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Revised: April 15, 2003
4-2-101. When available. Where the relief requested by a party includes a traditional remedy or penalty and
(1) all parties are Tribal members and all partake of the cultural heritage of the same tribe or band forming a part of the Confederated Tribes, or
(2) all parties consent to the award of traditional remedies to the prevailing party, the court may grant the relief requested or any traditional remedy, statutory remedy, or combination of traditional and statutory remedies that it finds to be in the interests of justice.
4-2-201. Detriment defined. Detriment is a loss or harm suffered to person or property.
4-2-203. Right to damages for future detriment. Damages may be awarded
in a judicial proceeding for detriment resulting after the commencement of the
action and certain to result in the future.
(1) General provisions.
(a) In all instances, damages must be reasonable.
(b) Damages which are not specifically quantifiable cannot be recovered.
(c) Recovery is prohibited for emotional or mental distress.
(d) Recovery under any implied covenants is prohibited.
(e) Monetary judgments against officers, agents or employees of the Tribal government acting within the scope of their authority shall be treated as a judgment against the Tribes and shall be satisfied by the Tribal government, subject to the availability of funds in the Tribal treasury.
(2) Limitation on tort recovery. Except as may otherwise provided by law, when the government of the Confederated Salish and Kootenai Tribes has consented that it or its officials, agents, or employees may be named a party defendant in a lawsuit sounding in tort, or when a corporation in which the tribes are a owner is found liable under the terms of this ordinance, the damages available to a prevailing claimant are limited as follows:
(a) No punitive or exemplary damages may be recovered, except as provided by the Tribes' Wrongful Discharge law.
(b) For claims arising from a single transaction or occurrence, a plaintiff may not recover a total compensatory sum greater than Two Hundred and Fifty Thousand Dollars ($250,000) or the maximum sum payable by an insurer under any policy required by federal law, whichever is less.
(c) Multiple plaintiffs whose claims arise from one transaction or occurrence may not recover a compensatory sum greater than Seven Hundred and Fifty Thousand Dollars ($750,000) or the maximum sum payable by an insurer under an policy required by federal law, whichever is less.
(3) Interest on Judgments. In an action for damages not arising in contract, the award of interest on a judgment may be given at the discretion of the Court, but in no case shall interest exceed ten percent (10%) per annum on any unpaid balance. Interest shall commence accruing upon the date of final judgment.
(4) Severability. If any provision of this Ordinance, or the applicability thereof, is found to be ineffective by a court of final recourse of a competent jurisdiction after all parties have been heard, the remainder of this Ordinance shall not be affected thereby.
4-2-206. Measures of particular damages. (1) no person can recover
a greater amount in damages for the breach of an obligation that he could have
gained by the full performance thereof on both sides unless a greater recovery
is specified by law.
(2) The value of an instrument in writing is presumed to be equal to that of the property to which it entitles the owner.
(3) Where the cost of repairing a motor vehicle exceeds its value, the measure of damages is the actual replacement value of the vehicle. Actual replacement value is the actual cash value of the vehicle immediately prior to the damage.
(4) For breach of contract, the measure of damages, except when otherwise provided by law, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom. Damages which are not clearly ascertainable in their nature and origin cannot be recovered for a breach of contract. Recovery is prohibited for emotional or mental distress alleged to be caused by a breach of contract.
(5) The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation with interest thereon.
(6) For the breach of an obligation not arising from contract, the measure of damages, except as otherwise expressly provided by statute, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
(7) The detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of the occupation, not exceeding the 5 years next preceding the commencement of the action, and the costs of recovering possession.
(8) The detriment caused by the wrongful conversion of personal property is presumed to be the value of the property at the time of its conversion with the interest from that time and a fair compensation for the time and money properly expended in pursuit of the property.
(a) "Collateral source" means a payment for something that is later included in a tort award and which is made to or for the benefit of a plaintiff or is otherwise available to the plaintiff:
(i) for medical expenses, hospitalization, home care, or disability payments under the federal Social Security Act, the Indian Health Care Act, or other federal, state, or Tribal law or program to implement such law;
(ii) under any health or disability insurance or automobile accident insurance that provides health benefits or income disability coverage, and any other similar insurance benefits available to the plaintiff, except life insurance;
(iii) under any contract or agreement of any person, group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services, except gifts or gratuitous contributions of assistance;
(iv) any contractual or voluntary wage continuation plan provided by an employer or other system intended to provide wages during a period of disability; and
(v) any other source, except the assets of the plaintiff or his or her immediate family.
