Chapter 6.10 MORTGAGES

The purpose of this article is to avail the Tulalip Tribes (“Tribes”) and its members of financing for the construction and/or purchase of family residences on trust and otherwise restricted lands within the jurisdiction of the Tribes by prescribing procedures for the recording, priority and foreclosure of leasehold mortgages given to secure loans insured under Section 248 of the National Housing Act. [Ord. 79 § 1.0, 2-5-1994].

6.10.020 Definitions.

(1) “Tribes” shall refer to the Tulalip Tribes, a Federally recognized Indian tribe reorganized pursuant to the Indian Reorganization Act of 1934, as amended, and as defined in the Tribal Constitution and Bylaws.

(2) “Board of Directors” shall mean the Board of Directors of the Tulalip Tribes, the governing body of the Tribes.

(3) “Tribal Recording Clerk” shall mean the person designated by the Business Committee to perform the recording functions under this article or any deputy or designee of such person.

(4) “Tribal Secretary” shall mean the Secretary of the Tribes as defined in the Tribal Constitution.

(5) “Tribal Court” shall mean the Tribal Court as established by TTC Title 2 or such body as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and functions of a court of law.

(6) “Secretary” shall mean the Secretary of the United States Department of Housing and Urban Development (HUD) or his or her designee, attorney or agent.

(7) “Section 248” shall mean Section 248 of the National Housing Act, 12 U.S.C. 1715z-13.

(8) “Lease” shall mean the approved form of lease of trust or otherwise restricted property for which a leasehold mortgage, as defined in this article, has been or will be given.

(9) “Lessor” shall mean the beneficial or equitable owner of trust or otherwise restricted property under a lease for which a mortgage, as defined in this article, has been given, or the heir(s), successor(s), executor(s), administrator(s) or assign(s) of such lessor.

(10) “Leasehold mortgage” shall mean a mortgage or deed of trust of a lease of trust or otherwise restricted property given to secure a loan insured under Section 248.

(11) “Mortgagor” shall mean the Tribes or any Indian(s) who has executed a leasehold mortgage as defined in this article, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribes or such Indian(s).

(12) “Mortgagee” shall mean the mortgagee or beneficiary under any leasehold mortgage as defined in this article or the successor(s) in interest of any such mortgagee, including the Secretary as defined in this article, or the Secretary’s assignee under any such mortgage.

(13) “Subordinate lienholder” shall mean the holder of any lien, including a subsequent mortgage or deed of trust, perfected subsequent to the recording of a leasehold mortgage under this article (except the Tribes with respect to a claim for a Tribal leasehold tax).

(14) “Leasehold mortgage foreclosure proceedings” shall mean a proceeding:

(a) To judicially foreclose in Tribal Court the interest of the mortgagor(s) or to nonjudicially foreclose the interest of the mortgagor(s), and in either proceeding the interest of each person or entity claiming through the mortgagor(s), in a lease for which a mortgage has been given under Section 248; and

(b) To assign such lease to the Secretary or the Secretary’s assignee. [Ord. 79 § 2.0, 2-5-1994].

6.10.030 Priority.

A leasehold mortgage recorded in accordance with the recording procedures set forth in this article 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 article 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. [Ord. 79 § 3.0, 2-5-1994].

6.10.040 Recording.

(1) The Board of Directors shall from time to time designate by law or resolution a Tribal Recording Clerk and such additional Deputy Tribal Recording Clerks as it deems proper to perform the recording functions under this article. If approved by resolution of the Business Committee, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this article.

(2) The Tribal Recording Clerk shall maintain in the Tribal Court a system for the recording of leasehold mortgages and such other documents as the Board of Directors may designate by law or resolution.

(3) The Tribal Recording Clerk shall endorse upon any leasehold mortgage or any other document received for recording:

(a) The date and time of receipt of the leasehold mortgage or other document;

(b) The filing number, to be assigned by the Tribal Recording Clerk, which shall be a unique number for each leasehold mortgage or other document received; and

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:

TULALIP TRIBES OF WASHINGTON		)
TULALIP INDIAN RESERVATION		)
I certify that this is a true and correct copy of a document received for recording this date.
Given under my hand and seal this ____ day of ______________________.
(SEAL)

	_______________________
	(Signature)
	_______________________
	(Title)

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.

(4) The Tribal Recording Clerk shall also maintain a log of each leasehold mortgage or other document recorded in which there shall be entered:

(a) The name(s) of the mortgagor(s) of each leasehold mortgage, identified as such;

(b) The name(s) of the grantor(s), grantee(s), or other designation of each party named in any other documents;

(d) The date and time of receipt;

(e) The filing number assigned by the Tribal Recording Clerk; and

(f) The name of the Tribal Recording Clerk receiving the leasehold mortgage or document.

