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(127th General Assembly)
(Substitute Senate Bill Number 281)
AN ACT
To amend sections 2329.66, 2716.02, 2716.03, 2716.05,
2716.11, 2716.13, and 3923.19 of the Revised Code
to
increase the exemptions for property that a
debtor
may hold exempt from execution,
garnishment,
attachment, or sale for the
satisfaction of a
judgment or order to reflect
the higher exemptions
available for such property
under the United
States Bankruptcy Code and to
provide for
automatic adjustments to those
exemptions based on
changes in the Consumer Price
Index, to modify
the garnishment procedure, and
to
expand the amount of benefits under sickness
and accident
insurance policies that are exempt
from attachment and other
process.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2329.66, 2716.02, 2716.03, 2716.05,
2716.11, 2716.13, and 3923.19 of the Revised Code be
amended to
read as
follows:
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 twenty
thousand two hundred
dollars, in the exempted property.
(b) In the case of all other judgments and orders, the
person's interest, not to exceed five twenty thousand two hundred
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 three thousand
two hundred twenty-five
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, other than personal earnings.
(b) Subject to division (A)(4)(d) of this section, the (4)(a)
The
person's interest, not to exceed two five hundred twenty-five
dollars in any
particular item or ten thousand seven hundred
seventy-five dollars in aggregate value, in household furnishings,
household goods, wearing apparel,
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 (b)
The
person's aggregate interest in one or more items of jewelry,
not to exceed
four one thousand three hundred fifty 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, held primarily for the personal, family, or
household use of the person or any of the person's dependents.
(5) The person's interest, not to exceed an aggregate of
seven hundred fifty two thousand twenty-five 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) Cash assistance payments under the Ohio works first
program, as exempted
by
section 5107.75 of the Revised Code;
(e)
Benefits and services under the prevention, retention,
and contingency program, as exempted by section 5108.08 of the
Revised Code;
(f) Disability financial assistance payments, as exempted by
section
5115.06 of the Revised Code;
(g) Payments under section 24 or 32 of the "Internal Revenue
Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.
(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 3105.171, 3105.63,
3119.80, 3119.81, 3121.02, 3121.03, and
3123.06 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, 146.13, 148.09,
742.47,
3307.41, 3309.66, or 5505.22 of
the Revised Code, and
the
person's right to benefits from the Ohio
public safety officers
death benefit
fund;
(b) Except as provided in sections 3119.80, 3119.81,
3121.02,
3121.03, and 3123.06 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 3119.80, 3119.81,
3121.02, 3121.03, and
3123.06 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,
"Roth IRA," or education
individual retirement
account that provides
benefits by reason of
illness, disability, death, or age, to the extent
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
subsections 219,
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
3119.80, 3119.81, 3121.02, 3121.03, and
3123.06 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
twenty
thousand two hundred 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 3119.80, 3119.81,
3121.02, 3121.03, and 3123.06 of the Revised
Code, personal
earnings of
the person owed to the
person for services 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 unit or a payment
under section
3334.09 of the Revised Code pursuant to a tuition
payment 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 aggregate interest in any property, not to
exceed four hundred one thousand seventy-five
dollars, in any
property, except that division (A)(18) of
this
section applies
only in bankruptcy proceedings.
(B) On April 1, 2010, and on the first day of April in each
third calendar year after 2010, each dollar amount set forth in
this section shall be adjusted, when determining the amount that
is exempt from execution, garnishment, attachment, or sale
pursuant to this section, to reflect the change in the consumer
price index for all urban consumers, as published by the United
States department of labor, or, if that index is no longer
published, a generally available comparable index, for the
three-year period ending on the thirty-first day of December of
the preceding year. Any adjustments required by this division
shall be rounded to the nearest twenty-five dollars.
(C) 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 3119.80, 3119.81,
3121.02,
3121.03, or 3123.06 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)(C)(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)(C)(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
148.01 of the Revised Code.
(4)
"Government unit" has the same meaning as in section
148.06 of the Revised Code.
(C)(D) 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)(D)(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.
Sec. 2716.02. (A) Any person seeking an order of
garnishment
of personal earnings, after obtaining a judgment,
shall make the
following
demand in writing for the excess of the
amount of the
judgment
over the amount of personal earnings that
may be exempt
from execution,
garnishment, attachment, or sale to
satisfy a
judgment or order,
or for so much of
the excess as will
satisfy
the judgment. The demand shall be
made after the judgment
is
obtained and at least fifteen days and not
more than forty-five
days before the order is sought by
delivering it to the judgment
debtor by personal service by the
court, by sending it to the
judgment debtor by certified mail,
return receipt requested, or by
sending it to the judgment debtor
by regular mail evidenced by a
properly completed
and stamped certificate of mailing by regular
mail, addressed to
the judgment debtor's last known place of
residence.
The demand shall be in substantially the following
form:
"NOTICE OF COURT PROCEEDING TO COLLECT DEBT
Date of mailing or date of service by the court ..............
To: ..............................
(Name of Judgment Debtor)
..................................
(Last Known Residence Address of Judgment Debtor)
You owe the undersigned ....................... (Name of
Judgment Creditor) $.........., including interest and court
costs, for which a judgment was obtained against you or certified
in the .......... court on .........., payment of which is hereby
demanded.
If you do not do one of the three things listed below
within
fifteen days of the date of the mailing of this notice or
of its
service by the court, we will go to court, unless we are
otherwise
precluded by law from doing so, and ask that your
employer be
ordered to withhold money from your earnings until the judgment
is
paid in full or, if applicable, is paid to a certain extent and
to
pay the withheld money to the court in satisfaction of
your debt.
This is called garnishment
of personal earnings.
It is to your advantage to avoid garnishment of personal
earnings because the placing of the extra burden on your employer
possibly could cause you to lose your job.
