3 NICS App. 349, SPSITHA v. Whittington (August 1994)

IN THE NISQUALLY TRIBAL COURT OF APPEALS

NISQUALLY INDIAN RESERVATION

OLYMPIA, WASHINGTON

Southern Puget Sound Intertribal Housing Authority v. Whittington

No. NIS-C - 3/94- (August 18, 1994)

SUMMARY

Appeal of Agreed Order between Homebuyer and Southern Puget Sound Intertribal Housing Authority. Court of Appeals reversed due to failure of Housing Authority to provide proper notice as required in Mutual Help and Occupancy Agreement.

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Before:            Chief Justice Charles R. Hostnik, Associate Justice Marguerite Edwards, and Associate Justice Rosemary Irvin.

Appearances:  Jackie Whittington, Appellant; Noreen Wells and Jeff Choke, representing Respondent, Southern Puget Sound Inter-Tribal Housing Authority (SPSITHA).

NATURE OF THE ACTION

Appellant requested that Respondent Housing Authority reduce her house payments due to a change in Appellant's financial circumstances. When Respondent did not reply, Appellant assumed, incorrectly, that her request had been approved and reduced her payment amount. Respondent brought an unlawful detainer action, seeking to evict Appellant for failure to keep her house payments current.

On the scheduled trial date, parties signed an Agreed Order, wherein Respondent agreed to forego eviction proceedings if Appellant cured her account delinquency. Appellant cured the delinquency. Appellant then appealed the Agreed Order, alleging duress.

I. FACTUAL BACKGROUND

This matter originated as an unlawful detainer action in which the Respondent, SPSITHA, sought to evict the Appellant and terminate the Mutual Help and Occupancy Agreement (MHO) for failure of the Homebuyer to keep current in her house payments.

3 NICS App. 349, SPSITHA v. Whittington (August 1994) p. 350

The Homebuyer's failure to keep her house payments current was the result of a misunderstanding between the parties over the specific monthly amount the Homebuyer was obligated to pay between September, 1993, and February 1994.

Under the MHO agreement, monthly house payment amounts are based on the Homebuyer's income. In July, 1993, the Homebuyer submitted a "Change of Circumstances" application to SPSITHA, requesting a reduced house payment from $286 per month to $136 per month. The Homebuyer assumed the request had been approved and began paying $136 per month beginning in September, 1993. No notice of the approval or denial of the request was sent to the Homebuyer. However, the request had not been approved and, according to the records of SPSITHA, the Homebuyer's account grew increasingly delinquent.

On September 20, 1993, SPSITHA sent a Notice of Termination to the Homebuyer stating that the MHO agreement was terminated effective fifteen days from receipt of the notice, for failure to make the proper house payments.

A Complaint for Unlawful Tenancy was filed by SPSITHA on November 17, 1993, alleging breach of the MHO agreement by the Homebuyer. The Homebuyer's account was charged the $25 court filing fee on November 29, 1993, prior to any court hearings on the case.

On March 22, 1994, the date of the scheduled trial in the matter, an Agreed Order was filed in which SPSITHA agreed to forego eviction proceedings if the Homebuyer cured the delinquency in her account. After curing the delinquency, the Homebuyer filed a Motion To Appeal Agreed Order, stating the order was signed under duress, to avoid eviction.

This matter was heard before this Court on June 30, 1994, in the Nisqually Court of Appeals.

II. NOTICE TO THE APPELLANT UNDER THE TERMS OF THE MUTUAL HELP AND OCCUPANCY AGREEMENT WAS INADEQUATE

The Notice of Termination sent by SPSITHA to the Appellant on September 20, 1993, states in part:

YOU ARE HEREBY NOTIFIED that subject to rights of review and rights to correct deficiencies as stated below, your tenancy and your Mutual Help and Occupancy Agreement is terminated, effective fifteen (15) days from receipt of this notice . . . .

Article IX of the Mutual Help And Occupancy Agreement between the Appellee and SPSITHA governs the procedures for lawful termination of the housing contract. Article IX, Section 9.2 makes written notice to the Homebuyer mandatory whenever SPSITHA attempts to terminate the agreement.

3 NICS App. 349, SPSITHA v. Whittington (August 1994) p. 351

Article IX, Sections 9.2(e) and (f) require that the notice shall state:

. . . that the Homebuyer has 30 days to cure the alleged breach of contract [Section 9.2(e)] and that SPSITHA shall not terminate the contract for at least 30 days after receipt of the Notice of Termination by the Homebuyer [Section 9.2(f)].

The Notice of Termination sent by SPSITHA to the Appellant (Exhibit B) does not conform to the requirements of Article IX, Section 9.2(e) and (f). It gives the Appellant only 15 days to cure the breach rather than the 30 days required by sections 9.2(e) and (f).

Additionally, there is no evidence that the Housing Authority complied with Section 9.2(d), which requires notification to the Homebuyer that the Tribal Government be informed of the termination.

The MHO Agreement is a contract between the Appellant, Homebuyer, and the Respondent, Housing Authority. The Housing Authority must abide by the terms of the that Agreement just as the Homebuyer must. An agreed order based on an illegal termination procedure is unfair. If the Notice of Termination is invalid, any eviction based on that Notice is also invalid.

III. NO PREVIOUS AGREEMENT BY THE APPELLANT AND THE RESPONDENT HAD BEEN MADE TO ALLOW THE HOUSING AUTHORITY TO AUTOMATICALLY CHARGE COURT COSTS TO THE HOMEOWNERS ACCOUNT

Nothing in the law or Occupancy agreement provides for automatic payment of filing fees by the Homebuyer. If the Housing Authority is successful in obtaining an eviction order from the Court, it can request that the Court authorize an award of costs incurred as a result of the legal action, but this cannot be done until after the Court decides whether an eviction order is warranted. The buyer was improperly charged court costs prior to any hearing on the case.

IV. TO AVOID MISUNDERSTANDINGS AND NEEDLESS COURT ACTION, THE HOUSING AUTHORITY SHOULD PROVIDE WRITTEN NOTICE OF AN APPROVAL OR DENIAL OF A REQUEST FOR A MODIFICATION OF THE HOUSING CONTRACT DUE TO A CHANGE OF CIRCUMSTANCES WITHIN THE MONTH FOLLOWING THE REQUEST

The Appellant was current in her payments until she applied for a modification of her contract due to a change of circumstances. Following this application a breakdown in communication between SPSITHA and the Homebuyer triggered the termination process. While not required under the terms of the Mutual Help and Occupancy Agreement, providing Homebuyers with written notification when change of circumstance request are approved or denied, would avoid the time and expense that cases of this nature exact on the parties involved.

3 NICS App. 349, SPSITHA v. Whittington (August 1994) p. 352

Similarly, the Homebuyer made several unsuccessful requests for a copy of her payment ledger. SPSITHA is obligated to provide the Homebuyer with an annual statement setting forth credits and debits to the Homebuyer's account and the remaining balance. MHO Agreement, Section 11.1. A Homebuyer should be given a complete copy of his or her ledger account upon reasonable request. This provision acknowledges that a Homebuyer has the right to see how her payments to SPSITHA are being applied. When a dispute arises, it may be necessary to provide an accounting more frequently than once a year. Furnishing the Homebuyer with a copy of her ledger account might have avoided the misunderstandings that brought this case to Court in the first place.

V. ORDER

The Agreed Order between the parties is VACATED; the Appellant's account is ordered to be credited the $25 charged for court costs; and the Respondent, Housing Authority, is ordered to allow the Appellant access to and a complete copy of her ledger account, all for the reasons state herein.

EDWARDS and IRVIN, Associate Justices, concur.