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HOUSING: Approval of
Mortgage Foreclosure and Eviction Procedures
for the Coquille Indian Housing
Authority
WHEREAS,
the Coquille Indian Tribe is governed by the Coquille Tribal Council pursuant to
the Tribal Constitution adopted by eligible voters of the Tribe on August 27,
1991, and approved by the Secretary of the Interior on September 9, 1991; and
that the Tribal Council is empowered to act for the Coquille Indian Tribe; AND,
WHEREAS, the
Coquille Tribal Council is charged with the duty of protecting the health,
welfare and safety of the people of the Coquille Indian Tribe; AND,
WHEREAS, the
Coquille Tribal Council recognizes the need to provide increased housing
resources to the Tribe and for Tribal members; AND,
WHEREAS, the
Coquille Tribal Council desires to avail the Coquille Indian Tribe and its
members (and other Native Americans) of financing for the construction and/or
purchase of family residences on trust and other lands within the service area
of the Coquille Indian Tribe by participating in the U.S. Department of Housing
and Urban Development Mortgage Insurance Program under Section 184 and Section
248 of the National Housing Act; AND,
WHEREAS, the
Coquille Tribal Council desires to provide for the recording and foreclosure in
the Coquille Tribal Court of Leasehold Mortgages given to secure loans insured
under Section 184 and Section 248; AND,
WHEREAS, it is a
requirement of the U.S. Department of Housing and Urban Development (HUD) where
the Tribe has assured foreclosure proceedings that the Tribe also enact a law
providing for the first lien priority of such leasehold mortgages; AND,
WHEREAS, it is a
requirement for participation under Section 184 and Section 248 that the Tribe
permit HUD access to reservation lands for servicing properties financed under
Section 184 and Section 248; AND,
HOUSING: Approval of Mortgage Foreclosure and Eviction Ordinance
WHEREAS, the
standard lease form prescribed by Housing and Urban Development will hereby be
amended by adding the following language to Section 3 of the form lease (Use of
Premises): In the event financing to construct, improve and/or maintain a
dwelling and related structures is not obtained by the lessee(s) within 12
months from date of this lease, the lessor may, in its discretion terminate the
lease or grant an additional 12 months extension at the request of the lessee(s)
in order to allow lessee(s) time to obtain financing; NOW,
THEREFORE BE IT RESOLVED, that the eviction procedures, as amended and
leasehold mortgages and statutes are enacted into the law of the Coquille Indian
Tribe and shall be placed into the Coquille Tribal Code; AND,
BE IT FURTHER RESOLVED, that the Coquille Tribal Council will provide for the
eviction procedures set forth as relates to eviction of defaulted mortgages
where the insured mortgage has been foreclosed; AND,
BE IT FURTHER RESOLVED, that the Coquille Tribal Council hereby grants and
permits HUD access to reservation lands for servicing properties financed under
Section 184 and Section 248; AND,
BE IT FINALLY RESOLVED, that the Chairperson of the Tribal Council or
in the absence of the Chairperson, the Vice-chairperson, is hereby authorized to
sign, execute and negotiate all applications, contracts, agreements, amendments
thereto on behalf of the Tribe.
C E R T I F I C A T I O N
The foregoing Resolution was duly adopted at the Tribal Council Meeting held at Coos Bay, Oregon, on August 26, 1995, with the required quorum present by a vote of
6 For; 0 Against;
0 Absent; 0 Abstaining.
/s/ Edward L. Metcalf
/s/ Thomas H. Younker
Edward L. Metcalf,
Thomas H. Younker,
Chairperson
Secretary-treasurer
Evictions Procedures of the Coquille Indian Tribe
Adopted August 26, 1995
Evictions Procedures
1.
Title
This section shall be known as EVICTION PROCEDURES
of the Coquille Indian Tribe.
2.
Jurisdiction
The provision of this title shall apply to ALL
persons and property subject to the governing authority of the Coquille Tribal
Council as established by the Coquille Tribal Constitution and Bylaws.
3.
Definitions
(a)
Tribe shall refer to the Coquille Indian Tribe as defined in Public Law 101-42
and the Coquille Constitution.
(b)
Tribal Court shall mean the Tribal Court as established by the laws of this
Tribe or such body as may now or hereafter be authorized by the laws of the
Tribe to exercise the powers and functions of a court of law.
(c)
Lessor shall refer to the Tribe, Coquille 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 and 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.
(d)
Secretary shall mean the Secretary of the United States Department of Housing
and Urban Development (HUD) or his or her designee, attorney or agent, or the
assignee of the Secretary.