(b) "Person" includes individuals, corporations, government entities, associations, firms, partnerships, and any other entity or aggregate of individuals.
(c) "Plaintiff" means a person who alleges that he or she sustained bodily injury, or on whose behalf recovery for bodily injury or death is sought, or who would have a beneficial, legal, or equitable interest in a recovery. The term includes a legal representative, a person with a wrongful death or surviving cause of action, a person seeking recovery on a claim for loss of consortium, society, assistance, companionship, or services, and any other person whose right of recovery or whose claim or status is derivative of one who has sustained bodily injury or death.
(2) In an action arising from bodily injury or death, when the total award against all defendants is in excess of $10,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiff's recovery must be reduced by any amount paid or payable from a collateral source.
(3) The jury shall determine its award without consideration of any collateral sources. After the jury determines its award, reduction of the award must be made by the trial judge at a hearing and upon a separate submission of evidence relevant to the existence and amount of collateral sources. Evidence is admissible at the hearing to show that compensable damages awarded to the plaintiff have been paid from a collateral source or that the plaintiff has been or may be reimbursed from a collateral source.
4-2-209. Interest on torts. (1) Subject to subsection (2) of this
section, in an action for recovery on an injury, a prevailing claimant is entitled
to interest at a rate of 10% on a recovery of damages in a sum certain.
(2) Interest may not be had on damages not capable of being made certain by calculation, including but not limited to future damages, until such damages are incurred and damages for
(a) pain and suffering
(b) injury to credit, reputation, or financial standing;
(c) mental anguish or suffering;
(d) punitive damages;
(e) loss of established way of life;
(f) loss of consortium; and
(g) attorney fees.
(3) If a jury is the trier of fact, it is to be advised by the court that the court will determine the amount of prejudgment interest due, if any, on a judgment.
4-2-211. When award of interest discretionary. In an action for the
breach of an obligation not arising from contract and in every case of oppression,
fraud, or malice, interest may be given in the discretion of the trier of fact.
4-2-212.
Waiver of interest by accepting principal. Accepting payment of the
whole principal waives all claim to interest.
4-2-213.
Punitive damages. A trier of fact may award, in addition to compensatory
damages, reasonable punitive damages for the sake of example and for the purpose
of punishing a defendant, subject to the following exclusions and conditions:
(1) Punitive damages may be expressly prohibited or limited by statute;
(2) Punitive damages may not be recovered in any action arising from a contract, except that they are not prohibited in a products liability action;
(3) Punitive damages may not be recovered, except as otherwise provided by statute, in any action against a governmental entity;
(4) Punitive damages may not be recovered in any action unless the trier of fact has found that the defendant committed actual fraud or acted with actual malice.
(a) A defendant acts with actual malice if he or she has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and deliberately proceeds to act in conscious or intentional disregard of, or indifference to, the high probability of injury to the plaintiff.
(b) A defendant commits actual fraud for purposes of this section when the plaintiff has a right to rely on the representation of the defendant and suffers injury as a result of that reliance and if the defendant:
(i) makes a representation with knowledge of its falsity; or
(ii) conceals a material fact with the purpose of depriving the plaintiff of property or legal rights or otherwise causing injury.
(5) All elements of the claim for punitive damages must be proved by clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of the evidence, but less than beyond a reasonable doubt.
(6) After liability for punitive damages is determined by the trier of fact,
(a) if by a jury, the amount of damages must be determined by the jury in an immediate, separate proceeding, at which evidence of a defendant's financial affairs, financial condition, and net worth is admissible and must be considered,
(b) if by a judge, the judge shall clearly state his reasons for making the award in findings of fact and conclusions of law, demonstrating consideration of each of the following matters:
(i) the nature and reprehensibility of the defendant's wrongdoing;
(ii) the extent of the defendant's wrongdoing;
(iii) the intent of the defendant in committing the wrong;
(iv) the profitability of the defendant's wrongdoing, if applicable;
(v) the amount of actual damages awarded by the jury;
(vi) the defendant's net worth;
(vii) potential or prior criminal sanctions against the defendant based upon the same wrongful act; and
(viii) any other circumstances that may operate to increase or reduce, without wholly defeating, punitive damages.
(c) The judge shall review a jury award of punitive damages, giving consideration to each of the matters listed in subsection (6)(b) of this Section. If, after review, the judge determines that the jury award of punitive damages should be increased of decreased, he may do so. The judge shall clearly state his reasons for increasing, decreasing, or not increasing or decreasing the punitive damages award of the jury in findings of fact and conclusions of law, demonstrating consideration of each of the factors listed in subsection (6)(b) of this Section.
