CHAPTER 9-6 LEASEHOLD MORTGAGES
(Federal Loan Programs)
The purpose of this Chapter is to avail the Colville Confederated Tribes and its members (and other Indians) of financing for the construction and/or purchase of family residence on trust and otherwise restricted lands within the jurisdiction of the Colville Indian reservation by prescribing procedures for the recording, priority and foreclosure of leasehold mortgages given to secure loans insured under Section 184 or 248 National Housing Act, the Native American Veterans Direct Loan Program, authorized under 386SC3761, or such similar amenditory federal law intended to allow the provision of loans secured by Trust property.
(a) Tribe shall refer to the Confederated Tribes of the Colville Reservation, hereafter Tribe.
(b) Tribal Council shall mean the Tribal Council of the Colville Tribe.
(c) Tribal Recording Clerk shall mean the person designated by the Tribal Council to perform the recording functions under this Title or any deputy or designee of such person.
(d) Tribal Secretary shall mean the secretary of the Tribes.
(e) Tribal Court shall mean the Colville Tribal Court as established by the laws of the Tribe or such other entity as may now or hereafter be authorized by the laws of the Tribe to exercise the powers and functions of a court of law.
(f) Secretary shall mean the Secretary of the United States Department of Housing and Urban Development (HUD) or the Secretary of the United States Department of Veterans Affair (VA), or their designated, attorney or agent.
(g) Section 248 shall mean Section 248 of the National Housing Act, 12 U.S.C. 1715z-13.
(h) Section 184 shall mean Section 184 of the National housing Act, 12 U.S.C. 1715z-13.
(i) Veteran's Administration Native American Housing Loan Pilot Program shall mean the U.S. Department of Veterans Affairs P.L. 102-547 Sub Chapter 5 under Title 38 U.S. Code 3761;
(j) Lease shall mean the lease of trust or otherwise restricted property for which a Leasehold Mortgage, as defined in this Chapter, has been or will be given.
(k) Lessor shall mean the beneficial or equitable owner of trust land or otherwise restricted property under a Lease for which a Mortgage, as defined in this Chapter, has been given, or the heir(s), successor(s), executor(s), administrator(s) or assign(s) of such Lessor.
(l) Leasehold Mortgage shall mean the mortgage of a lease of trust or otherwise restricted property given to secure a loan insured under Section 184.
(m) Mortgagor shall mean the Tribe or any Indian(s) who has executed a Leasehold Mortgage as defined in this Chapter,or any heir(s), successor(s), executor(s), administrator(s) or assign(s) or the Tribe or such Indian(s).
(n) Mortgages shall mean the mortgagee under any Leasehold Mortgage as defined in this Chapter or the successor(s) in interest of any such mortgagee, including the Secretary as defined in this Chapter, or the Secretary's assignee under any such mortgage.
(o) Subordinate Lienholder shall mean the holder of any lien, including a subsequent mortgage, perfected subsequent to the recording of a Leasehold Mortgage under this Chapter (except the Tribe with respect to a claim for a tribal leasehold tax).
(p) Leasehold Mortgage Foreclosure Proceeding shall mean a proceeding in the Tribal Court; (1) 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 under Section 184 or 248 or VA; and (2) To assign such Lease to the Secretary or the Secretary's assignee.
(q) Trust or otherwise restricted property shall include all real property where the title is held in Trust for the Colville Tribes or for a Tribal member, and other property owned by a Tribal member, the free alienation of Which is restricted by the United States.
A Leasehold Mortgage recorded in accordance with the recording procedures set forth 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 Leasehold Mortgage in accordance with state law or from filing a Leasehold Mortgage with the Bureau of Indian Affairs.
(a) The Tribal Council shall from time to time designate by resolution a Tribal Recording Clerk and such additional deputy tribal recording clerks as it deems proper to perform the recording functions under this Chapter. If approved by resolution of the Tribal Council, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this Chapter.
(b) The Tribal Recording Clerk shall maintain a system for the recording of Leasehold Mortgages and such other documents as the Tribal Council may designate resolution.
