Street Law School: Getting A Criminal Record Expunged Is Getting Even Easier Than Before

November 14th, 2018

On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned.  Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction five years after completion of their sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12).  This 2018 change to the law reduces the waiting period from ten years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past fifteen years; and omits a requirement that the person first be pardoned.  Oklahoma’s additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies may be further explained by any Oklahoma attorney that includes expungements as a part of their practice.

Links to the Oklahoma Statutes dealing with expungement of criminal records:

Convictions and arrest records (Section 18 Expungement)
Identity Theft (Section 19a Expungement)
Expungement of a Victim’s Protective Order (Section 60.18 Expungement)
Deferred or delayed sentences (Section 991(c) Expungement)
Expungement for Victims of Human Trafficking (Section 19c Expungement)
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Street Law Firm: Oklahoma is open for medical marijuana businesses. Now what?

July 13th, 2018

On July 26, application information and requirements for licenses will be available at omma.ok.gov. Applicants must be at least 25 years old, reside in Oklahoma, and must be registered to conduct business in the state as well as meet other licensing requirements. Entities can have ownership consisting of no more than 25% ownership by non-Oklahoma residents. The license application fee for growers, processors, and dispensaries will be $2,500.

To be prepared for state licensing you should:

  • Read through the Regulations and determine what business type you’d like to have.
  • Setup your Cannabis Company Formation since you need to be a registered business for licensing approval.
  • You’ll also need a Cannabis business plan for licensing.

OSDH will continue to provide the most up to date information as the program is fully implemented.

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Victory On Appeal (Again)

September 18th, 2017

I am pleased to announce that I have another recent appellate court victory. This time in an unreported case where, as is often the case, the trial court granted the bank’s motion for summary judgment for foreclosure against the homeowner, but the Oklahoma Court of Appeals reversed and remanded the case, finding that there exists a material issue of disputed fact as to whether HSBC was the holder of the promissory note at the time that it filed its amended petition. The opinion makes it clear that a motion for summary judgment in a foreclosure case must present undisputed facts supported by acceptable evidentiary materials  showing that the bank is a person entitled to enforce the note at the time that the petition is filed. The bank’s evidentiary materials were deficient because it had made inherently contradictory allegations in its pleadings and affidavit in support of its motion for summary judgment. Here is a link to the slip opinion: HSBC vs Williamson.

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Victory on Appeal in U.S. Bank National vs. Smith

August 31st, 2017

I am pleased to announce that I have another appellate court victory. This time in an unreported case where I was hired only after the homeowner had already had judgment granted against him by the trial court in 2007. That’s right. In 2017, 10 years after the default judgment, the Oklahoma Court of Appeals reversed and remanded the case, giving no credence to US Bank’s statute of limitations argument under 12 O.S. § 1038.

The pro se defendants had a default judgment entered against them for their failure to file an Answer. The homeowners hired me in 2015 after they were served with a Notice of Sheriff’s Sale. I filed a petition to vacate the 2007 default judgment, which the trial court denied, but we won a reversal on appeal. The opinion contains a good discussion of § 1038, the statute of limitations to challenge judgments, and when the refusal to vacate a default judgment is an abuse of discretion.

Here is a link to the slip opinion: U.S. Bank vs. Smith.

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Street Law School: How To Make Use of the Noncustodial Parent Visitation Rights Law

November 5th, 2014

visitationThe Noncustodial Parent Visitation Rights Law went into effect on November 1, 2014, and allows noncustodial parents a somewhat simpler way of enforcing their custody schedule when it isn’t being followed by the custodial parent. The new law amends Oklahoma statute 43 O.S. § 111.3, and provides an almost Small Claims Court type procedure that begins with the filing of a MOTION FOR ENFORCEMENT OF NON-CUSTODIAL PARENT VISITATION RIGHTS. The motion must detail the visitation schedule violations and requires that a hearing on the request be scheduled within 21 days, but it could be much sooner in some counties.

An ORDER and Notice of Hearing is issued by the Court, and PROOF OF SERVICE BY CERTIFIED MAIL must be filed at or prior to the hearing. If the other parent is not served at least 10 days before the hearing, the court likely will not hear the case as scheduled, but the matter still must resolved within 45 days.  At the hearing, the Court will evaluate the visitation schedule and the claimed violations, and possibly punish the violator.  If the Court finds that the visitation rights of the noncustodial parent have been “unreasonably” denied or otherwise interfered with by the custodial parent, the Court will enter an order which may provide for one or more of the following remedies:

  1. A specific visitation schedule;
  2. Compensating visitation time for the visitation denied or otherwise interfered with, which time shall be of the same type (e.g. holiday, weekday, weekend, summer) as the visitation denied or otherwise interfered with, and shall be at the convenience of the noncustodial parent;
  3. Posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights;
  4. Attendance of one or both parents at counseling or educational sessions which focus on the impact of visitation disputes on children;
  5. Supervised visitation; or
  6. Any other remedy the court considers appropriate, which may include an order which modifies a prior order granting child custody.

