What happens during the “judicial foreclosure” process in Oklahoma?

by Dan Nunley

Oklahoma allows both judicial and non-judicial foreclosure of real property.

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.

{ 6 comments… read them below or add one }

Tracy Garrison May 24, 2010 at 6:37 pm

I have a house that I built a couple of years ago with the intention of selling it. I have not had any luck selling it, but was able to rent it out this last year to give myself some relief. If I let the bank foreclose on this property since it is a non owner occupied house will they have the right to come back & sue me for a deficiency balance? Would I be able to move in there and homestead it this month to prevent this? I am no longer employed but do have other rental properties that I do not want to lose. I owe $385k on this house and it is worth about $425-440k. I have tried to sell it, but have had no luck.

Dan Nunley June 4, 2010 at 8:47 pm

Tracy,

If the bank forecloses and sells your home via a public sale resulting in a deficiency balance, Oklahoma law would allow the bank to sue you for the deficiency. This would be the case whether or not the home was owner-occupied.

Dan Nunley

Diane Martin November 4, 2010 at 9:05 am

My home is in judicial foreclosure and scheduled for auction on 1/11/2011 can I sell it to my neighbor at fair market value if I close and pay the bank in full before the auction date?
Diane

Dan Nunley November 4, 2010 at 9:17 am

Diane,

Yes you can. Until the judicial foreclosure process is completed and the deed is transferred to the new purchaser, you are still the legal owner of record of your house. Therefore, you have the right to sell your house and pay off the mortgage prior to the auction.

Dan Nunley

Anne Kiely August 25, 2011 at 9:27 pm

March 2010 we had to file bankruptcy. We kept our vehicles and home. Since then due to illness in our family and no income we are faced with the possibility of foreclosure. Our bankruptcy discharge date was September 2010. Wondering what would happen if we just walk away from the house and let it go back.

Dan Nunley August 28, 2011 at 6:53 am

Anne,

If a reaffirmation agreement was not properly executed and timely filed regarding your home, which apparently it was not, then the debt you owed on your home was discharged in your bankruptcy. This means that you can surrender the home to the mortgage company at this point and you won’t owe another penny. The mortgage company will most likely file a foreclosure lawsuit in the near future and serve you with a Summons and Petition, but you won’t have to take any action whatsoever in that lawsuit. The mortgage company will get the real property back but will not be able to seek a personal judgment against you for any monetary deficiency since your personal liability for then note was discharged in your bankruptcy.

Dan Nunley

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