The ruling also allows a Muslim community leader in Oklahoma City to continue his legal challenge of the law’s constitutionality. The measure, known as State Question 755, was approved with 70% of the vote in 2010. The law is an amendment to the state constitution and bars courts from considering the legal precepts of other nations or cultures. “Specifically, the courts shall not consider international law or sharia law,” the law reads.

The appellate court opinion pointed out that proponents of the law admitted to not knowing of a single instance in which an Oklahoma court applied Sharia law or the legal precepts of other countries.

Muneer Awad sued to block the law, contending that it infringed on his 1st Amendment rights. He argued that the law would stigmatize those who practice Islam and deny him rights available to those practicing other religions. For instance, he argued that the law would affect the execution of his will after his death because it instructs the judge to use Sharia law if his wishes are not clear.

Proponents of the law argued that it was intended to ban courts from considering all religious laws and that sharia was simply used as an example. The appeals court, however, disagreed. “That argument conflicts with the amendment’s plain language, which mentions sharia law in two places,” the court opinion read. The court ruled that Awad made a “strong showing” that he is likely to succeed in his challenge of the law. The ruling keeps the injunction in place as Awad’s lawsuit continues.

The appeals court took up the case after the Oklahoma attorney general’s office appealed the injunction order. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Atty. Gen. Scott Pruitt said in a statement.

State Sen. Anthony Sykes, who led the Senate effort to get the measure on the ballot, said Tuesday he would continue to fight to lift the injunction. “The federal appeals court in Denver attempted to silence the voice of 70 percent of Oklahoma voters,” Sykes said in a statement. “At some point we have to decide whether this is a country of by and for the judges, or of by and for the people. How far will the people let them go? This ruling is right along with legalizing abortion and forced busing of school children.”

A noteworthy quote from the appellate panel holds that the state constitutional amendment “implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would…”.

The full text of the 10th Circuit  Court of Appeals opinion is available here.

TULSA – The Oklahoma Bureau of Narcotics says around 900 meth labs were found statewide in Oklahoma in 2011. About half of those were in Tulsa. Meth labs are a growing problem in Green Country and it’s important for buyers and renters to know their rights when it comes to exposure to the financial and health risks associated with properties that have been used as meth labs.

“We realize that we needed a house to settle into. We were looking through the market and we came upon a good deal. We thought we were getting a good deal,” said Phillip Brotherton. Soon after Brotherton and Kara Powell bought their first home, Kara started getting skin irritations. A neighbor told them a meth lab had been busted in their house. “I was more concerned for my baby,” said Powell. “Because I didn’t know what kind an affect that could have on him. I was really scared for him. I was really annoyed. It made me mad. They say the owner did not disclose this, even though state law requires home sellers to do so.

The family spent thousands to have a professional company clean their home. Home disclosure forms in Oklahoma clearly ask if a seller has knowledge of meth production in the home. It’s meant to protect buyers. But the Brotherton family learned the hard way that that doesn’t always happen.

Tulsa Attorney Brian Huddleston specializes in Real Estate transactions. “This problem is becoming more of a problem to where this is going to raise it’s head more and more,” said Huddleston. He says home buyers in Oklahoma have been entitled to meth disclosure since 2003. It wasn’t until November 2010 that renters gained the same protection.

Huddleston says unlike home sellers, landlords can’t simply claim they don’t have knowledge of a meth lab because they are required to do their homework. “They have the right to be told by their landlord that your apartment has never been a meth lab,” said Huddleston. “And the landlord has to know it.  He has to have done some level of inquiry. So he has reason to know that it’s not one.”

Huddleston says there are exceptions. Disclosure does not have to be made to a renter when the owner has hired a professional mitigation company and the company provides documentation proving the home is safe. There are also exemptions for home sales. The meth disclosure does not apply to foreclosures, homes where the owner has never lived, as well as transfers between blood relatives, divorces and trusts.

