Title Examination Standards
Chapter 1, App.
Chapter 23. Judgment Liens, Execution and Attachment
§23.5. Notice Requirements for Execution Sales.

1. A. NOTICE OF SALE .

   1. 1. On or after March 23, 1985 . As to all sheriffs sales of real property upon general or special execution occurring on or after March 23, 1985, but prior to November 1, 1986, efforts must have been taken which were reasonably calculated to afford personal notice of the sale to those parties who had an interest or estate in the property sold and whose actual whereabouts were known or could have been ascertained with due diligence. The record of the proceedings should reflect that such steps have been taken. Authority: 12 O.S. §§ 757, 764; Cate v. Archon Oil Co., Inc., 695 P.2d 1352 (Okla. 1985); Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla. 1968); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1949); Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). Comment: The rule of Cate v. Archon Oil Co., supra , was made effective prospectively to all sales governed by 12 O.S. §§ 757 & 764 after issuance of mandate, which occurred March 22, 1985. 2. On or after November 1, 1986 . As to all sheriffs sales of real property upon general or special execution occurring on or after November 1, 1986, but prior to November 1, 1987, such sales shall be set aside on motion by the court to which the execution is returnable unless the party causing the execution to be issued: a. causes a written notice of sale containing the legal description of the property to be sold and the date, time and place where the property will be sold to be mailed, by first-class mail, postage prepaid, to: i. the judgment debtor; and ii. any holder of an interest in the property to be sold; and iii. all other persons of whom the party causing the execution to be issued has notice who claim a lien or any interest in the property; at least ten (10) days prior to the date of the sale, if the names and addresses of such persons are known;and b. causes publication notice to be given in conformity with 12 O.S. § 764(a)(2); and c. files in the case an affidavit of proof of mailing and of publication or posting; and d. causes such sale to be held at least thirty (30) days after the date of first publication of the notice required in 12 O.S. § 764(a)(2).

      The record of the proceedings should reflect that such steps have been taken.

      Authority: 12 O.S. § 764; Cate v. Archon Oil Co., Inc., 695 P.2d 1352 (Okla. 1985); Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla. 1968); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1949); Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). Comment: 12 O.S. § 764 was amended effective November 1, 1986, to provide the specific notice requirements set forth above. 3. On or after November 1, 1987. As to all sheriffs sales of real property upon general or special execution occurring on or after November 1, 1987, such sales shall be set aside on motion by the court to which the execution is returnable unless the party causing the execution to be issued: a. causes a written notice of sale, executed by the sheriff if executed on or after November 1, 1987 , containing the legal description of the property to be sold and the date, time and place where the property will be sold to be mailed, by first-class mail, postage prepaid, to: i. the judgment debtor; and ii. any holder of an interest of record in the property to be sold whose interest is sought to be extinguished, except mechanic's and materialmen's lien claimants, provided that the instrument evidencing such interest was filed prior to the filing of the notice of the pendency of the action; and iii. any mechanic's or materialmen's lien claimant whose lien claim has not expired, is sought to be extinguished and either: (a) has been perfected, either before or after the filing of the notice of the pendency of the action, or (b) has not been perfected, but of which the party causing the execution to be issued has notice; and iv. all other persons, of whom the party issuing execution has notice who claim a lien or interest in the property, including those who disclaimed in the principal action, whose interest is sought to be extinguished, and whose interest is not otherwise negated by the effect of 12 O.S. § 2004.2; at least ten (10) days prior to the date of the sale, if the names and addresses of such persons are known; and b. causes publication notice, executed by the sheriff if executed on or after November 1, 1987, to be given in conformity with 12 O.S. § 764(a)(2); and c. files in the case an affidavit of proof of mailing and of publication or posting; and d. causes such sale to be held at least thirty (30) days after the date of first publication of the notice required in 12 O.S. § 764(a)(2).

      The record of the proceedings should reflect that such steps have been taken.

