Okla. Admin. Code § 670:20-41-5

Current through Vol. 42, No. 3, October 15, 2024

Section 670:20-41-5 - Possessory liens under Title 42 of the Oklahoma Statutes

(a)Definitions. The following words and terms, when used in this Section, shall have the following meaning, unless the context clearly indicates otherwise:

(1)"Business day" means a day on which State offices are open for regular business.

(2)"Itemized charges" means total parts, total labor, total towing fees, total storage fees, total processing fees and totals of any other fee groups, the sum total of which shall equal the compensation claimed.

(3)"Lawfully in possession" means a person has documentation from the owner or the owner's authorized agent, or an insurance company or its authorized agent, authorizing the furnishing of material, labor or storage, or that the property was authorized to be towed to a repair facility.

(4)"Property" means any vehicle, trailer, manufactured home, boat or outboard motor subject to the lien process described herein.

(5)"Salvage pool" means any person or business which regularly conducts a salvage disposal sale.

(b)Application review and approval. Any person who wishes to claim a possessory lien and sell property for storage fees or work done for which they have not been compensated must comply with the applicable lien filing provisions of Title 42 of the Oklahoma Statutes and submit proper documentation to Service Oklahoma for review and title issuance approval. As part of the review process, the record will be checked against a national stolen vehicle database, such as NCIC or NICB, for the presence of a stolen property record. If a stolen property report is on file, the application will be denied and the filer advised of the law enforcement agency responsible for the report.

(c)Forms and instructions available. A packet of instructions and required forms may be obtained from Service Oklahoma or online at service.ok.gov. There are two (2) types of possessory lien filings applicable to property under Title 42 of the Oklahoma Statutes:

(1)Process One. Filings pursuant to 42 O.S. § 91, commonly referred to by Service Oklahoma as Process One, apply to property titled in the State of Oklahoma, or with a federally recognized Indian tribe, and on which an active lien is recorded and for which the lien filers are not excluded pursuant to 42 O.S. § 91 (A)(1)(b).

Excepting manufactured homes, if an active lien is present, but is over fifteen (15) years old, the provisions of 42 O.S. § 91 A apply.

(2)Process Two. Filings pursuant to 42 O.S. § 91A, commonly referred to by Service Oklahoma as Process Two, apply to property titled in another state, or which do not have a certificate of title or have a certificate of title on which an active lien is not recorded, or are excluded by 42 O.S. § 91(D) from the process described in paragraph (1) of subsection (c), or on which the lien is filed by either a licensed Class AA Wrecker Service, unless the action results from a consensual tow, or a Salvage Pool, as defined in 47 O.S. § 591.2.

(d)Procedure for completion and submission of required forms. Incomplete or altered forms will not be accepted. The forms provide the applicant with designated areas in which to enter required information.

(e)Persons qualified to file possessory liens. Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof by furnishing material, labor or skill for the protection, improvement, safekeeping, towing, storage, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due such person from the owner for such service. Written proof of authority to perform the work, labor, or service, or, when applicable, claimant's statement that the property was abandoned by the owner, is required. Those wishing to file Title 42 on behalf of others for profit are required to registered as a Title 42 preparer.

(f)Manner of foreclosure. Said lien may be foreclosed by a sale of such personal property, following proper notification to the record owner and all interested parties.

(g)Notice requirements.

(1)General requirements. The content and filing timeframes of required notices are outlined by statute. Notification of the record owner and all interested parties, when ascertainable, is always required. Completion and proper posting of a Notice of Sale (SOK 752-A) is required. With the specific exception of salvage pools, most lien filers must complete and send a Notice of Possessory Lien (SOK 752-D) to all interested parties.

(2)Contact information. All notices to interested parties must include complete and accurate contact information for the clamant, as specified by statute.

(3)Certified mailing requirements. All written notifications to interested parties must be sent via certified mail, return receipt requested. Either the returned receipt, or the postal service approved electronic equivalent of proof of return receipt requested, shall be required when submitting for title issuance approval.

(4)Itemization of charges. An itemized listing of all charges, as defined by statute, equaling the total compensation claim, is required.

(5)Photograph. All filings pursuant to 42 O.S. § 91 must include a photograph of the property. Filings pursuant to 42 O.S. § 91A for motor vehicles must include a photograph of said motor vehicle. For other property, filings pursuant to 42 O.S. § 91A must contain:

(A) Written confirmation of a visual inspection of the property completed by the filer, verifying the identification number or serial number assigned the property and the general condition of such property, or

(B) Photograph of the property.

(6)Ownership/Lienholder determination for notification purposes. Within the timeframes prescribed by statute, the lien claimant must attempt to ascertain record ownership of the property and the existence of any lienholders on file with Service Oklahoma or the equivalent office in another jurisdiction.

