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USA Statutes : oregon
Title : TITLE 03 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
Chapter : Chapter 33 Special Proceedings and Procedures
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For the purposes of
ORS 33.015 to 33.155:
(1) “Confinement” means custody or incarceration, whether actual or
constructive.
(2) “Contempt of court” means the following acts, done willfully:
(a) Misconduct in the presence of the court that interferes with a
court proceeding or with the administration of justice, or that impairs
the respect due the court.
(b) Disobedience of, resistance to or obstruction of the court’s
authority, process, orders or judgments.
(c) Refusal as a witness to appear, be sworn or answer a question
contrary to an order of the court.
(d) Refusal to produce a record, document or other object contrary
to an order of the court.
(e) Violation of a statutory provision that specifically subjects
the person to the contempt power of the court.
(3) “Punitive sanction” means a sanction imposed to punish a past
contempt of court.
(4) “Remedial sanction” means a sanction imposed to terminate a
continuing contempt of court or to compensate for injury, damage or costs
resulting from a past or continuing contempt of court. [1991 c.724 §1;
2005 c.22 §23] (1) The
power of a court to impose a remedial or punitive sanction for contempt
of court is an inherent judicial power. ORS 33.015 to 33.155 establish
procedures to govern the exercise of that power.
(2) A corporation is liable for contempt if:
(a) The conduct constituting contempt is engaged in by an agent of
the corporation while acting within the scope of employment and on behalf
of the corporation;
(b) The conduct constituting contempt consists of an omission to
discharge a specific duty of affirmative performance imposed on
corporations by a court; or
(c) The conduct constituting contempt is engaged in, authorized,
solicited, requested, commanded or knowingly tolerated by the board of
directors or by a high managerial agent acting within the scope of
employment and on behalf of the corporation.
(3) The board of directors and high managerial agents shall be
subject to the contempt powers of a court for contempt by a corporation
if those persons engage in, authorize, solicit, request, command or
knowingly tolerate the conduct constituting contempt.
(4) As used in this section, “agent” and “high managerial agent”
have those meanings given in ORS 161.170. [1991 c.724 §2]Whenever ORS 33.015 to 33.155 provide for
appointed counsel, appointment of counsel and payment of counsel and
related expenses shall be made as follows:
(1) For contempt of a circuit court, the Oregon Tax Court, the
Court of Appeals or the Supreme Court, appointment and payment of counsel
shall be made as provided in ORS 135.055, 151.216 and 151.219.
(2) For contempt of a justice court, municipal court or other
public body not described in subsection (1) of this section, payment for
and appointment of counsel shall be made as otherwise provided by law for
the court or public body. [1991 c.724 §3; 2001 c.962 §63] (1) A court may impose either remedial
or punitive sanctions for contempt.
(2) Confinement may be remedial or punitive. The sanction is:
(a) Remedial if it continues or accumulates until the defendant
complies with the court’s order or judgment.
(b) Punitive if it is for a definite period that will not be
reduced even if the defendant complies with the court’s order or judgment.
(3) A fine may be remedial or punitive. A fine is:
(a) Punitive if it is for a past contempt.
(b) Remedial if it is for continuing contempt and the fine
accumulates until the defendant complies with the court’s judgment or
order or if the fine may be partially or entirely forgiven when the
defendant complies with the court’s judgment or order.
(4) Any sanction requiring payment of amounts to one of the parties
to a proceeding is remedial.
(5) Any sanction imposed by a court for contempt is in addition to
any civil remedy or criminal sanction that may be available as a result
of the conduct constituting contempt. In any civil or criminal
proceedings arising out of the conduct constituting contempt, the court
shall take into consideration any contempt sanctions previously imposed
for the same act. [1991 c.724 §4] (1) Except
as otherwise provided in ORS 161.685, proceedings to impose remedial
sanctions for contempt shall be conducted as provided in this section.
(2) The following persons may initiate the proceeding or, with
leave of the court, participate in the proceeding, by filing a motion
requesting that defendant be ordered to appear:
(a) A party aggrieved by an alleged contempt of court.
(b) A district attorney.
(c) A city attorney.
(d) The Attorney General.
(e) Any other person specifically authorized by statute to seek
imposition of sanctions for contempt.
(3) A motion to initiate a proceeding under this section shall be
filed in the proceeding to which the contempt is related, if there is a
related proceeding.
(4) The person initiating a proceeding under this section shall
file supporting documentation or affidavits sufficient to give defendant
notice of the specific acts alleged to constitute contempt.
(5)(a) The court may issue an order directing the defendant to
appear. Except as otherwise provided in paragraph (b) of this subsection,
the defendant shall be personally served with the order to appear in the
manner provided in ORCP 7 and 9. The court may order service by a method
other than personal service or issue an arrest warrant if, based upon
motion and supporting affidavit, the court finds that the defendant
cannot be personally served.
(b) The defendant shall be served by substituted service if
personal service is waived under ORS 107.835. If personal service is
waived under ORS 107.835, the defendant shall be served by the method
specified in the waiver.
(6) The court may impose a remedial sanction only after affording
the defendant opportunity for a hearing tried to the court. The defendant
may waive the opportunity for a hearing by stipulated order filed with
the court.
