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 Oklahoma Statutes (Last Updated: September 18, 2014)
 Title 46. MORTGAGES

  § 46-45. Notice of sale - Time and place of sale.  

Latest version.

  • A.  If a mortgagee elects to use a power of sale granted in the mortgage, it shall execute a notice of sale in written form directed to the mortgagor, any holder of a prior mortgage or other lien of record, and any person having an interest, claim or lien of record in the property whose interest, claim or lien the mortgagee seeks to foreclose by the exercise of its power of sale.  When a notice of intention to foreclose is required by Section 44 of this title, an affidavit stating that such notice has been properly sent shall be attached to the notice of sale; provided, however, if no notice of intention to foreclose is required by Section 44 of this title, an affidavit to that effect shall be attached to the notice of sale.  The notice of sale shall state the occurrence of a breach or default of the contract or mortgage, the general nature thereof such as "failure to make a payment due", "failure to pay taxes", "failure to maintain the property" or the like, the election to use the power of sale, the date, time and place when the property will be sold, and the legal description of the property as it appears in the mortgage and any street address of the property.  The notice shall advise the mortgagor of the mortgagor's right to redeem the property from foreclosure by paying all principal, interest and other sums secured by the mortgage to the mortgagee prior to the execution and delivery of a deed pursuant to Section 47 of this title, and shall advise all other persons claiming an interest in the property that the property will be sold subject to their claims unless they elect to join the exercise of the power of sale or that the mortgagee claims an interest superior to the claims of such persons and that their interests may be subject to being terminated by the sale unless they take appropriate legal action.  The notice shall include, in bold and underlined language, a provision advising the mortgagor that if the mortgage is on the mortgagor's homestead, it shall be sold pursuant to a power of sale without judicial foreclosure unless, at least ten (10) days before the property is to be sold under a power of sale, the mortgagor 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 a legal description of the property, with the county clerk of the county where the property is situated.  The notice shall further advise the mortgagor, in bold and underlined language, that if the property is sold pursuant to a power of sale, the mortgagor may avoid a deficiency judgment by sending a written notice by certified mail to the mortgagee, at least ten (10) days before the property is to be sold under the power of sale, that states that the property involved is the mortgagor's homestead and that the mortgagor elects against a deficiency judgment.  The notice shall also contain a provision, in bold and underlined language, to the effect that the notice contains important information involving the property of the person receiving the same and that they may want to seek legal advice.

    B.  The notice of sale shall be:

    1.  Personally served in the manner of service of process in civil cases prescribed by Section 2004 of Title 12 of the Oklahoma Statutes, other than by publication, at least thirty (30) days prior to the date of the sale.  If, by due diligence, personal service cannot be made upon such person or persons or the mortgagee does not know and with due diligence cannot ascertain those matters enumerated in divisions (1) through (5) of subparagraph b of paragraph 3 of subsection C of Section 2004 of Title 12 of the Oklahoma Statutes, the mortgagee shall execute an affidavit to that effect and the publication notice required in paragraph 2 of this subsection shall be deemed sufficient; and

    2.  Published in a newspaper authorized by law to publish legal notices in each county in which the property to be sold is situated. The notice shall state the name of the mortgagor, any holder of a prior mortgage or other lien of record, and any person having an interest, claim or lien of record in the property whose interest, claim or lien the mortgagee seeks to foreclose by the exercise of its power of sale, and shall designate the person or persons whose unknown successors are being served.  The notice shall be published at least one (1) day a week for four (4) consecutive weeks; provided, however, the first date of publication shall be not less than thirty (30) days prior to the date of sale; and

    3.  Recorded together with the affidavit provided for in subsection A of this section, in the office of the county clerk of each county wherein the property to be sold is situated within ten (10) days after compliance with Section 44 of this title.  The recording of the notice of sale pursuant to this paragraph shall serve as notice of the pendency of the procedure to any person acquiring a subsequent interest in the property.  To verify compliance with paragraphs 1 and 2 of this subsection, proof of receipt, return of service or affidavit in lieu of personal service, or copies thereof and proof of publication of the notice of sale shall be recorded in the office of the county clerk of each county wherein the property to be sold is situated any time before the recording of the mortgagee's deed executed pursuant to the sale under this act.

    C.  The sale may be held in any county where part of the property to be sold is situated at the time designated in the notice of sale, or a date to which the sale has been continued as provided by this act, on a day other than a Sunday or legal holiday, between the hours of nine o'clock a.m. and five o'clock p.m. at a specified place on the property, at the courthouse, at another specified place or at a place of business of the mortgagee.

    D.  If the date of the sale is continued by the mortgagee to a date later than the date specified in the notice pursuant to the provisions of this act, the time requirements contained in this section shall refer to the date the sale is actually held and not the date of sale specified in the notice.

Added by Laws 1986, c. 319, § 6, eff. Nov. 1, 1986.  Amended by Laws 1987, c. 107, § 5, eff. Nov. 1, 1987.