YOU CAN AVOID THE GARNISHMENT BY DOING ONE OF THESE THREE
THINGS WITHIN THE FIFTEEN-DAY PERIOD:
(1) Pay to us the amount due;
(2) Complete the attached form entitled "Payment to Avoid
Garnishment" and return it to us with the payment, if any, shown
due on it; or
(3) Apply to your local municipal or county court or, if
you
are not a resident of Ohio, to the municipal or county court
in
whose jurisdiction your place of employment is located, for
the
appointment of a trustee to receive the part of your earnings
that
is not exempt from garnishment, and notify us that you have
applied for the appointment of a trustee. You will be required
to
list your creditors, the amounts of their claims, and the amounts
due on
their claims, and the amount you then will pay
to your
trustee each payday will be divided among them until the debts
are
paid off. This can be to your advantage because in the
meantime
none of those creditors can garnish your wages.
You also may contact a budget and debt counseling
service
described in division (D) of section 2716.03 of the Revised Code
for the purpose of entering into an agreement for debt
scheduling.
There may not be enough time to set up an
agreement for debt
scheduling in order to avoid a garnishment of your
wages based
upon this demand for payment, but entering into an agreement
for
debt scheduling might protect you from future garnishments of your
wages. Under an agreement for debt scheduling, you will
have to
regularly pay a portion of
your income to the service until the
debts subject to the
agreement are paid off. This portion of your
income will be paid
by the service to your creditors who are owed
debts subject to
the agreement. This can be to your advantage
because these
creditors cannot garnish your wages while you make
your payments
to the service on time.
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.............................. |
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(Name of Judgment Creditor) |
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.............................. |
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(Signature of Judgment Creditor |
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or Judgment
Creditor's Attorney) |
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.............................. |
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.............................. |
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.............................. |
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(Address of Judgment Creditor) |
PAYMENT TO AVOID GARNISHMENT
To: ..............................
(Name of Judgment Creditor)
..................................
..................................
(Address of Judgment Creditor)
To avoid the garnishment of personal earnings of which you
have given me notice, I enclose $ ............... to apply toward
my indebtedness to you. The amount of the payment was computed
as
follows:
1. |
Total amount of indebtedness demanded: |
(1) $.......... |
2. |
Enter the amount of your personal earnings, |
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after deductions required by law, earned by |
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you during the current pay period (that is, |
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the pay period in which this demand is
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received by you): |
(2) $.......... |
3. |
(A) Enter your pay period (weekly, biweekly, |
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semimonthly, monthly): |
(3)(A) ........ |
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(B) Enter the date when your present pay |
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period ends: |
(3)(B) ........ |
4. |
Enter an amount equal to 25% of the amount |
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on line (2): |
(4) ........... |
5. |
(A) The current federal minimum hourly wage |
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is .......... (to be filled in by Judgment |
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Creditor) (You should use the above figure |
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to complete this portion of the form.)
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If you are paid weekly, enter thirty |
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times the current federal minimum hourly
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wage; if paid biweekly, enter sixty times
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the current federal minimum hourly wage;
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if paid semimonthly, enter sixty-five |
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times the current federal minimum |
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hourly wage; if paid monthly, enter |
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one hundred thirty times the current
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federal minimum hourly wage: |
(5)(A) ........ |
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(B) Enter the amount by which the amount on |
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line (2) exceeds the amount on line 5(A): |
(5)(B) ........ |
6. |
Enter the smallest of the amounts on line |
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(1), (4), or 5(B). Send this amount to the |
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judgment creditor along with this form after |
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you have signed it: |
(6) $.......... |
I certify that the statements contained above are true to
the
best of my knowledge and belief.
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....................................... |
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(Signature of Judgment Debtor) |
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....................................... |
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....................................... |
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....................................... |
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(Print Name and Residence Address
of Judgment Debtor) |
(To verify that the amount shown on line (2) is a true
statement
of your earnings, you must either have your employer
certify below
that the amount shown on line (2) is a true
statement of your
earnings or you may submit copies of your pay
stubs for the two
pay periods immediately prior to your receiving
this notice.)
I certify that the amount shown on line (2) is a true
statement of the judgment debtor's earnings.
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....................................... |
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(Print Name of Employer) |
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....................................... |
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(Signature of Employer or Agent) |
I certify that I have attached copies of my pay stubs for the
two
pay periods immediately prior to my receiving this notice.
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...................................... |
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(Signature of Judgment
Debtor)" |
(B) If a judgment debtor properly completes a payment to
avoid
garnishment and returns it with the required funds to the
judgment creditor or
the judgment creditor's attorney, the
judgment creditor or the judgment
creditor's attorney who issued
the notice of court proceeding to collect debt
may not issue
another notice of court proceeding to collect debt to the
judgment
debtor until the expiration date of the judgment debtor's present
pay
period that is set forth by the judgment debtor and the
judgment debtor's
employer in the answer to (3)(B) in the payment
to avoid garnishment.
(C) If an order of garnishment of personal earnings issued
pursuant to this chapter has not been paid in full when it ceases
to remain in
effect because of the operation of division (C)(1) of
section
2716.041 of the Revised Code, the garnishee's duties under
the order
of garnishment are
complete with the filing of the final
report and answer of the garnishee. The
judgment creditor must
institute new garnishment proceedings if the judgment
creditor
wants an additional garnishment.
