In non-judicial foreclosures, the mortgage gives the lender a “right of sale” and the lender can sell the house without having to sue the homeowner who is behind on mortgage payments. However, if there is no “right of sale” clause, then the lender must file a lawsuit against the delinquent homeowner in order to take back the house.
Let’s talk about what generally happens in a judicial foreclosure in Oklahoma.
1. The foreclosure lawsuit
To start the process, the lender files a lawsuit against the homeowner in the county court where the house is located. The document which begins the lawsuit is called a “Complaint,” which the lender “serves” or delivers upon the buyer. The buyer in turn has a certain time period in which to file a formal Answer to the Complaint. Quite often, buyers do not know what to do or do not understand what is going on, and therefore fail to file an Answer. In such cases, the lender obtains what is called a “default judgment.” This default judgment allows the lender to proceed with its plan to sell the property. This is quite common. Of course, the buyer has the right to file an answer and to defend against the foreclosure, to essentially try and save the property. If the lender prevails in the foreclosure case, the court issues a “judgment of foreclosure.” Like the “default judgment,” this is a court order which authorizes the lender to sell the house.
2. The sheriff’s sale
Once a lender obtains a “default judgment” or “judgment of foreclosure,” it then has the legal authority to sell the property. Under the law, the county sheriff’s office then conducts an auction wherein the property is sold to the highest bidder.
3. The confirmation of sale hearing.
After the “sheriff’s sale” of the property, the court holds a hearing called a “confirmation of sale.” At this hearing, the court approves the sale and basically transfers legal ownership to the new buyer.
4. The eviction.
Quite often, the original buyer will still be living in the property at the time the judgment is entered, at the time of sale, and at time the confirmation of sale hearing is held. As a result, the lender usually obtains an eviction order that authorizes the sheriff to remove the original buyer. Just like a tenant who fails to pay rent, a “buyer” or “owner” can similarly be evicted as a result of a foreclosure. At such point, the “buyer” or “owner” is actually no longer the legal owner of the property and can be forced to move out by the sheriff.
If you’re facing home foreclosure in Oklahoma and would like to know more about how bankruptcy may be able to help you, contact me today to schedule a FREE initial consultation. Just fill out the Contact Dan form on the far right side of the page and click the Submit button and I’ll get back with you right away. Or just pick up the phone and call me at 918-615-8260. I’ll answer all of your questions in plain English and give you the straight scoop on the pros and cons of bankruptcy as related to your specific situation.