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American College of Mortgage Attorneys — Partner with the Best®

Formed in 1974, the American College of Mortgage Attorneys (ACMA) is comprised of over 500 lawyers in North America who are experts in mortgage law.

United States

Oklahoma

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. &sect;&nbsp;1. Deeds of trust are subject to mortgage laws. 46 Okla. Stat. &sect;&nbsp;1.1. Contracts for deed are deemed to be mortgages and subject to rules of foreclosure. 16 Okla. Stat &sect;&nbsp;11A.

SECURITY INSTRUMENT USED

Satisfaction of Mortgage Tax and Mortgage Certification Fee. 68 Okla. Stat. &sect;&sect;&nbsp;1904 and 1907. Acknowledgment of signature(s). 16 Okla. Stat. &sect;&nbsp;26. A legal description of the subject property. 19 Okla. Stat. &sect;&nbsp;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. &sect;&nbsp;261. Address of grantee, mortgagee, assignee or other party to which the instrument is to be delivered after recording. 19 Okla. Stat. &sect;&nbsp;298. Oklahoma has adopted the Uniform Real Property Electronic Recording Act, permitting digital recording and electronic signatures. 16 Okla. Stat. &sect;&nbsp;86.1 et seq.

RECORDING REQUIREMENTS

Foreclosure can occur with or without appraisement. 46 Okla. Stat. &sect;&nbsp;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. &sect;&nbsp;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. &sect;&nbsp;760 et seq; 46 Okla. Stat. &sect;&nbsp;4.

STATUTES TO BE WAIVED

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. &sect;&nbsp;40 et seq. Specific language entitling mortgagee to appointment of a receiver in the event of default pursuant to 12 Okla. Stat. &sect;&nbsp;1551 is recommended.

UNUSUAL TREATMENT OF STANDARD PROVISIONS

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.

SECURING FUTURE ADVANCES

TRUSTEE UNDER DEED OF TRUST: N/A.

TRUSTEE UNDER DEED OF TRUST N/A.

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. &sect;&sect;&nbsp;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. &sect; 45. Order of sale must conform to judgment. 12 Okla. Stat. &sect;&nbsp;760-65. Party for whom judgment rendered is entitled to reasonable attorney's fee. 42 Okla. Stat. &sect;&nbsp;176. Sale must be confirmed by the court. 12&nbsp;Okla.&nbsp;Stat. &sect;&nbsp;765. Sheriff executes foreclosure deed. 12 Okla. Stat. &sect;&nbsp;766. Mortgage can be nonjudicially foreclosed pursuant to the Oklahoma Power of Sale Mortgage Foreclosure Act, 46 Okla. Stat. &sect;&nbsp;40 et seq. Such power must be granted by the mortgagor to the mortgagee in the mortgage. 46 Okla. Stat. &sect;&nbsp;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. &sect;&nbsp;43(A)(2)(a). See discussion of waiver of appraisement under Form, supra.

BRIEF DESCRIPTION OF PROCEDURE

For judicial foreclosures, the redemption period ends upon confirmation of sheriff's sale. 42 Okla. Stat. &sect; 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. &sect;&nbsp;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. &sect; 20.

REDEMPTION PERIOD AND PRICE

No deficiency order shall be rendered except upon motion and notice filed within 90 days after date of sale. Deficiency order is: (a)&nbsp;amount of order with interest, plus costs and disbursements of action and amount owing on all prior liens and encumbrances with interest, less (b)&nbsp;market value or sale price of subject property, whichever is higher. 12 Okla. Stat. &sect;&nbsp;686.

DEFICIENCIES

If lessee is joined as defendant and holds interest with junior priority to mortgage, lessee's interest in subject property can be foreclosed.

EFFECT OF FORECLOSURE ON LEASES

For commercial loans, the ceiling is 45% per annum. 14A Okla. Stat. &sect;&nbsp;5-107. For consumer loans, the ceiling is 10% per annum, 14A Okla. Stat. &sect;&nbsp;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. &sect;&nbsp;3‑105.

USURY CEILING

Corporations may not plead usury in any suit to recover indebtedness. See 18 Okla. Stat. &sect;&nbsp;1129.

USURY EXCEPTIONS

Oklahoma has not opted out of application of the federal usury law of 12 U.S.C.S. &sect;&nbsp;1735f-7a(b) applicable to certain residential federally related mortgage loans.