Sec. 2716.03. (A) Subject to the limitation on the
commencement of
proceedings contained in division (B) of section
124.10 of the Revised Code, a
proceeding in garnishment of
personal
earnings may be commenced after a judgment has been
obtained by a
judgment creditor by the filing of an affidavit in
writing made
by the judgment creditor or the judgment creditor's
attorney setting forth all
of the following:
(1) The name of the judgment debtor whose personal
earnings
the judgment creditor seeks to garnish;
(2) That the affiant has good reason to believe and does
believe that the person, partnership, limited liability company,
or corporation named in the
affidavit as the garnishee is The name
and address of the garnishee who may be an employer of the
judgment debtor and
who may have personal earnings of the judgment
debtor that are not
exempt under section 2329.66 of the Revised
Code;
(3) That the demand in writing, as required by section
2716.02 of the Revised Code, has been made;
(4) That the payment demanded in the notice required by
section 2716.02 of the Revised Code has not been
made, and a
sufficient portion of the payment
demanded has not been made to
prevent the
garnishment of personal earnings as described in
section 2716.02
of the Revised Code;
(5) That the affiant has no knowledge of any application by
the judgment debtor for the appointment of a trustee so as to
preclude the garnishment of the judgment debtor's personal
earnings;
(6) That the affiant has no knowledge that the debt to
which
the affidavit pertains is the subject of a debt scheduling
agreement of a nature that precludes the garnishment of
the
personal earnings of the judgment debtor under division (B)
of
this section.
(B) No proceeding in garnishment of personal
earnings shall
be brought against a judgment debtor for the
collection of a debt
that is the subject of an agreement for debt
scheduling between
the judgment debtor and a budget and
debt
counseling service,
unless any payment to be made by the judgment
debtor, or by a
budget and debt counseling service to
the
judgment creditor under
the agreement for debt scheduling between
the judgment debtor and
the budget and debt counseling
service,
is due and unpaid for more
than forty-five days after the date on
which the payment became
due, or unless the judgment creditor
previously was notified by
the service that the debt scheduling
agreement between the
judgment debtor and the service was
terminated.
(C) Upon a court's issuance of an order of garnishment of
personal earnings following a
judgment creditor's filing of an
affidavit under this section and
compliance with section 2716.04
of the Revised Code, the garnishee and the
judgment debtor shall
be notified of the proceeding in garnishment of
personal earnings
in accordance
with sections 2716.05 and 2716.06 of the Revised
Code.
(D) As used in this chapter:
(1) A "budget and debt counseling service" or
"service"
means
a corporation organized under Chapter 1702. of the Revised
Code
for the purpose of counseling consumers with respect to
their
financial obligations and assisting them in dealing with
their
creditors.
(2) "Debt scheduling" means counseling and assistance
provided to a consumer by a budget and debt counseling
service
under all of the following circumstances:
(a) The counseling and assistance is manifested in an
agreement between the consumer and the service under which the
consumer regularly pays that portion of the consumer's income to
the service
that has been determined not to be required for the
maintenance
of health or the essentials of life.
(b) The payments are made to the service until the debts
of
the consumer that are the subject of the agreement are fully
retired.
(c) The service has sent written notice, by certified
mail,
return receipt requested, or by regular mail evidenced by a
properly completed and stamped certificate of mailing by regular
mail, to the creditors of the consumer that are disclosed by the
consumer to the service. The notice shall contain all of
the
following:
(i) A statement of the consumer's intent to participate in
debt scheduling;
(ii) A summary of the consumer's income, proposed itemized
budget, schedule of creditors, and proposed debt retirement plan;
(iii) A statement of the particular creditor's duty to
respond, in writing, to the service regarding the consumer's
participation in debt scheduling within fifteen days after
receiving the notice.
(d) The debts of the consumer that are the subject of the
agreement for debt scheduling are determined as follows:
(i) Any debt owed to a creditor that was notified of the
consumer's intent to participate is a subject of the agreement if
the creditor responds to the service and enters into an agreement
with the service, pursuant to which the creditor agrees
not to
attempt to collect the debts of the consumer as long as
the
consumer regularly pays to the service the amount previously
agreed upon by the service and the consumer, and no payment to be
made by the judgment debtor to the service or by the service to
the creditor is due and unpaid for more than forty-five days
after
the date on which the payment became due, as long as the
debt
scheduling agreement between the consumer and the service
has not
been terminated, and as long as the service regularly
pays to the
creditor a mutually acceptable amount
that is either the amount
agreed upon by the service and the creditor
on the date they
entered into their original agreement or an
amount agreed upon by
both the service and the creditor on a date
after the date of the
original agreement.
(ii) Any debt owed to a creditor that was notified of the
consumer's intent to participate is a subject of the agreement if
the creditor does not respond to the service and state the
creditor's objection, in writing, to the consumer's participation
in debt scheduling within fifteen days after receiving notice of
the consumer's intention to do so; however, no debt that is
subject to a lien or security interest of any type, other than a
judgment lien or execution lien, shall be a subject of the
agreement unless the creditor specifically assents, in writing,
to
the debt being a subject of the agreement. The creditor shall
be
considered to have entered into an agreement of the type
described
in division (D)(2)(d)(i) of this section, and the
amount to be
regularly paid by the service to the creditor shall
be an amount
determined to be reasonable by the service or an
amount agreed
upon by both the service and the creditor on a date
after the
expiration of the fifteen-day period.
(iii) Any debt owed to a creditor that was not notified of
the consumer's intent to participate, or a debt owed to a
creditor
that was notified of the consumer's intent to
participate and that
responded to the service and stated its
objection, in writing, to
the consumer's participation in debt
scheduling within fifteen
days after receiving notice of the
consumer's intention to do so,
is not a subject of the agreement.
(e) The service agrees that, if the consumer fails to make
a
payment under the agreement within forty-five days of its due
date
or if the agreement is terminated, the service will notify
each
creditor that is owed a debt that is subject to the
agreement of
the failure or termination by regular mail within
two business
days of the failure or termination, and the service
provides that
notice in accordance with the agreement.
Sec. 2716.05. The garnishee shall be served, in the same
manner as a summons is served, with three copies of the
order of
garnishment of personal earnings
and of a written notice that the
garnishee answer as
provided in division (E) of section 2716.041
of the
Revised Code, this section, and section 2716.21 of
the
Revised Code and
with the
garnishee's fee required by section
2716.04 of the Revised Code.