(7) A defendant has no right to a jury trial and, except as
provided in this section, has only those rights accorded to a defendant
in a civil action.
(8) A defendant is entitled to be represented by counsel. A court
shall not impose on a defendant a remedial sanction of confinement
unless, before the hearing is held, the defendant is:
(a) Informed that such sanction may be imposed; and
(b) Afforded the same right to appointed counsel required in
proceedings for the imposition of an equivalent punitive sanction of
confinement.
(9) If the defendant is not represented by counsel when coming
before the court, the court shall inform the defendant of the right to
counsel, and of the right to appointed counsel if the defendant is
entitled to, and financially eligible for, appointed counsel under
subsection (8) of this section.
(10) Inability to comply with an order of the court is an
affirmative defense.
(11) In any proceeding for imposition of a remedial sanction other
than confinement, proof of contempt shall be by clear and convincing
evidence. In any proceeding for imposition of a remedial sanction of
confinement, proof of contempt shall be beyond a reasonable doubt.
(12) Proceedings under this section are subject to rules adopted
under ORS 33.145. Proceedings under this section are not subject to the
Oregon Rules of Civil Procedure except as provided in subsection (5) of
this section or as may be provided in rules adopted under ORS 33.145.
[1991 c.724 §5; 1993 c.448 §7; 2001 c.962 §77; 2005 c.22 §24] (1) Except
as otherwise provided in ORS 161.685, proceedings to impose punitive
sanctions for contempt shall be conducted as provided in this section.
(2) The following persons may initiate the proceeding by an
accusatory instrument charging a person with contempt of court and
seeking a punitive sanction:
(a) A city attorney.
(b) A district attorney.
(c) The Attorney General.
(3) If a city attorney, district attorney or Attorney General who
regularly appears before the court declines to prosecute a contempt, and
the court determines that remedial sanctions would not provide an
effective alternative remedy, the court may appoint an attorney who is
authorized to practice law in this state, and who is not counsel for an
interested party, to prosecute the contempt. The court shall allow
reasonable compensation for the appointed attorney’s attendance, to be
paid by:
(a) The Oregon Department of Administrative Services, if the
attorney is appointed by the Supreme Court, the Court of Appeals or the
Oregon Tax Court;
(b) The city where the court is located, if the attorney is
appointed by a municipal court; and
(c) The county where the prosecution is initiated, in all other
cases.
(4) The prosecutor may initiate proceedings on the prosecutor’s own
initiative, on the request of a party to an action or proceeding or on
the request of the court. After the prosecutor files an accusatory
instrument, the court may issue any order or warrant necessary to compel
the appearance of the defendant.
(5) Except as otherwise provided by this section, the accusatory
instrument is subject to the same requirements and laws applicable to an
accusatory instrument in a criminal proceeding, and all proceedings on
the accusatory instrument shall be in the manner prescribed for criminal
proceedings.
(6) Except for the right to a jury trial, the defendant is entitled
to the constitutional and statutory protections, including the right to
appointed counsel, that a defendant would be entitled to in a criminal
proceeding in which the fine or term of imprisonment that could be
imposed is equivalent to the punitive sanctions sought in the contempt
proceeding. This subsection does not affect any right to a jury that may
otherwise be created by statute.
(7) Inability to comply with an order of the court is an
affirmative defense. If the defendant proposes to rely in any way on
evidence of inability to comply with an order of the court, the defendant
shall, not less than five days before the trial of the cause, file and
serve upon the city attorney, district attorney or Attorney General
prosecuting the contempt a written notice of intent to offer that
evidence. If the defendant fails to file and serve the notice, the
defendant shall not be permitted to introduce evidence of inability to
comply with an order of the court at the trial of the cause unless the
court, in its discretion, permits such evidence to be introduced where
just cause for failure to file the notice, or to file the notice within
the time allowed, is made to appear.
(8) The court may impose a remedial sanction in addition to or in
lieu of a punitive sanction.
(9) In any proceeding for imposition of a punitive sanction, proof
of contempt shall be beyond a reasonable doubt. [1991 c.724 §6; 2001
c.962 §78] (1) If a person served
with an order to appear under ORS 33.055 fails to appear at the time and
place specified in the order, the court may issue any order or warrant
necessary to compel the appearance of the defendant.
(2) A person against whom a complaint has been issued under ORS
33.065 may be cited to appear in lieu of custody as provided in ORS
133.055. If the person fails to appear at the time and place specified in
the citation, the court may issue any order or warrant necessary to
compel the appearance of the defendant.
(3) When the court issues a warrant for contempt, the court shall
specify a security amount. Unless the defendant pays the security amount
upon arrest, the sheriff shall keep the defendant in custody until either
a release decision is made by the court or until disposition of the
contempt proceedings.
(4) The defendant shall be discharged from the arrest upon
executing and delivering to the sheriff, at any time before the return
day of the warrant, a security release or a release agreement as provided
in ORS 135.230 to 135.290, to the effect that the defendant will appear
on the return day and abide by the order or judgment of the court or
officer or pay, as may be directed, the sum specified in the warrant.
(5) The sheriff shall return the warrant and the security deposit,
if any, given to the sheriff by the defendant by the return day specified
in the warrant.
(6) When a warrant for contempt issued under subsection (2) of this
section has been returned after having been served and the defendant does
not appear on the return day, the court may do either or both of the
following:
(a) Issue another warrant.
