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Tina
Tina, Lawyer
Category: Real Estate Law
Satisfied Customers: 5436
Experience:  17 years of legal experience including real estate law.
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I did a contract on a property that I own. Buyers defaulted

Customer Question

I did a contract for deed on a property that I own. Buyers defaulted and have not make any payments for over 2 years. I tried to evict as there was a clause that the contract was void if ever late or didn't make payments. Judge says I must foreclose but not sure how to do it myself and I want to keep my property. what must I do and can I do it myself as these people have almost sent me into bankruptcy.....
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Welcome to JA and that you for your question. The contract for deed should say how far behind the purchaser must be to initiate a forleosure proceding. Do you have a copy of the contract for deed?

Customer: replied 1 year ago.
10 days. yes have a copy
Customer: replied 1 year ago.
it said if 10 days late that the contract was void and they would be facing eviction. they agreed but just stopped making payments and tried to con my daughter into giving them a deed and she refused. I was the one gave the contract as I had power of attorney over this property. I need to know procedure to file for a foreclosure in Oklahoma
Expert:  Attyadvisor replied 1 year ago.

The simplest way is get them to agree to move. If that will not work you would need to begin the foreclosure process.

Give me a moment to provide you with the procedure.

Customer: replied 1 year ago.
they aren't going to move, they actually move in 4 other people and when I tried to go on the property they came out to shoot me...
Expert:  Attyadvisor replied 1 year ago.

"Power of Sale Notice Requirements:

  1. Prior to initiating a foreclosure the lender must send the borrower a written notice of the intent to foreclose by power of sale. This notice gives the borrower thirty-five (35) days to cure the default and reinstate the mortgage. If a borrower has been in default for three (3) times in the past 24 month period no right to additional notice will be required. If homestead property is involved and the mortgage has been in default more than four (4) times in the last 24 months no additional notice is required prior to acceleration. A copy of the notice of sale must be published date at least 4 consecutive weeks in a newspaper of general circulation in the county in which the property is located with the notice published not less than 30 days before the proposed sale.
  2. The notice of sale must be personally served not less than thirty (30) days prior to the date of the sale and must be recorded within ten days of the passing of the thirty-five (35) day cure notice period.
  3. Foreclosure sales must take place on a day other at the time, place and date designated in the notice of sale as part of a public auction. The foreclosure sale will take place between 9AM and 5PM. The representative of the mortgagee will auction the property to the highest bidder. The foreclosure sale may be postponed if at least ten (10) days written notice is provided to the original recipient of the notice of default. The high bidder must post 10% of the bid amount and if that cannot be done the sale can be made to the next highest bidder.

In Oklahoma, the lenders can also go to court in what is known as a judicial foreclosure proceeding where the court must issue a final judgment of foreclosure. The property is then sold as part of a publicly noticed sale. A complaint is filed in court along with what is known a lis pendens. A lis pendens is a recorded document that provides public notice that the property is being foreclosed upon.

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What are the legal instruments that establish an Oklahoma mortgage?

The documents are known as the mortgage, and in a commercial transaction, a security agreement. Sometimes the mortgage document is combined with the security agreement. Alternatively, a mortgage is filed to evidence the underlying debt and terms of repayment, which is set forth in the note.

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How long does it take to foreclose a property in Oklahoma?

Depending on the timing of the various required notices, it usually takes approximately 90 days to effectuate an uncontested non-judicial foreclosure. This process may be delayed if the borrower contests the action in court, seeks delays and postponements of sales, or files for bankruptcy.

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Is there a right of redemption in Oklahoma?

How are trust deeds or mortgage liens treated in Oklahoma?

Oklahoma primarily operates as a title theory state where the property title remains in trust until payment in full occurs for the underlying loan. Foreclosure is a non-judicial remedy under this theory. The document that secures the title is called a mortgage. Oklahoma law also permits mortgages to serve as liens upon real property and for judicial foreclosures to occur through the courts. Because the power of sale provisions in a mortgage is a faster mechanism to effectuate foreclosure, this is the primary vehicle to foreclose. Judicial foreclosures are usually used when no power of sale language is contained in the loan documents and the use of such a mechanism gives rise to certain redemption rights.

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How are Oklahoma mortgages/deeds of trust foreclosed?