“As a parent and property investor myself and a property owner,” said Eric Gomez, licensed real estate consultant. “We certainly want to know everything we can about that property”. Gomez says when it comes to buying or renting, people need to consider more than a home’s curb appeal. He urges them to do their research. “I would absolutely encourage everyone to just go in with eyes wide open,” said Gomez.

You can check a home or apartment’s address by going to to the Tulsa Police Department’s meth lab map or the DEA’s clandestine meth lab registry for Oklahoma. For more information on meth, including an interactive feature, statistics or to search your neighborhood for meth busts, visit our special page Fighting Our Meth Epidemic .

Watch the video and interview of Brian Huddleston on Segment 2.

Smith said her office began posting filings Dec. 15. With the exception of small claims judgments, documents filed before that date will not be placed online and will continue to be available at the clerk’s office, she said. Smith decided to begin placing images of documents online after the Oklahoma Supreme Court approved rules that clarified how identifiers such as birth dates, home addresses, Social Security numbers and other personal information should be dealt with in such filings. After initially proposing redaction of key identifiers, including dates of birth and home addresses, the Supreme Court reversed its own proposal Dec. 12, striking rules for redaction or partial redaction.

Facing pressure from district attorneys, the media and businesses that depend upon background checks for potential employees, the court significantly scaled back the rules. The new rules place the responsibility of redacting sensitive information on attorneys or other filers but it is not a requirement, records show. Criminal records are exempt from any allowable redaction, which means full birth dates and home addresses should be included on criminal filings.

Smith said she does not completely agree with the new rules, but she is abiding by them because they are sanctioned by the Oklahoma Supreme Court. “I don’t agree with it 100 percent,” said Smith, who has been court clerk since 1993. “But it’s not my job to agree with it 100 percent. The Supreme Court approved it, and I will follow it.” Smith said her qualm with placing more records online involved the identity of minor children not being protected under the previous rules. “Some filings have birth dates and Social Security numbers of children and that concerned me,” Smith said. “The documents are typically filed in divorce cases.” Smith said the unknown financial impact of documents being copied online rather than at her office also concerned her. “I am a little concerned about how much money we can lose in copies, but we will have to wait and see what happens,” Smith said.

Records that are required to be sealed or redacted by state law are also exempt from the new rule. Those records include juvenile records, adoptions and mental health records. The Oklahoma Supreme Court oversees the Oklahoma State Courts Network, an online network for criminal and civil filings in 13 Oklahoma counties and the appeals courts. Another network, On Demand Court Records, covers cases filed in nearly every other county in the state.

Before the new rules took effect, online records for Tulsa County gave general information about court filings but left out images of documents such as affidavits, pleadings, traffic tickets, divorces and civil lawsuit petitions. Smith’s office began placing imaged documents on OSCN, but numerous counties have been doing so for several years. Cleveland County Court Clerk Rhonda Hall began placing pleadings, affidavits, traffic tickets and other filings online in 2004, beginning with criminal filings followed by civil and divorce records, said Debbie Baker, second deputy. “Because of the large amount of scanning, we did it in stages,” Baker said. “We had a local rule in place that required the filer to redact any sensitive information.” Baker said that identity theft is not a common complaint. “Given the thousands of documents that we place online, there have been only a few complaints of identity theft, and there have been none that I know of that were proven or shown to have involved court records,” Baker said.

Oklahoma County Court Clerk Patricia Presley also began placing documents online in 2004, said Tim Rhodes, chief deputy. However, Presley’s office does not post images of criminal filings, including traffic tickets, due to a statute that prohibits public access to documents that might detail highly offensive acts, Rhodes said. “We want to err on the side of caution and not allow the posting of a document with language in violation of the law, which prohibits the online public record of an offensive act outlined in the law,” Rhodes said.

To search Tulsa County District Court records, go to www.oscn.net and click on “Court Dockets” and then click on “Search Dockets.” Choose which county you want to search, or search all at once, in the drop-down box listing counties that are part of the OSCN system. Users can search by name of party and can use the percent sign as a wildcard to capture variations in names.