In any event, the Court is required to assess reasonable attorney fees and court costs to the prevailing party on the motion for enforcement of visitation rights. This means that the custodial parent having to respond to the motion may recover her counsel fees if the motion was not well founded.

The new law includes sample forms noncustodial parents can use in lieu of hiring an attorney.

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Another Foreclosure Avoided

April 16th, 2014

10623056-detroit-foreclosure-preventionThis week I was able to obtain a dismissal of a foreclosure case filed in 2011 after my client successfully completed his loan modification. He just needed some time, and that is what I was able to obtain for him.

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.

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Victory on Appeal in BAC Home Loans Servicing vs. Graybill

December 13th, 2013

I am pleased to announce that I have another appellate court victory. This time in an unreported case where I was hired only after the homeowner had already had judgment granted against him by the trial court.

Here is a link to the slip opinion: BAC vs Graybill

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Victory on appeal in DELMAR BYRL GARRETT vs. CARLOTTA GORDON, 2013 OK CIV APP 96 (June 12, 2013).

December 5th, 2013

I am pleased to announce that I have a new reported case (that I won at trial and on appeal):

DELMAR BYRL GARRETT vs. CARLOTTA GORDON, 2013 OK CIV APP 96 (June 12, 2013).

Plaintiff/Appellant Delmar Garrett (Delmer) appeals the September 13, 2011, Journal Entry Order of the district court denying his Motion to Vacate Void Judgment, Vacate Partition Order, and Emergency Motion to Stay Sheriff’s Sale. The judgment sought to be vacated was entered in a divorce suit in which Delmer was named as a party. Because the judgment roll in the divorce proceeding shows that the district court had personal jurisdiction over Delmer at the time the judgment was entered, he is bound by the terms of that judgment. Therefore, the district court correctly denied Delmer’s motion to vacate and we affirm.

Link to Full Opinion.

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Huddleston Law Offices Provides Free Assistance to Homeowners Through Attorney General’s New ‘Resolution Oklahoma’ Program

September 20th, 2013

UPDATE

Phase II of Compensation from the Oklahoma Mortgage Settlement Fund now open Free legal help available through Resolution Oklahoma

OKLAHOMA CITY – Attorney General Scott Pruitt Monday announced the opening of Phase II of homeowner compensation from the Oklahoma Mortgage Settlement Fund. The deadline to apply is Dec. 31 for Oklahoma families who were harmed during the mortgage modification or foreclosure process with five mortgage servicers involved in the settlement. The new phase also extends the time frame for when harm occurred to include 2012. An updated application is available at www.oag.ok.gov or by calling (405) 521-2029.

“Fortunately for Oklahoma, we are the only state in a position to help our homeowners with direct meaningful relief,” Pruitt said. “By launching a Phase II for compensation, we can help those families who may have missed the deadline last year or who were not aware of the opportunity.” Oklahoma was the only state to craft its own agreement with Bank of America, Citigroup, JP Morgan Chase, GMAC and Wells Fargo, which allowed the Attorney General to provide direct compensation. In October, the AG’s Public Protection Unit, which manages the state settlement, mailed the first installment of checks to more than 100 Oklahomans. The amount awarded to Oklahoma families ranges from $5,000-$20,000 – a maximum that could be more than 20 times the money awarded under the federal settlement. The latest estimate shows residents in other states could receive as little as $840, and no direct payments have been made under the federal settlement.

“It is very exciting to be able to provide these Oklahoma families some meaningful relief for the harm caused,” Pruitt said. More than 700 Oklahomans applied for relief from the Oklahoma Mortgage Settlement Fund during Phase I, with an average payment so far of $11,173. Along with direct payments to residents from the Oklahoma Mortgage Settlement Fund, Oklahomans also qualify for portions of two federal settlements. The first federal settlement requires banks to work with homeowners on short sales, principle write-downs and mortgage modifications. So far, Oklahomans have received an average of $30,737 in mortgage assistance with this settlement.

A second federal settlement from the U.S. Department of Treasury’s Office of the Comptroller of the Currency is providing direct payments of $300 to homeowners who qualify. For Oklahomans who are still in their homes and need help to avoid foreclosure, the AG’s Office has created a program called Resolution Oklahoma that provides free legal assistance. Assistant attorneys general have found that homeowners have better outcomes during the mortgage and foreclosure process when they have legal representation. The first part of Resolution Oklahoma is in partnership with Legal Aid Services of Oklahoma to provide free legal assistance for lower income and older Oklahomans. The program is provided by a grant from the Oklahoma Mortgage Settlement Fund.

The second part of Resolution Oklahoma is for homeowners who do not qualify for income-based assistance. These homeowners can apply for a voucher worth up to $5,000 in legal services through the AG’s Office. The voucher application must be completed by homeowners and their attorneys of choice and submitted to the AG’s Public Protection Unit for approval. Once approved, the attorneys will provide the services needed and submit the invoices to the AG’s Office for payment after the work is complete.