(c) The Tribal Recording Clerk shall endorse upon any Leasehold Mortgage or any other document received for recording:
Upon completion of the above endorsements, the Tribal Recording Clerk shall make a true and correct copy of the Leasehold Mortgage or other document and shall certify the copy as follows:
The Tribal Recording Clerk shall maintain the copy in the records of the recording system and shall return the original of the Leasehold Mortgage or other document to the person or entity that presented the same for recording.
(d) The Tribal Recording Clerk shall also maintain a log of each leasehold Mortgage or other document recorded in which there shall be entered:
(e) The certified copies of the Leasehold Mortgages and other documents and the log maintained by the Tribal Recording Clerk shall be made available for public inspection and copying.
(f) In lieu of presenting an original Leasehold Mortgage or other document for recording, any person or entity may present a copy of the same upon which there is an original certification in substantially the following form which has been signed by an official authorized to give oaths.
I certify that this is a true and correct copy of a document in the possession of __________ this date.
Given under my hand and seal this __________ day of __________ .
(Date of Expiration of Commission, if applicable)
(g) The recording procedures set forth in this Chapter for Leasehold Mortgage shall apply to any assignment of a Leasehold Mortgage.
(h) The Tribal Council may from time to time establish recording fees, Copying fees, and fees for the certification of any document recorded under the recording system established under this Chapter.
9-6-5 Leasehold Mortgage Foreclosure Proceeding
Upon the default of the mortgagor(s) under a Leasehold Mortgage, the Secretary my commence a Leasehold Mortgage foreclosure proceeding in the Tribal Court by filing:
(a) A verified complaint:
(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 summons most notify the defendant(s) that judgment will be taken against the complaint unless the defendant(s) file an answer with the court and appear for trial at the time, date and place specified in summons.
9-6-6 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 Leasehold Mortgage Foreclosure Proceeding under this Chapter.
9-6-7 Alternate Service
If it appears by affidavit filed in the Tribal Court, that any party to a Leasehold Mortgage Foreclosure Proceeding cannot be located, then service of process may be upon such party by:
(a) Posting a copy of the summons and complaint in a conspicuous place on the property which is the subject of the Lease within 5 days after the issuance of the summons; 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 the case of the Superintendent of the Colville Agency of the Bureau of Indian Affairs within 5 days after the issuance of the summons.
9-6-8 Certified Mailing to Tribe and Lessor
In any Leasehold 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 Lessor(s) by certified mail, return receipt requested, within 5 days after the issuance of the summons. If the location of the Lessor(s) cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the Lessor(s) in care of the Superintendent of the Colville Agency of the Bureau of Indian Affairs.
The Tribe or any Lessor may petition the Trial Court to intervene in any Leasehold 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.
9-6-10 Cure of Default by Subordinate Lienholder
Prior to the entry of the 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 amount at the rate stated in the note for Leasehold Mortgage.
9-6-11 Power of the Tribal Court
If the alleged default(s) have not been cured, and if the Tribal Court should find for the Secretary, the Tribal Court shall enter judgment:
9-6-12 No Redemption
There shall be no right of redemption in any Leasehold Mortgage Foreclosure Proceeding.
9-6-13 No Deficiency Judgment
No deficiency judgment shall be entered in any Leasehold Mortgage Foreclosure Proceeding.
9-6-14 Remedies Exclusive
The remedies provided under this Chapter are exclusive.
9-6-15 No Merger
There shall be no merger of estates by reason of the execution of the Leasehold a Leasehold 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 leasehold Mortgage.
9-6-16 Limited Waiver of Immunity
In any case where the Tribe is a Mortgagor under a Leasehold Mortgage, the Tribe may be sued as a defendant in such capacity and only under this Chapter; provided, that there shall be no award of attorney fees, damages, or costs against the Tribe in any proceeding involving the Tribe except where prior written consent to such an award have been given by the Tribe.
9-6-17 Trust Status of Land
Nothing in this Chapter is intended to affect or eliminate the trust or restricted status of any land subject to a leasehold mortgage, and at the end of any lease term said land shall revert to the lessor without encumbrance or lien that may arise as a result of this Chapter.