Abbreviations before case numbers identify the type of case, including CF for felony cases, CM for misdemeanors, CJ for large civil cases and CS for smaller civil cases.

Every landlord and property manager who rents a house, duplex or apartment in Oklahoma now has a new promise to keep: My property has never been the site of a methamphetamine production facility – a “meth lab.” See 41 O.S. § 118.

In Oklahoma, methamphetamine ranks with lead-based paint and radon gas on the list of hazards to consider before renting or buying a residence. Under a law that went into effect late last year, if a landlord knows or has reason to know that a house or apartment “or any part of the premises” was ever used in the manufacture of methamphetamine, the landlord must disclose this information to all prospective tenants.

Landlords now join sellers of residential property in having to disclose that their property has been used to manufacture methamphetamine.  This new law also requires that, if the property has been a meth lab, the landlord must have the level of contamination “assessed” and prove that it has been cleaned up according to state standards before disclosure is no longer mandated. Previously, only buyers had to be told if the property used to be a meth house.  Now that requirement has been carried over to rental properties.

I welcome this addition to the Residential Landlord and Tenant Act because the public needs to know the lasting dangers meth labs can leave. Like purchasers, renters should have full disclosure if a dwelling has been used to produce meth so they can take steps, or ensure that the landlord has taken steps, to protect against unsafe and unhealthy living conditions. The fumes created by meth production can saturate a dwelling and remain a health problem even after the meth lab is removed. Each pound of meth produced leaves behind five or six pounds of toxic waste. Meth cooks often pour leftover chemicals and byproduct sludge down drains in nearby plumbing, storm drains, or directly onto the ground. Chlorinated solvents and other toxic byproducts used to make meth pose long-term hazards because they can persist in soil and groundwater for years. Clean-up costs can be exorbitant because solvent contaminated soil usually must be incinerated. The clean-up standards in the new law should keep Oklahoma renters safe from old meth labs.

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The Home Affordable Modification Program, HAMP, a home loan modification program to avoid foreclosure, once touted as key to helping millions of homeowners who were “underwater” due to plummeting home values, suffered a loss when the House of Representatives voted to eliminate the program, the last remaining housing program of the Obama administration.

HAMP, launched at the beginning of Barack Obama’s term as president, has drawn harsh criticism for its inefficiencies from nearly everyone including independent watchdogs overseeing the program, Democrats and members of the Congressional Black Caucus.  The House vote, however, will be little more than symbolic since it’s not expected to pass in the Senate and the White House said Obama will veto the bill if it reaches his desk.

The Troubled Asset Relief Program’s chief watchdog Neil Barofsky said HAMP “benefits a small portion of distressed homeowners” and in some cases actually “causes more harm than good,” when he testified before the House Financial Services Committee. Even so, many members of Congress and the administration suggest the answer is to fix HAMP, rather than stop the beleaguered program. On balance, they assert more than 500,000 homeowners remain in their homes, avoiding home foreclosure thanks to HAMP.

Fifty Democrats, following Representative Maxine Waters (D-California) and anticipating the House vote, sent a letter to Secretary of the Treasury Tim Geithner, asking that he initiate changes to the struggling program. The representatives wrote, ”While we believe terminating HAMP would be contrary to our goal of helping homeowners stay in their homes, we are keenly aware of the program’s shortcomings and weaknesses,” suggesting ways Treasury could help the program.

The representatives urged Geithner to implement past recommendations to improve the home loan modification program, pointing out that the TARP special inspector general’s office, which offered 18 suggestions for improvement, has seen only four implemented. The letter sent by House members reinforces an earlier attempt by 18 senators to get Treasury, Housing & Urban Development, and the Federal Reserve Chairman to upgrade the loan modification programs.