The primary method of foreclosure in Oklahoma involves what is known as non-judicial foreclosure. This type of foreclosure does not involve court action but requires notice commonly called notice of intention to foreclose by power of sale. When the mortgage is initially executed it will usually contain a provision called a power of sale clause which upon default allows an attorney acting on behalf of the mortgagee to sell the property in order to satisfy the underlying defaulted loan. A designated attorney acts as a representative of the lender to effectuate the sale which typically occurs in the form of an auction. Because this is a non-judicial remedy there are very stringent notice requirements and the legal documents are required to contain the power of sale language in order to use this type of foreclosure method.

Oklahoma has no post-sale statutory right of redemption for non-judicial foreclosures, which would allow a party whose property has been foreclosed to reclaim that property.

Are deficiency judgments permitted in Oklahoma?

Yes. A deficiency judgment may be obtained when a property in foreclosure is sold at a public sale for less than the loan amount which the underlying mortgage or deed of trust secures. Deficiency actions must be brought within 90 days after the foreclosure sale. Judgment cannot exceed the difference between the amount of the debt and the fair market value of the property. Costs and fees in filing the deficiency can also be recovered.

What statutes govern Oklahoma foreclosures?

The laws that govern Oklahoma foreclosures are found in Title 46 Oklahoma Statutes (Oklahoma Power of sale Mortgage Foreclosure Act) Chapter 2A §43."

Expert:  Attyadvisor replied 1 year ago.

"Foreclosure Procedure in Oklahoma

In Oklahoma, a foreclosure can take place outside of the court system (nonjudicial) if the mortgage contract includes a provision known as a "power of sale" clause. However, you can force the lender to foreclose judicially (through the court system) if you take the following steps at least ten days before the date of the foreclosure sale:

  • notify the foreclosing party (the lender or servicer) by certified mail that the property to be sold is the your homestead (your primary residence) and that you elect judicial foreclosure, and
  • record a copy of the notice in the county clerk’s office. Okla. Stat. tit. 46, § 43.

If the mortgage contract does not contain a power of sale clause, or if you take the steps outlined above, the lender must file a lawsuit to foreclose.

Notice of the Foreclosure

Oklahoma law requires the following notices in a foreclosure.

Notice Requirements in a Judicial Foreclosure

In a judicial foreclosure, the lender officially starts the foreclosure by filing a lawsuit in court. It gives notice of the lawsuit by serving the borrower with a complaint and summons, which states the time frame in which the borrower must respond to contest or dispute the lawsuit. (Learn more about the difference between a foreclosure summons and complaint.)

If the borrower fails to respond to the suit or cannot prove there is no valid cause for the foreclosure, the court will grant judgment in favor of the lender. After the judge issues a judgment of foreclosure, the property will be sold to satisfy the mortgage debt.

The lender must mail a notice of sale to the borrower at least ten days before the sale date. It must also publish the notice of sale for two consecutive weeks in a newspaper. Okla. Stat. tit. 12, § 764.

Notice Requirements in a Nonjudicial Foreclosure

In a nonjudicial foreclosure, the foreclosing party must deliver two notices to the borrower: a notice of intention to foreclose and a notice of sale.

Notice of intention. Before it can start a nonjudicial foreclosure, the foreclosing party must mail a notice of intention to foreclose to the borrower that gives 35 days from the date of the notice to cure the default (by paying past-due amounts) and reinstate the mortgage. Okla. Stat. tit. 46, § 44.

Notice of sale. If the borrower does not cure the default, the foreclosing party must personally serve a notice of sale on the borrower at least 30 days prior to the sale date. The notice must also be published in a newspaper at least once a week for four consecutive weeks and recorded in the county clerk’s office. Okla. Stat. tit. 46, § 45.

Special Foreclosure Protections in Oklahoma

Oklahoma law extends the protections of the federal Servicemembers Civil Relief Act to members of the Oklahoma National Guard when ordered to state active duty or full-time National Guard duty. Okla. Stat. tit. 44, § 208.1.

Right to Reinstate the Mortgage Before the Foreclosure Sale in Oklahoma

“Reinstating” is when you catch up on the defaulted mortgage's missed payments (plus fees and costs) in order to stop a foreclosure. (Learn more about reinstatement to avoid foreclosure.)