(b) Proceed against the security deposited upon the arrest.
(7) If the court proceeds against the security under subsection (6)
of this section and the sum specified is recovered, the court may award
to any party to the action any or all of the money recovered as remedial
damages.
(8) Security deposited under this section shall not be subject to
the assessments provided for in ORS 137.309 (1) to (5). [1991 c.724 §7;
1993 c.196 §3] (1) Upon the motion of the
person initiating the proceeding, the court may compel the testimony of a
witness as provided under ORS 136.617 in a contempt proceeding under ORS
33.055 or 33.065.
(2) In any case where the person initiating the proceeding is not
represented by the district attorney, county counsel or Attorney General,
the person initiating the proceeding shall serve a notice of intent to
compel testimony on the district attorney of the county where the
contempt proceeding is pending and on the Attorney General. The notice
shall be served not less than 14 calendar days before any hearing on the
motion to compel testimony.
(3) The notice required by this section shall identify the witness
whose testimony the person initiating the proceeding intends to compel
and include, if known, the witness’ name, date of birth, residence
address and Social Security number, and other pending proceedings or
criminal charges involving the witness. The notice shall also include the
case name and number of the contempt proceeding and the date, time and
place set for any hearing scheduled as provided in ORS 136.617.
(4) If the person initiating the proceeding fails to serve the
required advance notice or fails to serve the notice within the time
required, the court shall grant a continuance for not less than 14
calendar days from the date the notice is served to allow the district
attorney and Attorney General opportunity to be heard on the matter of
compelling testimony. The court may compel testimony under this
subsection only after the full notice period and opportunity to be heard,
unless before that time the district attorney and Attorney General waive
in writing any objection to the motion to compel.
(5) In any hearing on a motion to compel testimony under this
section, the district attorney of the county in which the contempt
proceeding is pending and the Attorney General each may appear to present
evidence or arguments to support or oppose the motion.
(6) In lieu of compelling testimony under this section, the court
may continue the contempt proceeding until disposition of any criminal
action that is pending against the witness whose testimony is sought and
that charges the witness with a crime. [1991 c.724 §7a] A court may summarily impose
a sanction upon a person who commits a contempt of court in the immediate
view and presence of the court. The sanction may be imposed for the
purpose of preserving order in the court or protecting the authority and
dignity of the court. The provisions of ORS 33.055 and 33.065 do not
apply to summary imposition of sanctions under this section. [1991 c.724
§8] (1) Unless otherwise provided by
statute, a court may impose one or more of the following remedial
sanctions:
(a) Payment of a sum of money sufficient to compensate a party for
loss, injury or costs suffered by the party as the result of a contempt
of court.
(b) Confinement for so long as the contempt continues, or six
months, whichever is the shorter period.
(c) An amount not to exceed $500 or one percent of the defendant’s
annual gross income, whichever is greater, for each day the contempt of
court continues. The sanction imposed under this paragraph may be imposed
as a fine or to compensate a party for the effects of the continuing
contempt.
(d) An order designed to insure compliance with a prior order of
the court, including probation.
(e) Payment of all or part of any attorney fees incurred by a party
as the result of a contempt of court.
(f) A sanction other than the sanctions specified in paragraphs (a)
to (e) of this subsection if the court determines that the sanction would
be an effective remedy for the contempt.
(2) Unless otherwise provided by statute, a court may impose one or
more of the following punitive sanctions for each separate contempt of
court:
(a) A fine of not more than $500 or one percent of the defendant’s
annual gross income, whichever is greater.
(b) Forfeiture of any proceeds or profits obtained through the
contempt.
(c) Confinement for not more than six months.
(d) Probation or community service.
(3) In a summary proceeding under ORS 33.096, a court may impose
one or more of the following sanctions for each separate contempt of
court:
(a) A punitive fine of not more than $500;
(b) Confinement as a punitive sanction for not more than 30 days; or
(c) Probation or community service.
(4) The court may impose a punitive sanction for past conduct
constituting contempt of court even though similar present conduct is a
continuing contempt of court. [1991 c.724 §9] A judge may be disqualified from
a contempt proceeding as provided for in other cases under ORS 14.210 to
14.270. ORS 14.260 (3) shall not apply to a motion to disqualify a judge
in a contempt proceeding. The judge to whom the contempt is referred
shall assume authority over and conduct any further proceedings relating
to the contempt. [1991 c.724 §10; 1995 c.658 §121] (1) The imposition of a sanction for contempt shall
be by a judgment.
(2) A judgment in a proceeding for imposition of a remedial
sanction may be appealed in the same manner as from a judgment in an
action at law. An appeal from a judgment imposing a punitive sanction
shall be in the manner provided for appeals in ORS chapter 138. Appeals
from judgments imposing sanctions for contempt in municipal courts and
justice courts shall be in the manner provided by law for appeals from
those courts.
(3)(a) If a motion to initiate proceedings to impose remedial
sanctions is filed in a related proceeding under ORS 33.055 (3) before
entry of judgment in the related proceeding, and the court determines
that the defendant is in contempt, the court may suspend imposition of
sanctions and entry of judgment on the contempt until entry of judgment
in the related proceeding.