Geithner responded to pleas for HAMP upgrades and another House vote, in which the acting Assistant Treasury Secretary Timothy Massad recommended continuing the loan modification program and making much-needed  improvements. Massad wrote, “Beginning next month, Treasury will release a quarterly compliance scorecard for each of the 10 largest servicers. Each will be graded on key performance metrics, including evaluation of homeowners for modifications and whether their staff resources and internal processes dedicated to program implementation are sufficient. These mortgage companies also will be rated against their peers. We have and will continue to require that servicers take remedial actions to address inadequacies, and Treasury will begin withholding financial incentives from for servicers that receive an unsatisfactory grade.”

Good people sometimes need a second chance. Most foreclosures are a result of an unexpected life event, such as:

• Death in the Family
• Difficult and costly Divorce
• Lost Job or had to Change Jobs
• Health problems with Expensive Medical Bills

And never before has the expression “If I could just buy some time” meant so much. When facing foreclosure homeowners need time to discover their options, analyze their situation and implement an action plan. The most precious commodity is time…And it’s running out.  However, there are various ways that an attorney can get you the time you need.  Sometimes, as in a recent case, it is as simple as filing an Answer to the Petition and requiring the foreclosing lender to actually prove that it is the proper Plaintiff to bring the case.  If it isn’t a Dismissal Without Prejudice is appropriate.  Other times, as in another recent case, deficiencies in the Lender’s Motion for Summary Judgment can be identified, and the Judge may issue an Order denying the Lender’s Motion for Summary Judgment.

Homeowners’ options are changing because of the magnitude of the housing problem.  There is a chance to work things out with the lender if the homeowner fights for that chance. More banks are willing to work with borrowers today simply because they really can’t manage the huge backlog of homes which have already been lost to foreclosure. If the borrower can present a viable plan to repay the loan, the chances of retaining home ownership are pretty good.

The process can go fairly quickly. Here’s a basic rundown of the mortgage modification process and how long each step takes:

• Obtaining the modification package: Getting a loan modification package in the mail can take anywhere from a few days to a few weeks, depending on how long it takes to get a hold of the right loss mitigation manger, and of course, how many other modification requests being considered at the moment.  Lately, the attorneys for the foreclosing lenders have been willing to forward the applications directly to the attorney for the homeowner.  This can speed up the process.

• Submission of the loan modification package: It should take a week to fill it out and get it back to the lender with all the requested documents.

• Underwriting and internal auditing: Once the lender receives the modification package, they will check it over for mistakes, and then send it on for an in-depth review. Assuming that no questions arise regarding the paperwork, this should only take a few days.

• Assignment to a mitigation specialist: After being reviewed by the underwriters (which can take another week or two), the matter will be assigned to a loss mitigation specialist who is authorized to make the final decisions regarding the loan modification request.

• Decision and mitigation process: One of the longest parts of the process, this step can take several weeks as the loss mitigation specialist reviews the request and begins negotiating new loan terms. It may take a week or two or even a month or two to complete – that really depends on the specialist’s case load.

• Completion of the new loan: Once the modification request is approved, the lender will send a packet to fill out and sign within 3-5 business days to complete the modification.

Getting a loan modified can take several weeks to several months to complete. The key is being pro-active and patient, all at the same time.  A foreclosure defense lawyer is necessary to handle the foreclosure case, but homeowners don’t need to hire an expensive company to do their loan modification. On the contrary, doing the loan mod, or a short sale, yourself while your attorney defends the foreclosure case may lead to a better result and thousands of dollars saved.

The Tenants Protection Act was enacted as part of the “Helping Families Save Their Homes Act of 2009”.  It provides protections to bona fide tenants in foreclosed properties where the foreclosed mortgage is a “federally related mortgage loan” (a very broad category of mortgage loans as defined in the federal Real Estate Settlement Procedures Act (“RESPA”)).

Dodd-Frank Extends the Expiration Date

The Tenant Protection Act was originally set to expire or “sunset” on December 31, 2012; Dodd-Frank changes that, and the Tenants Protection Act will now sunset on December 31, 2014.  An amended version of the Tenants Protection Act is available here.  A sample letter for tenants and advocates to use to implement the Tenants Protection Act is available here.

