Pae v. Lawton City of

Filing 30

ORDER denying 18 plaintiff's motion to dismiss (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/17/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHU H. PAE,
Plaintiff,
vs.
THE CITY OF LAWTON, a Municipal
Corporation,
Defendant,
THE UNITED STATES OF AMERICA,
ex rel. Department of the Treasury –
Internal Revenue,
THE STATE OF OKLAHOMA, ex rel.
Oklahoma Tax Commission,
GE MONEY BANK,
RHONDA BRANTLEY, COUNTY
TREASURER OF COMANCHE
COUNTY, OKLAHOMA,
THE BOARD OF COUNTY
COMMISSIONERS OF COMANCHE
COUNTY, OKLAHOMA, and
UNKNOWN SPOUSE OF PLAINTIFF,
if any,
Third-Party Defendants.

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Case No. CIV-16-1198-M

ORDER
Before the Court is plaintiff’s Motion to Dismiss, filed November 17, 2016. On December
6, 2016, defendant filed its response. Plaintiff has filed no reply.
Plaintiff moves the Court to dismiss defendant’s counterclaim for failure to state a claim
upon which relief can be granted. Specifically, plaintiff asserts that the Oklahoma statute which
provides for the alleged lien claimed by defendant does not provide for defendant to enforce such
lien once it has been certified to the county treasurer, as defendant claims to have done. Plaintiff
further asserts that according to Oklahoma law, the only person that would be able to collect the lien

for the costs of the alleged abatement of the public nuisance upon plaintiff’s property would be the
county treasurer and such collection is only to be made as are other taxes authorized by law.
Okla. Stat. tit. 11, § 22-112 provides the procedure by which an Oklahoma municipality may
condemn a dilapidated building within such municipality’s limits, may remove such dilapidated
building, and may obtain a lien on such property for the costs of the removal. Section 22-122(A)(5)
provides, in pertinent part:
if payment attributable to the actual cost of the dismantling and
removal of the buildings is not made within six (6) months from the
date of the mailing of the statement to the owner of such property, the
municipal clerk shall forward a certified statement of the amount of
the cost to the county treasurer of the county in which the property is
located. Once certified to the county treasurer, payment may only be
made to the county treasurer except as otherwise provided for in this
section. The costs shall be levied on the property and collected by
the county treasurer as are other taxes authorized by law. Until
finally paid, the costs and the interest thereon shall be the personal
obligation of the property owner from and after the date of the notice
of dilapidation and lien is filed with the county clerk. In addition the
cost and the interest thereon shall be a lien against the property from
the date of the notice of the lien is filed with the county clerk. . . . If
the county treasurer and the municipality agree that the county
treasurer is unable to collect the assessment, the municipality may
pursue a civil remedy for collection of the amount owing and interest
thereon including an action in personam against the property owner
and an action in rem to foreclose its lien against the property.
Okla. Stat. tit. 11, § 22-112(A)(5) (emphasis added).
As set forth above, the Oklahoma nuisance abatement statute expressly permits defendant
to bring a civil action against plaintiff if the county treasurer and defendant agree that the county
treasurer is unable to collect the assessment. Additionally, defendant has submitted a statement from
the Comanche County Treasurer that she agrees that defendant may pursue a civil action against

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plaintiff. Accordingly, the Court finds that defendant is authorized to bring the instant counterclaim
and that said counterclaim should not be dismissed for failure to state a claim.
The Court, therefore, DENIES plaintiff’s Motion to Dismiss [docket no. 18].
IT IS SO ORDERED this 17th day of January, 2017.

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