§ 46-43 — Power of sale - Requirements - Sale procedure - Deficiency

Oklahoma § 46-43

• Jurisdiction: Oklahoma
• Title 46: Mortgages

Text

- Redemption - Writ of assistance - Foreclosure. A. Notwithstanding Sections 10 and 11 of Title 42, Sections 686 and 760 of Title 12; and Sections 1 and 4 of this title, or any other inconsistent law: 1. a power to sell the mortgaged real estate may be conferred by the mortgagor upon the mortgagee in the mortgage under which the mortgaged property and the interests of persons therein may be sold in the manner provided for in Sections 43 through 47 of this title, after a breach or default in performance of the contract or contracts for which the property is granted as security, or a breach or default in the performance of the mortgage; and 2. with respect to any mortgage in which a power of sale is granted: a. the mortgage shall 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," b. in a mortgage transaction involving the mortgagor's homestead, if the mortgagor, at least ten (10) days before the property is to be sold under the power of sale, sends written notice by certified mail to the mortgagee stating that the property involved is the mortgagor's homestead and that judicial foreclosure is elected, and files of record a copy of such notice which contains the legal description of the property in the office of the county clerk of the county where the property is located, the mortgagee must pursue any foreclosure by judicial proceeding in a court of competent jurisdiction; provided, however, the mortgagee may contest the mortgagor's claim of homestead in the judicial foreclosure action or in another action such as by declaratory judgment, c. in a mortgage transaction that remains subject to this act involving the mortgagor's homestead, if the mortgagor at least ten (10) days before the property is to be sold under the power of sale, sends written notice by certified mail to the mortgagee stating that the property involved is the mortgagor's homestead and that the mortgagor elects against a deficiency judgment, and establishes the property as homestead if contested, no in personam action for a deficiency judgment may be maintained by the mortgagee exercising the power of sale; provided, that mortgagee may enforce any agreed lien against collateral other than the real estate sold; and other mortgagees or holders of liens inferior to that of the mortgagee exercising the power of sale and who are foreclosed may recover the unpaid amount of their indebtedness in an in personam action for a judgment enforceable against other property of the mortgagor as prescribed by the rules of civil procedure; provided, however, the mortgagee may contest the mortgagor's claim of homestead or seek a deficiency judgment and a judicial determination of homestead by initiating an action therefor within ninety (90) days after the mortgagee's deed is recorded. The prevailing party in such action may recover attorney's fees and costs of the action, and d. in a mortgage transaction not involving the mortgagor's homestead, unless otherwise agreed, the mortgagor shall be liable for any deficiency between the amount obtained by the mortgagee from the sale and the amount of the indebtedness, interest, and the costs and expenses of sale including the amount of attorney's fees fixed in the mortgage by agreement, unless a part or all of the fees are waived by the parties or the amount fixed is found by a court to be unconscionable. If such fees are found to be unconscionable or no fees are fixed in the mortgage by agreement a court may allow reasonable attorney's fees. Any action for a deficiency pursuant to the provisions of this subparagraph shall be commenced within ninety (90) days after the date of the sale. If, in such action, the mortgagor shall establish that the fair market value of the property as of the date of the sale exceeded the sale price, then the deficiency otherwise obtainable under this subparagraph shall be reduced by the amount of such excess. B. Nothing in this act shall be construed to impair the right of the mortgagor or another party to redeem as provided in Sections 18 through 20 of Title 42 of the Oklahoma Statutes, up to the completion of the sale upon payment of the amount owed including all expenses. A mortgagor and mortgagee may agree on the acquisition of the interest of the mortgagor in the real estate by the mortgagee in lieu of foreclosure. C. The purchaser on foreclosure by power of sale may seek a writ of assistance by application to a court of competent jurisdiction with the same effect as provided in Section 686 of Title 12 of the Oklahoma Statutes. D. A power of sale must be exercised consistent with this act and in accordance with the agreement of the parties. At the option of the mortgagee a mortgage containing a power of sale may be foreclosed in the manner provided in Section 686 of Title 12 of the Oklahoma Statutes for the foreclosure of mortgages on real property.

Legislative History

Added by Laws 1986, c. 319, § 4, eff. Nov. 1, 1986. Amended by Laws 1987, c. 107, § 3, eff. Nov. 1, 1987.