Are Commercial Loans Covered?

An important question for lenders, mortgage holders and servicers is whether the Tenants Protection Act is limited to residential one- to four-family mortgage loans, or whether commercial loans are covered.  The answer is that some commercial loans are covered; where a loan is made to an individual or entity to purchase or improve property which is one- to four-family residential property, the Tenants Protection Act provisions for notice and eviction must be followed, even if the borrower took the applicable mortgage loan for a commercial purpose.  Commercial purpose loans that meet the definition of “federally related mortgage loans” must comply with the Tenants Protection Act.

A “federally related mortgage loan” is any loan (other than a temporary loan such as a construction loan), which is secured by a first or subordinate mortgage on real property that is designed to be a one- to four-family residential property (including condominiums and manufactured homes), and the property has to be located in a U.S. state.  Refinancings and purchase money mortgages are included.  The mortgage loan (1) must be made by a lender that is either federally regulated or its deposits are insured by the Federal Government; (2) is insured, guaranteed or supplemented by the Federal Government; (3) is made in conjunction with programs administered by HUD or by another federal agency; (4) is intended to be sold to Fannie Mae, Ginnie Mae or Freddie Mac; (5) is made by a “creditor” as defined by the Consumer Credit Protection Act (15 USC §1602(f)) and that creditor makes or invests in $1,000,000 worth of residential real estate loans per year; (6) is a reverse mortgage made by one of the aforementioned lenders; (7) is an installment sales contract for residential one- to four-family residential property.

Protecting Tenants at Foreclosure Act of 2009 Before Dodd-Frank Amendments

As a refresher, the Tenants Protection Act requires immediate successors in interest to foreclosed properties, including banks that take title to property after foreclosure, to provide a notice to vacate to any bona fide tenant at least ninety (90) days prior to evicting those tenants as a result of foreclosure.  In the event a foreclosure does take place, the Tenants Protection Act requires the successor owner of foreclosed property to honor any existing leases with renters until the end of the lease terms.  Protection is not available for the former mortgagor, the mortgagor’s spouse, child or parent.  A “bona fide” lease is the result of an arm’s-length transaction, and the rent has to be fair market value or government subsidized.  The Tenants Protection Act also provides Section 8 tenants in foreclosed properties certain protections.

Dodd-Frank Clarifies When Prior Notice of Foreclosure Occurs

A major change in the Tenants Protection Act brought about by Dodd-Frank concerns the interpretation of the provision that allows bona fide tenants of foreclosed properties to continue to reside at the property for the remaining term of the lease executed with the former owner only if that lease was entered into “as of the date of foreclosure”.  Prior to the amendment found in Dodd-Frank, it was unclear when the “date of foreclosure” occurred.  If the cut-off period began when foreclosure notices were sent, borrowers and tenants could no longer enter into leases that would have to be honored once the foreclosure notices were mailed and advertised.  Thus, under the prior version of the Tenants Protection Act, a foreclosing owner would take the position that leases entered into AFTER the date the foreclosure notice was mailed were not effective, and the foreclosing owner would not have to honor those leases.

Dodd-Frank changes all that by clarifying the phrase and explaining “For purposes of this section, the date of a notice of foreclosure shall be deemed to be the date on which complete title to a property is transferred to a successor entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed of trust or security deed.”    Unfortunately, ambiguity remains.  While Dodd-Frank clarifies that “notice of foreclosure” does not mean any correspondence or advertising undertaken by the mortgagee leading up to the foreclosure sale, it leaves the post-foreclosure timeframe unclear.  Put more simply, Dodd-Frank shifts the ambiguity from pre-foreclosure sale to post-foreclosure sale.  This is due to the use of the term “complete” in the new definition, i.e., what does “complete title” mean?