4-2-301. When specific performance may be required. Specific relief
may be given
(1) when such relief could also be granted as a traditional remedy as provided in Sections 4-2-101 and 4-2-102, and
(2) as provided in this Part.
(1) the act to be done is in the performance, wholly or partly, of an express trust;
(2) the act to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief;
(3) it would be extremely difficult to ascertain the actual damage caused by the nonperformance of the act to be done; or
(4) it has been expressly agreed in writing by the parties to the contract that specific performance may be required by either party or that damages shall not be considered adequate relief.
(1) an obligation to render personal service or to employ another in the rendering of personal service;
(2) an agreement to marry or live with another;
(3) an agreement to perform an act which the party has no power to perform lawfully when required to do so;
(4) an agreement to procure the act or consent of any third person; or
(5) an agreement the terms of which are too ambiguous to ascertain the precise act which is to be done.
4-2-305. Parties who cannot be compelled to perform. Specific performance
cannot be enforced against a party to a contract in any of the following cases:
(1) if he or she has not received adequate consideration for the contract;
(2) if it is not, as to him or her, just and reasonable; or
(3) if the party's assent was
(a) obtained by the misrepresentations, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract or by any promise of such party which has not been substantially fulfilled, or
(b) given under the influence of mistake, misapprehension, or surprise.
4-2-401. Cases in which property may be attached. (1) Property may be attached in an action upon a contract, express or implied for the direct payment of money where the contract
(a) is not secured; or
(b) was originally secured and the security has, without any act of the plaintiff or the person to whom the security was given, become valueless.
4-2-403. Court record not public until writ returned. In cases involving
attachment, the Clerk of Court must not make public the fact of the filing
of the complaint or the issuing of a writ of attachment until after the filing
of return of service of attachment.
4-2-404. Attachment book to be kept by Clerk of Court. There must
be kept by the Clerk of Court a book called the "attachment book", in which
must be entered, in alphabetical order, the names of all persons against whom
any writ or notice of attachment has been filed. There must also be entered
in said book the time such writ or notice was filed.
(1) in the case of real property, of his or her right to attachment and the necessity for seizure;
(2) in the case of personal property,
(a) of his or her right to attachment and the necessity for seizure at a show cause hearing with at least 3 days' notice to the defendant; if the defendant cannot be found for personal service, notice shall be posted on the property and in three public places within the Reservation and within 10 miles of the location of the property; or
(b) of his or her right to attachment and the necessity for seizure and that the delay caused by notice and hearing would seriously impair the remedy sought by the party seeking possession. Evidence of such impairment must be presented in open court, and the court must set forth with specificity the reasons why such delay would seriously impair the remedy sought by the person seeking attachment.
(1) facts which show the defendant is indebted to the plaintiff in the manner specified in Section 4-2-401.
(2) that the attachment is not sought to hinder, delay, or defraud any creditor of the defendant;
(3) facts creating a reasonable belief that the defendant
(a) is leaving or about to leave the Reservation taking with him or her property, money, or other effects which might be subjected to payment of the debt;
(b) is disposing or about to dispose of his or her property which would be subject to execution; or
(c) is likely to suffer liens or encumbrances on his or her property which would be subject to execution; and
(4) a particular description and the actual value of the property to be attached.
(1) that the defendant is leaving or is about to leave the Reservation, taking with him property, moneys, or other effects which might be subjected to the payment of the debt, for the purpose of defrauding his or her creditors, or
(2) that the defendant is disposing of his or her property or is about to dispose of his or her property, subject to execution, for the purpose of defrauding his or her creditors.
4-2-408. Plaintiff's undertaking. Before issuing the writ, the court must require a written undertaking by the plaintiff, with two or more sufficient sureties to be approved by the court, in a sum not less than double the amount claimed by the plaintiff if such amount be $1,000 or under or, in case the amount claimed by the plaintiff exceeds $1,000, then in a sum equal to such amount. In no case shall an undertaking be required exceeding the sum of $20,000. The condition of such undertaking shall be to the effect that if the defendant recovers judgment or if the court finally decides that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant and all damages he may sustain by reason of issuing the attachment, not exceeding the sum specified in the undertaking.
