Oklahoma voters will get the chance to legalize medical marijuana in 2018.

December 9th, 2017

While supporters had gathered enough signatures to place the measure before voters in 2016, advocates had filed a lawsuit against then-Attorney General E. Scott Pruit after he rewrote the initiative’s ballot title, delaying the vote. Advocates were successful in their lawsuit earlier this year, when the Supreme Court of Oklahoma ruled 7-1 in their favor. The measure will appear on the ballot as State Question 788. The finalized ballot title, which is the original title submitted by opponents, was formally approved by Oklahoma Secretary of State. The measure will most likely appear on the November 2018 ballot, unless Oklahoma Governor Mary Fallin calls a special election for the measure. If approved by voters, medical marijuana would be subject to a 7 percent sales tax.
The full text of the proposal can be found here.

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Legislature expands Oklahoma’s high-CBD law

December 9th, 2017

Oklahoma has expanded its limited protection for patients who use low-THC, high-CBD cannabis oil for certain medical conditions, which was initially passed in 2015. HB 2835 allows adults to use low-THC cannabis oil (minors were already covered by existing law) and added “spasticity due to multiple sclerosis or due to paraplegia, intractable nausea and vomiting, and appetite stimulation with chronic wasting diseases” to the list of qualifying conditions, in addition to severe epilepsy. Click here for a summary of the law.

Unfortunately, it is still hard for patients to gain access to cannabis oil in Oklahoma. And, as with all current laws providing access to high-CBD products, the law is very limited and leaves behind most patients who could benefit from whole-plant medical marijuana in various forms, such as people with cancer, intractable pain, and other serious illnesses. For a broader look at CBD laws and where they fall short, take a look at an analysis available here.

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Oklahoma State Question 780 made all marijuana possession offenses misdemeanors.

December 9th, 2017

On November 8 2016, 58% of Oklahoma voters supported State Question 780, which makes all marijuana possession offenses misdemeanors effective July 1, 2017.

Oklahoma still has further to go, as the penalty for first-time marijuana possession will remain up to one year of incarceration and a fine of up to $1,000. Removing possible jail time for marijuana possession altogether, as 21 states have already done, will allow police to focus on solving violent and property crime. In addition, enforcement of these laws is racially biased. According to this report by the ACLU, African Americans in Oklahoma are 2.9 times more likely than whites to be arrested for possession of marijuana, even though blacks and whites consume marijuana at similar rates.

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Street Law School: I passed a School Bus and they want to suspend my driver’s license for a year! Now what?

November 9th, 2017

If you do not stop when those red lights are activated for a school bus, or a church bus, and you drive past that bus, in addition to a fine and other penalties such as points on your license and record, you’re going to lose your driver’s license for a year. The law is found at 47 O.S. § 6-205.A.11 (OSCN 2017). The purpose of this article is help people from being shocked by finding out after they have paid a fairly small ticket that they are losing their driver’s license. When you get a ticket that is for anything more than a minimal speeding ticket, you should contest the charge. Failing to do so can be devastating for a family, for wage earners or for moms who drive to and from school and work.

Oklahoma DPS will suspend your Oklahoma driver’s license if you’re convicted of illegally passing a school bus or a church bus. You must act quickly if you have received a notice of driver’s license suspension for this offense. You may have received a ticket in the mail for meeting or overtaking a school bus. The police don’t even have to be present at the time of the alleged violation for you to receive the citation. The school bus driver who observed the alleged violation merely needs to fill out a simple report and submit it to the police within 24 hours of the violation. 47 O.S. § 11-705.D (OSCN 2017).

While paying the $100.00 ticket may be the easiest and quickest thing to do, it also is the equivalent of pleading guilty to the offense. You should instead request a hearing for the ticket. Often the school bus driver is unable to identify the person who allegedly passed the bus. If convicted of passing a school bus or church bus, Oklahoma DPS will suspend your Oklahoma driver’s license for one year and add 4 points to your driving record according to the Oklahoma license points schedule.

If you received a passing a school bus ticket in the mail or notice of license suspension, you should talk to an attorney about having the conviction overturned and appealing the suspension. 

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Fast Evictions

September 25th, 2017

In the unfortunate event you have to move forward with an eviction, you will likely want to evict your non-paying or nuisance tenant(s) just as quickly as the law allows. When you have tenants in your properties that aren’t paying or are in violation of their Rental/Lease Contract, acting quickly will minimize the amount of lost rent, vacancy loss, property damage and make ready expenses.

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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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Street Law School: Oklahoma Surface Damages Act

September 12th, 2017

When property is leased for exploration, the lessee has the right to go out and drill on that property. However, this exercise often causes damage to the surface of the land — damage to crops and land, pollution, damage caused by pipelines, access roads, etc. The issue of surface damages is addressed in the Oklahoma Surface Damages Act. While one individual may own the surface of property, another may own the land below the surface. This can rapidly become a complicated legal situation when surface damages occur.

