revised Code, has been contracted for or received shall be
enforceable WITH RESPECT TO THAT EXCESS SECURITY INTEREST against any
retail buyer or any of the aforementioned
persons, in default under the terms of the retail installment
contract. In order for a retail buyer, or any of the
aforementioned persons liable on his THE RETAIL BUYER'S
obligation, to avail himself THE RETAIL BUYER OR OTHER PERSON of
this section, he
THE RETAIL BUYER OR OTHER PERSON must prove that the retail
seller or the holder of the retail installment contract has been notified in
writing of the overcharge and has failed within ten days of such
notification to advise the retail buyer of a full credit, or he THE
RETAIL BUYER OR OTHER PERSON must prove that the overcharge has
been willful. A correction of
any overcharge within sixty days of the date of making of the
retail installment contract is conclusive proof of lack of
willfulness. This section applies to cases in which recovery is
sought from the retail seller or holder of the retail installment
contract.
If charges greater in amount than those provided for in
sections 1317.01 to 1317.11, inclusive, of the Revised Code, are
CONTRACTED FOR OR received by the retail seller, his OR THE
RETAIL SELLER'S agent,
assignee, or successor in interest, the retail buyer, his OR THE
RETAIL BUYER'S assignee, or successor in interest may recover the
total amount OF FINANCE CHARGES paid to the retail seller, his
OR THE RETAIL SELLER'S agent,
assignee, or successor in interest, from the retail
seller or the holder IN EXCESS of the retail installment
contract INTEREST RATE THAT OTHERWISE WOULD APPLY UNDER SECTION 1343.01
of the Revised Code.
No person shall enter into any agreement with any retail
seller regarding the purchase, assignment, or transfer of any
retail installment contract whereby the retail seller shall
receive or retain, directly or indirectly, any benefit from or
part of any amount collected or received, or to be collected or
received, from any retail buyer as a finance charge or as the
cost of insurance or other benefits to the retail buyer, in
excess of two per cent of the principal balance of the retail
installment contract. No person shall, directly or indirectly,
pay to the retail seller, and no retail seller shall, directly or
indirectly, receive or retain any part of the amount collected,
or to be collected, as a finance charge or retail buyer's cost of
insurance or other benefits on any retail installment contract
purchased, assigned, or transferred from him THE RETAIL SELLER,
in excess of two
per cent of the principal balance of the retail installment
contract, provided this paragraph does not apply in case of a
bona fide sale of a retail installment contract, if, as part of
the consideration for such sale and purchase, the retail seller
agrees to act, and does act, as agent for the purchaser in making
collection of all amounts due on and otherwise completely
servicing said THE retail installment contract, including
billing,
posting, and maintaining complete records applicable thereto.
Compensation received by the retail seller as commission
received by him THE RETAIL SELLER from an insurance company as
its licensed agent,
is not a benefit received by the retail seller out of the
insurance charge to the retail buyer under the installment
contract. Any sale, assignment, or transfer of a retail
installment contract in violation of this section is void.
Except as specifically limited by this paragraph all instruments
which THAT are a part of a retail installment contract are
freely assignable and transferable.
Sec. 2329.66. (A) Every person who is domiciled in this
state may hold property exempt from execution, garnishment,
attachment, or sale to satisfy a judgment or order, as follows:
(1)(a) In the case of a judgment or order regarding money
owed for health care services rendered or health care supplies
provided to the person or a dependent of the person, one parcel
or item of real or personal property that the person or a
dependent of the person uses as a residence. Division (A)(1)(a)
of this section does not preclude, affect, or invalidate the
creation under this chapter of a judgment lien upon the exempted
property but only delays the enforcement of the lien until the
property is sold or otherwise transferred by the owner or in
accordance with other applicable laws to a person or entity other
than the surviving spouse or surviving minor children of the
judgment debtor. Every person who is domiciled in this state may
hold exempt from a judgment lien created pursuant to division
(A)(1)(a) of this section the person's interest, not to exceed five
thousand dollars, in the exempted property.
(b) In the case of all other judgments and orders, the
person's interest, not to exceed five thousand dollars, in one
parcel or item of real or personal property that the person or a
dependent of the person uses as a residence.
(2) The person's interest, not to exceed one thousand dollars, in one
motor vehicle;
(3) The person's interest, not to exceed two hundred
dollars in any particular item, in wearing apparel, beds, and
bedding, and the person's interest, not to exceed three hundred
dollars in each item, in one cooking unit and one refrigerator or
other food preservation unit;
(4)(a) The person's interest, not to exceed four hundred
dollars, in cash on hand, money due and payable, money to become
due within ninety days, tax refunds, and money on deposit with a
bank, savings and loan association, credit union, public utility,
landlord, or other person. Division (A)(4)(a) of this section applies only in
bankruptcy proceedings. This exemption may include the portion
of personal earnings that is not exempt under division (A)(13) of
this section.