(a) attach and safely keep all the property of the defendant within the Reservation not exempt from attachment, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint; or
(b) if the defendant gives to the police security by the undertaking of two sufficient sureties in an amount sufficient to satisfy the demand, without costs, take such undertaking.
(2) A defendant's undertaking accepted by the police must be to the plaintiff and must be approved in writing on the back thereof by the plaintiff or his or her attorney or, upon their refusal, by the judge issuing the writ.
4-2-411. Attachment of non-trust real property. Real property or
any interest therein belonging to the defendant, to which legal title is not
held by the United States, and recorded on the books of a county in the name
of the defendant or of any other person is attached by filing with the county
clerk a copy of the writ, together with the description of the property attached
and a notice that it is attached.
4-2-413. Debts, credits, and personal property in control of third person or
not capable of manual delivery. Upon receiving information in writing
from the plaintiff or his or her attorney that any person has in his possession
or under his control any credits or other personal property belonging to the
defendant or is owing any debt to the defendant, the sheriff must serve upon
such person a copy of the writ and a notice that such credits or other property
or debts, as the case may be, are attached in pursuance of the writ. Debts and
credits attached may be collected by the police if the same can be done without
suit. A police receipt is a sufficient discharge for the amount paid.
4-2-415. Personal property subject to a security interest.
(1) Personal property subject to a security interest may be taken on attachment, provided that, prior to the taking, the officer levying the writ pays or tenders to the secured party the amount of the security agreement debt and interest or deposits the same with the Clerk of the Court.
(2) Upon 15 days' written notice served upon a secured creditor by any creditor seeking a writ of attachment, a secured creditor shall file with the Clerk of Court an affidavit showing
(a) the amount of indebtedness then actually due and owing to the secured creditor,
(b) the amount of the original obligation,
(c) all additional advancement of money or property made by the creditor to the debtor on the principal obligation since the date of execution of the security agreement,
(d) all payments of principal or interest made by the debtor since the date of execution of the security agreement, and
(e) the balance then remaining due and unpaid to the secured party.
(3) If the secured creditor fails or refuses to file such an affidavit with the Clerk of the Court, the security agreement is of no force or effect as against an attaching creditor.
(1) personal property capable of manual delivery in the hands or under the control of the defendant or a third person to be delivered to the Chief of Police on such terms as may be just in consideration of any liens thereon or claims against the property, and
(2) a memorandum to be given by the defendant quantifying and describing all other personal property.
(2) If personal property attached is claimed by a third person, the claimant shall deliver to the Chief of Police an affidavit stating his claim, ownership, and a description of the property. Unless the plaintiff, within 10 days of receiving notice of the filing of the affidavit with the Chief of Police, gives to the police a good and sufficient bond indemnifying the Chief against loss or damage by reason of retaining said property, the Chief shall deliver the property to the claimant.
(2) To enable the Chief of Police to make a return of debts and credits attached, he must request, at the time of service of the writ, that the person owing the debt or having the credit give him a statement of the amount of the debt or credit. If such a statement is refused, the Chief of Police may apply upon one days' notice to the court for an order to compel the statement to be provided. If the order is granted, it shall also direct the payment of costs of the motion by the person refusing to supply the statement.
4-2-420. Notice of right to post seizure hearing--quashing a writ.
(1) When a writ has been issued upon real property or upon a showing specified
in Section 4-2-407, notice of the right to challenge the seizure
of the property at a post seizure hearing shall be served personally on the
defendant, or if the defendant cannot be found for personal service, notice
shall be posted on the property and in three public places within the Reservation
and within 10 miles of the property. Defendant must exercise the right to
a post seizure hearing within 3 days after the seizure or 3 days after personal
service or the posting of constructive notice, whichever is later.
(2) At such hearing the defendant may challenge the merit of the underlying action, the need for the prejudgment seizure of property, or both. The writ shall be quashed if the court makes a preliminary finding that:
(a) the plaintiff cannot establish the prima facie validity of his claim; or
(b) the plaintiff cannot establish by a preponderance of the evidence the need for the continued attachment of the defendant's property.
(2) If it appears that the writ was improperly or irregularly issued, it must be discharged, but the court may allow the plaintiff to amend his or her affidavit or undertaking.
(3) Before issuing an order of discharge which releases from the operation of the attachment any or all of the property attached, the court shall require an undertaking by at least two sureties on behalf of the defendant to the effect that in case the plaintiff recovers judgment in the action, the defendant and the sureties will, on demand, pay to the plaintiff the full value of the property released.
(4) An order discharging or releasing attachment of real property by a defendant shall be filed in the office of the county clerk in which the notice of attachment was filed.
