"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."