All homeowners can apply for assistance through Resolution Oklahoma, no matter their mortgage company. Voucher applications are available online at www.oag.ok.gov, by e-mail at PublicProtection@oag.ok.gov or by calling (405) 521-2029.

To contact Legal Aid Services of Oklahoma, call (888) 534-5243 or go online to www.oklaw.org.

For more information on the Treasury federal settlement, call 1 (888) 952-9105 or go online to www.occ.gov/topics/consumer-protection/foreclosure-prevention/correcting-foreclosure-practices.html.

To access the main federal settlement, contact your mortgage servicer at one of the following numbers: Bank of America: (877) 488-7814 Citigroup: (866) 272-4749 GMAC: (800) 766-4622 JPMorgan Chase: (866) 372-6901 Wells Fargo: (800) 288-3212

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OKLAHOMA CITY – The Attorney General’s Office and Legal Aid Services of Oklahoma (“LASO”) are providing free legal help to homeowners who are facing mortgage issues or foreclosure, and Huddleston Law Offices has been retained by LASO to assist and consult with LASO staff and homeowners that call LASO.

The program – Resolution Oklahoma – is designed to help Oklahoma residents stay in their homes or seek the best outcome for their situations. The program is provided by a grant from the Attorney General’s Oklahoma Mortgage Settlement Fund.

The fund was created last year, following a settlement by the AG’s Office with five of the nation’s largest mortgage servicers. Mortgages do not need to be with one of the five servicers to apply for the Resolution Oklahoma program.

“We signed a separate Oklahoma Mortgage Settlement so we could craft solutions that were best for our state,” Attorney General Scott Pruitt said. “Throughout this process, we found homeowners fared better with the help of an attorney. Through Resolution Oklahoma, we will be able to provide this critical legal assistance to Oklahoma families.”

Oklahomans with lower incomes or seniors should first contact Legal Aid Services of Oklahoma to determine if they qualify for income-based assistance under Resolution Oklahoma. Homeowners who do not qualify for income-based need from LASO can then apply for a Voucher worth up to $5,000.00 in private attorney legal services through the AG’s Office under the Resolution Oklahoma program.

The voucher application must be completed by homeowners and their attorneys of choice and submitted to the AG’s Public Protection Unit for approval. Once approved, the attorneys will provide the services needed and submit the invoices to the AG’s Office for payment once the work is complete.

Voucher applications are available online at www.oag.ok.gov, by e-mail at PublicProtection@oag.ok.gov or right here: AG Financial Aid Application.

To contact Legal Aid Services of Oklahoma, call (888) 534-5243 or go online to www.oklaw.org.

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After House Bill 1603 Was Found Unconstitutional, Is 12 O.S. §2056 Still Good Law?

July 23rd, 2013

An interesting point of law (at least to me) came up at a hearing today. “Summary Judgment” (12 O.S. §2056) is a new statute added in 2009 by House Bill 1603 §17, also known as the “Comprehensive Lawsuit Reform Act of 2009“. That Act was recently found to be unconstitutional for violating Oklahoma’s ban on “logrolling” legislation.  See my last blawg post on the Act.

Section 2056 adopts the summary judgment standard of Federal Rules of Civil Procedure Rule 56. The new statute requires that a motion for summary judgment be granted if the court finds no genuine issue as to any material fact (gone is the “no dispute as to any material fact” standard) and that the movant is entitled to judgment as a matter of law. If a paper or part of a paper is referred to in the movant’s affidavit in support of summary judgment, a sworn or certified copy must be attached to or served with the affidavit. Section 2056 therefore limits the availability of Rule 13(c) of the Rules for District Courts where certified copies of evidentiary material are not attached to the affidavit.  MIDFIRST BANK v. WILSON, 2013 OK CIV APP 15, 295 P.3d 1142.

In responding to a motion for summary judgment properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleadings to defeat the motion. Rather, its response must, by affidavits or as otherwise permitted, set out specific facts showing a genuine issue for trial. In addition, if judgment is not issued on the whole action, the court is required to the extent practicable to determine what material facts are not genuinely at issue. The court should examine the pleadings and the evidence before it and interrogate the attorneys to make its determination of the material facts not at issue and then issue an order specifying what facts, including damages, are not genuinely at issue and such facts must be treated as established in the action. Finally, the court is permitted to enter interlocutory judgment on liability alone even if there is a genuine issue on the amount of damages.

So, after House Bill 1603 was found to be unconstitutional logrolling legislation, what is the status of 12 O.S. §2056? Fortunately, the impact of voiding the Lawsuit Reform Act is mitigated in this instance by a new law passed since the now-defunct 2009 Act. That law is Senate Bill 940, effective November 1, 2011, which remains enforceable.

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