I am current with the payments on 2nd home and have some equity. Am currently unemployed with no resources to pay 1st mortgage. Can they take my home that I am currently paid up?
Real Estate Attorney
Possibly. I don't know if Oklahoma has an exemption on deficiency judgments on primary homes, but I can't tell either if this is a primary home.
Assuming the answer is "no" to both of these additional questions, then if in the foreclosure there is a deficiency judgment entered against you and that is not wiped out under applicable law, the lender then could come after you for any other assets that could satisfy the deficiency, and that could include the equity, if any, in the 2nd home.
Take everything to a local lawyer to review to be safe and not sorry!!!
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Illinois. Responses are based solely on Illinois law unless stated otherwise.
Chapter 7 Bankruptcy Attorney
Here are some Quick Facts about foreclosure in Oklahoma:
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Typically 90 days
- Right of Redemption: None
- Deficiency Judgments Allowed: Varies
In Oklahoma, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure
The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder.
However, unless the borrower waives the right to an appraisal in the mortgage, the property must be appraised before it can be sold at foreclosure. At the foreclosure sale, the property may not be sold for less than two-thirds of the appraised value.
A lender may sue to obtain a deficiency judgment, but the action must be taken within ninety (90) days after the date of sale. There can be no redemption once the court confirms the foreclosure sale.
The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:
A written notice of intention to foreclose by power of sale must be sent by certified mail to the borrower at the borrower's last known address. The notice must describe the defaults of the borrower under the loan, and give the borrower thirty five (35) days from the date the notice is sent to cure the problem. If the borrower cures the default within the thirty five (35) days, then the foreclosure can be stopped. However, if there have been three (3) defaults, then the lender need not send another notice of intent to foreclose, and if the borrower has been in default four (4) times in the past twenty four (24) months, and has been notified as above, then no further notice will be required.
The notice must be recorded in the county where the property is located within ten (10) days after the borrower has gone through the thirty five (35) day notice period.
The notice must appear in a newspaper in the county where the property is located once a day for four (4) consecutive weeks, with the first publishing being not less than thirty (30) days before the sale.
Said notice must state the names of the borrower and lender, describe the property (including the street address) and state the time and place of sale.
The property must be sold at public auction to the highest bidder at the time and on the date specified in the notice. If the highest bidder at the sale is anyone other than the borrower, they must post cash or certified funds equal to ten (10) percent of the bid amount. If the highest bidder is unable to do so, then the lender may proceed with the sale and accept the next highest bid.