      Authority: 12 O.S. §§ 764, 2004.2; 42 O.S.A. ch. 3; Cate v. Archon Oil Co., Inc., 695 P.2d 1352 (Okla. 1985); Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla. 1968); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1949); Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). Comment: 1. 12 O.S. §§ 764 and 2004.2 were amended effective November 1, 1987, to provide the specific notice requirements set forth above. 2. 12 O.S. § 766 authorizes an under sheriff or deputy sheriff to execute the notice required by 12 O.S. § 764 as amended effective November 1, 1987. 3. Notices should be mailed to all parties who disclaimed in the principal action, if such parties might possess an equity of redemption, Sooner Federal S & L, v. Okl. Cent. Cr. Union , 790 P.2d 526 (Okla. 1989). Caveat: The issue of whether an execution sale of an oil and gas leasehold interest is a sale of real property or a sale of personal property has not been decided by the Oklahoma Supreme Court. See Cate v. Archon Oil Co., supra .

2. B. NOTICE OF CONFIRMATION OF SALE .

   1. 1. On or after November 1, 1986 . As to all sheriff's sales of real property upon general or special execution, for which the writ of execution was returned on or after November 1, 1986, but prior to November 1, 1987, the party causing the execution to be issued shall: a. cause a written notice of hearing on the confirmation of the sale to be mailed, by first-class mail, postage prepaid, to the following persons and entities whose names and addresses are known: i. the judgment debtor; and ii. any holder of record of an interest in the property; and iii. all other persons of whom the party causing the execution to be issued has notice who claim a lien or any interest in the property; at least ten (10) days before the hearing on the confirmation of sale; and b. if the name or address of any such person is unknown, cause publication notice to be given in conformity with 12 O.S. § 765(a)(1); and c. file in the case an affidavit of proof of mailing and, if required, of publication.

      The record of the proceedings should reflect that such steps have been taken.

      Authority: 12 O.S. § 765; Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla. 1968); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1949); Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). Comment: 12 O.S. § 765 was amended effective November 1, 1986, setting forth the specific notice requirements listed above. 2. On or after November 1, 1987 . As to all sheriff's sales of real property upon general or special execution, for which the writ of execution was returned on or after November 1, 1987, the party causing the execution to be issued shall: a. Cause a written notice of hearing on the confirmation of the sale to be mailed, by first-class mail, postage prepaid, to the following persons and entities whose names and addresses are known: i. All persons to whom mailing of the notice of the execution sale was required to be made pursuant to 12 O.S. § 764; and ii. The high bidder at such sale; at least ten (10) days before the hearing on the confirmation of sale; and b. If the name or address of any such person is unknown, cause publication notice to be given in conformity with 12 O.S. § 765(a)(1); and c. File in the case an affidavit of proof of mailing and, if required, of publication.

      The record of the proceedings should reflect that such steps have been taken.

      Authority: 12 O.S. §§ 764, 765; Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla. 1968); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306; Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). Comment: 12 O.S.. §§ 764, 765 and 2004.2 were amended effective November 1, 1987, setting forth the specific notice requirements and limitations thereon set forth above.

History: This standard was developed as a result of Cate v. Archon, supra . It was contained in the 1986 Report of the Title Examination Standards Committee, 57 O.B.J. 2677, 2681-82 (1986). After that publication, the Committee received several suggestions from members of the Real Property Section. The Executive Committee of the Section amended the recommendation substantially before submission to the Section. As amended, the recommendation was approved by the Section, November 20, 1986, and adopted by the House of Delegates, November 21, 1986.

The 1987 Title Examination Standards Committee, in its report, 58 O.B.J. 2839, 2843 (1987) recommended several changes in the standard which were approved by the Real Property Section, November 12, 1987, and adopted by the House of Delegates, November 13, 1987. The effective dates in pre-existing material were expressed in different words. For example "After March 22, 1985" became "On or after March 23, 1985". Parts "A.3." and "B.2." were added to conform the standard Aith amendments to 12 O.S. §§ 764, 765 and 2004.2. The "Caveat" was moved from the former end of part "A." to the new end thereof.

The 1991 Report of the Title Examination Standards Committee, 62 O.B.A.J. 3269 (1991), proposed the addition of 12.4, A, 3, a, iv, to correspond to the statutory language and recent case law, and comment number 3 following paragraph A to point out recent case law on the rights of disclaiming parties. The changes were approved by the Real Property Section on November 14, 1991 and adopted by the House of Delegates November 15, 1992, 62 O.B.A.J. 3531 (1991).