(b) If a motion to initiate proceedings to impose remedial
sanctions is filed in a related proceeding under ORS 33.055 (3) before
entry of judgment in the related proceeding, and the court denies the
motion or declines to impose sanctions, the court shall enter judgment on
that denial or determination only as part of the judgment in the related
proceeding.
(4) An appeal from a contempt judgment shall not stay any action or
proceeding to which the contempt is related. [1991 c.724 §11; 2003 c.576
§233; 2005 c.568 §28] (1) Except as provided in subsection
(5) of this section, proceedings under ORS 33.055 to impose remedial
sanctions for contempt and under ORS 33.065 to impose punitive sanctions
for contempt shall be commenced within two years of the act or omission
constituting the contempt.
(2) For the purposes of this section, a proceeding to impose
remedial sanctions shall be deemed commenced as to each defendant when
the motion provided for in ORS 33.055 is filed.
(3) Proceedings to impose punitive sanctions are subject to ORS
131.135, 131.145 and 131.155.
(4) The time limitations imposed by subsection (1) of this section
shall not act to bar proceedings to impose sanctions for an act or
omission that constitutes a continuing contempt at the time contempt
proceedings are commenced. The willful failure of an obligor, as that
term is defined in ORS 110.303, to pay a support obligation after that
obligation becomes a judgment is a contempt without regard to when the
obligation became a judgment.
(5) Proceedings to impose remedial or punitive sanctions for
failure to pay a support obligation by an obligor, as defined in ORS
110.303, shall be commenced within 10 years of the act or omission
constituting contempt. [1991 c.724 §12; 2005 c.560 §15] The Supreme Court may adopt rules to carry out the
purposes of ORS 33.015 to 33.155. [1991 c.724 §13]ORS 33.015 to 33.145 apply to every court and
judicial officer of this state, including municipal, county and justice
courts. Rules adopted by the Supreme Court apply to those courts, but the
application of such rules to municipal, county and justice courts does
not confer any supervisory or administrative authority on the Supreme
Court or the State Court Administrator with respect to those courts.
[1991 c.724 §14]CHANGE OF NAME Application for change of name of a
person may be heard and determined by the probate court or, if the
circuit court is not the probate court, the circuit court if its
jurisdiction has been extended to include this section pursuant to ORS
3.275 of the county in which the person resides. The change of name shall
be granted by the court unless the court finds that the change is not
consistent with the public interest. [Amended by 1967 c.534 §11; 1975
c.733 §1](1) Before entering a judgment for a change of name,
except as provided in ORS 109.360, the court shall require public notice
of the application to be given, that all persons may show cause why the
same should not be granted. The court shall also require public notice to
be given of the change after the entry of the judgment.
(2) Before entering a judgment for a change of name in the case of
a minor child the court shall require that, in addition to the notice
required under subsection (1) of this section, written notice be given to
the parents of the child, both custodial and noncustodial, and to any
legal guardian of the child.
(3) Notwithstanding subsection (2) of this section, notice of an
application for the change of name of a minor child need not be given to
a parent of the child if the other parent of the child files a verified
statement in the change of name proceeding that asserts that the minor
child has not resided with the other parent and that the other parent has
not contributed or tried to contribute to the support of the child.
[Amended by 1983 c.369 §6; 1997 c.872 §22; 2001 c.779 §12; 2003 c.576
§308](1) In the case of a change, by court order, of the name of the
parents of any minor child, if the child’s birth certificate is on file
in this state, the State Registrar of the Center for Health Statistics,
upon receipt of a certified copy of the court order changing the name,
together with the information required to locate the original birth
certificate of the child, shall prepare a new birth certificate for the
child in the new name of the parents of the child. The name of the
parents as so changed shall be set forth in the new certificate, in place
of their original name.
(2) The evidence upon which the new certificate was made, and the
original certificate, shall be sealed and filed by the State Registrar of
the Center for Health Statistics, and may be opened only upon demand of
the person whose name was changed, if of legal age, or by an order of a
court of competent jurisdiction.
(3) When a change of name by parents will affect the name of their
child under subsection (1) of this section, the court, on its own motion
or on request of a child of the parents, may take testimony from or
confer with the child and may exclude from the conference the parents and
other persons if the court finds that such action would be in the best
interests of the child. However, the court shall permit an attorney for
the parents to attend the conference, and the conference shall be
reported. If the court finds that a change of name would not be in the
best interests of the child, the court may provide in the order changing
the name of the parents that such change of name shall not affect the
child, and a new birth certificate shall not be prepared for the child.
[Amended by 1983 c.369 §7; 2005 c.22 §25] When a minor
child applies for a change of name under ORS 33.410, the court may, upon
its own motion, confer with the child and may exclude from the conference
the parents and other persons if the court finds that such action would
be in the best interests of the child. However, the court shall permit an
attorney for the child to attend the conference, and the conference shall
be reported. [1983 c.369 §5]CHANGE OF SEX (1) A court that has
jurisdiction to determine an application for change of name of a person
under ORS 33.410 and 33.420 may order a legal change of sex and enter a
judgment indicating the change of sex of a person whose sex has been
changed by surgical procedure.
(2) The court may order a legal change of sex and enter the
judgment in the same manner as that provided for change of name of a
person under ORS 33.410 and 33.420.