FEDERAL PREEMPTION

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. &sect;&nbsp;1-9-501(a). Where the debtor is a “transmitting utility” as defined in 12A Okla. Stat. &sect;&nbsp;1-9-102, filing must be done with the office of the Oklahoma Secretary of State. 12A Okla. Stat. &sect;&nbsp;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. &sect;&nbsp;1-9-501.

LOCATIONS FOR FILING

A mortgage can constitute a financing statement covering fixtures. 12A Okla. Stat. &sect;&nbsp;1-9-502.

SECURITY INSTRUMENT USED AS FIXTURE FILING

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. &sect;&nbsp;1-9-316.

REMOVAL OF FIXTURES

UNUSUAL PROVISIONS OR REQUIREMENTS

Institutional mortgage lenders should require guarantors to waive any benefits to which they may be entitled under Oklahoma's deficiency statute, 12&nbsp;Okla. Stat. &sect;&nbsp;686, or other Oklahoma statutes, 15 Okla. Stat. &sect;&sect;&nbsp;334, 337, 338 and 344, relieving guarantors of certain liabilities.

A civil action upon any contract, agreement, or promise in writing, other than for the recovery of real property, can only be brought within 5 years after the cause of action shall have accrued. 12 Okla. Stat. &sect;&nbsp;95. No suit or other action to foreclose or otherwise enforce the remedies under a mortgage shall be had or maintained (a)&nbsp;after the expiration of 7 years from the stated maturity date of the last maturing obligation secured thereby, unless within the applicable time period a written notice of extension is filed by the holder of such mortgage as provided in such statute, or (b)&nbsp;if no maturity date is stated, after the expiration of 30 years from the date of recording of such mortgage, unless within the applicable time period a written notice of maturity date is filed by the holder of such mortgage as provided in such statute. 46 Okla. Stat. &sect;&nbsp;301. This limitation on foreclosure actions is separate and distinct from the statute of limitations applicable to the obligations secured by a mortgage.

STATUTE OF LIMITATIONS PERIOD

A mortgage on real property is released by written instrument, duly signed, acknowledged and recorded. 46 Okla. Stat. &sect;&nbsp;16. A mortgage shall be released within 30 days of payment of debt secured by such mortgage. The mortgage holder shall file the release in the county where the mortgage is recorded. If the mortgage holder fails to file such release within 30 days, the mortgagor may make written request and the mortgage holder shall have 10 days from request to release the mortgage. Failure to do so results in liability of the lesser of 1% of the mortgage debt (principal only), not to exceed $100 per day for each day after the expiration of such 10-day period, until the release is recorded. The total penalty shall not exceed 100% of total principal debt. 46 Okla. Stat. &sect;&nbsp;15.

REQUIREMENTS FOR RELEASE OF LIEN

No mortgage or conveyance shall be valid unless in writing and signed by both husband and wife, where both are living and not divorced or legally separated. However, a deed relating to the homestead is valid without the signature of grantor's spouse where the deed has been duly recorded for 10 years and no action has been commenced within that 10-year period to cancel, avoid, or invalidate the deed. 16 Okla. Stat. &sect;&nbsp;4. Where the mortgagee elects to perform a nonjudicial foreclosure, and where the property is the mortgagor's homestead, the mortgagor may, at least 10 days before the sale is scheduled to take place, notify the mortgagee of his or her election for a judicial foreclosure, if such notice is sent certified mail and recorded with the county clerk. 46 Okla. Stat. &sect;&sect;&nbsp;41, 43, 45. A mortgagor may also elect against a deficiency judgment where the property is the mortgagor's homestead and the mortgagor complies with the notice requirements described above. 46 Okla. Stat. &sect; 43.

HOMESTEAD ISSUES

Oklahoma is not a community property state.