(5) 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.

(6) 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 and sealed by a Judge or Clerk of the Tribal Court, the Tribal Secretary, or by a notary public or other authorized official of the State of Washington:

________________________		)
		) ss.
________________________		)
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 ____________________.

	________________________
	(Signature)
	________________________
	(Title)
	________________________
	(Date of Expiration of Commission, if applicable)

(7) The recording procedures set forth in this article for leasehold mortgages shall also apply to any assignment of a leasehold mortgage.

(8) The Board of Directors 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 article. [Ord. 79 § 4.0, 2-5-1994].

6.10.050 Leasehold mortgage foreclosure proceedings.

(1) Judicial Foreclosure. 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:

(i) Naming the mortgagor(s) and each person or entity claiming through the mortgagor(s) subsequent to the recording of the leasehold mortgage, including each subordinate lienholder (except the Tribes with respect to a claim for a Tribal leasehold tax), as a defendant;

(ii) Describing the property;

(iii) Stating the facts concerning the execution of the lease and the leasehold mortgage; the facts concerning the recording of the leasehold 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;

(iv) Having appended as exhibits true and correct copies of each promissory note, lease, leasehold mortgage, or assignment thereof relating to the property; and

(v) Including an allegation that all relevant requirements and conditions prescribed in (A) Section 248, (B) the regulations promulgated thereunder by the Secretary, and (C) the provisions of the lease have been complied with by the Secretary.

(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 not be less than 30 nor more than 90 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.

(c) Service of Process and Procedure. The laws of the Tribes 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 article.

(d) 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 had upon such party by:

(i) Posting a copy of the summons and complaint in a conspicuous place on the property which is the subject of the lease within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial; and

(ii) 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 Puget Sound Agency of the Bureau of Indian Affairs within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial.

(e) Certified Mailing to Tribes and Lessor. In any leasehold mortgage foreclosure proceeding where the Tribes or the lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes and to the lessor(s) by certified mail, return receipt requested, within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial. 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 Puget Sound Agency of the Bureau of Indian Affairs.

(f) Intervention. The Tribes or any lessor may petition the Tribal Court to intervene in any leasehold mortgage foreclosure proceeding under this article. Neither the filing of a petition for intervention by the Tribes nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribes, except as may be expressly authorized by the Tribes.

(g) 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 for the leasehold mortgage.

(h) 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:

(i) 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

(ii) Assigning such lease to the Secretary or the Secretary’s assignee.

(i) No Homestead. There shall be no homestead or rights similar thereto to the mortgagor or any heir(s), successor(s), executor(s), administrator(s) or assign(s) thereof.

(j) No Redemption. There shall be no right of redemption in any leasehold mortgage foreclosure proceeding.

(k) No Deficiency Judgment. No deficiency judgment shall be entered in any leasehold mortgage foreclosure proceeding.

(l) Remedies Exclusive. The remedies provided under this article are exclusive for the judicial foreclosure of the mortgage.

(2) Nonjudicial Foreclosure. If the mortgage meets the requisites of RCW 61.24.030, the same may be foreclosed nonjudicially in conformity with Chapter 61.24 RCW, which is incorporated herein as though set forth in full to the extent not inconsistent herewith. [Ord. 79 § 5.0, 2-5-1994].

6.10.060 No merger.

There shall be no merger of estates by reason of the execution of a lease or 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. [Ord. 79 § 6.0, 2-5-1994].

6.10.070 Limited waiver of immunity.

In any case where the Tribes is a mortgagor under a leasehold mortgage, the Tribes may be named as a defendant in such capacity only and only under this article; provided, that there shall be no award of damages, attorneys fees or costs against the Tribes in any proceeding involving the Tribes, except where prior, express written consent to such an award has been given by the Tribes. [Ord. 79 § 7.0, 2-5-1994].

6.10.080 Rules of decision – Interpretation.

To the extent not inconsistent herewith, the laws of the State of Washington contained in RCW Titles 6 and 61 shall be incorporated herein by this reference as though set forth in full as to the procedure and substance of the respective foreclosure proceedings and the enforcement thereof as they now exist or may hereafter be amended. The laws of the State of Washington, not inconsistent with the provisions of this article, shall determine the priority of liens against the leasehold. The rules of decision of the Courts of the State of Washington shall guide the Tribal Court’s determination and interpretation relating to such foreclosure proceedings and the enforcement thereof. [Ord. 79 § 8.0, 2-5-1994].

6.10.090 Evictions.

Post-foreclosure actions to obtain possession of the leasehold interest foreclosed shall be undertaken pursuant to the summary proceedings to obtain possession of real property as provided in Chapter 6.25 TTC as it now exists or may hereafter be amended or other post-foreclosure judgment proceedings available under State of Washington common law. [Ord. 79 § 9.0, 2-5-1994].

