If you’re a struggling homeowner facing foreclosure in Oklahoma and you abandon your home (meaning, you permanently move out of the property), a court may give possession of the home to the lender even before the foreclosure is over. Read on to learn why Oklahoma allows the lender to take immediate possession of an abandoned home, how the process works, and how you can stop this from happening if you still live in the property.
Why Oklahoma Allows Early Possession of Abandoned Homes
Foreclosures can take a long time to complete, especially in states like Oklahoma where the process is typically judicial (which means the lender files a lawsuit in court to foreclose the home). It is not unusual for a judicial foreclosure to take several months or, in some cases, over a year to complete. (Learn more about Oklahoma foreclosure laws by visiting Nolo’s Oklahoma Foreclosure Law Center.)
In cases where the foreclosure takes a long time, the homeowner is more likely to walk away from the home before the process is finished. This means the property could sit vacant for an extended period of time while the foreclosure works its way through the court system. During this time, the home is vulnerable to deterioration, vandals, and criminals. This not only hurts the value of the home, but also brings down property values in the surrounding neighborhood.
To deal with this issue, Oklahoma allows the lender to take early possession of a home when the homeowner has left the property for good to ensure that it is properly maintained during the foreclosure. (Learn more about the reasons states implement fast-track foreclosure laws for abandoned homes.)
Foreclosure of Abandoned Homes in Oklahoma
To start the foreclosure, the lender files a complaint with the court and serves it to the homeowner with a summons. (Learn more about the difference between a foreclosure summons and complaint.)
Along with the complaint, the lender may also file what’s called a motion to “preserve and protect” the property if the lender believes that the home is abandoned and any of the following conditions apply.
- The home is physically deteriorating and the property value may drop (or has already dropped).
- There is a risk to the health, safety, or welfare of the public, or any adjoining or adjacent property owners, due to potential or actual acts of vandalism, loitering, criminal conduct, or the physical destruction or deterioration of the property.
- There is a risk of additional legal process for violations of law, ordinance, unpaid taxes or accrual of liens (such as a tax lien foreclosure). (Okla. Stat. tit 46 § 302).
With a “preserve and protect” motion, the lender asks the court to declare the home abandoned so it can take immediate possession of the home.
How the Process Works
After the lender files the motion with the court, the court sets a hearing and the sheriff visits the property to determine the occupancy status. If the sheriff determines the home is vacant, he or she will post a notice with the date and time of the hearing in a conspicuous place on the property, or, if the home appears occupied, the sheriff will attempt to serve the notice to the occupant personally.
The hearing may be as soon as 15 days after the sheriff posts or serves the notice.
How the Court Determines if the Home Is Vacant
Whether the court will declare the home abandoned primarily depends on whether you (the homeowner) go to the hearing.
What happens if you don't show up at the hearing. If you fail to appear at the hearing, the court will declare the home abandoned and enter a judgment of possession in favor of the lender. Once the lender gets possession, it can take steps to secure the home by doing things such as changing the locks or fixing broken windows.
What happens if you go to the hearing. To stop the lender from taking possession of the home, you need to appear at the hearing and rebut (prove false) the lender’s claim that the home is vacant. If you're able to prove that you still occupy the home, the court will deny the lender’s motion and the lender won't get possession of the property.
In addition to denying the lender's request for possession of the home at the hearing, the court may also order you to keep up with the maintenance on the property. For example, you might have to fix any broken windows or doors, take care of the lawn, or pick up accumulated trash around the home. If you don't comply, you could be subject to contempt of court sanctions.
How to Find Oklahoma’s Laws
To find the statute that discusses the lender’s right to get possession of an abandoned home in Oklahoma, go to Title 46, Section 302 of the Oklahoma Statutes.
When You Should Hire a Lawyer
If you live in Oklahoma and your mortgage lender has asked the court to declare your home vacant, but you still occupy the property, you should speak with an experienced Oklahoma foreclosure attorney about what rights you have and how to enforce them.
If a court has already declared your home abandoned because you did not attend the hearing, you may still be able to provide evidence of occupancy to the court and vacate (cancel) the order giving the lender possession of your home. An attorney can help you with this as well. (Learn more about how to find and hire an attorney in Nolo’s Foreclosure Lawyers & Other Foreclosure Help area.)