(2) When property has been taken by an officer under a writ of attachment, a plaintiff On reasonable notice to the defendant or his attorney, may apply to the court for an order of sale. If it appears to the court that the interest of the parties will be best served by a sale, it may order that the property be sold in the same manner as an execution on a judgment and that the proceeds be deposited in the court to await judgment in the action.
(3) When the property sold under a writ of attachment is subject to a security agreement, the officer levying the writ must apply the proceeds of the sale as follows:
(a) to the repayment of the sum paid to the secured party, with interest to the date of payment; and
(b) the balance, if any, applied as proceeds of sales are applied in execution on a judgment.
(4) An attaching creditor is required to deliver to the debtor the security agreement and any note or other evidence of indebtedness secured thereby obtained from the secured party when the property is sold for the amount of the indebtedness under the security agreement or an amount in excess thereof.
(2) The defendant may object to the allegations of the affidavit required in 4-2-407, and if the plaintiff fails to substantiate any cause required to be alleged in the affidavit, the suit for debt or debts not due shall be dismissed.
(2) If the plaintiff has judgment against the defendant, the Chief of Police must satisfy it out of the property attached which has not been delivered to a party or a claimant, as herein before provided, or subjected to execution on another judgment recovered prior to the issuing of the attachment, if it be sufficient for that purpose:
(a) by paying to the plaintiff the proceeds of all sales of perishable property or property order by the court to be sold, or of any debts or credits collected by the police, or so much thereof as is necessary to satisfy the judgment;
(b) if any balance remain due and an execution shall have been issued on the judgment, by selling under the execution a sufficient amount of attached property to satisfy the balance, if enough of such property remains in the hands of the police. Notices of the sales must be given and sales conducted as in other cases of sales on execution.
(3) When the judgment is paid, the Chief of Police must deliver to the defendant the attached property remaining under police control and any proceeds of sales not applied to the judgment.
(4) If, after selling the attached property and applying the proceeds, together with the proceeds of any debt or credit collected by the Chief of Police, and deducting the police fee, any balance remains due on the judgment, the Chief of Police must collect the balance as upon executions in other cases.
4-2-501.
Declaratory judgment -- creation of remedy. In a case of actual controversy
within its jurisdiction, the Tribal court, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final judgment
or decree and shall be reviewable as such.
4-2-502.
Procedure for obtaining a declaratory judgment. The procedure for
obtaining a declaratory judgment pursuant to Section 4-2-501 shall be in accordance
with the Federal Rules of Civil Procedure, and a trial by jury may be demanded.
The existence of another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate. The court may order a speedy hearing
of an action for a declaratory judgment and may advance it on the calendar.
4-2-503. Interpretation. Except as may be otherwise provided by statute, sections 4-2-501, 4-2-502, and 4-2-504 shall be interpreted and construed to harmonize, as far as possible, with federal laws and interpretations of declaratory judgments.
4-2-505. Definition of injunction. An injunction is a court order
requiring a person to refrain from a particular act.
(1) to stay a judicial proceeding pending at the commencement of an action in which the injunction is demanded;
(2) to prevent the lawful exercise of a Tribal office by the appropriate officer or officers;
(3) to prevent a legislative act; or
(4) to stay execution upon a valid and subsisting judgment after expiration of one year from the rendition of the judgment.
(1) set forth the reasons for its issuance;
(2) be specific in its terms;
(3) describe in reasonable detail, and not by reference to the complaint or any other document, the act or acts sought to be restrained; and
(4) be binding only upon the parties to the action; their officers, agents, employees, and attorneys; and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
4-2-509. Grant of restraining order without notice. (1) A temporary
restraining order may be granted without written or oral notice to the adverse
party or opposing attorney only if:
(a) it clearly appears from specific facts shown by affidavit or by the verified complaint that a delay would cause immediate and irreparable injury to the applicant before the adverse party or the opposing attorney could be heard in opposition; and
(b) the applicant or the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting his or her claim that notice should not be required.
(2) Each temporary restraining order granted without notice must:
(a) be endorsed with the date and hour of its issuance;
(b) be filed immediately in the Clerk's office and entered in the record;
(c) define the injury and state why such injury is irreparable and why the order was granted without notice; and
(d) expire by its terms within such time after entry, not to exceed 10 calendar days, as the court fixes.
4-2-511. Notice of application for preliminary injunction. (1) No
preliminary injunction may be issued without reasonable notice to the adverse
party of the time and place of the making of the application.