Article II. Fee-Mortgage Trust Lands²

6.10.100 Purpose.

(1) A purpose of this article is to provide the Tribes and its members with means of financing the construction and/or purchase of one- to four-family residences or other construction or financing on individual trust lands and other trust lands, including leased or assigned Tribal lands, within the jurisdiction of the Tribes by prescribing procedures for the recording, priority, and foreclosure of mortgages on such property given to secure loans as provided and authorized pursuant to 25 U.S.C. 483(a) and (b) as now existing or as the same may hereafter be amended and as authorized by Tribal action or other Tribal law. Pursuant to this article, a lender, including the Tribes itself, who finances the purchase or construction of a one- to four-family residence or other construction on individual Tribal lands or other Indian trust lands, will be able to obtain a mortgage on individual Indian trust lands or other Indian trust lands and any improvements thereon so financed (“mortgaged property”), and to foreclose on such mortgage in the event of borrower default and thereby enable the lender or other purchaser at the foreclosure to obtain an unrestricted interest in the mortgaged property or in the lease. This article also allows through Tribal Court processes compliance with 25 CFR Part 162.610, Subleases and assignments, and the enforcement of leases of Tribal lands.

(2) A purpose of this article is to also provide the Tribes with means of financing by granting of mortgages or deeds of trust approved by the Secretary of the Interior under 25 U.S.C. 403a-2(c) for the acquisition and improvement of any trust or restricted lands of the Tribes within or without the exterior boundaries of the Tulalip Indian Reservation. The foreclosure of such mortgages or deeds of trust as provided herein and 25 U.S.C. 403a-2(c) shall be pursuant to the terms of such mortgages and deeds of trust in accordance with the laws of the State of Washington, the United States, and this article; provided, however, this article shall not be interpreted or construed to invest, confer, or grant jurisdiction to the courts and laws of any state. [Res. 2013-561; Ord. 88 § 1, 8-26-1996].

6.10.110 Definitions.

(1) “Tribes” shall refer to the Tulalip Tribes as defined in the Constitution and Bylaws of the Tulalip Tribes.

(2) “Board” shall mean the Board of Directors that is the governing body of the Tribes.

(3) “Mortgage foreclosure proceedings” shall mean a proceeding to judicially foreclose in Tribal Court the interest of the mortgagor(s) or to nonjudicially foreclose the interest of the mortgagor(s).

(4) “Mortgagee” shall mean the Tribes or any mortgagee or beneficiary under any mortgage as described in this article or the successor(s) in interest of any such mortgagee or beneficiary.

(5) “Mortgagor” shall mean the Tribes, any Indian(s) or any other natural or legal person who has executed a mortgage as described in this article, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribes, such Indian(s) or such other persons.

(6) “Subordinate lienholder” shall mean the holder of any lien, including a subsequent mortgage or deed of trust, perfected subsequent to the recording of a mortgage under this article (except the Tribes with respect to a claim for a Tribal tax).

(7) “Tribal Court” shall mean the Tribal Court established by the laws of the Tulalip Tribes or such body as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and functions of a court of law.

(8) “Tribal Recording Clerk” shall mean the person designated by the Board to perform the recording functions under this article or any deputy or designee of such person.

(9) “Tribal Secretary” shall mean the Secretary of the Tribes as defined in the Tribal Constitution.

(10) “Reservation” shall mean the Tulalip Indian Reservation located in Washington State.

(11) “Unlawful detainer ordinance” shall mean Chapter 6.25 TTC which establishes procedures for removing a party from property which such party is occupying without right of possession.

(12) “Leasehold mortgage ordinance” shall mean Article I of this chapter which establishes procedures for the recording, priority and foreclosure of a leasehold mortgage given to secure loans insured under Section 248 of the National Housing Act. [Ord. 88 § 2, 8-26-1996].

6.10.120 Priority.

A mortgage recorded in accordance with the recording procedures set forth in this article shall have priority over any lien not perfected at the time of such recording, and over any lien or claim arising after the recording of the mortgage, excepting a lien or claim arising from a Tribal property tax assessed after the recording of the mortgage. Nothing in this article 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. [Ord. 88 § 3, 8-26-1996].

6.10.130 Recording.

Mortgages may and shall be recorded in the same manner as leasehold mortgages and other documents pursuant to TTC 6.10.040. The recording procedures set forth in this article for mortgages shall also apply to any assignment of a mortgage.

(1) The Board shall from time to time designate by law or resolution a Tribal Recording Clerk and such additional Deputy Tribal Recording Clerks as it deems proper to perform the recording functions under this article. If approved by resolution of the Board, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this article.