The garnishee also shall
be served,
at that time, with two copies of the notice to the
judgment debtor
form and of the request for
hearing form described in section
2716.06 of the Revised Code, one copy of the interim report and
answer form described in section 2716.07 of the
Revised
Code, one
copy of the employer guide to processing continuous orders of
garnishment, and one copy of the final
report and answer form
described in section 2716.08 of
the Revised
Code.
A court of common pleas or municipal or county court
that
issues an order of garnishment of personal earnings has
jurisdiction to serve process pursuant to this section upon a
garnishee who does not reside within the territorial jurisdiction
of
the
court. If the garnishee does not reside within the
territorial jurisdiction of the court that issued the order, the
process may
be served upon the garnishee by the proper officer of
the county in
which the garnishee resides or may be served
upon
the garnishee by personal service by the court, by
sending it to
the garnishee by certified mail, return receipt
requested, or by
sending it to the garnishee by
regular mail evidenced by a
properly completed and stamped
certificate of mailing by regular
mail.
The order of garnishment of personal earnings shall bind
the
personal earnings of the judgment debtor due from the
garnishee at
the time of service in accordance with this section.
The
order of
garnishment of personal earnings and notice to answer
shall be in
substantially the following form:
"ORDER AND NOTICE OF GARNISHMENT
AND ANSWER OF EMPLOYER
|
Docket No. ................... |
|
Case No. ..................... |
|
In the ................. Court |
|
........................, Ohio |
The State of Ohio
County of ....................., ss
......................., Judgment Creditor
vs.
......................., Judgment Debtor
SECTION A. COURT ORDER AND NOTICE OF GARNISHMENT
To: ............................................, Garnishee
The judgment creditor in the above case has filed an
affidavit, satisfactory to the undersigned, in this court stating
that
you may owe
the judgment debtor money for personal earnings
and
that some of that
money may not be exempt from garnishment
under
the laws of the
State of Ohio or the laws of the United
States.
You are therefore ordered to complete the "ANSWER OF EMPLOYER
(GARNISHEE)" in section B of this form. Return one completed and
signed
copy of this form to the clerk of this court within five
(5)
business days after you receive this order of garnishment.
Deliver one completed and signed copy of
this form and the
accompanying documents
entitled "NOTICE TO THE
JUDGMENT DEBTOR"
and "REQUEST FOR HEARING" to the
judgment debtor. Keep the other
completed and signed
copy of this form for
your files.
(The total probable amount now due on this judgment is
$...................
The total probable amount now due
includes
the unpaid portion of the judgment in favor of the
judgment
creditor, which is $........; interest on that judgment
and, if
applicable, prejudgment interest relative to that
judgment at the
rate of .....% per annum payable until that
judgment is satisfied
in full;
and court costs in the amount of
$..........)
This order of garnishment of personal earnings is a
continuous order that generally requires you to withhold a
specified amount, calculated each pay period at the statutory
percentage,
of the judgment
debtor's personal disposable earnings
during each pay period, as
determined in accordance with the
"INTERIM REPORT AND ANSWER OF
GARNISHEE," from the judgment
debtor's personal disposable earnings during each pay period of
the
judgment debtor commencing with the
first full pay period
beginning after you receive the order until the
judgment in favor
of the judgment creditor and the associated
court costs, judgment
interest, and, if
applicable, prejudgment
interest awarded to the
judgment creditor as described above
have been paid in full. You
generally must pay that specified
amount, calculated each pay
period at the statutory
percentage,
to the clerk of this court
within thirty (30) days after
the end of each pay period of the
judgment debtor and
must include with that specified amount
calculated each pay period at the
statutory
percentage an
"INTERIM
REPORT AND ANSWER OF GARNISHEE" substantially in the
form set
forth in section 2716.07 of the
Ohio
Revised
Code. A copy of
the
"INTERIM REPORT AND ANSWER OF GARNISHEE" is attached to this
order
of garnishment of personal earnings, and you may photocopy
it to
use each time you pay the specified amount to the clerk of
this
court. You are permitted to deduct a processing fee of up to
three
dollars from the judgment debtor's personal disposable
earnings
for any pay
period of the judgment debtor that an amount
was
withheld for that order (the
processing fee is not a part of
the
court costs). You
are not required to file with the court the
"INTERIM REPORT
AND ANSWER OF GARNISHEE" for any pay period of the
judgment debtor
for which an amount from the judgment debtor's
personal disposable earnings
during
that pay period
was not
withheld for that order.
This order of garnishment of personal earnings
generally will
remain in effect until one of the following
occurs:
(1) The total probable amount due on the judgment as
described above is paid in full as a result of your withholding
of
the specified amount, calculated each pay period at the statutory
percentage, from the judgment debtor's
personal disposable
earnings during each pay period of the judgment debtor that
commenced with
the first full pay period beginning
after
you
received
the order.
(2) The judgment creditor or the judgment creditor's
attorney
files
with this court a
written notice that the total
probable
amount due on the
judgment as described above has been
satisfied
or the judgment creditor or
the judgment creditor's
attorney
files
a written request to terminate this order of
garnishment and
release you
from the mandate of this order of
garnishment.
(3) A municipal or county court appoints a trustee for
the
judgment debtor and issues to you an order that stays this
order
of garnishment of personal earnings.
(4) A federal bankruptcy court issues to you an order
that
stays this order of garnishment of personal
earnings.
(5) A municipal or county court or a court of common
pleas
issues to you another order of garnishment of personal
earnings
that relates to the judgment debtor and a different
judgment
creditor, and Ohio or
federal law provides the other order with a
higher priority than
this order.
(6) A municipal or county court or a court of common
pleas
issues to you another order of garnishment of personal
earnings
that relates to the judgment debtor and a different
judgment
creditor and that does not have a higher priority than
this order.
(7) The judgment creditor or the judgment creditor's
attorney
files with this court a written request to terminate and
release
the order of
garnishment, and as a result, the order of
garnishment will cease to remain in
effect.