(A) If the property has an Oklahoma license plate, registration decal, boat registration number, or is otherwise believed to have been registered in this state, Service Oklahoma or any licensed operator shall be contacted for ownership/lienholder information. Provided the information is available in the computer file, the claimant will be asked to complete a Vehicle Information Request (SOK Form 769) and pay the applicable fee. Service Oklahoma or a licensed operator will provide the requested Oklahoma computer file ownership/lienholder information within ten (10) business days of receiving the request.

(B) If there is no current ownership/lienholder record on file, a Vehicle Information Request (SOK Form 769), requesting a title search for the last record owner is to be completed and submitted to Service Oklahoma, along with the applicable fee.

(C) If the Research Section has no record on file and the property is over five (5) years old, or over fifteen (15) years old if a manufactured home, the claimant will be advised that the interested party notice may be accomplished by publication. Refer to Notice when owner is unknown.

(D) If the property was most recently titled and/or registered in another state or with an Indian Tribe, the appropriate registering authority of that state or tribe must be contacted for ownership/lienholder information. Letters or computer record printouts from the applicable state or tribe providing owner and lienholder information are acceptable. Ownership/lienholder information provided by entities other than the appropriate registering authority may be acceptable, provided the accuracy of the information may be verified by Service Oklahoma.

(E) When no Oklahoma record is on file, the jurisdiction of titling is unknown and the property, unless a manufactured home, is five (5) model years or newer, or, if a manufactured home, is fifteen (15) model years or newer, the claimant or their agent shall request, in writing, that Service Oklahoma ascertain the jurisdiction of titling. Within fourteen (14) days of receipt of the request, Service Oklahoma will provide either the titling jurisdiction, or notice that no determination was made. If a titling jurisdiction is determined, the claimant must contact that state's titling authority for ownership and lienholder information. If no titling jurisdiction determination is made, as confirmed by Service Oklahoma, notice by publication is required.

(F) When no Oklahoma record is on file, the jurisdiction of titling is unknown and the vehicle/ATV/commercial trailer boat or motor is over five (5) model years old, or manufactured home is over fifteen (15) model years old, notice by publication is required.

(7)Notice when owner is unknown. In the event all applicable ownership/lienholder determination procedures have been followed and resulted in no record found, notice by publication in an authorized newspaper must be performed as follows:

(A) The newspaper must be authorized to publish legal notices pursuant to the provisions of 25 O.S. § 106 and must be published in the county in which the property is located. If no newspaper authorized by law to publish legal notices is published in that county, the notice is to be published in some such newspaper of general circulation which is published in an adjoining county. Eligible newspapers may be verified by contacting Service Oklahoma.

(B) The newspaper notice must identify the property by identification number, year, and make.

(C) The notice must include the name of an individual who may be contacted in reference to the sale, including their telephone number or the address where the property is located.

(D) The notice must run at least (1) day per week for (3) consecutive weeks. The first date available for public sale of the property is the day following publication of the final notice, but no fewer than thirty (30) days after the lien has accrued.

(E) Upon completion of the newspaper notification process, an Affidavit of Publication (SOK Form 752-E) must be completed and included with the Title 42 documentation submitted to Service Oklahoma.

(h)Sale and distribution of proceeds of sale. When the property is sold, the special (possessory) lien holder, upon satisfying the amounts due to him/her must make arrangements for the payment in excess of the amounts due to him to be paid to the secured party or parties and to the owner of the property.

(i)Effect of foreclosure on purchaser's title. The purchaser of the property will receive a Certificate of Title without any liens indicated. [See: 42 O.S. § 91 et seq.]

(j)Abandoned property auction. Any property offered at an abandoned property auction performed by a Class AA wrecker service or lien claimant is exempt from all prior year registration fees, title fees, stop flag fees, and any other fees imposed by the state resulting from the prior ownership of the property. However, if the purchaser is the registered owner of the property prior to towing, any outstanding prior years' fees will be due.

(k)Failure to comply. Failure by a lien filer to comply with any statutory filing requirements shall result in denial of the title application. Notification of denial will be returned to the filer by Service Oklahoma via certified mail.

(1) Applicants filing pursuant to the provisions of 42 O.S. § 91A are entitled to one (1) resubmission within thirty (30) business days of receipt of the denial.

(2) Applicants filing pursuant to the provisions of 42 O.S. § 91 are entitled to one (1) resubmission within fifteen (15) business days of receipt of the denial.

(l)Notice of legal proceedings. Upon receipt of a notice of legal proceedings, Service Oklahoma shall place a hold on the sale process until notice of resolution of the court proceedings is received.

Okla. Admin. Code § 670:20-41-5

Adopted by Oklahoma Register, Volume 41, Issue 23, August 15, 2024, eff. 8/25/2024