(2) The Tribal Recording Clerk shall maintain in the Tribal Court a system for the recording of mortgages and such other documents as the Board may designate by law or resolution.

(3) The Tribal Recording Clerk shall endorse upon any mortgage or any other document received for recording:

(a) The date and time of receipt of the mortgage or other document;

(b) The filing number, to be assigned by the Tribal Recording Clerk, which shall be a unique number for each mortgage or other document received; and

Upon completion of the above endorsements, the Tribal Recording Clerk shall make a true and correct copy of the mortgage or other document and shall certify the copy as follows:

The Tulalip Tribes,
Tulalip Indian Reservation,

I certify that this is a true and correct copy of a document received for recording this date.

Given under my hand and seal this _______ day of ___________________, 20__.

(SEAL)

		______________________
		Signature
		______________________
		Title

The Tribal Recording Clerk shall maintain the copy in the records of the recording system and shall return the original of the mortgage or other document to the person or entity that presented the same for recording.

(4) The Tribal Recording Clerk shall also maintain a log of each mortgage, identified as such;

(a) The name(s) of the mortgagor(s) of each mortgage, identified as such;

(b) The name(s) of the grantor(s), grantee(s), or other designation of each party named in any other documents;

(d) The filing number assigned by the Tribal Recording Clerk; and

(e) The name of the Tribal Recording Clerk receiving the mortgage or other document.

(5) The certified copies of the mortgage and other documents and the log maintained by the Tribal Recording Clerk shall be made available for public inspection and copying.

(6) In lieu of presenting an original 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 and sealed by a Judge or Clerk of the Tribal Court, the Tribal Secretary, or by a notary public or other authorized official of the State of Washington:

________________		)
		) ss.
________________		)

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 ___________________, 20__.

	______________________
	Signature
	______________________
	Title
	______________________
	Date of expiration of commission, if applicable

(7) The recording procedures set forth in this article for mortgages shall also apply to any assignment of a mortgage.

6.10.140 Mortgage foreclosure proceedings.

A mortgagee who forecloses a mortgage as provided in this section will obtain an unrestricted fee simple interest in the mortgaged property or lease, and any individual trust, allotment, or other restriction will be extinguished thereby. Such foreclosure proceeding, whether conducted judicially or nonjudicially, shall divest the mortgagor and the United States of any and all title or interest to the mortgaged property or lease; provided, that where the interest foreclosed is a leasehold, the trust title to the underlying trust land shall not be disturbed.

(1) Judicial Foreclosure.

(a) A mortgage may be foreclosed judicially in conformity with Chapter 61.12 RCW, as in effect as of the date of this article, a complete copy of which is attached hereto and which is incorporated herein as though set forth in full (a “judicial mortgage foreclosure proceeding”); provided, however, for purposes of this article all references in Chapter 61.12 RCW to “county” shall be deemed to mean “Reservation” and all references to “court” or “superior court” shall be deemed to mean “Tribal Court.”

(b) Upon the default of the mortgagor(s) under a mortgage, the mortgagee may commence a judicial mortgage foreclosure proceeding in the Tribal Court by filing:

(i) A verified complaint:

(A) 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 Tribes with respect to a claim for a Tribal property tax), as a defendant;

(B) Describing the property;

(C) 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; and

(D) Having appended as exhibits true and correct copies of each promissory note, mortgage, or assignment thereof relating to the property.

(ii) 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 not be less than 30 nor more than 90 days from the date of service of the summons and complaint. The summons must notify the defendant(s) in accordance with the terms of the complaint unless the defendants file an answer with the Court and appear for trial at the time, date and place specified in the summons.

(c) Service of Process and Procedure. The laws of the Tribes governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any judicial mortgage foreclosure proceeding under this article.

(d) Alternate Service. If it appears by affidavit filed in the Tribal Court that any party to a judicial mortgage foreclosure proceeding cannot be located, then service of process may be had upon such a party by:

(i) Posting a copy of the summons and complaint in a conspicuous place on the property which is subject to the mortgage within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial; and

(ii) 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 Regional Agency of the Bureau of Indian Affairs, whose office is located at 911 N.E. 11th Avenue, Portland, Oregon, 97232, within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial.

(e) Certified Mailing to Tribes. In any judicial mortgage foreclosure proceeding where the Tribes is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes by certified mail, return receipt requested, within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial.

(f) Intervention. The Tribes may petition the Tribal Court to intervene in any judicial mortgage foreclosure proceeding under this article. Neither the filing of a petition for intervention by the Tribes nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribes, except as may be expressly authorized by the Tribes.