Under any of the circumstances listed above, you are
required
to file with this court a
"FINAL REPORT AND ANSWER OF GARNISHEE"
substantially in the
form set forth in section 2716.08 of the Ohio
Revised
Code. A copy of the
"FINAL REPORT AND ANSWER OF
GARNISHEE"
is attached to this
order of garnishment of personal
earnings.
Under the
circumstances listed in (5) and (6) above,
you must
cease processing this order of garnishment after the
expiration of
the full
pay period within which the one hundred
eighty-second
(182) day after you
began
processing it falls.
Special stacking, priority of payment, and manner of
payment
rules apply when a garnishee receives multiple orders of
garnishment with respect to the same judgment debtor. These
rules
are set forth in section 2716.041 of the Ohio Revised
Code. An
employer guide to processing continuous orders of garnishment is
included with this order of garnishment. You should become
familiar with these rules.
Witness my hand and the seal of this court this ...........
day of
..................., ......
SECTION B. ANSWER OF EMPLOYER (GARNISHEE)
(An employer is one who is required to withhold payroll taxes out
of payments
of personal earnings made to the judgment debtor.)
(Answer all pertinent questions)
Now comes ..............................., the employer
(garnishee) herein, who says:
1. |
This order of garnishment of personal
|
|
|
|
earnings was received on ............ |
|
|
|
|
Yes |
No |
2. |
The judgment debtor is in my/our employ. |
..... |
..... |
|
If answer is
"No," give date of last |
|
|
|
employment. |
(2) ........... |
|
|
Yes |
No |
3. |
(A) Is the debt to which this order of |
|
|
|
garnishment of personal earnings pertains |
|
|
|
the subject of an existing agreement for |
|
|
|
debt scheduling between the judgment |
|
|
|
debtor and a budget and debt counseling |
|
|
|
service and has the judgment debtor |
|
|
|
made every payment that was due under |
|
|
|
the agreement for debt scheduling no |
|
|
|
later than forty-five days after the |
|
|
|
date on which the payment was due? |
..... |
..... |
|
If the answer to both parts of this |
|
|
|
question is
"Yes," give all available |
|
|
|
details of the agreement, sign this |
|
|
|
form, and return it to the court. |
3(A).............. |
|
............................................................. |
|
............................................................. |
|
|
Yes |
No |
|
(B) Were you, on the date that you
|
|
|
|
received this order of garnishment of |
|
|
|
personal earnings, withholding |
|
|
|
moneys from the judgment debtor's |
|
|
|
personal disposable earnings
|
|
|
|
pursuant to another order of |
|
|
|
garnishment of personal earnings that |
|
|
|
Ohio or federal law provides with a |
|
|
|
higher priority than this order of |
|
|
|
garnishment of personal earnings |
|
|
|
(such as a support order or Internal |
|
|
|
Revenue
service
Service levy)? |
..... |
..... |
|
If the answer to this question is |
|
|
|
"Yes," give the name of the court |
|
|
|
that issued the higher priority order, |
|
|
|
the associated case number, the date |
|
|
|
upon which you received that order, |
|
|
|
and the balance due to the relevant |
|
|
|
judgment creditor under that order. |
3(B).............. |
|
............................................................. |
|
|
Yes |
No |
|
(C) Did you receive prior to the date |
|
|
|
that you received this order of
|
|
|
|
garnishment of personal earnings one |
|
|
|
or more other orders of garnishment |
|
|
|
of personal earnings that are not |
|
|
|
described in question 3(B), and are |
|
|
|
you currently processing one or more |
|
|
|
of those orders for the statutorily |
|
|
|
required time period or holding one or |
|
|
|
more of those orders for processing
|
|
|
|
for a statutorily required period in
|
|
|
|
the sequence of their receipt by you? |
..... |
..... |
|
If the answer to this question is |
|
|
|
"Yes," give the name of the court |
|
|
|
that issued each of those previously |
|
|
|
received orders, the associated case |
|
|
|
numbers, the date upon which you |
|
|
|
received each of those orders, and |
|
|
|
the balance due to the relevant |
|
|
|
judgment creditor under each of |
|
|
|
those orders. List first the previously |
|
|
|
received order(s) that you are |
|
|
|
currently processing, and list each |
|
|
|
of the other previously received orders |
|
|
|
in the sequence that you are required |
|
|
|
to process them. |
3(C).............. |
|
............................................................. |
|
............................................................. |
|
............................................................. |
I certify that the statements above are true.
|
.............................. |
|
(Print Name of Employer) |
|
.............................. |
|
(Print Name and Title of
|
|
Person Who Completed Form on
|
|
behalf of
the Employer) |
Signed ........................................................
(Signature of Employer
or Employer's Agent)
Dated this ........... day of ..........., ....."
Section A of the form described in this section shall be
completed before service. Section B of the form shall be
completed
by the
garnishee, and the garnishee shall file one
completed and
signed copy of the form with the clerk of the court
as the
garnishee's answer. The garnishee may keep one completed
and
signed copy of the form and shall deliver the
other completed
and
signed copy of the form to the judgment
debtor not later than
the
time that the garnishee otherwise would pay
the judgment
debtor
the personal earnings that the
garnishee instead is paying
to the
court. The
garnishee also shall deliver at that time the
two
copies of the notice to the
judgment debtor form and of the
request for
hearing form described in section 2716.06 of the
Revised Code that were served on the garnishee.
No employer shall discharge an employee solely because of
the
successful garnishment of the employee's personal earnings
by only
one judgment creditor in any twelve-month period.
If several affidavits seeking orders of garnishment of
personal earnings are filed against the same judgment debtor in
accordance with section 2716.03 of the Revised Code, the court
involved shall issue the requested orders in the
same order in
which the clerk received the
associated affidavits.
The garnishee also shall be served with a copy of the
employer guide to
processing continuous orders of garnishment at
the same time that the forms as
provided in this section are
served upon the garnishee.