(3) If a person applies for a change of name under ORS 33.410 and
33.420 at the time the person applies for a legal change of sex under
this section, the court may order change of name and legal change of sex
at the same time and in the same proceeding. [1981 c.221 §1; 1997 c.872
§23; 2003 c.576 §309]SURETIESThe surety or the representatives of any
surety upon the bond of any trustee, committee, guardian, assignee,
receiver, executor, administrator or other fiduciary, and any irrevocable
letter of credit issuer for any trustee, committee, guardian, assignee,
receiver, executor, administrator or other fiduciary is entitled as a
matter of right to be discharged from liability as provided in this
section, and to that end may, on notice to the principal named in the
bond or irrevocable letter of credit, apply to the court that accepted
the bond or irrevocable letter of credit or to the court of which the
judge who accepted the bond or irrevocable letter of credit was a member
or to any judge thereof, praying to be relieved from liability for the
act or omission of the principal occurring after the date of the order
relieving such person, and that the principal be required to account and
give new sureties or cause to be issued new letters of credit. Notice of
the application shall be served on the principal personally not less than
five days prior to the date on which the application is to be made,
unless it satisfactorily appears to the court or judge that personal
service cannot be had with due diligence within the state, in which case
notice may be given by personal service without the state or in such
manner as the court or judge directs. Pending the hearing of the
application the court or judge may restrain the principal from acting
except to preserve the trust estate until further order. If upon the
return of the application the principal fails to file a new bond or
irrevocable letter of credit to the satisfaction of the court or judge,
the court or judge must make an order requiring the principal to file a
new bond or irrevocable letter of credit within a period not exceeding
five days. If the new bond or irrevocable letter of credit is filed upon
the return of the application, or within the time fixed by the order, the
court or judge must make a judgment or order requiring the principal to
account for all acts and proceedings to and including the date of the
judgment or order, and to file such account within a time fixed, not
exceeding 20 days, and discharge the surety or letter of credit issuer
making application from liability for any act or default of the principal
subsequent to the date of the judgment or order. If the principal fails
to file a new bond or irrevocable letter of credit within the time
specified, a judgment or order must be made revoking the appointment of
the principal or removing and requiring the principal to file an account
within not more than 20 days. If the principal fails to file the account,
the surety or letter of credit issuer may make and file an account with
like force and effect as though filed by the principal, and upon
settlement thereof and upon the trust fund or estate being found or made
good and paid over or properly secured, credit shall be given for all
commissions, costs, disbursements and allowances to which the principal
would be entitled were the principal accounting, and allowance shall be
made to the surety or letter of credit issuer for the expense incurred in
filing the account and procuring the settlement thereof. After the filing
of the account, either by the principal or the surety or the letter of
credit issuer, the court or judge must, upon the petition of the
principal or surety or the letter of credit issuer, issue an order
requiring all persons interested in the estate or trust to attend a
settlement of the account at a time and place therein specified, and upon
the trust fund or estate being found or made good and paid over or
properly secured, the surety or the letter of credit issuer shall be
discharged from all liability. Upon demand in writing by the principal,
the surety or the letter of credit issuer shall return any compensation
that has been paid for the unexpired period of the bond or the letter of
credit. [Amended by 1991 c.331 §11; 2003 c.576 §310]Any trustee, committee, guardian, assignee,
receiver, executor, administrator or other fiduciary shall be entitled to
have any surety on the bond of the fiduciary or of any irrevocable letter
of credit issuer discharged from liability thereon, and the fiduciary may
file a new bond or irrevocable letter of credit as provided in this
section. The fiduciary may, on written notice to the surety or letter of
credit issuer and to all other interested persons, apply to the court
that accepted the bond or irrevocable letter of credit, or to a judge
thereof, praying that the surety or irrevocable letter of credit be
discharged from liability thereon, and that the principal be allowed to
file a new bond or irrevocable letter of credit and to account. Notice of
the application shall be served on the surety or letter of credit issuer
and on each of the persons interested, within the state, not less than 10
days prior to the date on which the application is to be made, unless it
satisfactorily appears to the court or judge that the notice cannot with
due diligence be served within the state, in which case notice may be
given in such manner as the court or judge shall direct. Upon the return
of the application, the principal may file a new bond or irrevocable
letter of credit satisfactory to the court or judge, and therewith file
an account of all proceedings, whereupon the court or judge shall
proceed, upon due notice to all persons interested, to judicially settle
the account and duly credit and charge the principal; and upon the trust
fund or estate being found or made good and paid over or properly
secured, the surety or letter of credit issuer shall be discharged from
all liability. [Amended by 1991 c.331 §12](1) When a bond or an
irrevocable letter of credit of any personal representative, guardian or
conservator is terminated upon the issuance of a new bond or irrevocable
letter of credit to the personal representative, guardian or conservator
by a new surety or letter of credit issuer, the former surety or letter
of credit issuer shall not be liable on the old bond or irrevocable
letter of credit for any acts or omissions of the personal
representative, guardian or conservator which occur after the issuance of
the new bond or irrevocable letter of credit.