(2) Nonjudicial Foreclosure. If a mortgage meets the requisites of RCW 61.24.030, the same may be foreclosed nonjudicially in conformity with Chapter 61.24 RCW, as in effect as of the date of this article, a complete copy of which is attached hereto and which is incorporated herein as though set forth in full (a “nonjudicial mortgage foreclosure proceeding”); provided, however, for purposes of this article, all references in Chapter 61.24 RCW to “county” shall be deemed to mean “Reservation” and all references to “court” or “superior court” shall be deemed to mean “Tribal Court.”

(3) Rules of Decision – Interpretation. To the extent not inconsistent herewith, the laws of the State of Washington contained in RCW Titles 6 and 61 shall be incorporated herein by this reference as though set forth in full as to the procedure and substance of the respective foreclosure proceedings and the enforcement thereof as they now exist or may hereafter be amended. The laws of the State of Washington, not inconsistent with the provisions of this article, shall determine the priority of liens against the interest of the property subject to the mortgage. The rules of decision of the Courts of the State of Washington shall guide the Tribal Court’s determination and interpretation relating to such foreclosure proceedings and the enforcement thereof.

(4) Remedies Exclusive. The remedies provided under this article are exclusive for the judicial or nonjudicial foreclosure of a mortgage. [Ord. 88 § 5, 8-26-1996].

6.10.150 Limited waiver of immunity.

In any case where the Tribes is a mortgagor under a mortgage, the Tribes may be named as a defendant in such capacity only and only under this article; provided, that there shall be no award of damages, attorneys fees or costs against the Tribes in any proceeding involving the Tribes, except where prior, express written consent to such an award has been given by the Tribes. [Ord. 88 § 6, 8-26-1996].

6.10.160 Right of entry.

Following foreclosure of a mortgage as provided in this article, the mortgagor or other purchaser of the mortgaged property at a judicial mortgage foreclosure proceeding or nonjudicial mortgage foreclosure proceeding may enter trust lands to obtain possession of the fee interest in the foreclosed mortgaged property or lease. [Ord. 88 § 7, 8-26-1996].

6.10.170 Evictions.

Post-foreclosure actions to obtain possession of the interest foreclosed may be undertaken at the option of the mortgagee or other party that acquired their interest through foreclosure pursuant to either (1) the summary proceedings to obtain possession of the real property as provided in Chapter 6.25 TTC, Forcible Entry and Forcible and Unlawful Detainer, or (2) the laws, rules and regulations of Washington State applicable to post-foreclosure proceedings for real property.

Notwithstanding any provision of Tribal law, a mortgagee obtaining foreclosure through the Tribal Court under this article shall be authorized to bring an unlawful detainer action pursuant to Chapter 6.25 TTC against any mortgagor whose mortgage of land or leasehold is subject to the provisions of this article, and any such mortgagor shall be guilty of unlawful detainer under Chapter 6.25 TTC when such mortgagor holds over or continues in possession of lands which have been duly foreclosed upon pursuant to a mortgage or lease subject to the provisions of this article and such mortgagor shall be considered a tenant of lands or leasehold of lands for the purpose of bringing an action under Chapter 6.25 TTC. [Ord. 88 § 8, 8-26-1996].

6.10.180 Tribal interests.

Notwithstanding any State statute adopted as Tribal law by this article, where the Tribes is enforcing its own interest in lands or other mortgaged property, (1) the Court shall grant the Tribes a judgment for any deficiency remaining unsatisfied after the application of the proceeds of sale of the mortgaged property, real or personal, to the debt owed the Tribes; (2) the Court shall have no authority to upset the bid price; and (3) no period or right of redemption shall be available to the mortgagor or any person deriving an interest from the mortgagor. [Ord. 88 § 9, 8-26-1996].

Article III. Eviction Procedures for VA Leasehold Mortgages

6.10.190 Title.

This article shall be known as the Eviction Procedures of the Tulalip Tribes. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.200 Jurisdiction.

The provisions of this article shall apply to all persons and property subject to the governing authority of the Tulalip Tribes as established by the Tribal Constitution and Bylaws. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.210 Definitions.

(1) “Tribes” shall refer to the Tulalip Tribes of the Tulalip Indian Reservation as defined in the Tribal Constitution.

(2) “Tribal Court” shall mean the Tribal Court as established by the laws of the Tulalip Tribes or such body as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and function of a court of law.

(3) “Lessor” shall refer to the Tribes, Indian Housing Authority or to any other person or entity who shall have an interest in real property which for a limited time has been leased or rented to another; and the term “lessor” shall include an Indian Housing Authority which has leased real property under a mutual help occupancy agreement, rental lease agreement, or other similar arrangement whereby the tenant may, on certain conditions, obtain ownership of the occupied property at the end of occupancy under the agreement.

(4) “Secretary” shall mean the Secretary of the United States Department of Veterans Affairs (VA), his or her designee, attorney or agent, or the assignee.