In a nonjudicial foreclosure, the borrower has the right to cure any default and reinstate the mortgage for 35 days from the date of the notice of intention to foreclose. Okla. Stat. tit. 46, § 44. In addition, most mortgages contain a provision that permits the borrower to reinstate for a certain amount of time. If you don't otherwise have a right to reinstate, your lender might allow you to do so anyway.

Right of Redemption After Foreclosure in Oklahoma

In some states, you can redeem (repurchase) your home within a certain period of time after the foreclosure.

Right to redeem in a judicial foreclosure. As part of the foreclosure process, the court must confirm (approve) the sale after it takes place. The borrower can redeem the home up until the court confirms the sale. Okla. Stat. tit. 42 §§ 18 to 20.

Right to redeem in a nonjudicial foreclosure. The borrower has the right to redeem the property up to completion of the sale. To redeem, the borrower must pay the entire debt owed on the mortgage before the foreclosing party prepares, signs, and delivers the deed to the purchaser of the property at the foreclosure sale. Okla. Stat. tit. 46, §§ 43, 45, 47. (To get details on redemption rights in Oklahoma, see Nolo’s article If I lose my home to foreclosure in Oklahoma, can I get it back?)

Deficiency Law in Oklahoma

When the total mortgage debt exceeds the foreclosure sale price, the difference is called a “deficiency.” Some states allow the lender to seek a personal judgment (called a “deficiency judgment”) against the borrower for this amount, while other states prohibit deficiency judgments with what are called anti-deficiency laws.

Deficiency judgments in judicial foreclosures. The foreclosing party can request a deficiency judgment at the same time it makes a motion for an order confirming the foreclosure sale or within 90 days after the foreclosure sale. Okla. Stat. tit. 12, § 686.

Deficiency judgments in nonjudicial foreclosures. The foreclosing party can get a deficiency judgment by filing a lawsuit for the deficiency within 90 days after the foreclosure sale, but not if the borrower sends written notice to the foreclosing party by certified mail at least ten days before the foreclosure sale that:

  • the property is the borrower’s homestead, and
  • the borrower elects against a deficiency judgment. Okla. Stat. tit. 46, § 43. (If the property is not a homestead, then the borrower is liable for the deficiency.)

With both types of foreclosure, the court can limit the amount of the deficiency judgment to:

  • the difference between the total debt (including the amount of the indebtedness, interest, attorneys’ fees, as well as the costs and expenses of sale) and the fair market value of the property, or
  • the difference between the total debt and the foreclosure sale price, whichever is less. (For a summary of the deficiency law in Oklahoma, see Oklahoma Laws on Post-Foreclosure Deficiency Judgments.)

Notice to Leave After the Foreclosure Sale

If the foreclosed homeowners don’t leave the home, the court may (in the order confirming the sale) order the clerk of the court to issue of a writ of assistance to the sheriff to give the purchaser possession of the home. Okla. Stat. tit. 12, § 686."

http://www.alllaw.com/articles/nolo/foreclosure/laws-in-oklahoma.html

Expert:  Attyadvisor replied 1 year ago.

"The citations to Oklahoma’s foreclosure statutes are:

  • Oklahoma Statutes Title 12 Sections 686, 764 through 765, 773; and
  • Oklahoma Statutes Title 46 Sections 41 through 49."http://www.alllaw.com/articles/nolo/foreclosure/laws-in-oklahoma.html

I can also provide a link in your area for attorneys in your are that provide free consultation if that would help. Which county is your property located In?

Expert:  Attyadvisor replied 1 year ago.

Is there a "power of sale clause" in your contract for deed? If so this would be a nonjudicial foreclosure. Which is much easier.

Expert:  Attyadvisor replied 1 year ago.

In Oklahoma, a foreclosure can take place outside of the court system (nonjudicial) if the mortgage contract includes a provision known as a "power of sale" clause. However, you can force the lender to foreclose judicially (through the court system) if you take the following steps at least ten days before the date of the foreclosure sale:

  • notify the foreclosing party (the lender or servicer) by certified mail that the property to be sold is the your homestead (your primary residence) and that you elect judicial foreclosure, and
  • record a copy of the notice in the county clerk’s office. Okla. Stat. tit. 46, § 43.

If the mortgage contract does not contain a power of sale clause, or if you take the steps outlined above, the lender must file a lawsuit to foreclose.

http://www.alllaw.com/articles/nolo/foreclosure/laws-in-oklahoma.html

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