(2) A new surety for a personal representative, guardian or
conservator who issues a new bond or irrevocable letter of credit after
the termination of a previous bond or irrevocable letter of credit
written by another surety or letter of credit issuer for a personal
representative, guardian or conservator shall not be liable for any acts
or omissions of the personal representative, guardian or conservator
which occurred prior to the issuance of the new bond or irrevocable
letter of credit. [1983 c.613 §§2,3; 1991 c.331 §13]EVALUATING SECURITIES OF SECURED CREDITOR In the
administration of a decedent’s estate, or whenever the assets of any
person, partnership or corporation are being administered in receivership
or any liquidation proceedings, or under an assignment for the benefit of
creditors, the value of securities held by secured creditors shall be
determined by converting the same into money according to the terms of
the agreement pursuant to which the securities were delivered to the
creditors, or by the creditors and the person or official liquidating the
assets by agreement, arbitration, compromise or litigation. Where the
proceedings are in court, the determination shall be subject to the
control or decision of the court. If, under an assignment for the benefit
of creditors, the secured creditor and the assignee cannot, by agreement,
arbitration or compromise, determine the value, either the assignee or
the creditor may apply to a court of competent jurisdiction in the place
of residence of the assignee for determination of the value by
declaratory judgment, or otherwise. In all cases, the amount of the
determined value shall be credited upon the secured claim and a general
or unsecured creditor’s dividend shall be paid only on the uncredited
balance, if any, of the claim. Nothing contained in this section shall be
construed to compel any creditor holding security to file a claim for
participation in any such estate or proceeding, or to compel the
creditor, if the creditor does not file a claim, to foreclose or realize
upon the security of the creditor.DETERMINATION OF LEGALITY OF MUNICIPAL CORPORATION ORGANIZATION AND
ACTIONS(1) As used in ORS
33.710 and 33.720, unless the context requires otherwise:
(a) “Governing body” means the city council, board of
commissioners, board of directors, county court or other managing board
of a municipal corporation including a board managing a municipally owned
public utility or a dock commission.
(b) “Municipal corporation” means any county, city, port, school
district, union high school district, community college district and all
other public or quasi-public corporations including a municipal utility
or dock commission operated by a separate board or commission.
(2) The governing body may commence a proceeding in the circuit
court of the county in which the municipal corporation or the greater
part thereof is located, for the purpose of having a judicial examination
and judgment of the court as to the regularity and legality of:
(a) The proceedings in connection with the establishment or
creation of the municipal corporation, including any action or
proceedings proclaiming the creation of the municipal corporation or
declaring the result of any election therein.
(b) The proceedings of the governing body and of the municipal
corporation providing for and authorizing the issue and sale of bonds of
the municipal corporation, whether the bonds or any of them have or have
not been sold or disposed of.
(c) Any order of the governing body levying a tax.
(d) The authorization of any contract and as to the validity of the
contract, whether or not it has been executed.
(e) Any decision of the governing body that raises novel or
important legal issues that would be efficiently and effectively resolved
by a proceeding before the decision becomes effective, when the decision
will:
(A) Require a significant expenditure of public funds;
(B) Significantly affect the lives or businesses of a significant
number of persons within the boundaries of the governing body; or
(C) Indirectly impose a significant financial burden on the cost of
conducting business within the boundaries of the governing body.
(f) The authority of the governing body to enact any ordinance,
resolution or regulation.
(g) Any ordinance, resolution or regulation enacted by the
governing body, including the constitutionality of the ordinance,
resolution or regulation.
(3) All proceedings of the municipal corporation may be judicially
examined and determined in one special proceeding, or any part thereof
may be separately examined and determined by the court.
(4) Nothing in this section allows a governing body to have a
judicial examination and judgment of the court without a justiciable
controversy. [Amended by 1975 c.133 §1; 2003 c.548 §1](1) The
determination authorized by ORS 33.710 shall be in the nature of a
proceeding in rem; and the practice and procedure therein shall follow
the practice and procedure of an action not triable by right to a jury,
as far as the same is consistent with the determination sought to be
obtained, except as provided in this section.
(2) Jurisdiction of the municipal corporation shall be obtained by
the publication of notice directed to the municipal corporation; and
jurisdiction of the electors of the municipal corporation shall be
obtained by publication of notice directed to all electors, freeholders,
taxpayers and other interested persons, without naming such electors,
freeholders, taxpayers and other interested persons individually. The
notice shall be served on all parties in interest by publication thereof
for at least once a week for three successive weeks in a newspaper of
general circulation published in the county where the proceeding is
pending, or if no such newspaper is published therein, then in a
contiguous county. Jurisdiction shall be complete within 10 days after
the date of completing publication of the notice as provided in this
section.
(3) Any person interested may at any time before the expiration of
the 10 days appear and contest the validity of such proceeding, or of any
of the acts or things therein enumerated. Such proceeding shall be tried
forthwith and judgment rendered as expeditiously as possible declaring
the matter so contested to be either valid or invalid. Any order or
judgment in the course of such proceeding may be made and rendered by the
judge in vacation or otherwise; and for that purpose, the court shall be
deemed at all times to be in session and the act of the judge in making
the order or judgment shall be the act of the court.
(4) Any party may appeal to the Court of Appeals from a judgment
rendered in such proceeding. The court, in inquiring into the regularity,
legality or correctness of any proceeding of the municipal corporation or
its governing body shall disregard any error, irregularity or omission
which does not affect the substantial rights of the parties to the
special proceeding, and may approve the proceedings in part and may
disapprove and declare illegal or invalid in part other or subsequent
proceedings, or may approve or disapprove the proceedings, or may approve
the proceedings in part and disapprove the remainder thereof.