(b) Subject to division (A)(4)(d) of this section, the
person's interest, not to exceed two hundred dollars in any
particular item, in household furnishings, household goods,
appliances, books, animals, crops, musical instruments, firearms,
and hunting and fishing equipment, that are held primarily for
the personal, family, or household use of the person.
(c) Subject to division (A)(4)(d) of this section, the
person's interest in one or more items of jewelry, not to exceed
four hundred dollars in one item of jewelry and not to exceed two
hundred dollars in every other item of jewelry.
(d) Divisions (A)(4)(b) and (c) of this section do not
include items of personal property listed in division (A)(3) of
this section.
If the person does not claim an exemption under division
(A)(1) of this section, the total exemption claimed under
division (A)(4)(b) of this section shall be added to the total
exemption claimed under division (A)(4)(c) of this section, and
the total shall not exceed two thousand dollars. If the person
claims an exemption under division (A)(1) of this section, the
total exemption claimed under division (A)(4)(b) of this section
shall be added to the total exemption claimed under division
(A)(4)(c) of this section, and the total shall not exceed one
thousand five hundred dollars.
(5) The person's interest, not to exceed an aggregate of
seven hundred fifty dollars, in all implements, professional
books, or tools of the person's profession, trade, or business,
including
agriculture;
(6)(a) The person's interest in a beneficiary fund set
apart, appropriated, or paid by a benevolent association or
society, as exempted by section 2329.63 of the Revised Code;
(b) The person's interest in contracts of life or
endowment insurance or annuities, as exempted by section 3911.10
of the Revised Code;
(c) The person's interest in a policy of group insurance
or the proceeds of a policy of group insurance, as exempted by
section 3917.05 of the Revised Code;
(d) The person's interest in money, benefits, charity,
relief, or aid to be paid, provided, or rendered by a fraternal
benefit society, as exempted by section 3921.18 of the Revised
Code;
(e) The person's interest in the portion of benefits under
policies of sickness and accident insurance and in lump-sum
payments for dismemberment and other losses insured under those
policies, as exempted by section 3923.19 of the Revised Code.
(7) The person's professionally prescribed or medically
necessary health aids;
(8) The person's interest in a burial lot, including, but
not limited to, exemptions under section 517.09 or 1721.07 of the
Revised Code;
(9) The person's interest in the following:
(a) Moneys paid or payable for living maintenance or
rights, as exempted by section 3304.19 of the Revised Code;
(b) Workers' compensation, as exempted by section
4123.67
of the Revised Code;
(c) Unemployment compensation benefits, as exempted by
section 4141.32 of the Revised Code;
(d) Aid to dependent children payments, as exempted by
section 5107.12 of the Revised Code;
(e) Disability assistance payments, as exempted by section
5115.07 of the Revised Code.
(10)(a) Except in cases in which the person was convicted
of or pleaded guilty to a violation of section 2921.41 of the
Revised Code and in which an order for the withholding of
restitution from payments was issued under division (C)(2)(b) of
that section or in cases in which an order for withholding was issued under
section 2907.15 of the Revised Code, and only to the
extent provided
in the order,
and
except as provided in sections 2929.181, 3105.171, 3105.63, 3111.23,
and
3113.21 of the Revised Code, the person's right to a pension,
benefit, annuity, retirement allowance, or accumulated
contributions, the person's right to a participant account in any
deferred compensation program offered by the Ohio public
employees deferred compensation board, a government unit, or a
municipal corporation, or the person's other accrued or accruing
rights, as exempted by section 145.56, 145.75, 146.13, 742.47,
3307.71, 3309.66, or 5505.22 of the Revised Code, and the
person's right to benefits from the firemen and
policemen's death benefit fund;
(b) Except as provided in sections 3111.23 and
3113.21 of
the Revised Code, the person's right to receive a payment under
any pension, annuity, or similar plan or contract, not including
a payment from a stock bonus or profit-sharing plan or a payment
included in division (A)(6)(b) or (10)(a) of this section, on
account of illness, disability, death, age, or length of service,
to the extent reasonably necessary for the support of the person
and any of the person's dependents, except if all the following
apply:
(i) The plan or contract was established by or under the
auspices of an insider that employed the person at the time the
person's rights under the plan or contract arose.
(ii) The payment is on account of age or length of
service.
(iii) The plan or contract is not qualified under the
"Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as
amended.
