After a foreclosure in Oklahoma, may your lender get a deficiency judgment against you?
If you go through a foreclosure in Oklahoma, the foreclosure sale may result in a shortfall. (When the foreclosure selling price does not meet the amount of the borrower’s mortgage obligation, the difference is referred to as a “deficiency.”)
If a foreclosure sale results in a shortfall, the lender may obtain a “deficiency judgment” (a personal judgment) against the borrower for the amount of the deficiency. Deficiency judgments are generally permitted under Oklahoma law, but only under particular situations.
The majority of foreclosures in Oklahoma are judicial and are handled via the state court system. Nonjudicial foreclosures are also permitted in Oklahoma; but, you may compel the lender to foreclose judicially by performing particular actions at least ten days before the foreclosure auction. While you have the option of requesting a judicial foreclosure if the lender begins a nonjudicial foreclosure, you may keep the lender from receiving a deficiency judgment if you:
Allow a nonjudicial foreclosure to continue and provide the lender with timely notification at least ten days before the sale that the property is your homestead and that you want to avoid a deficiency judgment.
Converting a nonjudicial foreclosure to a judicial foreclosure, on the other hand, may be a smart decision, particularly if you have a defense to the foreclosure.
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The Process of Foreclosure Sales
If you fail on your mortgage loan, the lender might sell your property via a legal procedure known as “foreclosure” to satisfy the unpaid amount. After the lender has met all of the legal conditions for foreclosure, the last stage in a judicial or nonjudicial foreclosure is the foreclosure sale, in which the house is sold at a public auction to a new owner.
The foreclosing lender places a “credit bid” during the auction. A credit bid provides the lender with credit in the amount of the borrower’s debt. The lender has the option of bidding up to the complete amount of the debt, including foreclosure fees and charges, or bidding less. Because no one else offers, the lender usually makes the highest bid during the auction and becomes the new owner of the property. If the lender purchases the property during the sale and obtains title, the property is termed “real estate owned” (REO).
At foreclosure auctions, lenders often bid less than the whole amount of a borrower’s mortgage obligation.
After a Foreclosure Sale, What Is a “Deficiency Judgment”?
When a lender takes possession of a property via foreclosure, and if state law permits it, the lender might pursue a personal judgment against the borrower to collect any deficit. A “deficiency judgment” is a kind of money judgment. As part of the judicial foreclosure procedure in certain jurisdictions, the lender may seek a deficiency judgment. In certain areas, the lender must sue the borrower separately after the foreclosure to get a deficiency judgment.
However, if the selling price is equal to or more than the mortgage debt amount, you are not liable since there is no deficiency—even if the lender is unable to resell the property for the same amount after the foreclosure sale. In fact, if the sale resulted in a surplus of funds, you may be entitled to that additional cash after the foreclosure auction. However, if the residence has any junior liens, such as a second mortgage or HELOC, or if a creditor lodged a judgment lien on the property, those parties get the cash to settle the amount owing. The funds remaining after paying off these obligations then go to the foreclosed homeowner.
Deficiency judgments are sometimes limited by state law.
Deficiency judgements are occasionally subject to limitations under state law. Some jurisdictions limit the amount of a deficiency judgment, such as requiring the borrower to get credit for the home’s fair market value if the foreclosure sale price is less. In other words, while computing the shortfall amount, the property’s fair market value is substituted for the foreclosure sale price.
Other states impose time restrictions for lenders to obtain a deficiency judgment against a borrower, ranging from three months to one year following the foreclosure sale. (Speak with a foreclosure lawyer in your state to learn the time restriction in your state.) Furthermore, different jurisdictions have different procedural criteria for obtaining a deficit judgment, and some states do not allow deficiency judgments in certain instances, such as following nonjudicial foreclosures.
How Do Lenders Get Deficiency Judgments?
In general, if a lender obtains a deficiency judgment, it may collect the amount (in the case above, $50,000) from the borrower by traditional collection tactics such as wage garnishment or levying a bank account.
Even if your lender obtains a shortfall judgment, you may very certainly discharge your responsibility for a deficiency judgment, along with many other dischargeable debts, in a Chapter 7 or Chapter 13 bankruptcy.
Will My Lender File a Deficiency Judgment Against Me?
Even though your lender has the legal authority to pursue you for a deficiency judgment, it may choose not to do so, particularly if you don’t have a lot of assets to fulfill the judgment. The lender may determine that it is not worth the cost and effort of obtaining a deficit judgment.
Nonetheless, you should be aware of the possibility of your lender pursuing you for a deficit following a foreclosure. Furthermore, even if the lender chooses not to sue you for a deficiency judgment, it may subsequently transfer the loan to a debt buyer, who may later sue you for the deficit.
After Oklahoma Judicial Foreclosures, Deficiency Judgments
In Oklahoma, the lender may receive a deficit judgment in a judicial foreclosure, but it must first seek it:
while moving for an order confirming the foreclosure sale or within 90 days following the foreclosure sale (Okla. Stat. Sec. 12, 686).
The deficit judgment is limited by the market value of the property on the date of sale. Oklahoma Statute tit. 12, 686.
After Oklahoma Nonjudicial Foreclosures, Deficiency Judgments
In Oklahoma, deficiency judgments are permitted after nonjudicial foreclosures, but not for homestead properties if you exercise your rights.
Deficiency Judgment Avoidance
Within 90 days of a nonjudicial foreclosure sale, the lender may file an action to obtain a deficiency judgment. However, if the borrower sends the lender written notice by certified mail at least ten days before the foreclosure sale that the property is the borrower’s homestead (as defined in the Oklahoma Constitution) and that the borrower elects against a deficiency judgment, the lender cannot obtain a deficiency judgment. Oklahoma Statutes tit. 46, 43(A)(2)(c)).
So, one advantage of allowing a nonjudicial foreclosure to proceed is that you may avoid a deficiency judgment. Again, moving a nonjudicial foreclosure to a judicial foreclosure is often an excellent option, particularly if you have a foreclosure defense. Speak with a lawyer to determine if you should consider converting a nonjudicial foreclosure to a judicial foreclosure and to get information specific to your circumstance.
Deficiency Amount Limitation
If the lender is successful in obtaining a deficiency judgment, the court may restrict the maximum amount to the smaller of:
the difference between the entire debt (including the amount owed, interest, lawyers’ fees, and selling costs and expenditures) and the fair market value of the property, or the difference between the total mortgage debt and the foreclosure sale price (Okla. Stat. sec. 46, 43(A)(2)(d)).
What Happens to Second Mortgages, Home Equity Lines of Credit, and Other Junior Liens?
When a senior lienholder forecloses, any junior liens, such as second mortgages and HELOCs, are likewise foreclosed, and the junior lienholders lose their security interest in the real estate. Junior lienholders are frequently referred to as “sold-out junior lienholders” in this case. However, this does not absolve you of your obligation to junior lienholders.
Assume a junior lienholder, such as a second mortgage lender, is sold out in this fashion, and the profits of the foreclosure sale are insufficient to cover what you owe to that junior lienholder. In such instance, the second mortgage lender might sue you personally under the terms of the loan’s promissory note. So, if the equity in your property is insufficient to satisfy second and third mortgages, for example, you may face litigation from those lenders to collect the remaining balances.
Obtaining Foreclosure Assistance in Oklahoma
Consider speaking with a foreclosure attorney if you have concerns about Oklahoma’s foreclosure procedure or want to learn about viable foreclosure defenses and maybe challenge the foreclosure in court.