(5) Costs of the proceeding may be allowed and apportioned between
the parties in the discretion of the court.
(6) Upon conclusion of a proceeding authorized by ORS 33.710
(2)(b), including any appeal of a judgment, the judgment entered in the
proceeding is binding upon the parties and all other persons. Claim
preclusion and issue preclusion apply to all matters adjudicated in the
proceeding. Except for an action to enforce a judgment, the courts of
this state do not have jurisdiction over an action by or against the
governing body or municipal corporation named in the judgment if the
purpose of the action is to seek judicial review or judicial examination,
directly or indirectly, of a matter adjudicated in the proceeding.
[Amended by 1975 c.133 §2; 1979 c.284 §69; 2001 c.537 §1; 2003 c.576 §234]TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS
(1) “Annuity issuer” means an insurer that has entered into a
contract to fund periodic payments under a structured settlement
agreement.
(2) “Obligor” means a party that has a continuing obligation to
make periodic payments to a payee under a structured settlement agreement
or an agreement that provides for a qualified assignment as defined in
section 130 of the Internal Revenue Code, as of January 1, 2006.
(3) “Payee” means an individual who is receiving tax-free payments
under a structured settlement agreement and proposes to make a transfer
of payment rights.
(4) “Payment rights” means rights to receive periodic payments
under a structured settlement agreement, whether from the obligor or the
annuity issuer.
(5) “Periodic payments” includes both recurring payments and
scheduled future lump sum payments.
(6) “Responsible administrative authority” means a government
authority vested by law with exclusive jurisdiction over the original
tort claim or workers’ compensation claim that was resolved in a
structured settlement agreement.
(7) “Structured settlement agreement” means an agreement, judgment,
stipulation or release embodying the terms of an arrangement for periodic
payment of damages from an obligor or an annuity issuer for:
(a) Personal injuries or sickness established by settlement or
judgment in resolution of a tort claim; or
(b) Periodic payments in settlement of a workers’ compensation
claim.
(8) “Terms of the structured settlement agreement” includes the
terms of:
(a) A structured settlement agreement;
(b) An annuity contract;
(c) An agreement that provides for a qualified assignment as
defined in section 130 of the Internal Revenue Code, as of January 1,
2006; and
(d) Any order or other approval of any court, responsible
administrative authority or other government authority that authorized or
approved the structured settlement agreement.
(9) “Transfer” means any sale, assignment, pledge or other
alienation or encumbrance of payment rights made by a payee for
consideration. “Transfer” does not include the creation or perfection of
an unspecified security interest in all of the payee’s payment rights
entered into with an insured depository institution, or an agent or
successor in interests of the insured depository institution, in the
absence of any action to redirect the payments under the structured
settlement agreement to the insured depository institution or otherwise
to enforce a security interest against the payment rights.
(10) “Transfer agreement” means an agreement providing for a
transfer of payment rights.
(11) “Transferee” means a party acquiring or proposing to acquire
payment rights through a transfer agreement. [2005 c.173 §1]Note: Section 7, chapter 173, Oregon Laws 2005, provides:
Sec. 7. Sections 1 to 6 of this 2005 Act [33.850 to 33.875] apply
to transfer agreements entered into on or after the effective date of
this 2005 Act [January 1, 2006]. [2005 c.173 §7] (1) A payee
may transfer payment rights under ORS 33.850 to 33.875 if:
(a) The payee is domiciled in this state;
(b) The domicile or principal place of business of the obligor or
the annuity issuer is located in this state;
(c) The structured settlement agreement was approved by a court or
responsible administrative authority in this state; or
(d) The structured settlement agreement is expressly governed by
the laws of this state.
(2) Prior to transferring payment rights under ORS 33.850 to
33.875, the transferee shall file an application for approval of the
transfer in:
(a) The county in which the payee resides;
(b) The county in which the obligor or the annuity issuer maintains
its principal place of business; or
(c) Any court or before any responsible administrative authority
that approved the structured settlement agreement.
(3) Not less than 20 days prior to the scheduled hearing on an
application for approval of a transfer of payment rights, the transferee
shall send notice of the proposed transfer to:
(a) The payee;
(b) Any beneficiary irrevocably designated under the annuity
contract to receive payments following the payee’s death;
(c) The annuity issuer;
(d) The obligor; and
(e) Any other party that has continuing rights or obligations under
the structured settlement agreement that is the subject of the hearing.
(4) The notice sent under subsection (3) of this section shall
include:
(a) A copy of the transferee’s application.
(b) A copy of the transfer agreement.
(c) A copy of the disclosure statement provided to the payee as
required under ORS 33.860.
(d) A listing of each person for whom the payee is legally
obligated to provide support, including the age of each of those persons.
(e) Notification that any person receiving notice under subsection
(3) of this section is entitled to support, oppose or otherwise respond
to the transferee’s application, either in person or by counsel, by
submitting written comments to the court or responsible administrative
authority or by participating in the hearing.