(5) “Tenant” shall mean any person who occupies real property under a lease rental agreement or other agreement with a lessor as defined in this section.

(6) “Unlawful detainer action” shall be suit brought before Tribal Court to terminate a tenant’s interest in real property and/or to evict any person from occupancy of real property.

(7) “Writ of restitution” is an order of the Tribal Court:

(a) Restoring an owner or lessor or the Secretary to possession of real property; and

(b) Evicting a tenant or other occupant therefrom.

(8) “Nuisance” is the maintenance on real property of a condition which:

(a) Unreasonably threatens the health or safety of the public or neighboring land users; or

(b) Unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of their property.

(9) “Waste” is spoil or destruction by a tenant of land, buildings, gardens, trees or other improvements which result in substantial injury to the lessor’s interest in the property.

(10) Gender – Singular or Plural. Reference to persons by terms denoting sex shall be taken as referring to either sex. Reference to persons by a term denoting the singular shall include the plural. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.220 Unlawful detainer.

A tenant or other occupier of land shall be guilty of unlawful detainer if such person shall continue in occupancy of real property under any of the following situations:

(1) Without the Requirement of Any Notice.

(a) After the expiration of the term of the lease or other agreement; or

(b) If such person had entered onto or remains on the real property of another without the permission of the owner and without having any substantial claim of a lease or title of the property; or

(c) After an Indian Housing Authority or other Tribal entity has terminated such person’s tenancy pursuant to procedures providing such person a hearing before the Housing Authority or other Tribal entity involved; or

(d) After the interest of such person in a lease has been foreclosed in a leasehold mortgage foreclosure proceeding in the Tribal Court.

(2) After having received 30 days’ notice, the tenant or occupier shall remain in possession of the property contrary to the terms of the notice as follows:

(a) When such person has received notice:

(i) That he/she is in default in the payment of rent; and

(ii) Requiring him/her, in the alternative, to pay the rent or surrender possession of the occupied property; and such person has remained in possession after receipt of such notice without either surrendering possession of the property or paying the rent; or

(b) When the lease of the property is for an indefinite time, with rent to be paid monthly or by some other period, and the lessor had given notice of termination of the tenancy at least 30 days prior to the end of such month or period; or

(c) When such person shall continue to fail to keep or perform any condition or covenant of the lease or agreement under which the property is held after he/she has been given notice to either surrender the property or keep or perform such condition; or

(d) When such person continues to commit or to permit waste upon or maintain a nuisance upon the occupied property after having been given notice, in the alternative, either to cease such waste or maintenance of nuisance or to surrender the property. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.230 Procedures for service of notice.

Notice required or authorized in TTC 6.10.220 shall be given in writing by either:

(1) Delivering a copy personally to the tenant or occupier or to any adult members of his family resident on the premises; or

(2) Posting said notice in a conspicuous place near the entrance to said premises, and by sending an additional copy to the tenant or occupier by certified mail, return receipt requested, properly addressed, postage prepaid. Proof of service by either of the above methods may be made by affidavit of any adult person stating that he or she has complied fully with the requirements of one of the two methods of service as described in this section. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.240 Complaint and summons.

The owner of real property or lessor or Secretary shall commence an action for unlawful detainer by filing with the Court, in writing, the following documents:

(1) A complaint, signed by the owner, lessor, the Secretary, an agency, or attorney, stating:

(a) The facts on which he/she seeks to recover;

(b) Describing the property so that it can be identified with reasonable certainty; and

(2) A summons issued as in other cases requiring the defendants to appear for 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 six nor more than 30 days from the date of service of the summons and complaint. The summons must notify the defendants that judgment will be taken against them in accordance with the terms of the complaint unless they file with the Court an answer and appear for trial at the time, date and place specified in the summons. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.250 Service of summons and complaint.

A copy of the summons and complaint shall be served upon the defendants in the manner provided by the Tribal Court rules for service of process in civil matters. In the absence of such Tribal Court rules, the summons complaint shall be served by one of the two methods authorized above. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.260 Power of Tribal Court.

The Tribal Court shall enter a writ of restitution if:

(1) Notice of suit and trials is given by service of summons and complaint in accordance with the procedures provided in this article; and

(2) The Tribal Court shall find that the occupier of the real property is guilty of an act of unlawful detainer.

Upon issuance of a writ of restitution, the Tribal Court shall have the authority to enter against the defendants a judgment for the following: back rent; unpaid utilities; charges due the Tribes, Indian Housing Authority, or landowner under any lease or occupancy agreement (not including a leasehold mortgage); and for damages caused by the defendants to the property other than ordinary wear and tear. The Tribal Court shall have the authority to award to the prevailing party his/her costs and reasonable attorneys fees in bringing suit. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.270 Continuances in cases involving the Secretary.