COMMUNITY PROPERTY

No mortgage of real property shall be recorded unless a mortgage tax in the amount described below is paid. Likewise, no mortgage of real property shall be released, discharged of record, received in evidence in action or proceeding, assigned of record, or extended of record unless the mortgage tax due at the time the mortgage is recorded has been paid. 68 Okla. Stat. &sect;&nbsp;1907. Mortgage tax is assessed at the rate of 10&cent; for each $100 and each remaining fraction thereof, of indebtedness secured by a mortgage where the maturity date of indebtedness is 5 years or more; 8&cent; for each $100 for each mortgage where such mortgage is for 4 years or more but less than 5 years; a tax of 6&cent; for each $100 where such mortgage is for 3 years or more but less than 4 years; a tax of 4&cent; for each $100 where such mortgage is for 2 years or more but less than 3 years; and a tax of 2&cent; for each $100 where such mortgage is for less than 2 years. Additionally, the county treasurer shall collect a certification fee of $5 on each mortgage presented for certification. Such tax and certification fee may be paid by the mortgagor, the mortgagee, or any other interested party. Neither may any judgment or final order in any action or proceeding be made for the foreclosure or enforcement of any mortgage unless any applicable mortgage tax has been paid. 68 Okla. Stat. &sect;&nbsp;1907. If after the recording of a mortgage on which all taxes have been paid, an assignment of mortgage is recorded, a supplemental mortgage is recorded for the purpose of correcting or perfecting any recorded mortgage, or an additional mortgage is recorded imposing a lien upon property not originally covered by or not described in the recorded primary mortgage, the assignment or additional mortgage shall not be subject to taxation unless it creates or secures a new or further indebtedness or obligation other than the principal indebtedness or obligation secured by the recorded primary mortgage. 68 Okla. Stat. &sect;&nbsp;1905. If the principal indebtedness secured is not determinable from the terms of the mortgage, the mortgage shall be taxable upon the value of the property covered by the mortgage, which shall be determined by the county treasurer to whom the mortgage is presented for taxation, unless at the time of presenting the mortgage for taxation, the owner of the mortgage files with the county treasurer a sworn statement of the maximum amount secured by the mortgage. Such amount shall be the basis for assessing the tax levied. 68 Okla. Stat. &sect;&nbsp;1906. In multi-county and multi-state transactions, mortgage tax affidavits can be utilized to allocate and/or minimize the mortgage tax liabilities. 68 Okla. Stat. &sect; 1909.

MORTGAGE TAX

Documentary stamp tax is assessed only on deeds, limited to conveyances of realty sold, at the rate of 75&cent; for each $500 of the consideration, or any fractional part thereof, where the consideration or value of the property exceeds $100. 68 Okla. Stat. &sect;&nbsp;3201. There are certain exemptions available under the applicable statutes, including deeds in-lieu-of foreclosure. 68 Okla. Stat. &sect;&nbsp;3202.

DOCUMENTARY STAMP TAX

Oklahoma law generally holds that parties are free to choose which law will apply to contractual agreements so long as the law of the state chosen bears a reasonable relationship to the transaction. However, for any lending transaction affecting real or personal property located in Oklahoma, Oklahoma law will govern perfection, procedure, and substantive enforcement remedies. For all other terms in the contract, the chosen law will apply to the extent it is not deemed to violate the public policy of the State.

ENFORCEABILITY OF AGREEMENTS AS TO CHOICE OF LAW

A receiver may be appointed by a Judge of the Supreme Court or a district court judge in nonjudicial foreclosures where it appears that the mortgaged property is in danger of being lost, removed or materially injured, where a condition of the mortgage has not been performed and the property is probably insufficient to discharge the mortgage debt, or where a condition of the mortgage has not been performed and the mortgage instrument provides for the appointment of a receiver. Additionally, a receiver may be appointed after judgment to carry the judgment into effect. 12 Okla. Stat. &sect;&nbsp;1551.

RECEIVERSHIP

Subject to certain exemptions provided under 59 Okla. Stat. &sect; 2095.3, no entity or individual shall engage in the business of a mortgage broker, mortgage lender or mortgage loan originator with respect to any dwelling located in Oklahoma without first obtaining and maintaining annually a license under the Oklahoma Secure and Fair Enforcement for Mortgage Licensing Act at 59 Okla. Stat. &sect;&nbsp;2095 et seq. Each licensed mortgage broker, mortgage lender and mortgage loan originator must register with and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry. 59 Okla. Stat. &sect; 2095.5.

LENDER QUALIFICATION AND/OR LICENSURE

Oklahoma statutes do not provide for a superlien or other environmental lien to secure the cost of cleanup and remediation of hazardous waste. However, Oklahoma has adopted the Uniform Federal Lien Registration Act, 68 Okla. Stat. &sect;&nbsp;3401, et seq., and has several statutes that permit liens to secure costs incurred in connection with certain types of property cleanup and remediation. For example, the state may file a lien upon any oil and gas well-site equipment abandoned upon a lease site in an amount equal to the cost of plugging all wells associated with said lease and restoring the site. 17 Okla. Stat. &sect;&nbsp;53.3. The lien is perfected by filing notice with the clerk of the county in which the equipment is located and is subject to all prior perfected liens. Costs to restore, reclaim, abate, control, or prevent adverse effects of past coal mining practices are chargeable against the land but are not afforded special priority. 45 Okla. Stat. &sect;&nbsp;740.5. Costs associated with removing a public health nuisance are also chargeable against the land and may be collected by the municipality in the same manner as ad valorem taxes. 63 Okla. &sect;&nbsp;1-1011(b). Municipalities also may file liens for costs incurred in connection with the removal of weeds and trash and the condemnation of dilapidated buildings. 11 Okla. Stat. &sect;&sect;&nbsp;22-111 and 22-112.