Sec. 2716.11. A proceeding for garnishment of property,
other than personal
earnings, may be commenced after a judgment
has been obtained by a judgment
creditor by the filing of an
affidavit in writing made by the judgment
creditor or the judgment
creditor's
attorney setting forth all of the following:
(A) The name of the judgment debtor whose property, other
than personal
earnings, the judgment creditor seeks to garnish;
(B) That the affiant has a reasonable basis to believe that
the
person named in the affidavit as the garnishee may have
property, other than
personal earnings, of the judgment debtor
that is not exempt under the law of
this state or the United
States;
(C) A description of the property;
(C) The name and address of the garnishee who may have in the
garnishee's hands or control money, property, or credits, other
than personal earnings, of the judgment debtor.
Sec. 2716.13. (A) Upon the filing of a proceeding in
garnishment of property, other than personal earnings, under
section 2716.11 of the Revised Code, the court shall cause the
matter to be set for hearing within twelve days after
that filing.
(B) Upon the scheduling of a hearing relative to a
proceeding
in garnishment of property, other than personal
earnings, under
division (A) of this section, the clerk of the
court immediately
shall issue to the garnishee three copies of
the
order of
garnishment of property, other than personal
earnings,
and of a
written notice that the garnishee answer as provided in
section
2716.21 of the Revised Code and
the garnishee's fee
required by
section
2716.12 of the Revised Code. The copies of
the order and
of the notice
shall be served
upon
the garnishee in
the same
manner as a summons is
served and the clerk shall also mail a copy
of the order and notice of garnishment to the garnishee by
ordinary or regular mail service. The copies of the order
and of
the notice shall
not be served later than seven
days prior
to the
date on which the hearing is scheduled. The
order shall
bind the
property in excess of four hundred dollars, other than personal
earnings, of
the judgment
debtor in
the possession of the
garnishee at the
time of service. Any
garnishee that garnishes
the property, other than personal
earnings, of a judgment debtor
in good faith reliance upon the
order and notice of garnishment
received by ordinary or regular
mail service shall not be liable
for damages in any civil action.
The order of garnishment of property, other than personal
earnings, and notice to answer shall be in substantially the
following form:
"ORDER AND NOTICE OF GARNISHMENT
OF PROPERTY OTHER THAN PERSONAL EARNINGS
AND ANSWER OF GARNISHEE
|
Docket No. ................... |
|
Case No. ..................... |
|
In the ................. Court |
|
........................, Ohio |
The State of Ohio
County of ............, ss
..................., Judgment Creditor
vs.
..................., Judgment Debtor
SECTION A. COURT ORDER AND NOTICE OF GARNISHMENT
To: ...................., Garnishee
The judgment creditor in the above case has filed an
affidavit, satisfactory to the undersigned, in this
Court stating
that you may have money, property, or credits, other
than personal
earnings, in your hands or under your control that
belong to the
judgment debtor, and that some of the
money, property, or credits
may not be exempt from
garnishment under the laws of the State of
Ohio or the laws of
the United States.
You are therefore ordered to complete the
"ANSWER OF
GARNISHEE"
in section (B) of this
form. Return one completed and
signed
copy of this form to the clerk of this court together with
the
amount determined in accordance with the
"ANSWER OF GARNISHEE"
by the following
date on which a hearing is tentatively scheduled
relative to
this order of garnishment: ............ Deliver one
completed and signed
copy of this form to the judgment debtor
prior to that date. Keep the
other completed and signed copy of
this form for your files.
The total probable amount now due on this judgment is
$..........
The total probable amount now due
includes the unpaid
portion of the judgment in favor of the
judgment creditor, which
is $..........; interest on that judgment
and, if applicable,
prejudgment interest relative to that
judgment at the rate of
.....% per annum payable until that
judgment is satisfied in full;
and court costs in the amount of
$...........
You also are ordered to hold safely anything of value that
belongs to the judgment debtor and that has to be paid
to the
court, as determined under the
"ANSWER OF GARNISHEE" in
section
(B) of this form, but that
is of such a nature that it cannot be
so delivered, until further
order of the court.
Witness my hand and the seal of this court this ..........
day of .........., ..........
|
......................... |
|
Judge |
SECTION B. ANSWER OF GARNISHEE
Now comes .................... the garnishee, who says:
1. That the garnishee has more than $400 in money, property,
or credits, other
than
personal earnings, of the judgment debtor
under the
garnishee's control and in the garnishee's possession.
............... |
............... |
................... |
yes |
no |
if yes, amount over $400 |
2. That property is described as:
3. If the answer to line 1 is
"yes" and the amount is less
than the probable amount now due
on the judgment, as indicated in
section (A) of
this form,
sign and return this form and pay the
amount of line 1 to the
clerk of this court.
4. If the answer to line 1 is
"yes" and the amount is
greater
than that probable amount now due on the judgment, as
indicated in
section (A) of this form, sign and return this
form
and pay that
probable amount now due to the clerk of this
court.
5. If the answer to line 1 is
"yes" but the money,
property,
or credits are of such a nature that they cannot be
delivered to
the clerk of the court, indicate that by placing an
"X" in this
space: ...... Do not dispose of that money,
property, or credits
or give them to anyone else until further
order of the court.
6. If the answer to line 1 is
"no," sign and return this
form
to the clerk of this court.
I certify that the statements above are true.
|
.............................. |
|
(Print Name of Garnishee) |
|
.............................. |
|
(Print Name and Title of |
|
Person Who Completed Form) |
Signed........................................................
(Signature of Person Completing Form)
Dated this .......... day of .........., ....."
Section A of the form described in this division shall be
completed before service. Section B of the form shall
be
completed
by the garnishee, and the
garnishee shall file one
completed and
signed copy of the form with the
clerk of the court
as the
garnishee's
answer. The garnishee may keep one completed
and
signed copy of the
form and shall
deliver the other completed
and
signed copy of the form to the
judgment debtor.