Except by agreement of all parties, there shall be no continuance in cases involving the Secretary which will interfere with the requirement that the writ of restitution in cases involving the Secretary be enforced not later than 60 days from the date of service of the summons and complaint. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.280 Enforcement.

Upon issuance of a writ of restitution by the Tribal Court, Tribal law enforcement officers shall enforce the writ of restitution by evicting the defendants and their property from the premises which are unlawfully occupied. In all cases involving the Secretary, the writ of restitution shall be enforced not later than 60 days after the date of service of the summons and complaint. [Ord. 97, 7-12-1997 (Res. 97-0144)].

6.10.290 Alternate remedies.

In those cases in which the persons or property are subject to the jurisdiction of the Courts of the State of Washington or the United States, the remedies and procedures provided by this article are in the alternative to the remedies and procedures provided by the laws of the State of Washington or the United States. [Ord. 97, 7-12-1997 (Res. 97-0144)].

Article IV. Procedures for Recording, Priority and Foreclosure of VA Leasehold Mortgages

6.10.300 Purpose.

The purpose of this article is to avail the Tulalip Tribes and its members (and other Indians) of financing for the construction and/or purchase of family residences on trust and otherwise restricted lands within the jurisdiction of the Tulalip Indian Reservation by prescribing procedures for the recording, priority and foreclosure of leasehold mortgages given to secure loans insured under the U.S. Department of Veterans Affairs under the Native American Veterans Direct Loan Program authorized under Title 38 U.S.C. 3761. [Ord. 98, 12-5-1998].

6.10.310 Definitions.

(1) “Tribes” shall refer to the Tulalip Tribes of the Tulalip Indian Reservation as defined in the Tribal Constitution.

(2) “Council” shall mean the Board of Directors of the Tulalip Tribes as defined in the Tribal Constitution.

(3) “Tribal Recording Clerk” shall mean the person designated by the council to perform the recording functions under this article or any deputy or designee of such person.

(4) “Tribal Secretary” shall mean the Secretary of the Tulalip Tribes as defined in the Tribal Constitution.

(5) “Tribal Court” shall mean the Trial Court as established by the laws of the Tribes or such body as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and functions of a court of law.

(6) “Secretary” shall mean the Secretary of the United States Department of Veterans Affairs (VA) or his or her designee, attorney or agent.

(7) “Native American Housing Loan Pilot Program” shall mean the U.S. Department of Veterans Affairs Public Law 102-547, Subchapter 5, under Title 38 U.S.C. 3761.

(8) “Lease” shall mean the lease of trust or otherwise restricted property for which a leasehold mortgage, as defined in this article, has been or will be given.

(10) “Leasehold mortgage” shall mean the mortgage of a lease of trust or otherwise restricted property given to secure a loan insured under Title 38 U.S.C. 3761.

(12) “Mortgagee” shall mean the mortgage under any leasehold mortgage as defined in this article or the successor(s) in interest of any such mortgagee, including the Secretary as defined in this article, or the Secretary’s assignee under any such mortgage.

(13) “Subordinate lienholder” shall mean the holder of any lien, including a subsequent mortgage, perfected subsequent to the recording of a leasehold mortgage under this article (except the Tribes with respect to a claim for a Tribal leasehold tax).

(14) “Leasehold mortgages foreclosure proceeding” shall mean a proceeding in the Tribal Court:

(a) 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 the Veterans Administration Native American Direct Loan Program, Title 38 U.S.C. 3761; and

(b) To assign such lease to the Secretary or the Secretary’s assignee. [Ord. 98, 12-5-1998].

6.10.320 Priority.

6.10.330 Recording.

(1) The council shall from time to time designate by law or resolution a Tribal Recording Clerk and such additional Deputy Tribal Recording Clerks as it deems proper to perform the recording functions under this article. If approved by resolution of the council, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this article.

(2) The Tribal Recording Clerk shall maintain in the Tribal Court a system for the recording of leasehold mortgages and such other documents as the council may designate by law or resolution.

(3) The Tribal Recording Clerk shall endorse upon any leasehold mortgage or any other document received for recording:

(a) The date and time of receipt of the leasehold mortgage or other document;

(b) The filing number, to be assigned by the Tribal Recording Clerk, which shall be a unique number for each leasehold mortgage or other document received; and

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:

Tulalip Tribe		)
		) ss.
Tulalip Indian Reservation		)

I certify that this is a true and correct copy of a document received for recording this date.

Given under my hand and seal this ___________ day of _______________.

(SEAL)

	______________________
	Signature
	______________________
	Title

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 documents to the person or entity that presented the same for recording.

