Recent Developments in Foreclosure Law

Last Updated on Sunday, 27 August 2023 03:24 Written by Chris Griswold Tuesday, 10 April 2012 12:07

Since just January of this year, there have been 8 Oklahoma Supreme Court cases (mostly all residential cases) come down which deal with certain, required, conditions precedent for lenders to have proper standing to commence foreclosure proceedings after mortgage assignments have occurred.  After reviewing all 8 (Note: all 8 of which still remain unpublished in the permanent law records and not yet good law to rely upon; but all of which will, in all probability, soon become good law upon becoming so published), here are your takeaways – all in a logical, progression format so it’s easier to understand. The real “meat and potatoes” you can actually use is highlighted in yellow, the rest is just background info…. Read more below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Recent Developments in Foreclosure Law

First, the lender has the burden of proving itself to be the proper entity entitled to enforce the promissory note (the “Note”) and initiate foreclosure proceedings (all this is called “standing”);

Second, to have this standing, the lender must have “possession of the Note;”

Third, this “possession” occurs if any one of the following three (3) things are present: a) the lender is a holder of the Note, b) the lender is a non-holder of the Note but is in [actual] possession of the Note and the lender has the rights of a holder, or c) the lender is not in [actual] possession of the Note but it, nevertheless, is entitled to enforce the Note.  (Note: the foregoing is all proved out through the specific facts of the case and most of these cases remand back down to the lower courts for further fact findings before entering for either party at this time);

Fourth, the Court equates “standing” with “possession” of the Note; all of which are tantamount to the lender being a “holder” of the Note.  It is this concept of the lender being a “holder” of the Note (or something closely synonymous to being a holder of the Note as I define above) that we now look at;

Fifth, for this “holder” status to exist, the lender must have both: a) actual possession of the Note (or its equivalent), and b) in the event of any assignment of the mortgage to any new lender, an indorsement in the name of such new lender made either on the original Note itself or on an “allonge” to such original Note;

Sixth, most of these 8 cases center around the defendant debtors arguing that since their new lender had just recently assumed their mortgage under an assignment of mortgage, such new lender was not the correct/proper lender to be initiating such foreclosure proceedings.  The cases highlight the Court’s holding that the indorsed Note or allonge in the name of the new lender must be dated prior to the date of such original foreclosure filing, and

Seventh, most all the lenders in the relevant cases attempt to present their “mortgage assignments” to the Court as a substitute to the requirement of having a previously dated, indorsed Note or allonge in the name of such new lender.  The Court states that these assignments cannot stand alone and must still be accompanied with the newly indorsed Note or “allonge” and, furthermore, even if there is an assignment of mortgage, the assigment must still pre-date the original foreclosure filing.

What My Clients Are Saying

“Chris Griswold has a way of simplifying complex legal issues.  He is quick to respond, efficient and professional in his delivery of services and fair and up front with his cost.  Professional Insurors considers Chris an asset to both our business and our clients.  Our trust in Chris grows each and every time we call upon his expertise.”
Kelly Miller / President / Professional Insurors Agency, LLC / Oklahoma City, Oklahoma

Water Issues

Last Updated on Sunday, 27 August 2023 03:24 Written by Chris Griswold Monday, 12 March 2012 02:49

I’ve recently moved to a new location so please note my new contact information.

Vance Rexford Griswold, our newest addition, was born February 9^th, 2012.  He was 6 lbs. 1 oz., 19.25 inches.  He’s doing well at home….

Whether you’re a banker, a broker, a business person, a ground lessee, or a landowner, it’s helpful to understand a few, key things about the legalities surrounding water in Oklahoma.  The purpose of this article is to make you a little more knowledgeable about the current laws concerning the use and ownership of water rights and how those might soon change.  Read more below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Water, Water Everywhere

First, it’s important to understand that laws break “water” down into two categories:
i) ground water and, ii) surface water.

Second, surface water, like wildlife hunting (e.g., deer hunting, bird hunting, etc…), is permit driven.  In other words, you can’t capture surface water on your own land (or land you’re leasing from someone else) without obtaining a water use permit from the State of Oklahoma – just like you can’t capture deer or other game without obtaining a hunting license.  Generally speaking, and subject to the findings of a detailed surface water study conducted by the State, the amount of surface water that someone with a valid, water use permit can capture is two (2) feet of water per acre of land (also known as “2 acre feet”).

Third, unlike surface water, ground water is not permit driven.  It’s deed driven.  Better put, if someone purchases real property (and obtains the deed to such real property), that person has also obtained all right, title and interest in the ground water located under such real property, subject to either: i) someone else’s previously issued and currently valid water use permit, or    ii) the reservation of the ground water rights in a previous deed of conveyance.

Fourth, a landowner’s ground water rights are currently “severable” from the rest of the real property.  In other words, just like mineral rights, ground water rights can currently still be sold separately (i.e., they are “alienable”) from the surface rights, the air rights, etc… of the real property.  Think T. Boone Pickens and West Texas here….

Fifth, a lot of out-of-state buyers and non-agricultural groups have recently taken to purchasing the ground water rights to many rural properties.  So what?  This has prompted our law makers to review the efficacy of ground water rights remaining alienable/severable from the rest of the real property.  Why?  This “commoditized” buying and selling of ground water rights potentially puts Oklahoma’s agricultural industry at risk.  However, this next legislative session may change the laws to make ground water rights unseverable from the rest of the real property to “cure” the problem.  Let’s see what happens.

What My Clients Are Saying

“Chris Griswold was instrumental in negotiating a very solid, long-term lease for our new bank branch in Oklahoma City.  His industry knowledge helped us avoid several potential pitfalls with a landlord that was somewhat difficult at times.  It was a pleasure to work with Chris because of his professional style and easy going demeanour.”
Charlie Crouse / President / Summit Bank / Oklahoma City, Oklahoma

Improving Your Insurance IQ

Last Updated on Sunday, 27 August 2023 03:24 Written by Chris Griswold Monday, 13 February 2012 11:39

I’ve recently moved to a new location, so please note my new contact information below.