Okla. Stat. tit. 46, § 46-302

preserve - Motion and hearing procedure.

A. Upon commencement of a suit, action or proceeding to

foreclose or otherwise enforce the remedies in any mortgage,

contract for deed or deed of trust in a court of competent

jurisdiction, if the plaintiff/mortgagee believes, knows, or has

reason to know, that the subject property is abandoned or vacated

and, as a result of such abandonment:

1. Physical deterioration and devaluation of the property is

occurring or has occurred;

2. There exists 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; or

3. There exists a risk of additional legal process for

violation of law, ordinance, unpaid taxes or accrual of liens, the

plaintiff/mortgagee may seek a court order to protect and preserve

the property pending the disposition of the suit, action or

proceeding before the court.

B. A motion to protect and preserve an abandoned or vacated

property subject to a suit, action or proceeding to foreclose or

otherwise enforce the remedies in the mortgage, contract for deed or

deed of trust shall be filed and heard in accordance with court

rules and statutory civil procedures for motions.

C. The plaintiff/mortgagee, after filing a motion to protect

and preserve property in the pending litigation before the court,

and having received from the court a date, time and location to hear

the motion, shall present a certified copy of the motion and hearing

notice to the sheriff in the county in which the property is

located. The sheriff, upon receiving a written request to post a

motion and hearing notice on a property within his or her

jurisdiction, shall within three (3) days of the receipt of such

request, physically inspect the subject property and determine

whether or not the property is abandoned or occupied. At the time

of the physical inspection of the property, the sheriff shall either

post a copy of the motion and hearing notice in a conspicuous place

on the property or shall physically serve an occupant of the

property as required by the provisions of this section. The sheriff

shall receive from the plaintiff/mortgagee a sheriff’s service fee

not to exceed One Hundred Fifty Dollars ($150.00) for the inspection

Oklahoma Statutes - Title 46. Mortgages Page 26

of each property and may designate a deputy or reserve deputy to

perform the inspection and posting or service specified in this

section.

D. Upon physical inspection, if the sheriff determines the

property to be abandoned or vacated, the sheriff shall post the

required motion and hearing notice on the property and make a return

of inspection and posting to the plaintiff/mortgagee at the address

provided by the plaintiff/mortgagee. In the event, the property is

occupied or appears to be occupied in the judgment of the sheriff,

the sheriff shall attempt actual service of the motion and hearing

notice on an occupant of the property as provided for service of

summons, and if a person is not available to accept service or

cannot be found, the sheriff shall post the motion and hearing

notice in a conspicuous place on the property and make a written

return of inspection and service to the plaintiff/mortgagee at the

address provided by the plaintiff/mortgagee.

E. The sheriff’s written return of inspection and posting or

return of inspection and service shall be made within three (3) days

of the date of actual inspection. The return shall be deposited

into the regular U.S. mail, postage prepaid, and the return document

shall certify that:

1. The motion and hearing notice was either served in person

upon an occupant of the property or was physically posted on the

property and the exact date of service or posting;

2. A physical inspection and observation of the property was

conducted; and
of actual inspection. The return shall be deposited

into the regular U.S. mail, postage prepaid, and the return document

shall certify that:

1. The motion and hearing notice was either served in person

upon an occupant of the property or was physically posted on the

property and the exact date of service or posting;

2. A physical inspection and observation of the property was

conducted; and

3. In the best judgment and belief of the sheriff, or designee,

the property was abandoned and vacated or occupied by the

defendant/mortgagor or a lawful tenant or other person, and any

reason or belief for that determination.

F. The posting of the motion and hearing notice shall be deemed

proper service and sufficient notice to the defendant/mortgagor and

all occupants of the property for purposes of holding the hearing

and authorizing the court to issue an order to protect and preserve

the property pending disposition of the litigation before the court.