ENVIRONMENTAL LIENS

There is no standard opinion practice.

LEGAL OPINIONS

The priority date for both general contractor liens and all subcontractor liens that are the subject of subcontracts directly with such general contractor is the date upon which material or equipment was first supplied or work was first performed on the subject property, by such general contractor or any such subcontractor. Any separate contract directly with the owner of the property (i.e., not the general contractor) will have a lien priority as of the date such contractor first supplies material or equipment to or performs work on such property. In order to insure that no potentially superior lien rights of mechanics or materialmen exist, commercial lenders typically require a preconstruction certification by a surveyor stating that no materials have been supplied or work performed on the subject property as of establishment of the priority date of the mortgage. Certain time limits apply to perfection of mechanic's and materialmen's liens. 42 Okla. Stat. &sect;&sect;&nbsp;141 et seq.

MECHANICS' AND MATERIALMEN'S LIENS

Any person purchasing a new or used manufactured home in Oklahoma must register the same with the Oklahoma Tax Commission or a motor license agent to obtain a certificate of title. 47&nbsp;Okla. Stat. &sect;&nbsp;1117. A security interest in a manufactured home as to which a certificate of title may be issued shall be perfected only when (i)&nbsp;a lien entry form, (ii)&nbsp;the existing certificate of title, if any, or application for a certificate of title and manufacturer's certificate of origin containing the name and address of the secured party and the date of the security agreement, and (iii)&nbsp;the required fee are delivered to the Oklahoma Tax Commission or to a motor license agent. If the secured party delivers such items to the Oklahoma Tax Commission or motor license agent within 25 days after the date of the lien entry form, perfection of the security interest begins from the date of execution of the form, but otherwise, perfection begins from the date of delivery. 47 Okla. Stat. &sect;&nbsp;1110(A). A manufactured home ceases to be covered by an Oklahoma certificate of title upon the earlier of the time (a)&nbsp;the certificate of title ceases to be effective under Oklahoma law; or (b)&nbsp;the manufactured home becomes covered subsequently by a certificate of title issued by another jurisdiction. 12A Okla. Stat. &sect;&nbsp;1‑9-303. Upon certain conditions, a secured party may obtain a real property mortgage covering a manufactured home that has been permanently affixed to real property owned by the same debtor. 47 Okla. Stat. &sect;&nbsp;1110(E).

REGISTRATION & PERFECTION OF SECURITY INTEREST IN MANUFACTURED HOME

Commercial mortgagees routinely request an ALTA Form Loan Title Policy covering a mortgage. Typical endorsements requested by a commercial lender are Zoning (ALTA 3-06 and 3.1-06), Variable Rate Mortgage (ALTA 6-06 and 6.2-06), Contiguity (ALTA 19-06 and 19.1-06), Access (ALTA 17.06 and 17.1-06), tax parcel (ALTA 18-06 and 18.1-06), utility access (ALTA 17.2-06), Mortgage Modification (ALTA 11-06), Environmental Protection (ALTA 8.2-06) and Restrictions, Encroachments, Minerals (ALTA 9.3-06, 9.4-06 and 9.5-06), provided however, in Oklahoma, ALTA FA42 is used instead of the standard Restrictions, Encroachments, Minerals endorsement, because not all of the coverage provided in such endorsement is available. Worth noting is that the new policy forms provide for express survey coverage. Endorsements covering mechanics' and materialmen's liens are typically not obtained, although lenders routinely request the deletion of the standard mechanics' and materialmen's lien exception. When a mortgage covers a personal residence, lenders typically do not obtain any endorsements. &nbsp; &nbsp; &nbsp; &nbsp;

Oklahoma

Mortgage Law Summary

Continue reading the
Mortgage Law Summary for Oklahoma

Oklahoma

Mortgage Law Summary

Continue reading theMortgage Law Summary for Oklahoma

Continue reading the
Mortgage Law Summary for Oklahoma