(f) Notification of the time and place of the hearing and
notification of the manner in which and the time by which written
responses to the application must be filed, which shall not be less than
15 days after service of the transferee’s notice, in order to be
considered by the court or responsible administrative authority. [2005
c.173 §2]Note: See note under 33.850. Not less than three
days prior to the day on which a payee is scheduled to sign a transfer
agreement, a transferee shall provide the payee with a statement in not
less than 14-point type that sets forth:
(1) The amounts and due dates of the structured settlement payments
to be transferred.
(2) The aggregate amount of the payments to be transferred.
(3) The discounted present value of the payments and the rate used
in calculating the discounted present value. The discounted present value
shall be calculated by using the most recently published applicable
federal rate for determining the present value of an annuity, as issued
by the Internal Revenue Service.
(4) The amount payable to a payee as the result of a transfer. The
amount set forth in this subsection shall be calculated before any
reductions are made for transfer expenses required to be listed under
subsection (5) of this section or any related disbursements.
(5) An itemized listing of all applicable transfer expenses and the
transferee’s best estimate of the amount of any attorney fees and
disbursements. For the purposes of this subsection, “transfer expenses”:
(a) Includes all expenses of a transfer that are required under the
transfer agreement to be paid by the payee or deducted from the amount
payable to a payee as the result of a transfer.
(b) Does not include attorney fees and related disbursements
payable in connection with the transferee’s application for approval of
the transfer or preexisting obligations of the payee payable for the
payee’s account from the proceeds of a transfer.
(6) The amount calculated by subtracting the aggregate amount of
the actual and estimated transfer expenses required to be listed under
subsection (5) of this section from the amount identified in subsection
(4) of this section.
(7) The amount of any penalties or liquidated damages payable by
the payee in the event of a breach of the transfer agreement by the payee.
(8) A statement that the payee has the right to cancel the transfer
agreement, without penalty or further obligation, not later than the
third business day after the date the agreement is signed by the payee.
[2005 c.173 §3]Note: See note under 33.850.A transfer of payment rights under ORS 33.850 to 33.875 is not
effective and an obligor or annuity issuer is not required to make any
payments directly or indirectly to a transferee unless the transfer has
been approved in advance in a final court order or order of a responsible
administrative authority based on express findings by the court or
authority that:
(1) The transfer is in the best interest of the payee, taking into
account the welfare and support of all persons for whom the payee is
legally obligated to provide support.
(2) The payee has been advised in writing by the transferee to seek
advice from an attorney, certified public accountant, actuary or other
licensed professional adviser regarding the transfer, and the payee has
either received the advice or knowingly waived advice in writing.
(3) The transfer does not contravene any applicable statute or
order of any court or other government authority. [2005 c.173 §4]Note: See note under 33.850. Following a transfer of
payment rights under ORS 33.850 to 33.875:
(1) The obligor and the annuity issuer shall, as to all parties
except the transferee, be discharged and released from all liability for
the transferred payments.
(2) The transferee shall be liable to the obligor and the annuity
issuer:
(a) If the transfer contravenes the terms of the structured
settlement agreement, for any taxes incurred by the parties as a
consequence of the transfer; and
(b) For any other liabilities or costs, including reasonable costs
and attorney fees, arising from compliance by the parties with the order
of the court or responsible administrative authority or arising as a
consequence of the transferee’s failure to comply with ORS 33.850 to
33.875.
(3) An annuity issuer or an obligor may not be required to divide
any periodic payments between the payee and any transferee or assignee or
between two or more transferees or assignees.
(4) Any further transfer of payment rights by the payee may be made
only after compliance with all of the requirements of ORS 33.850 to
33.875. [2005 c.173 §5]Note: See note under 33.850.(1) The provisions of ORS 33.850
to 33.875 may not be waived by any payee.
(2) A transfer agreement entered into on or after January 1, 2006,
by a payee who resides in this state shall provide that disputes under
the transfer agreement, including any claim that the payee has breached
the agreement, shall be determined under the laws of this state. A
transfer agreement may not authorize the transferee or any other party to
confess judgment or consent to entry to judgment against the payee.
(3) A transfer of payment rights may not extend to any payments
that are life contingent unless, prior to the date on which the payee
signs the transfer agreement, the transferee has established and has
agreed to maintain procedures reasonably satisfactory to the annuity
issuer and the obligor for:
(a) Periodically confirming the payee’s survival.
(b) Giving the annuity issuer and the obligor prompt written notice
in the event of the payee’s death.
(4) A payee who proposes to make a transfer of payment rights does
not incur any penalty, forfeit any application fee or other payment, or
otherwise incur any liability to the proposed transferee or a assignee
based on any failure of the transfer to satisfy the conditions of ORS
33.850 to 33.875.
(5) Nothing in ORS 33.850 to 33.875 shall be construed to authorize
a transfer of payment rights in contravention of any law or to imply that
any transfer under a transfer agreement entered into prior to January 1,
2006, is valid or invalid.
(6) Compliance with the requirements set forth in ORS 33.860 and
fulfillment of the conditions set forth in ORS 33.855 shall be solely the
responsibility of the transferee in any transfer of payment rights, and
neither the obligor nor the annuity issuer shall bear any responsibility
for, or any liability arising from, noncompliance with the requirements
or failure to fulfill the conditions. [2005 c.173 §6]
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