If several affidavits seeking orders of
garnishment of
property,
other than personal earnings, are filed against the same
judgment
debtor in accordance with section 2716.11 of the Revised
Code,
the court involved shall issue the
requested orders in the
same order in which the
clerk
received the associated affidavits.
(C)(1) At the time of the filing of a proceeding in
garnishment of property, other than personal earnings, under
section 2716.11 of the Revised Code, the judgment creditor also
shall file with the clerk of the court a praecipe instructing the
clerk to issue to the judgment debtor a notice to the judgment
debtor
form and a request for hearing form. Upon receipt
of the
praecipe and the scheduling of
a hearing relative to an action in
garnishment of property, other
than personal earnings, under
division (A) of this section, the
clerk of the court immediately
shall serve upon the judgment
debtor, in accordance with division
(D) of this section, two
copies of the notice to the judgment
debtor form and
of the request for hearing form.
The copies of
the notice to the judgment debtor form and
of the request for
hearing form shall not
be served later than seven days prior to
the date on
which the hearing is scheduled.
(a) The notice to the judgment debtor that must be served
upon the judgment debtor shall be in substantially the following
form:
"(Name and Address of the Court)
(Case Caption) ......................... Case No. .............
NOTICE TO THE JUDGMENT DEBTOR
You are hereby notified that this court has issued an order
in the above case in favor of (name and address of judgment
creditor), the judgment creditor in this proceeding, directing
that some of your money in excess of four hundred dollars,
property, or credits, other than
personal
earnings, that now may
be in the possession of (name and address
of
garnishee), the
garnishee in this proceeding, be used to
satisfy
your debt to the
judgment creditor. This order was issued
on the
basis of the
judgment creditor's judgment against you that
was
obtained in
(name of court) in (case number) on (date). Upon
your
receipt of
this notice, you are prohibited from removing or
attempting to
remove the money, property, or credits until
expressly permitted
by the court. Any violation of this
prohibition subjects you to
punishment for contempt of court.
The law of Ohio and the United States provides that certain
benefit payments cannot be taken from you to pay a debt. Typical
among the benefits that cannot be attached or executed upon by a
creditor are the following:
(1) Workers' compensation benefits;
(2) Unemployment compensation payments;
(3) Cash assistance payments under the Ohio works
first
program;
(4)
Benefits and services under the prevention, retention,
and contingency program;
(5) Disability financial assistance administered by the Ohio
department
of job and family services;
(6) Social security benefits;
(7) Supplemental security income (S.S.I.);
(8) Veteran's benefits;
(9) Black lung benefits;
(10) Certain pensions.
There may be other benefits not included in the
above list
that apply in your case.
If you dispute the judgment creditor's right to garnish
your
property and believe that the judgment creditor should not be
given your
money, property, or credits, other than personal
earnings, now in the
possession of the garnishee because they are
exempt or
if you feel that this order is improper for any other
reason, you
may request a hearing before this court by disputing
the claim in
the request for hearing form, appearing below, or in
a
substantially similar form, and delivering the request for
hearing to this court at the above address, at the office of the
clerk of this court no later than the end of the fifth business
day after you receive this notice. You may state your reasons
for
disputing the judgment creditor's right to garnish your
property
in the space provided on the form;
however, you are not
required
to do so. If you do state your reasons for disputing
the judgment
creditor's right, you are not prohibited from
stating any other
reason at the hearing. If you
do not state
your reasons, it will
not be held against you by the court, and
you can state your
reasons at the hearing. NO OBJECTIONS TO THE JUDGMENT
ITSELF WILL
BE HEARD OR CONSIDERED AT THE HEARING. If
you request a hearing,
the hearing will be limited to a
consideration of the amount of
your money, property, or credits,
other than personal earnings, in
the possession or control of the
garnishee, if any, that can be
used to satisfy all or
part of the judgment you owe to the
judgment creditor.
If you request a hearing by delivering your request for
hearing no later than the end of the fifth business day after you
receive this notice, it will be conducted in .......... courtroom
.........., (address of court), at ..... m. on ..........,
.......... You may request the court to conduct the hearing
before
this date by indicating your request in the space provided
on the
form; the court then will send you notice of any change in
the
date, time, or place of the hearing. If you do not request a
hearing by delivering your request for a hearing no later than the
end of the fifth business day after you receive this notice, some
of your money, property, or credits, other than personal
earnings,
will be paid to the judgment creditor.
If you have any questions concerning this matter, you may
contact the office of the clerk of this court. If you want legal
representation, you should contact your lawyer immediately. If
you
need the name of a lawyer, contact the local bar association.
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Clerk of the Court |
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Date" |
(b) The request for hearing form that must be served
upon
the
judgment debtor shall have attached to it a postage-paid,
self-addressed envelope or shall be on a postage-paid
self-addressed postcard, and shall be in substantially the
following form:
"(Name and Address of Court)
Case Number ........................... Date
....................
REQUEST FOR HEARING
I dispute the judgment creditor's right to garnish my
money,
property, or credits, other than personal earnings, in the
above
case and request that a hearing in this matter be held
..................................................................
(Insert
"on" or
"earlier than")
the date and time set forth in the document entitled
"NOTICE TO
THE JUDGMENT DEBTOR" that I received with this request
form.
I dispute the judgment creditor's right to garnish
my
property for the following reasons:
..................................................................
(Optional)
..................................................................
..................................................................
I UNDERSTAND THAT NO OBJECTIONS TO THE JUDGMENT ITSELF WILL
BE HEARD OR
CONSIDERED AT THE HEARING.