(c) Except for any portion of the assets that were
deposited for the purpose of evading the payment of any debt and
except as provided in sections 3111.23 and 3113.21
of the Revised
Code, the person's right in the assets held in, or to receive
any payment under, any individual retirement account,
individual retirement annuity, or Keogh or "H.R. 10" plan
"ROTH IRA," OR EDUCATION INDIVIDUAL RETIREMENT
ACCOUNT that provides
benefits by reason of illness, disability, death, or age, to the extent
reasonably necessary for the support of the person and any
of the person's dependents
THAT THE ASSETS, PAYMENTS, OR BENEFITS DESCRIBED IN DIVISION
(A)(10)(c) OF THIS SECTION ARE ATTRIBUTABLE
TO ANY OF THE FOLLOWING:
(i) CONTRIBUTIONS OF THE PERSON THAT WERE LESS
THAN OR EQUAL TO THE APPLICABLE LIMITS ON DEDUCTIBLE
CONTRIBUTIONS TO AN INDIVIDUAL RETIREMENT ACCOUNT OR INDIVIDUAL
RETIREMENT ANNUITY IN THE YEAR THAT THE CONTRIBUTIONS WERE MADE,
WHETHER OR NOT THE PERSON WAS ELIGIBLE TO DEDUCT THE
CONTRIBUTIONS ON THE PERSON'S FEDERAL TAX RETURN FOR THE YEAR IN
WHICH THE CONTRIBUTIONS WERE MADE;
(ii) CONTRIBUTIONS OF THE PERSON THAT WERE LESS
THAN OR EQUAL TO THE APPLICABLE LIMITS ON CONTRIBUTIONS TO A
ROTH IRA OR EDUCATION INDIVIDUAL
RETIREMENT ACCOUNT IN THE YEAR THAT THE CONTRIBUTIONS WERE MADE;
(iii) CONTRIBUTIONS OF THE PERSON THAT ARE WITHIN
THE APPLICABLE LIMITS ON ROLLOVER CONTRIBUTIONS UNDER
SUBSECTIONS219, 402(c), 403(a)(4),
403(b)(8), 408(b), 408(d)(3),
408A(c)(3)(B), 408A(d)(3),
AND 530(d)(5) OF THE
"INTERNAL REVENUE CODE OF 1986," 100
STAT. 2085, 26
U.S.C.A. 1, AS AMENDED.
(d) EXCEPT FOR ANY PORTION OF THE
ASSETS THAT WERE DEPOSITED FOR THE PURPOSE OF EVADING THE
PAYMENT OF ANY DEBT AND EXCEPT AS PROVIDED IN SECTIONS 3111.23 AND 3113.21 OF
THE REVISED CODE, THE PERSON'S
RIGHT IN THE ASSETS HELD IN, OR TO RECEIVE ANY PAYMENT UNDER,
ANY KEOGH OR "H.R. 10" PLAN THAT PROVIDES BENEFITS
BY REASON OF ILLNESS, DISABILITY, DEATH, OR AGE, TO THE EXTENT REASONABLY
NECESSARY FOR THE SUPPORT OF THE PERSON AND ANY OF THE PERSON'S
DEPENDENTS.
(11) The person's right to receive spousal support, child
support, an allowance, or other maintenance to the extent
reasonably necessary for the support of the person and any of the
person's
dependents;
(12) The person's right to receive, or moneys received
during the preceding twelve calendar months from, any of the
following:
(a) An award of reparations under sections 2743.51 to
2743.72 of the Revised Code, to the extent exempted by division
(D) of section 2743.66 of the Revised Code;
(b) A payment on account of the wrongful death of an
individual of whom the person was a dependent on the date of the
individual's death, to the extent reasonably necessary for the
support of the person and any of the person's dependents;
(c) Except in cases in which the person who receives the payment is an
inmate, as defined in section 2969.21 of the Revised Code, and in which the
payment resulted from a civil action or appeal against a government entity or
employee, as defined in section 2969.21 of the Revised Code, a payment, not to
exceed five thousand dollars, on
account of personal bodily injury, not including pain and
suffering or compensation for actual pecuniary loss, of the
person or an individual for whom the person is a dependent;
(d) A payment in compensation for loss of future earnings
of the person or an individual of whom the person is or was a
dependent, to the extent reasonably necessary for the support of
the debtor and any of the debtor's dependents.