Surface owners may become involved in a surface damages claim and require legal representation. Although the lessee can drill on the property they are leasing, they are ultimately responsible for compensating the surface owner for any damage done to the surface property. If you are a surface owner we can explain the legalities of the Oklahoma Surface Damages Act and how this law affects you.

§52-318.2.  Definitions.

For purposes of Sections 1 through 8 of this act:

1.  “Operator” means a mineral owner or lessee who is engaged in drilling or preparing to drill for oil or gas; and

2.  “Surface owner” means the owner or owners of record of the surface of the property on which the drilling operation is to occur.

§52-318.3.  Notice of intent to drill – Negotiating surface damages.
Before entering upon a site for oil or gas drilling, except in instances where there are non-state resident surface owners, non-state resident surface tenants, unknown heirs, imperfect titles, surface owners, or surface tenants whose whereabouts cannot be ascertained with reasonable diligence, the operator shall give to the surface owner a written notice of his intent to drill containing a designation of the proposed location and the approximate date that the operator proposes to commence drilling.

Such notice shall be given to the surface owner in any manner as provided for in paragraph 1 and paragraph 2 of subsection C of Section 2004 of Title 12 of the Oklahoma Statutes for the service by personal delivery or by mail of a summons in a civil action.  If the operator makes an affidavit that he has conducted a search with reasonable diligence and the whereabouts of the surface owner cannot be ascertained or such notice cannot be delivered, then constructive notice of the intent to drill may be given in the same manner as provided for the notice of proceedings to appoint appraisers.

Within five (5) days of the date of delivery or service of the notice of intent to drill, it shall be the duty of the operator and the surface owner to enter into good faith negotiations to determine the surface damages.

§52-318.4.  Undertakings which may be posted as damage deposit.
A.  Every operator doing business in this state shall file a corporate surety bond, letter of credit from a banking institution, cash, or a certificate of deposit with the Secretary of State in the sum of Twenty-five Thousand Dollars ($25,000.00) conditioned upon compliance with Sections 318.2 through 318.9 of this title for payment of any location damages due which the operator cannot otherwise pay.  The Secretary of State shall hold such corporate surety bond, letter of credit from a banking institution, cash or certificate of deposit for the benefit of the surface owners of this state and shall ensure that such security is in a form readily payable to a surface owner awarded damages in an action brought pursuant to this act.  Each corporate surety bond, letter of credit, cash, or certificate of deposit filed with the Secretary of State shall be accompanied by a filing fee of Ten Dollars ($10.00).

B.  The bonding company or banking institution shall file, for such fee as is provided for by law, a certificate that said bond or letter of credit is in effect or has been canceled, or that a claim has been made against it in the office of the court clerk in each county in which the operator is drilling or planning to drill.  Said bond or letter of credit must remain in full force and effect as long as the operator continues drilling operations in this state.  Each such filing shall be accompanied by a filing fee of Ten Dollars ($10.00).

C.  Upon deposit of the bond, letter of credit, cash, or certificate of deposit, the operator shall be permitted entry upon the property and shall be permitted to commence drilling of a well in accordance with the terms and conditions of any lease or other existing contractual or lawful right.

D.  If the damages agreed to by the parties or awarded by the court are greater than the bond, letter of credit, cash, or certificate of deposit posted, the operator shall pay the damages immediately or post an additional bond, letter of credit, cash, or certificate of deposit sufficient to cover the damages.  Said increase in bond, letter of credit, cash, or certificate of deposit shall comply with the requirements of this section.

§52-318.5.  Negotiating surface damages – Appraisers – Report and exceptions thereto – Jury trial.
A.  Prior to entering the site with heavy equipment, the operator shall negotiate with the surface owner for the payment of any damages which may be caused by the drilling operation.  If the parties agree, and a written contract is signed, the operator may enter the site to drill.  If agreement is not reached, or if the operator is not able to contact all parties, the operator shall petition the district court in the county in which the drilling site is located for appointment of appraisers to make recommendations to the parties and to the court concerning the amount of damages, if any.  Once the operator has petitioned for appointment of appraisers, the operator may enter the site to drill.

B.  Ten (10) days’ notice of the petition to appoint appraisers shall be given to the opposite party, either by personal service or by leaving a copy thereof at the party’s usual place of residence with some family member over fifteen (15) years of age, or, in the case of nonresidents, unknown heirs or other persons whose whereabouts cannot be ascertained, by publication in one issue of a newspaper qualified to publish legal notices in said county, as provided in Section 106 of Title 25 of the Oklahoma Statutes, said ten-day period to begin with the first publication.

