CHAPTER 4-15
REPOSSESSION OF PERSONAL PROPERTY
4-15-1 Repossession of Personal Property.
(A) Authority. Pursuant to the Prairie Band Potawatomi Nation Constitution, Article V, Section 1, enumerates the responsibilities and duties of the Tribal Council to exercise lawmaking powers. Among other powers, the Tribal Council shall have the duty "to promote law and order by regulating or prohibiting harmful conduct by any person; to regulate domestic relations; and to promote and protect the peace, health, education, morals, and welfare of the Nation and its members."
(B) Jurisdiction. Any person or entity seeking the remedy of repossession shall be deemed to have submitted to the jurisdiction of the Prairie Band Potawatomi Nation District Court (hereafter the "Court") for the purpose of determining the rights of all parties to the consumer transaction.
(C) Purpose. This Chapter applies to repossession of personal property when such property constitutes a security interest in collateral to protect payment pursuant to a consumer transaction. This Chapter shall apply to all consumer transactions in which the security interest in collateral is located, possessed, garaged, kept or otherwise found within the Prairie Band Potawatomi Nation reservation or on any other lands owned by the Nation.
(D) Construction, Interpretation and Severability.
(1) Construction. This Chapter shall be liberally construed to protect the rights of the parties. In all cases where the right to repossess personal property is regulated by a consumer transaction, evidenced by a security agreement, the Court shall apply those terms unless the Court finds the terms are unconscionable or contrary to tribal law. Where the right to repossess exists, the Court shall not deny that remedy.
(2) Interpretation. If there is a matter of repossession of personal property in consumer goods this Chapter does not address, the Court may apply any other applicable law of the Nation or any federal law concerning such issue. If such matter is not addressed by the Nation’s law or federal law, the Court may consider any other tribal or state law to make a determination.
(3) Severability. If any provision of this Chapter is determined by a Court of competent jurisdiction to be invalid for any reason, the remainder of the provisions shall remain in full force and effect and shall not be affected.
4-15-2 Definitions.
(A) "Collateral" means the personal property subject to a security interest.
(B) "Consumer" means a person who enters into a transaction primarily for personal, family or household purposes.
(C) "Consumer goods" means goods that are used or bought for use primarily for personal, family, or household purposes. This term includes, but is not limited to, technology, furniture, household goods and vehicles, including mobile homes not affixed to the land.
(D) "Consumer transaction" means a transaction in which a person incurs an obligation primarily for personal, family, or household purposes; a security interest in collateral secures the obligation; and the collateral is held or acquired primarily for personal, family, or household purposes.
(E) "Debtor" means a person who owes payment or performance of a secured obligation, having an interest other than a security interest or other lien in collateral secured by the debt.
(F) "Person" means an individual, corporation, association, partnership, company, or other legal entity capable of contracting or agreeing to terms of sale, use, or possession of personal property.
(G) "Personal property" means tangible, movable property. This excludes mobile homes affixed to the land.
(H) "Repossession" means the forcible seizure by a secured creditor of a debtor’s personal property that is subject to a security interest.
(I) "Secured creditor" means a person in whose favor a security interest is created or provided for under a security agreement in the collateral of a debtor, whether or not any obligation to be secured is outstanding.
(J) "Security agreement" means an agreement between a secured creditor and a debtor that creates or provides for a security interest.
(K) "Security interest" means an interest in collateral which secures payment or performance of an obligation.
(L) "Self-Help repossession" means repossession without judicial process.
(M) "Unconscionable" means a contract that is unfair or oppressive to one party in a way that suggests abuse during its formation. A contract is most likely to be found unconscionable if unfair bargaining and unfair substantive terms are shown.
(N) "Unsecured creditor" means a person that does not have the benefit of any security interest in the collateral of a debtor.
4-15-3 Limitation of Action.
