Chapter 12.20
MORTGAGES
Sections:
12.20.050 Pre-foreclosure procedures.
12.20.060 Leasehold mortgage foreclosure proceedings.
12.20.070 Service of process and procedure.
12.20.090 Certified mailing to Tribe and mortgagor.
12.20.110 Cure of default by subordinate lienholder.
12.20.120 Power of the Tribal Court.
12.20.140 No deficiency judgment.
12.20.170 Restrictions on sale, transfer or conveyance of leasehold interest.
12.20.180 Approval of Tribe required.
12.20.010 Purpose.
The purpose of this chapter is to avail the Confederated Tribes of the Chehalis Reservation and its members and others designated by the Tribe of financing and other funding for the construction and/or purchase and/or repair or improvement of family residences and related structures and facilities, including infrastructure on trust and otherwise restricted lands within the jurisdiction of the Confederated Tribes of the Chehalis Reservation by prescribing procedures for the recording, priority and foreclosure of mortgages given to secure such financing or other funding. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.010.]
12.20.020 Definitions.
For the purposes of this chapter:
“Mortgage” means the mortgage of a trust or otherwise restricted property given to secure financing or other funding for the construction and/or purchase and/or repair or improvement of a family residence or residences and a related structure or structures and facilities, including infrastructure.
“Mortgage foreclosure proceeding” means a proceeding in the Tribal Court to foreclose the interest of the mortgagor(s), and each person or entity claiming through the mortgagor(s), in a lease for which a mortgage has been given.
“Mortgagee” means the mortgagee under any mortgage as defined in this chapter or the successor(s) in interest or assignee(s) of any such mortgagee.
“Mortgagor” means the Tribe (including any entity of the Tribe), or member of the Tribe or any other person or entity authorized by resolution of the Business Committee who has executed a mortgage as defined in this chapter, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribe or Tribal member or other person or entity.
“Subordinate lienholder” means the holder of any lien, including a subsequent mortgage, perfected subsequent to the recording of a mortgage under this chapter (except the Tribe with respect to a claim for a Tribal leasehold tax). [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.020.]
12.20.030 Priority.
A mortgage recorded in accordance with the recording procedures referred to in this chapter shall have priority over any lien not perfected at the time of such recording and any subsequent lien or claim excepting a lien or claim arising from a Tribal leasehold tax assessed after the recording of the mortgage. Nothing in this chapter shall prevent any person or entity from recording a mortgage in accordance with State law or from filing a mortgage with the Bureau of Indian Affairs. Notwithstanding anything herein to the contrary, this chapter does not confer jurisdiction with respect to any recording under State law. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.030.]
12.20.040 Recording.
Recording of mortgages, assignments of mortgages and related documents shall be in accordance with the Tribal Recordation Ordinance. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.040.]
12.20.050 Pre-foreclosure procedures.
A. A mortgagor shall be considered to be in default when the mortgagor is 30 days past due on a mortgage payment(s) to the mortgagee or when the mortgagor has been in material breach of any other mortgage provision for at least 30 days.
B. Before a mortgagor becomes 90 days delinquent on mortgage payments and before any foreclosure action or activity is initiated, the mortgagee shall complete the following:
1. Make a reasonable effort to arrange a face-to-face interview with the mortgagor. This shall include at least one trip to meet with the mortgagor at the mortgaged property.
2. The mortgagee shall document that it has made at least one phone call to the mortgagor, or the nearest phone, as designated by the mortgagor, able to receive and relay messages to the mortgagor for the purpose of trying to arrange a face-to-face interview.
C. The mortgagee may appoint an agent to perform the services of arranging and conducting the face-to-face interview specified in this section.
D. Before the mortgagor has been delinquent for 90 days and at least 10 days before initiating a foreclosure action in Tribal Court, the mortgagee shall advise the mortgagor in writing by mail or by posting prominently on the unit, with a copy provided to the Tribe, as follows:
1. Advise the mortgagor that information regarding the loan and default will be given to credit bureaus.
2. Advise the mortgagor of homeownership counseling opportunities/programs available through the mortgagee or otherwise.
3. Advise the mortgagor of other available assistance regarding the mortgage/default.
4. In addition to the preceding notification requirements, the mortgagor shall complete the following additional notice requirements:
a. Notify the mortgagor that if the mortgage remains in default for more than 90 days, the mortgagee may ask the applicable government agency to accept assignment of the mortgage if this is a requirement of the governmental program;
b. Notify the mortgagor of the qualifications for forbearance relief from the mortgagee, if any, and that forbearance relief may be available from the government if the mortgage is assigned; and
c. Provide the mortgagor with names and addresses of governmental officials to whom further communications may be addressed, if any.
E. If a mortgagor has been delinquent for 90 days or more and the mortgagee has complied with the procedures set forth in this section, and the mortgagee has complied with all other requirements of applicable law, the mortgagee may commence a leasehold mortgage foreclosure proceeding as provided for in this chapter; provided, that nothing in this section shall be deemed to limit any right of a mortgagee under other applicable law. [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.050.]