(13) Except as provided in sections 3111.23 and
3113.21 of the Revised Code, personal earnings of the person owed to the
person for
services rendered within thirty days before the issuing of an
attachment or other process, the rendition of a judgment, or the
making of an order, under which the attempt may be made to
subject those earnings to the payment of a debt, damage, fine, or
amercement, in an amount equal to the greater of the following amounts:
(a) If paid weekly, thirty times the current federal
minimum hourly wage; if paid biweekly, sixty times the current
federal minimum hourly wage; if paid semimonthly, sixty-five
times the current federal minimum hourly wage; or if paid
monthly, one hundred thirty times the current federal minimum
hourly wage that is in effect at the time the earnings are
payable, as prescribed by the "Fair Labor Standards Act of 1938,"
52 Stat. 1060, 29 U.S.C. 206(a)(1), as amended;
(b) Seventy-five per cent of the disposable earnings owed
to the person.
(14) The person's right in specific partnership property,
as exempted by division (B)(3) of section 1775.24 of the Revised
Code;
(15) A seal and official register of a notary public, as
exempted by section 147.04 of the Revised Code;
(16) The person's interest in a tuition credit or a payment under section
3334.09 of the Revised Code pursuant to a tuition credit contract, as exempted
by section 3334.15 of the Revised Code;
(17) Any other property that is specifically exempted from
execution, attachment, garnishment, or sale by federal statutes
other than the "Bankruptcy Reform Act of 1978," 92 Stat. 2549, 11
U.S.C.A. 101, as amended;
(18) The person's interest, not to exceed four hundred
dollars, in any property, except that division (A)(18) of this section applies
only in bankruptcy proceedings.
(B) As used in this section:
(1) "Disposable earnings" means net earnings after the
garnishee has made deductions required by law, excluding the
deductions ordered pursuant to section 3111.23 or
3113.21 of the
Revised Code.
(2) "Insider" means:
(a) If the person who claims an exemption is an
individual, a relative of the individual, a relative of a general
partner of the individual, a partnership in which the individual
is a general partner, a general partner of the individual, or a
corporation of which the individual is a director, officer, or in
control;
(b) If the person who claims an exemption is a
corporation, a director or officer of the corporation; a person
in control of the corporation; a partnership in which the
corporation is a general partner; a general partner of the
corporation; or a relative of a general partner, director,
officer, or person in control of the corporation;
(c) If the person who claims an exemption is a
partnership, a general partner in the partnership; a general
partner of the partnership; a person in control of the
partnership; a partnership in which the partnership is a general
partner; or a relative in, a general partner of, or a person in
control of the partnership;
(d) An entity or person to which or whom any of the
following applies:
(i) The entity directly or indirectly owns, controls, or
holds with power to vote, twenty per cent or more of the
outstanding voting securities of the person who claims an
exemption, unless the entity holds the securities in a fiduciary
or agency capacity without sole discretionary power to vote the
securities or holds the securities solely to secure to debt and
the entity has not in fact exercised the power to vote.
(ii) The entity is a corporation, twenty per cent or more
of whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote, by the person who
claims an exemption or by an entity to which division
(B)(2)(d)(i) of this section applies.
(iii) A person whose business is operated under a lease or
operating agreement by the person who claims an exemption, or a
person substantially all of whose business is operated under an
operating agreement with the person who claims an exemption.
(iv) The entity operates the business or all or
substantially all of the property of the person who claims an
exemption under a lease or operating agreement.
(e) An insider, as otherwise defined in this section, of a
person or entity to which division (B)(2)(d)(i), (ii), (iii), or
(iv) of this section applies, as if the person or entity were a
person who claims an exemption;
(f) A managing agent of the person who claims an
exemption.
(3) "Participant account" has the same meaning as in
section 145.71 of the Revised Code.
(4) "Government unit" has the same meaning as in section
145.74 of the Revised Code.
(C) For purposes of this section, "interest" shall be
determined as follows:
(1) In bankruptcy proceedings, as of the date a petition
is filed with the bankruptcy court commencing a case under Title
11 of the United States Code;
(2) In all cases other than bankruptcy proceedings, as of
the date of an appraisal, if necessary under section 2329.68 of
the Revised Code, or the issuance of a writ of execution.
An interest, as determined under division (C)(1) or (2) of
this section, shall not include the amount of any lien otherwise
valid pursuant to section 2329.661 of the Revised Code.
Section 2. That existing sections 1317.08 and 2329.66 of the Revised Code are
hereby repealed.
Section 3. (A) Section 1317.08 of the Revised Code, as
amended by this act, applies to and governs any action based
upon a claim against a retail seller or holder that is pending
in any court on the effective date of this section, and to all claims or
actions filed
on or after that date, notwithstanding any provision of Ohio
law that was effective prior to that date.
(B) It is the intent of the General Assembly that the amendment
of section 1317.08 of the Revised Code by this act is remedial
in nature and not substantive.
|