3 NICS App. 333, K & S Sales and Rentals v. Bear (August 1994)

IN THE SHOSHONE-BANNOCK TRIBAL COURT OF APPEALS

FORT HALL RESERVATION

FORT HALL, IDAHO

K & S Sales and Rentals v. Bear

No. C-93-15/APP -94-09 (August 2, 1994)

SUMMARY

Appeal of Trial Court order granting creditor's petition for repossession due to debtor's default. Debtor sought trial de novo, alleging he was not present at the repossession hearing and, therefore, was unable to offer his evidence. Appellate Court dismissed the appeal due to debtor's failure to state a claim upon which relief could be granted.

FULL TEXT

Before:            Judge David Harding.

Appearances:  Shane Barney, for Respondent, K & S Sales and Rentals; Nino Bear, Appellant; Louise Dixey, advocate for Appellant.

NATURE OF THE ACTION

On March 17, 1993, plaintiff creditor filed in Tribal Court a Petition for Repossession of property, alleging Defendant debtor's failure to make payments as required under terms of a contract between the parties. On May 14, 1993, at a repossession hearing which debtor did not attend, the Trial Court ordered debtor to show cause for his failure to appear despite proper notification. On November 26, 1993, debtor again failed to appear at a show cause hearing. The Trial Court granted creditor's Petition for Repossession on February 2, 1994.

On February 23, 1994, debtor filed a Notice of Appeal wherein he sought a trial de novo, alleging lack of opportunity to present his evidence because he was not present at the repossession hearing.

HARDING, Justice:

Court heard arguments from Advocate, Louise Dixey, that the Debtor had a verbal agreement with the Owner/Manager of K & S Sales and Rentals, Kim Guymon, regarding early pay-off on the items in question, and the Debtor alleges that he had paid off the debt with his

3 NICS App. 333, K & S Sales and Rentals v. Bear (August 1994) p. 334

daughter's trust account monies when she turned eighteen years old; Debtor believed that he had paid off the full amount.

Shane Barney stated that the Debtor had a default on his contracts and that when that happens, the Debtor does not have the affordability of number one, the early pay-off and number two, debtor must pay all payments due and owing, and Debtor never made payments every thirty days as promised.

Nino Bear stated that he made a verbal agreement with the owner, Kim Guymon, regarding early pay-off, and that the owner told him to go ahead and pay it, which his daughter did on May 20, 1992. Mr. Bear believed that he was within the early pay-off schedule.

Shane Barney stated that he was not aware of the verbal agreement between Nino Bear and Kim Guymon and there is no record or receipt of the transaction.

Court heard from the Debtor that he wants all the items back that were repossessed, and Creditor does not want anything but to settle this disagreement in regard to payment. Court informed the parties that this is stand-off and if the Court doesn't have something he could produce for you because as of now the issue of the execution of the order of repossession is moot because the items are already gone. The issue of the early pay-off on the account is moot because the Debtor went and paid the account off and so everybody loses here.

IT IS HEREBY ORDERED, DECREED, ADJUDGED that this Appeal is dismissed based on the fact that the Debtor has failed to state a claim upon which relief could be granted.