(e)
Tenant shall mean any person who occupies real property under a lease, rental
agreement with a lessor as defined in this section.
(f)
Unlawful Detainer Action shall be a suit brought before the Tribal Court to
terminate a tenant’s interest in real property and/or to evict any person from
occupancy of real property.
(g)
Writ of Restitution is an order of the Tribal Court:
(1)
Restoring an owner or lessor or the Secretary to possession of real property
and,
(2)
Evicting a tenant or other occupant therefrom.
(a)
Nuisance is the maintenance on real property of a condition which:
(1)
Unreasonably threatens the health or
safety of the public or neighboring land users; or,
(2)
Unreasonably and
substantially interferes with the ability of neighboring property owners
to enjoy the reasonable use and occupancy of their property.
(a)
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.
(b)
Gender (singular or plural). Reference to persons by terms denoting one sex
shall be taken as referring to either sex. Reference to persons by a term
denoting the singular shall include the plural.
(a)
Unlawful Retainer
A tenant or other occupier shall be
guilty of unlawful Retainer if such person shall continue in occupancy of real
property under any of the following situations:
(a)
Without the requirement of any notice:
(1)
After the expiration of the term of the lease or other agreement; or
(2)
If such person has 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 to title of the property; or
(3)
After an Indian Housing Authority or other Public Housing Authority has
terminated such
person’s tenancy pursuant to procedures providing such person a hearing before
Housing Authority involved; or
(4)
After the interest of such person in a lease has been foreclosed in a leasehold
mortgage foreclosure proceeding in the Tribal Court.
(a)
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:
(1)
When such person has received notice:
a)
That he is in default in the payment of rent; and
b)
requiring him, 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 the possession of the property pr
paying the rent; or,
(1)
When the lease of the property is for an indefinite time, with rent to be paid
monthly or by or by some other period, and the lessor has given notice of
termination of the tenancy at least 30 days prior to the end of the month
or period; or,
(2)
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 has
been given notice to either perform such condition or covenant or to surrender
the property; or,
(3)
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 or nuisance or to
surrender the property.
5.
Procedures for Service of Notice
Notices required or authorized in the immediately
preceding section shall be given in writing by either:
a)
Delivering a copy personally to the tenant or occupier or to any adult member of
his family residing on the premises; or,
b)
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 fully
complied with the requirements of 1 of 2 methods of service.
6.
Complaint and Summons
The owner of real property or lessor or the
Secretary shall commence an action for unlawful detained by filing with the
court, in writing, the following documents:
(a)
A complaint, signed by the owner, lessor, the Secretary, an agent, or attorney,
stating:
(1)
The facts on which he seeks to recover.
(2)
Describing the property so that it can be identified with reasonable certainty;
and
(3)
Any claim for damages or compensation due from the persons to be evicted; and
(b)
A summons issued as in other cases required the defendants to appear for a trial
upon the complaint on a date and time specified in the summons. The trial date
specified in the summons. The trial date specified in the summons shall not less
than 6 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.
7.
Service of Summons and Complaint
A copy of the summons and complaint shall be served
upon defendants in the manner provided by the Tribal Court rules for service of
process in civil matters. In the absence of such Tribal Courts rules, the
summons and complaint shall be served by one of the methods authorized in
39.05.010 above.
8.
Power of the Tribal Court
The Tribal Court shall enter a Writ of Restitution
if:
(a)
Notice of suit and trial is given by service of summons and complaint in
accordance with the procedures provided in this Title; and,
(b)
The Tribal Court shall find that the occupier of the real property is guilty of
an act of unlawful Retainer. Upon issuance of a Writ of Restitution, the Tribal
Court shall have authority to enter against the defendants a judgment for the
following: back rent; unpaid utilities; charges due the Coquille Indian Housing
Authority or land owner under any lease or occupancy agreement (not including
under a leasehold mortgage); and for damages caused by the defendants to the
property other than ordinary wear and tear. The Tribal Court shall have
authority to award to the prevailing party his costs and reasonable attorney’s
fees in bringing suit.
9.
Continuances in Cases Involving the Secretary
Except by agreement of all parties, there shall be
no continuances in cases involving the Secretary which will interfere with the
requirements in 39.09.010 that the Writ of Restitution in a case involving the
secretary be enforced not later than 60 days from the date of service of the
summons and complaint.
10.
Enforcement
Upon the 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.
11.
Alternate Remedies
In those cases in which the persons or property are
subject to the jurisdiction of the courts of the state of Oregon or the United
States, the remedies and procedures provided by this section are in the
alternative to the remedies and procedures provided by laws of the State of
Oregon or the United States.