FROM THE DATE OF FILING AN EXECUTION OR GARNISHMENT SUMMONS.
THERE ARE TWO QUESTIONS THAT MUST BE ASKED WHEN TRYING TO DETERMINE WHETHER 12 O.S. 735 APPLIES TO A LIEN ESTABLISHED BY FILING A CERTIFICATE OF INDEBTEDNESS. FIRST, IS THE 68 O.S. 230 CERTIFICATE OF INDEBTEDNESS TREATED AS A JUDGMENT FOR PURPOSES OF THE 735 DORMANCY PROVISION? SECOND, IF SO, DOES 12 O.S. 735 APPLY TO JUDGMENTS IN FAVOR OF THE STATE? THE FIRST QUESTION WAS ADDRESSED INDIRECTLY BY A.G. OPIN. NO. 76-181, WHICH CONSTRUED A STATUTE VERY SIMILAR TO S 230. (40 O.S. 1971, S 224(H)). THE STATUTE PROVIDED FOR THE FILING OF AN OKLAHOMA EMPLOYMENT SECURITIES COMMISSION TAX WARRANT OR LIEN, AND USED LANGUAGE SIMILAR TO THAT FOUND IN 68 O.S. 230. THE OPINION FOUND THAT THE LIEN WAS TO BE TREATED AS ANY OTHER JUDGMENT AND WAS SUBJECT TO THE PROVISIONS OF S 735. AS TO THE DORMANCY OF A JUDGMENT IN FAVOR OF THE STATE, THIS QUESTION WAS SPECIFICALLY ADDRESSED IN BANFIELD COMPANY V. THE STATE OF OKLAHOMA EX REL. S.M. FALLIS. JR.. DISTRICT ATTORNEY, 525 P.2D 638, 640 (OKLA.1974). IN THIS CASE, THE COURT HELD THAT THE 12 O.S. 1991, 735 "DORMANCY PROVISION" WAS PROCEDURAL. THE COURT, CITING ITS DECISION IN STATE V. WEEMS, 168 P.2D 629 (OKLA. 1942), HELD IN ESSENCE THAT JUDGMENTS IN FAVOR OF THE STATE ORDINARILY BECOME DORMANT IF EXECUTION IS NOT CARRIED OUT AS PROVIDED THEREIN. THE COURT CLEARLY NOTED THAT ONLY THE LIEN WAS EXTINGUISHED AND THAT THE UNDERLYING TAX OBLIGATION TO THE STATE REMAINED. ID. AT 640.
THUS, IN ANSWERING YOUR FIRST QUESTION, IT IS CLEAR THAT THE STATUS OF A LIEN CREATED BY THE ISSUANCE OF A CERTIFICATE OF INDEBTEDNESS PURSUANT TO 68 O.S. 230 IS THE SAME AS THAT OF A JUDGMENT. IT IS ENFORCEABLE IN THE SAME MANNER AS A JUDGMENT AND WILL BECOME DORMANT PURSUANT TO 12 O.S. 735 UNLESS PROPERLY EXECUTED OR GARNISHED UPON BEFORE THE EXPIRATION OF FIVE YEARS.
YOUR SECOND QUESTION ASKS WHETHER A CERTIFICATE OF INDEBTEDNESS ISSUED UNDER 68 O.S. 1991, 230, IS TANTAMOUNT TO A TAX WARRANT ISSUED PURSUANT TO 68 O.S. 231 AS TO DURATION, LACHES AND ESTOPPEL.
IN ORDER TO ANSWER THIS QUESTION, ONE MUST REFER TO 68 O.S. 231(I)(2) WHICH READS IN PERTINENT PART:
"A TAX WARRANT ISSUED AND FILED UNDER AUTHORITY OF THIS SECTION SHALL:
2. NOT BE SUBJECT TO THE PROVISIONS OF ANY DORMANCY STATUTE WHICH WOULD LIMIT THE ENFORCEABILITY, EFFECT OR OPERATION OF THE LIEN. (EMPHASIS ADDED.)"
AS NOTED ABOVE, 68 O.S. 231 USES SPECIFIC LANGUAGE TO EXCEPT IT FROM THE EFFECTS OF THE 735 DORMANCY PROVISION. SUCH A PROVISION IS NOT FOUND IN 68 O.S. 230. THIS MEANS THAT A TAX CERTIFICATE IS SUBJECT TO THE DORMANCY PROVISION AND WILL BECOME DORMANT AFTER FIVE YEARS AS SET FORTH ABOVE. HOWEVER, BECAUSE OF THE SPECIFIC EXCLUSION,12 O.S. 735 DOES NOT APPLY TO A TAX WARRANT. THEREFORE, THE DURATION OF A LIEN CREATED PURSUANT TO 68 O.S. 231 WILL BE PERPETUAL UNTIL THE DEBT