ACMA Summary - 2023 - Oklahoma

• Year: 2023

OKLAHOMA FORM SECURITY INSTRUMENT USED: A mortgage is the basic instrument used to secure a lien on real property. An absolute deed, intended as security for the payment of money, is deemed to be a mortgage. 46 Okla. Stat. § 1. Deeds of trust are subject to mortgage laws. 46 Okla. Stat. § 1.1. Contracts for deed are deemed to be mortgages and subject to rules of foreclosure. 16 Okla. Stat § 11A RECORDING REQUIREMENTS: Satisfaction of Mortgage Tax and Mortgage Certification Fee. 68 Okla. Stat. §§ 1904 and 1907. Acknowledgment of signature(s). 16 Okla. Stat. § 26. A legal description of the subject property. 19 Okla. Stat. § 298. The printed or typed name of the signer of the instrument under the signature (but failure to include will not affect validity or recordation). 19 Okla. Stat. § 261. Address of grantee, mortgagee, assignee or other party to which the instrument is to be delivered after recording. 19 Okla. Stat. § 298. Oklahoma has adopted the Uniform Real Property Electronic Recording Act, permitting digital recording and electronic signatures. 16 Okla. Stat. § 86.1 et seq. STATUTES TO BE WAIVED: Foreclosure can occur with or without appraisement. 46 Okla. Stat. § 4. The mortgage instrument should include an appropriate provision authorizing the mortgagee to make such election at the time judgment is entered in the foreclosure action. Id. If foreclosure occurs subject to appraisement, the property must be sold for not less than 2/3 of the appraised value. 12 Okla. Stat. § 762. If the appraisement is waived, such minimum bid requirement will not apply to the sale, but the sale must be delayed for 6 months following the entry of judgment in the foreclosure action. 12 Okla. Stat. § 760 et seq; 46 Okla. Stat. § 4. UNUSUAL TREATMENT OF STANDARD PROVISIONS: Specific procedural requirements related to notice are required to enforce nonjudicial power of sale. Specific bold and underlined Notice of Power of Sale language is required (See Foreclosure procedures below). 46 Okla. Stat. § 40 et seq. Specific language entitling mortgagee to appointment of a receiver in the event of default pursuant to 12 Okla. Stat. § 1551 is recommended. SECURING FUTURE ADVANCES: Obligatory future advances take priority of mortgage as of the date of initial perfection of the mortgage only to extent obligation to advance is enforceable by mortgagor under contract law and the mortgage contains an appropriate future advance clause. Optional advances take priority as of dates of advances. TRUSTEE UNDER DEED OF TRUST: N/A. FORECLOSURE BRIEF DESCRIPTION OF PROCEDURE: Mortgage on real estate can be judicially foreclosed in the district court of the county in which the real property is located. 12 Okla. Stat. §§ 131 and 686. Property must be appraised, unless waived, and if not waived, may not be sold for less than 2/3 of its appraised value. (See Statutes to be Waived, supra, re: sale with or without appraisement). Sale cannot be held sooner than 30 days after first publication of notice of sale. 46 Okla. Stat. § 45. Order of sale must conform to judgment. 12 Okla. Stat. § 760-65. Party for whom judgment rendered is entitled to reasonable attorney’s fee. 42 Okla. Stat. § 176. Sale must be confirmed by the court. 12 Okla. Stat. § 765. Sheriff executes foreclosure deed. 12 Okla. Stat. § 766. Mortgage can be nonjudicially foreclosed pursuant to the Oklahoma Power of Sale Mortgage Foreclosure Act, 46 Okla. Stat. § 40 et seq. Such power must be granted by the mortgagor to the mortgagee in the mortgage. 46 Okla. Stat. § 43(A)(1). In order for the power to be enforceable, the mortgage must state in bold and underlined language, substantially the following: A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE. 46 Okla. Stat. § 43(A)(2)(a). See discussion of waiver of appraisement under Form, supra. REDEMPTION PERIOD AND PRICE: For judicial foreclosures, the redemption period ends upon confirmation of sheriff’s sale. 42 Okla. Stat. § 18-20; Lincoln Mortg. Invs. v. Cook, 1982 OK 137, 659 P.2d 925. For nonjudicial foreclosures, the debtor may not redeem the property after completion of sale. 46 Okla. Stat. § 43B. Debtor must tender the principal debt and interest accrued thereon to redeem the property, but, absent a contractual obligation, is not required to tender attorney’s fees and costs in order to redeem. 42 Okla. Stat. § 20. DEFICIENCIES: No deficiency order shall be rendered except upon motion and notice filed within 90 days after date of sale. Deficiency order is: (a) amount of order with interest, plus costs and disbursements of action and amount owing on all prior liens and encumbrances with interest, less (b) market value or sale price of subject property, whichever is higher. 12 Okla. Stat. § 686. EFFECT OF FORECLOSURE ON LEASES: If lessee is joined as defendant and holds interest with junior priority to mortgage, lessee’s interest in subject property can be foreclosed. USURY USURY CEILING: For commercial loans, the ceiling is 45% per annum. 14A Okla. Stat. § 5-107. For consumer loans, the ceiling is 10% per annum, 14A Okla. Stat. § 3-201, but such ceiling may be raised to 13% where the loan is primarily secured by interest in land and certain other conditions are met. 14A Okla. Stat. § 3 105. USURY EXCEPTIONS: Corporations may not plead usury in any suit to recover indebtedness. See 18 Okla. Stat. § 1129. FEDERAL PREEMPTION: Oklahoma has not opted out of application of the federal usury law of 12 U.S.C.S. § 1735f-7a(b) applicable to certain residential federally related mortgage loans. FINANCING STATEMENTS LOCATIONS FOR FILING: When collateral is as-extracted collateral or timber to be cut or when a financing statement is filed as a fixture filing, the financing statement is to be filed in the office where a mortgage on real estate would be filed. 12A Okla. Stat. § 1-9-501(a). Where the debtor is a “transmitting utility” as defined in 12A Okla. Stat. § 1-9-102, filing must be done with the office of the Oklahoma Secretary of State. 12A Okla. Stat. § 1-9-501(b). In all other cases where perfection may be accomplished by filing in Oklahoma, the financing statement to be filed in the office of the County Clerk of Oklahoma County. 12A Okla. Stat. § 1-9-501. SECURITY INSTRUMENT USED AS FIXTURE FILING: A mortgage can constitute a financing statement covering fixtures. 12A Okla. Stat. § 1-9-502. REMOVAL OF FIXTURES: Where fixtures attached to the property covered by the mortgage are later removed, perfection as to such fixtures accomplished by the filing of the mortgage as a financing statement in the real property records, shall cease upon such removal. However, the security interest in such removed fixtures shall continue to be perfected to the extent the removed fixtures would then constitute equipment or other personal property, if a financing statement covering them has been centrally filed. If such removed fixtures are taken out of Oklahoma, perfection shall lapse 4 months after such removal unless the interest is perfected under the laws of the new jurisdiction prior to the date the perfection would be ineffective in Oklahoma. 12A Okla. Stat. § 1-9-316. GUARANTY UNUSUAL PROVISIONS OR REQUIREMENTS: None. STATUTES TO...