The court shall not require any additional or alternative

notification to the defendant/mortgagor or any occupant. Nothing

shall prohibit the plaintiff/mortgagee from notifying, or attempting

to notify, the defendant/mortgagor or any potential occupant of the

subject property in another manner. If the plaintiff/mortgagee

elects notification by publication in addition to the posting

required by this section, he or she shall publish a copy of the

motion and hearing notice at least twice in the fifteen-day period

immediately preceding the hearing date in a publication of general

circulation in the jurisdiction in which the property is located. A

copy of the motion and hearing notice shall be sent or delivered to

the defendant’s legal counsel of record as required by court rule

Oklahoma Statutes - Title 46. Mortgages Page 27

and statutory civil procedure for notifying opposing counsel of

motions and hearings.

G. The motion posted or served shall be in the form and style

recognized for pleadings filed in the official court case, and shall

contain the name of the parties, court case number, the date, time

and place of the hearing, and a statement directing the

defendant/mortgagor or any occupant of the property to appear in

person, or through legal counsel, or be deemed to have abandoned and

vacated the property.

H. No hearing shall be held on a motion to protect and preserve

the property subject to a suit, action or proceeding to foreclose or

enforce remedies in the mortgage, contract for deed or deed of

trust, unless at least fifteen (15) days has passed from the date of

posting or service of the motion and hearing notice. At the

hearing, the court shall hear testimony of the parties present,

including any person who claims to be an occupant or tenant of the

property and who is not a named litigant in the pending litigation

before the court. The testimony shall include inquiry into the

property’s previous and current condition and the reasons or beliefs

supporting or objecting to a determination that the property is

abandoned or vacated. The court shall review the sheriff’s written

return of inspection and posting or the return of inspection and

service. The court shall not require the presence of the

defendant/mortgagor or defendant’s legal counsel to grant an order

authorizing the plaintiff/mortgagee to take action to protect and

preserve the subject property pending the disposition of the

litigation before the court.

1. If the defendant/mortgagor, or an occupant or tenant,

appears in person or through legal counsel, and the court is

satisfied that the defendant, or person, is physically residing in

the property, or if not occupying the property is willing and able

to properly protect and preserve the property pending the litigation

before the court, the motion shall be denied. However, the court

shall enter an order requiring the person to protect and preserve

the property under such conditions as the court may determine.
atisfied that the defendant, or person, is physically residing in

the property, or if not occupying the property is willing and able

to properly protect and preserve the property pending the litigation

before the court, the motion shall be denied. However, the court

shall enter an order requiring the person to protect and preserve

the property under such conditions as the court may determine.

Failure of the person to comply with the court order to protect and

preserve the property shall be contempt of court.

2. If the defendant/mortgagor, or an occupant or tenant, fails

to appear in person, and there exists no compelling reason why the

defendant/mortgagor, or person, could not appear in person, and the

property appears to be deteriorating or at risk of deteriorating as

a result of abandonment, vandalism or any unlawful or intentionally

malicious act, the court shall enter an order directing the

plaintiff/mortgagee to take action to protect and preserve the

property pending and in anticipation of foreclosure or other

enforcement of remedies in the mortgage, contract for deed or deed

of trust.

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3. Upon issuance of an order to protect and preserve property,

the court shall direct the plaintiff/mortgagee to inventory, or

cause to be an inventoried by an independent person, any personal

property remaining on or about the subject property and to file such

inventory in the court case file.

I. When a court order is issued to protect and preserve

property, the plaintiff/mortgagee shall be authorized to take, and

shall take, possession and secure the property pending and in

anticipation of foreclosure or other enforcement of remedies in the

mortgage, contract for deed or deed of trust.

J. An order issued to protect and preserve property pursuant to

the provisions of this section may be vacated and set aside at any

time by the court upon motion by the defendant/mortgagor, or

occupant or tenant, and satisfactory proof that the property is not

or was not abandoned or vacated, or was leased or rented and

lawfully occupied by a person other than the defendant/mortgagor at

the time of issuance of the order, provided, the property was not

subjected to intentional malicious acts by the defendant, or person,

to deface, destroy or devalue the property.

K. A motion filed, or court order issued, to protect and

preserve the property as provided in this section shall not alter,

modify, relinquish or release any right, title or interests of any

party in or to any property, or alter, modify, relinquish or release

any party’s position, standing, claims, defenses or objections in

the suit, action or proceeding pending before the court to foreclose

or enforce any remedy in the mortgage, contract for deed or deed of

trust.