Opinion No. (1989) ( 1989 )

OUR OFFICE HAS BEEN CONTACTED CONCERNING APPARENT CONFUSION AMONG COURT CLERKS AS TO THE AMOUNT PROPERLY CHARGEABLE FOR A COURT ORDERED SALE IN A FORECLOSURE ACTION. IT IS MY UNDERSTANDING THAT TWO CALCULATIONS HAVE BEEN EMPLOYED BY COURT CLERKS IN FORECLOSURE ACTIONS AND ARE AS FOLLOWS:

1) $20.00 FOR WRIT OF EXECUTION AFTER JUDGMENT 28 O.S. 152

$20.00 SHERIFF'S FEE FOR ENDEAVORING TO SERVE OR SERVING WRIT 28 O.S. 152.1

$50.00 SHERIFF'S FEE FOR A COURT ORDERED SALE 28 O.S. 152.1

2) $20.00 FOR WRIT OF EXECUTION AFTER JUDGEMENT 28 O.S. 152

$50.00 SHERIFF'S FEE FOR A COURT ORDERED SALE.

THEREFORE, SOME CLERKS ARE CHARGING $90.00 AND OTHERS ARE CHARGING $70.00. BASED ON MY UNDERSTANDING OF FORECLOSURE PROCEDURE, THE SHERIFF WILL NOT ACTUALLY SERVE OR ENDEAVOR TO SERVE THE WRIT OF EXECUTION. THUS, THE PROPER CHARGE IS $70.00. A NINETY DOLLAR CHARGE MAY BE IMPOSED ONLY WHEN THERE IS SOME FORM OF ACTUAL SERVICE OR ATTEMPT TO EFFECT SERVICE BY THE SHERIFF.

NATURALLY, IF THE SHERIFF ATTEMPTS OR MAKES SERVICE BASED UPON A FACTOR INDEPENDENT OF STATUTORY REQUIREMENTS (E.G. A COURT ORDER IN A PARTICULAR CASE) THE SHERIFF MAY COLLECT AN ADDITIONAL $20.00 CHARGE.

I HAVE BEEN INFORMED THAT YOUR OFFICE SHARES THIS VIEW OF THE LAW AND FURTHER THAT YOU HAVE ALERTED THE VARIOUS COUNTIES BY LETTER OF YOUR POSITION. IN ADDITION, I HAVE BEEN INFORMED BY VARIOUS COUNTY OFFICERS THAT THE FEE STRUCTURE CURRENTLY IN EFFECT IS CREATING A BUDGETARY HARDSHIP IN SOME SHERIFF'S DEPARTMENTS. THIS BEING THE CASE, IT WOULD APPEAR THAT SOME FORM OF CHANGE OR CLARIFICATION MAY BE IN ORDER.

(NED BASTOW)