Debate is already underway as to whether “complete title to a property is transferred to a successor” occurs at the time of the foreclosure sale or at the time of recording of the foreclosure deed.   In Bankruptcy Courts, Judges who have opined on the issue of when the foreclosure sale is final from a bankruptcy perspective find that the foreclosure is final when the gavel goes down completing the auction, and the purchase and sale agreement is executed by the buyer.  On the other hand, there is an argument that the buyer at foreclosure who tenders a deposit and signs the purchase agreement only has equitable title; no legal title passes until the foreclosure deed is tendered to the buyer.  Still another interpretation is made by the foreclosing owner who seeks to evict any holdover borrowers or tenants from the property after foreclosure.  Post-foreclosure property owners are going to have to watch out for borrowers and mortgagors whose properties are in the process of foreclosure, as they could enter into lease agreements with tenants AFTER the foreclosure sale date, but before the foreclosure deed goes on record, and the foreclosing owner would be required by law to honor those lease and tenancy agreements.

Another issue Dodd-Frank raises is the impact its amendments will have on pending eviction cases.  As statutes are not typically retroactive unless such intention is expressly stated, Dodd-Frank, which is silent on retroactivity, should not impact pending evictions.  However, financial institutions should be aware that since each state has its own eviction process, knowing when such a process has begun will be state specific.  Accordingly, a review of the status of each pending eviction should occur.

In sum, post-foreclosure property owners must continue the practice of giving ninety (90)-day pre-eviction notices to bona fide tenants, but the date on which that notice has to be given will now be later in the process — on or after the date the foreclosure deed is recorded.  Ninety (90)-day notices sent on behalf of the servicer during the foreclosure process will no longer satisfy the Tenants Protection Act.  Post-foreclosure property owners should do everything they can to ensure that foreclosure deeds are recorded expeditiously after a foreclosure sale to cut off the rights of mortgagors from entering into new lease agreements with bona fide tenants so that the new owner does not have to contend with honoring the terms of those new lease agreements.

Form 1099-C: If your debt is reduced or eliminated, you will normally receive a year-end statement, Form 1099-C, Cancellation of Debt from your lender. By law, this form must show the amount of debt forgiven and the fair market value of any property foreclosed. Examine Form 1099-C carefully and notify the lender immediately if any of the information shown is incorrect. Note the amount of debt forgiven in Box 2 as well as “home value” listed in Box 7.

If your mortgage debt is partly or entirely forgiven during tax years 2007 through 2012, you might be able to claim special tax relief and exclude the debt forgiven from your income, according to a tax tip e-mailed from the Internal Revenue Service.  It provides the following facts about mortgage debt forgiveness:

$2 million forgivable: Normally, debt forgiveness results in taxable income, but under the Mortgage Forgiveness Debt Relief Act of 2007, you might be able to exclude up to $2 million of the debt forgiven on your principal residence. The limit for a married person filing a separate return is $1 million.

Principal residences only: You may exclude debt reduced through mortgage restructuring, as well as mortgage debt forgiven in a foreclosure. To qualify, the debt must have been used to buy, build or substantially improve your principal residence and be secured by that residence. Refinanced debt proceeds used for the purpose of substantially improving your principal residence also qualify for the exclusion.

Non-qualifiers: Proceeds of refinanced debt used for other purposes, such as paying off credit card debt, do not qualify for the exclusion.

Form 982: If you qualify, claim the special exclusion by filling out IRS “Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness” and attach it to your federal income tax return for the tax year in which the qualified debt was forgiven.

Second homes: Debt forgiven on second homes, rental property, business property, credit cards or car loans does not qualify for the tax relief provision. In some cases, however, other tax relief provisions, such as insolvency, might be applicable. IRS Form 982 provides more details about these provisions.

Call for info: See more information on the act in IRS “Publication 4681, Canceled Debts, Foreclosures, Repossessions and Abandonments” on the IRS website. These forms and publication are also available by calling 800-829-3676.