(4) The Tribal Recording Clerk shall also maintain a log of each leasehold mortgage or other documents recorded in which there shall be entered:

(a) The name(s) of the mortgagor(s) of each leasehold mortgage, identified as such;

(b) The name(s) of the mortgagee(s) of each leasehold mortgage, identified as such;

(d) The date and time of receipt;

(e) The filing number assigned by the Tribal Recording Clerk; and

(f) The name of the Tribal Recording Clerk receiving the leasehold mortgage or document.

(5) The certified copies of the leasehold mortgage and other documents and log maintained by the Tribal Recording Clerk shall be made available for public inspection and copying.

(6) In lieu of presenting an original leasehold mortgage or other documents 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 and sealed by a Judge or Clerk of the Tribal Court, the Tribal Secretary, or by a notary public or other authorized official of the State of Washington:

____________________		)
		)ss.
____________________		)

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 ___________________.

(SEAL)

	______________________
	(Signature)

	______________________
	(Title)

	______________________
	(Date of Expiration of Commission, if applicable)

(7) The recording procedures set forth in this article for leasehold mortgages shall also apply to any assignment of a leasehold mortgage.

(8) The 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 article. [Ord. 98, 12-5-1998].

6.10.340 Leasehold mortgage foreclosure proceedings.

Upon the default of the mortgagor(s) under a leasehold mortgage, the Secretary may commence a leasehold mortgage foreclosure proceeding in the Tribal Court by filing:

(1) A verified complaint:

(a) Naming the mortgagor(s) and each person or entity claiming through the mortgagor(s) subsequent to the recording of the leasehold mortgage, including each subordinate lienholder (except the Tribes with respect to a claim for a Tribal leasehold tax), as a defendant;

(b) Describing the property;

(c) Stating the facts concerning the execution of the lease and the leasehold mortgage; the facts concerning the recording of the leasehold 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;

(d) Having appended as exhibits true and correct copies of each promissory note, lease, leasehold mortgage, or assignment thereof relating to the property; and

(e) Including an allegation that all relevant requirements and conditions prescribed in (i) Title 38 U.S.C. 3761, (ii) the regulations promulgated thereunder by the Secretary, and (iii) the provisions of the lease have been complied with by the Secretary.

(2) 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) 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. [Ord. 98, 12-5-1998].

6.10.350 Service of process and procedures.

The laws of the Tribes 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 article. [Ord. 98, 12-5-1998].

6.10.360 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 had upon such party by:

(1) Posting a copy of the summons and complaint in a conspicuous place on the property which is the subject of the leasehold within five days after the issuance of the summons, but not less than 20 days prior to the date set for the trial; and

(2) 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 Puget Sound 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. [Ord. 98, 12-5-1998].

6.10.370 Certified mailing to Tribes and lessor.

In any leasehold mortgage foreclosure proceedings where the Tribes or the lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes and to the lessor(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 locations 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 the care of the Superintendent of the Puget Sound Agency of the Bureau of Indian Affairs. [Ord. 98, 12-5-1998].

6.10.380 Intervention.

The Tribes or any lessor may petition the Tribal Court to intervene in any leasehold mortgage foreclosure proceeding under this article. Neither the filing of a petition for intervention by the Tribes nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribes, except as may be expressly authorized by the Tribes. [Ord. 98, 12-5-1998].

6.10.390 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 for the leasehold mortgage. [Ord. 98, 12-5-1998].

6.10.400 Power of 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:

(1) Foreclosing the interest in the lease of the mortgagor(s) and each other defendant in the complaint upon whom proper and timely service has been made, including each such subordinate lienholder; and

(2) Assigning such lease to the Secretary or the Secretary’s assignee. [Ord. 98, 12-5-1998].

6.10.410 No redemption.

There shall be no right to redemption in any leasehold mortgage foreclosure proceedings. [Ord. 98, 12-5-1998].

6.10.420 No deficiency judgment.

No deficiency judgment shall be entered in any leasehold mortgage foreclosure proceeding. [Ord. 98, 12-5-1998].

6.10.430 Remedies exclusive.

The remedies provided under this article are exclusive. [Ord. 98, 12-5-1998].

6.10.440 No merger.

There shall be no merger of estates by reason of the execution of a lease or 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. [Ord. 98, 12-5-1998].

6.10.450 Limited waiver immunity.

In any case where the Tribes is a mortgagor under a leasehold mortgage, the Tribes may be sued as a defendant in such capacity only and only under this article; provided, that there shall be no award of attorneys fees or costs against the Tribes in any proceeding involving the Tribes, except where prior written consent to such an award has been given by the Tribes. [Ord. 98, 12-5-1998].

Code reviser’s note: TTC 1.05.010 appoints the Tribal Court Clerk as the Tribal Recording Clerk for the purposes of this article.