12.20.060 Leasehold mortgage foreclosure proceedings.
Upon the default of the mortgagor(s) under a leasehold mortgage, the mortgagee may commence a leasehold mortgage foreclosure proceeding in the Tribal Court by filing:
A. A verified complaint:
1. Naming the mortgagor(s) and each person or entity claiming through the mortgagor(s) subsequent to the recording of the mortgage, including each subordinate lienholder (except the Tribe with respect to a claim for a Tribal leasehold tax), as a defendant;
2. Describing the property;
3. Stating the facts concerning the execution of the mortgage, the facts concerning the recording of the mortgage, the facts concerning the alleged default(s) of the mortgagor(s), and such other facts as may be necessary to constitute a cause of action;
4. Having appended as exhibits true and correct copies of each promissory note, mortgage, or assignment thereof relating to the property; and
5. Including an allegation that all relevant requirements and conditions prescribed in (a) all applicable statutes and ordinances, whether Tribal, Federal or State, (b) all regulations promulgated under such statutes and ordinances and (c) the provisions of the lease and the mortgage have been complied with by the mortgagee.
B. A summons issued as in other cases requiring the mortgagor(s) and each other defendant to appear for a trial upon the complaint on a date and time specified in the summons. The trial date specified in the summons shall be not less than 20 nor more than 45 days from the date of service of the summons and complaint. The summons must notify the defendant(s) that judgment will be taken against the defendant(s) in accordance with the terms of the complaint unless the defendant(s) file an answer with the Court and appear for trial at the time, date and place specified in the summons. [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.060.]
12.20.070 Service of process and procedure.
The laws of the Tribe governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any mortgage foreclosure proceeding under this chapter. [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.070.]
12.20.080 Alternate service.
If it appears by affidavit filed in the Tribal Court that any party to a mortgage foreclosure proceeding cannot be located, then service of process may be had upon such party by:
A. Posting a copy of the summons and complaint in a conspicuous place on the property that is the subject of the mortgage within five days after the issuance of the summons, but not less than 20 days prior to the date set for trial; and
B. Mailing a copy of the summons and complaint by certified mail, return receipt requested, to such party at the last known address of such party and in care of the Superintendent of the Olympic Peninsula Agency of the Bureau of Indian Affairs within five days after the issuance of the summons, but not less than 20 days prior to the date set for trial.
The provisions of this section shall be in addition to any other provisions of the laws of the Tribe relating to service of process in an instance where a party to a civil proceeding cannot be located. [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.080.]
12.20.090 Certified mailing to Tribe and mortgagor.
In any mortgage foreclosure proceeding where the Tribe or the lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribe and to the mortgagor(s) by certified mail, return receipt requested, within five days after the issuance of the summons, but not less than 20 days prior to the date set for trial. If the location of the mortgagor(s) cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the mortgagor(s) in care of the Superintendent of the Olympic Peninsula Agency of the Bureau of Indian Affairs. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.090.]
12.20.100 Intervention.
The Tribe or any mortgagor may petition the Tribal Court to intervene in any mortgage foreclosure proceeding under this chapter. Neither the filing of a petition for intervention by the Tribe, nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.100.]
12.20.110 Cure of default by subordinate lienholder.
Prior to the entry of a judgment of foreclosure, any mortgagor or any subordinate lienholder may cure the default(s) under the leasehold mortgage. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such subordinate lienholder to cure the default(s), plus interest on such amounts at the rate stated in the note, if any, for the leasehold mortgage of the subordinate lienholder. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.110.]
12.20.120 Power of the Tribal Court.
If the alleged default(s) have not been cured, and if the Tribal Court should find for the mortgagee, the Tribal Court shall enter judgment:
A. Foreclosing the interest in the lease of the mortgagor(s) and each other defendant named in the complaint upon whom proper and timely service has been made, including each such subordinate lienholder; and
B. Assigning such lease to the mortgagee. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.120.]
12.20.130 No redemption.
There shall be no right of redemption in any mortgage foreclosure proceeding. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.130.]
12.20.140 No deficiency judgment.
No deficiency judgment shall be entered in any mortgage foreclosure proceeding. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.140.]
12.20.150 Remedies exclusive.
The remedies provided under this chapter are exclusive. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.150.]
12.20.160 No merger.
There shall be no merger of estates by reason of the execution of a mortgage or the assignment or assumption of same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the mortgage. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.160.]
12.20.170 Restrictions on sale, transfer or conveyance of leasehold interest.
The mortgagee shall not sell, transfer or convey any interest that has been assigned to it in a mortgage foreclosure proceeding except to the Tribe, the Chehalis Tribal Housing Authority or an eligible member of the Confederated Tribes of the Chehalis Reservation, or to a person or entity so authorized by resolution of the Business Committee. [Res. 2016-17; Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.170.]
12.20.180 Approval of Tribe required.
Any mortgage of trust or other restricted lands, whether Tribally or individually owned, for which a mortgage is executed for the purposes of this chapter, is subject to the approval of the Tribe, acting through the Business Committee. [Res. 2011-020; Res. 2003-58; Res. 2001-32. Prior code § 10.5.1.180.]