C.  The operator shall select one appraiser, the surface owner shall select one appraiser, and the two selected appraisers shall select a third appraiser for appointment by the court, which such third appraiser shall be a state-certified general real estate appraiser and be in good standing with the Oklahoma Real Estate Appraisal Board.  Unless for good cause shown, additional time is allowed by the district court, the three (3) appraisers shall be selected within twenty (20) days of service of the notice of the petition to appoint appraisers or within twenty (20) days of the first date of publication of the notice as specified in subsection B of this section.  If either of the parties fails to appoint an appraiser or if the two appraisers cannot agree on the selection of the third appraiser within the required time period, the remaining required appraisers shall be selected by the district court upon application of either party of which at least one shall be a state-certified general real estate appraiser and be in good standing with the Oklahoma Real Estate Appraisal Board.  Before entering upon their duties, such appraisers shall take and subscribe an oath, before a notary public or some other person authorized to administer oaths, that they will perform their duties faithfully and impartially to the best of their ability.  They shall inspect the real property and consider the surface damages which the owner has sustained or will sustain by reason of entry upon the subject land and by reason of drilling or maintenance of oil or gas production on the subject tract of land.  The appraisers shall then file a written report within thirty (30) days of the date of their appointment with the clerk of the court.  The report shall set forth the quantity, boundaries and value of the property entered on or to be utilized in said oil or gas drilling, and the amount of surface damages done or to be done to the property.  The appraisers shall make a valuation and determine the amount of compensation to be paid by the operator to the surface owner and the manner in which the amount shall be paid.  Said appraisers shall then make a report of their proceedings to the court.  The compensation of the appraisers shall be fixed and determined by the court.  The operator and the surface owner shall share equally in the payment of the appraisers’ fees and court costs.

D.  Within ten (10) days after the report of the appraisers is filed, the clerk of the court shall forward to each attorney of record, each party, and interested party of record, a copy of the report of the appraisers and a notice stating the time limits for filing an exception or a demand for jury trial as provided for in this section.  The operator shall provide the clerk of the court with the names and last-known addresses of the parties to whom the notice and report shall be mailed, sufficient copies of the notice and report to be mailed, and pre-addressed, postage-paid envelopes.

1.  This notice shall be on a form prepared by the Administrative Director of the Courts, approved by the Oklahoma Supreme Court, and supplied to all district court clerks.

2.  If a party has been served by publication, the clerk shall forward a copy of the report of the appraisers and the notice of time limits for filing either an exception or a demand for jury trial to the last-known mailing address of each party, if any, and shall cause a copy of the notice of time limits to be published in one issue of a newspaper qualified to publish legal notices as provided in Section 106 of Title 25 of the Oklahoma Statutes.

3.  After issuing the notice provided herein, the clerk shall endorse on the notice form filed in the case the date that a copy of the report and the notice form was forwarded to each attorney of record, each party, and each interested party of record, or the date the notice was published.

E.  The time for filing an exception to the report or a demand for jury trial shall be calculated as commencing from the date the report of the appraisers is filed with the court.  Upon failure of the clerk to give notice within the time prescribed, the court, upon application by any interested party, may extend the time for filing an exception to the report or filing a demand for trial by jury for a reasonable period of time not less than twenty (20) days from the date the application is heard by the court.  Appraisers’ fees and court costs may be the subject of an exception, may be included in an action by the petitioner, and may be set and allowed by the court.

F.  The report of the appraisers may be reviewed by the court, upon written exceptions filed with the court by either party within thirty (30) days after the filing of the report.  After the hearing the court shall enter the appropriate order either by confirmation, rejection, modification, or order of a new appraisal for good cause shown.  Provided, that in the event a new appraisal is ordered, the operator shall have continuing right of entry subject to the continuance of the bond required herein.  Either party may, within sixty (60) days after the filing of such report, file with the clerk a written demand for a trial by jury, in which case the amount of damages shall be assessed by a jury.  The trial shall be conducted and judgment entered in the same manner as railroad condemnation actions tried in the court.  A copy of the final judgment shall be forwarded to the county assessor in the county or counties in which the property is located.  If the party demanding the jury trial does not recover a more favorable verdict than the assessment award of the appraisers, all court costs including reasonable attorney fees shall be assessed against the party.

§52-318.6.  Appeal of decision on exceptions to report of appraiser or verdict upon jury trial – Execution of instruments of conveyance.
Any aggrieved party may appeal from the decision of the court on exceptions to the report of the appraisers or the verdict rendered upon jury trial.  Such appeal shall not serve to delay the prosecution of the work on the premises in question if the award of the appraisers or jury has been deposited with the clerk for the use and benefit of the surface owner.  In case of review or appeal, a certified copy of the final order or judgment shall be transmitted by the clerk to the appropriate county clerk to be filed and recorded.