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(Name of Judgment Debtor) |
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(Signature) |
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(Date) |
WARNING: IF YOU DO NOT DELIVER THIS REQUEST FOR HEARING OR
A
REQUEST IN A SUBSTANTIALLY SIMILAR FORM TO THE OFFICE OF THE
CLERK
OF THIS COURT WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT
OF IT,
YOU WAIVE YOUR RIGHT TO A HEARING AND SOME OF YOUR MONEY,
PROPERTY, OR CREDITS, OTHER THAN PERSONAL EARNINGS, NOW IN THE
POSSESSION OF (GARNISHEE'S NAME) WILL BE PAID TO (JUDGMENT
CREDITOR'S NAME) TO SATISFY SOME OF YOUR DEBT TO (JUDGMENT
CREDITOR'S
NAME)."
(2) The judgment debtor may receive a hearing in
accordance
with this division by delivering a written request for
hearing to
the court within five business days after receipt of
the notice
provided pursuant to division (C)(1) of this section.
The request
may set forth the judgment debtor's reasons for
disputing the
judgment creditor's right to garnish the money,
property, or
credits, other than personal earnings;
however, neither the
judgment debtor's inclusion of nor failure to include those
reasons upon the request constitutes a waiver of any defense of
the judgment debtor or affects the judgment debtor's right to
produce evidence at the hearing. If the request is made by
the
judgment debtor within the prescribed time, the hearing shall be
limited to a consideration of the amount of money, property, or
credits, other than personal earnings, of the judgment
debtor in
the hands of
the garnishee, if any, that can be used to satisfy
all or part of
the debt owed by the judgment debtor to the
judgment creditor.
If a request for a hearing is not received by
the court within
the prescribed time, the hearing scheduled
pursuant to division
(A) of this section shall be canceled unless
the court grants the
judgment debtor a continuance in accordance
with division (C)(3)
of this section.
(3) If the judgment debtor does not request a hearing in
the
action within the prescribed time pursuant to division (C)(2)
of
this section, the court nevertheless may grant a continuance
of
the scheduled hearing if the judgment debtor, prior to the
time at
which the hearing was scheduled, as indicated on the
notice to the
judgment debtor required by division (C)(1) of this
section,
establishes a reasonable justification for failure
to request the
hearing within the prescribed time. If the court
grants a
continuance of the hearing, it shall cause the
matter to be set
for hearing as soon as practicable thereafter.
The continued
hearing shall be conducted in accordance with
division (C)(2) of
this section.
(4) The court may conduct the hearing on the matter prior
to
the time at which the hearing was scheduled, as indicated on
the
notice to the judgment debtor required by division (C)(1) of
this
section, upon the request of the judgment debtor. The
parties
shall be sent notice, by the clerk of the court, by
regular mail,
of any change in the date, time, or place of the
hearing.
(5) If the scheduled hearing is canceled and no
continuance
is granted, the court shall issue an order to the
garnishee to pay
all or some of the money, property, or credits,
other than
personal earnings, of the judgment debtor in
the possession of the
garnishee at
the time of service of the notice and order into
court if they have not
already been paid to the court. This
order
shall be based on the answer of the garnishee filed
pursuant to
this section. If the scheduled hearing is conducted
or if it is
continued and conducted, the court shall determine at
the hearing
the amount of the money, property, or credits, other
than personal
earnings, of the judgment debtor in the
possession of the
garnishee at the time of service of the notice and order, if any,
that can be
used to satisfy all or part of the
debt owed by the
judgment debtor to the judgment creditor, and
issue an order,
accordingly, to the garnishee to pay that amount
into court if it
has not already been paid to the court.
(D) The notice to the judgment debtor form and
the request
for hearing form described in division (C) of this section shall
be sent by the clerk by ordinary or regular mail service unless
the
judgment creditor requests that service be made in accordance
with the Rules of Civil Procedure, in which case the forms shall
be
served in accordance with the Rules of Civil
Procedure. Any
court of common pleas that issues an order of
garnishment of
property, other than personal earnings, under this
section has
jurisdiction to serve process pursuant to this
section upon a
garnishee who does not reside within the
jurisdiction of the
court. Any county court or municipal court
that issues an order
of
garnishment of property, other than
personal earnings, under
this
section has jurisdiction to serve
process pursuant to this
section
upon a garnishee who does not
reside within the
jurisdiction of
the court.
Sec. 3923.19. The portion of any benefits (A) Benefits
under
all
policies of sickness and accident insurance as does not
exceed
six hundred dollars for each month during any period of
disability
covered by the policies, is are not liable to
attachment
or other
process, or to be taken, appropriated, or
applied by any
legal or
equitable process or by operation of law,
either before
or after
payment of the benefits, to pay any
liabilities of the
person
insured under any such policy. This
exemption does not
apply if an
action is brought to recover for
necessaries
contracted for during
the period of disability, and
if the
complaint contains a
statement to that effect to the
extent that the benefits are
reasonably necessary for the support
of the debtor and any
dependents of the debtor.
When a policy provides for a lump sum payment because of a
dismemberment or other loss insured, the payment is exempt from
execution by the insured's creditors.
(B)(1) A payment under a stock bonus, pension, profitsharing,
annuity, or similar plan or contract on account of illness,
disability, death, age, or length of service, to the extent
reasonably necessary for the support of the person who is the
beneficiary of the plan or party to the contract and any
dependents
of the person, is not liable to attachment or other
process, or to
be taken, appropriated, or applied by any legal or
equitable
process or by operation of law, either before or after
payment of
the benefits, to pay any liabilities of the person
unless all of
the following apply:
(a) 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.
(b) The payment is on account of age or length of service.
(c) The plan or contract does not qualify under section
401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of
1986, 100 Stat. 2085, 26 U.S.C. 1, as amended.
(2) When a plan or contract provides for a lump sum payment
because of a dismemberment or other loss covered by the plan or
contract, the payment is exempt from execution by the person's
creditors.
SECTION 2. That existing sections 2329.66, 2716.02, 2716.03,
2716.05, 2716.11, 2716.13, and 3923.19 of the Revised Code are
hereby
repealed.
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