(A) Repossession shall only be sought by a secured creditor who retains a valid security interest created by a security agreement in the collateral of a debtor as a result of a consumer transaction. Unsecured creditors have no right to the property or action under this section.
(B) Self-help repossession is strictly prohibited within the Nation’s boundaries. To repossess personal property pursuant to a consumer transaction, a person shall petition the Court for an order permitting entry upon land within the Nation’s boundaries, pursuant to 4-15-4. A person shall not repossess personal property except in strict compliance with this Chapter. A violation of this section shall be subject to a fine up to $1,000.00.
(C) A person shall not use force or intimidation tactics in any action pursuant to this Chapter. A violation of this section shall be subject to a fine up to $1,000.00.
4-15-4 Petition to Repossess.
(A) The remedy of repossession shall be by a verified petition which shall contain the following information:
(1) Name and address of person at which the personal property is located;
(2) Detailed identification of the personal property to be repossessed;
(3) A copy of the security agreement or contract shall be attached to the petition;
(4) The amount of the outstanding balance due on the consumer transaction; and
(5) Acknowledgment or sworn statement of veracity on the petition.
4-15-5 Action on the Petition.
(A) Upon the filing of the petition the clerk shall issue a show cause order directing the debtor to appear before the court and show cause why the personal property should not be repossessed. The order to show cause shall contain the following information:
(1) Notice that a petition to repossess has been filed and a hearing shall be held in the District Court within five (5) to ten (10) days;
(2) That if the debtor fails to appear, the court may order the repossession of personal property without further hearing required; and
(3) That any attempt to destroy, damage, remove, conceal or otherwise alter the use of the personal property is punishable under tribal law. A violation of this section shall be subject to a fine up to $1,000.00.
4-15-6 Conduct of Hearing.
(A) The hearing shall be conducted in an informal manner designed to provide substantial justice to the parties before the court.
(1) The debtor shall not be required to file a written pleading and may present their defenses or objections to the petition orally.
(2) The rules of evidence shall be applied liberally.
(3) The court shall only consider the issues of whether the personal property is collateral under the consumer transaction and whether a breach exists under the agreement or contract so as to justify the secured creditor’s repossession of the collateral. The Court shall not consider a counterclaim, setoff or any other independent claim.
(4) The court shall rule on the secured creditor’s right to repossess the personal property at the conclusion of the hearing and shall issue an order of repossession no later than twenty-four (24) hours.
(5) An order of repossession shall identify the personal property to be repossessed, the location of the personal property, and shall order Tribal Law Enforcement to accompany the secured creditor and render assistance necessary to obtain the personal property and preserve the peace of the Nation.
(Amended by PBP TC No. 2014-170, July 10, 2014)
(Amended by PBP TC No. 2001-156, December 11, 2001; amended by PBP TC No. 2006-106, June 2, 2006 (Title 4, enacted by PBP TC No. 92-60 through 92-65, November 18, 1992; amended by PBP TC No. 92-63, November 18, 1992; amended by PBP TC No. 93-2, January 6, 1993 and Gen. Council No. 93-1, January 23, 1993; Sec. 4-12-1 and 4-12-2, enacted by PBP TC No. 2000-134, June 20, 2000; amended by PBP TC No. 2000-154, July 25, 2000; amended by PBP TC No. 2000-187, September 27, 2000; amended by PBP TC No. 2003-135, September 4, 2003; amended by PBP TC No. 2004-061; April 8, 2004; PBP TC. No. 2004-083, May 20, 2004; amended by PBP TC No. 2005-127, August 19, 2005; amended by PBP TC No. 2006-106, June 2, 2006; amended by PBP TC No. 2007-174, September 20, 2007; amended by PBP TC No. 2008-067, March 6, 2008; amended by PBP TC No. 2008-077, March 19, 2008; amended by PBP TC No. 2010-151, July 20, 2010; Amended by PBP TC No. 2013-142, July 15, 2013; amended by PBP TC No. 2014-170, July 10, 2014)