When an estate is being probated, or when a minor or incompetent person has a legal guardian or conservator, the administrator or executor of the estate, or guardian of the minor or of the incompetent person or the conservator, shall have the authority to execute all instruments of conveyance provided for in this act on behalf of the estate, or minor or incompetent person with no other proceedings than approval by the judge of the court of jurisdiction being endorsed on the instrument of conveyance.

§52-318.7.  Effect of act on existing contractual rights and contracts to establish correlative rights – Indian lands.
Nothing herein contained shall be construed to impair existing contractual rights nor shall it prohibit parties from contracting to establish correlative rights on the subject matter contained in this act.

This act shall not be applicable to nor affect in any way property held by an Indian whose interest is restricted against voluntary or involuntary alienation under the laws of the United States or property held by an Indian tribe or by the United States for any Indian tribe.

§52-318.8.  Effect of act on jurisdiction, authority and power of Corporation Commission.
Nothing in this act shall be construed as repealing or limiting the jurisdiction, authority and power of the Oklahoma Corporation Commission.

§52-318.9.  Violation of act – Damages.
Upon presentation of clear, cogent and convincing evidence that the operator willfully and knowingly entered upon the premises for the purpose of commencing the drilling of a well before giving notice of such entry or without the agreement of the surface owner, the court may, in a separate action, award treble damages.  The issue of noncompliance shall be a fact question, determinable without jury, and a de novo issue in the event of appeal.

Any operator who willfully and knowingly fails to keep posted the required bond or who fails to notify the surface owner, prior to entering, or fails to come to an agreement and does not ask the court for appraisers, shall pay, at the direction of the court, treble damages to the surface owner.

Damages collected pursuant to this act shall not preclude the surface owner from collecting any additional damages caused by the operator at a subsequent date.

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STREET LAW SCHOOL: My mortgage company is out of business and it never released its lien, now what?

September 3rd, 2017

Title Insurance and Closing Company settlement agents bear the bulk of responsibility when it comes down to closing a real estate transaction. After all, they are the ones who need to verify a clear title and facilitate resolution of any outstanding issues.

Unfortunately, this process is typically opaque, and can take a lot of time and resources, particularly when it comes to locating appropriate documentation to resolve outstanding mortgage liens. Even more difficult is knowing what to do when an original lender has disappeared or is now defunct. Luckily, there is a resource that can help smooth the difficult process of finding lenders who no longer exist.

Contact the FDIC

The Federal Deposit Insurance Corporation (FDIC) was designed to help protect consumers from failures of banking institutions. In the case when a mortgage lender has failed or closed down, the FDIC can issue a release of the mortgage lien, given it meets the following criteria:

  • The lending institution is in FDIC receivership
  • The mortgage was satisfied before the lender closed, or
  • The satisfying payment was made to the FDIC after the lender closed

In order to obtain a release from the FDIC, a request must be made in writing. It can take a month or more to get a response from the FDIC to a request for release, adding significant delays to a closing time line. Here is the FDIC link: https://www.fdic.gov/bank/individual/failed/lien/

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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: Is there a new way to change title to a car owned by someone who has died? Or, I am the beneficiary of a Transfer on Death Notice, now what?

August 31st, 2017

Given the maintenance requirements and rapid depreciation of cars and other vehicles, it makes no sense to have them sitting around for months or years while probate grinds on, before they can be transferred to their new owners. Thankfully a new Oklahoma law (47 O.S. § 1107.5) allows you to name a transfer-on-death (TOD) beneficiary for your vehicles. This way, your vehicle can be transferred to the beneficiary of your choice quickly and easily, without probate court approval.

Effective November 1, 2016, the title of a motor vehicle that is not subject to any lien or other encumbrance may be transferred in transfer-on-death form by filing with the Tax Commission a written notice of transfer signed by the transferor (current record owner) and designating the transferee (owner upon death of transferor). This Form 771 notice will transfer ownership of the vehicle to the transferee upon the death of the transferor, by filing the applicable documentation.  A designation of the transferee may be revoked or changed at any time prior to the death of the transferor by filing an amended notice with the Tax Commission. Here is a link to the form with more detailed information. The process is simplicity itself.

If You Change Your Mind

The beneficiary you name has no rights as long as you are alive. You are free to sell or give away the car, or name someone else as the beneficiary. You are free to revoke a beneficiary designation at any time..

You cannot revoke the beneficiary provision by leaving the car to someone else in your will or living trust.

Transferring Title After Death

When the owner dies, the vehicle belongs to the beneficiary listed on the Form 771 and there is no statutory time limit for the beneficiary to file the Form 771 and complete the TOD Transferee Affidavit located on the second page of Form 771. To retitle the vehicle in his or her own name, the new owner simply applies for a new title with the Form 771 and a copy of the prior owner’s death certificate.

This new transfer method can’t be used for vehicles subject to a lien, so if your car isn’t paid off at your death, the beneficiary will have to pay off the car loan and get the lien released first.

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