(2) Before granting an injunction order, the court shall make an order requiring cause to be shown, at a specified time and place, why the injunction should not be granted, and the adverse party may in the meantime be restrained as provided in Sections 4-2-507 through 4-2-509.
(a) they are duly verified, and
(b) the material allegations of the affidavits setting forth the grounds for the order are made positively and not upon information and belief.
4-2-601. Jurisdiction over Indian property. Personal property owned by an Indian subject to the Tribal Court's jurisdiction may not be repossessed from within the exterior boundaries of the Flathead Reservation except pursuant to the provisions of this Part.
4-2-603. Consent to repossession. (1) Personal property may be repossessed without an Order of the Tribal Court if, at the time repossession is sought, the defendant voluntarily consents to the repossession in writing by signing a waiver that meets the following requirements:
(a) It must be in a readable type style of at least 14 point type; and
(b) It must contain this language:
CONSENT TO REPOSSESSION
You may voluntarily consent to the repossession of this property if you believe that the repossession is lawful. If you have any questions about whether this action is lawful, you have the right to a hearing in the Tribal Court before the property can be repossessed. Please sign below to indicate your choice:
I, ________________, waive my right to a hearing in the Tribal Court on the issue of whether repossession is lawful at this time. I voluntarily agree to the repossession of the following property:
(insert description of property to be repossessed)
_________________________________________
_________________________________________
I, _________________, do not agree to the repossession of my property at this time. I request a hearing in the Tribal Court.
Dated this ____ day of __________________, _________.
_____________________
(Signature of Debtor)
I, _________________, representing the Creditor, ________________, have read and explained this form to the Debtor before allowing the Debtor to sign above.
Signed this ___ day of _____________, _______.
________________________
(Signature of Creditor's Agent)
(c) It must be filed with a Civil Complaint pursuant to Rule 8 of the Rules of Practice if a deficiency judgement is sought.
(2) If consent is not obtained in accordance with this section, a person or business entity seeking repossession of personal property must first obtain an Order of the Tribal Court under the provisions of this Part. This Part shall control the manner of repossession of personal property, notwithstanding contractual provisions between the parties to the contrary. Any contractual provisions that allow advance consent to repossession of personal property are void and of no effect.
4-2-605. Action for repossession commenced by filing complaint. (1)
An action to foreclose on personal property is commenced by filing a complaint
in the Tribal Court. On verified allegations of the following elements, the
Court shall issue an Order requiring the defendant to preserve the property
at issue and not to remove it from the Flathead Reservation:
(a) The location of the property sought to be repossessed, if known.
(b) A description of the property in sufficient detail to identify it for the Court and those enforcing a repossession order.
(c) A description of the agreement which gives rise to the right to repossess the property. A copy of the agreement shall be attached to the complaint.
(d) Facts showing that the plaintiff is entitled to repossess the property, and that the matter is within the jurisdiction of the Tribal Court.
(e) Where applicable, the total amounts due and owing to the Plaintiff.
(f) Any claim for a deficiency judgment, if one exists after repossession of the subject property.
(g) The names of any other persons or business entities, if known, making a claim to an interest in the same property.
(2) The Order and the complaint for repossession shall be personally served on the defendant. If the plaintiff can show by verified affidavit to the Court's satisfaction that the subject personal property is in immediate danger of being concealed, damaged, destroyed, or removed from the Flathead Reservation, the Court may also order that the property be immediately surrendered to the Plaintiff to be stored on the Reservation pending a hearing. (Rev. 1-27-00.)
4-2-607. Interlocutory relief. If the defendant files an Answer raising
defenses or counterclaims that appear to the Court to be meritorious, or presents
evidence of the same at the hearing, then the Court may enter an order for any
of the following relief:
(1) Impounding the property in the custody of the Plaintiff to be stored on the Reservation pending a final resolution of the case; or
(2) Requiring a bond to be posted by the plaintiff in an amount sufficient to cover the defendant's claims as a condition to issuing an order of repossession.
(3) Requiring a commercially reasonable disposition of the property under supervision of the Court, and payment of the proceeds into Court, pending final resolution of the case. (Rev. 1-27-00.)
(2) All repossessed property shall be disposed of in a commercially reasonable manner and the proceeds applied to the claims of the plaintiff. Any surplus shall be returned to the defendant, unless claims to the proceeds are made by others with security interests in the property or proceeds thereof, in which case the surplus shall be paid into the Tribal Court pending resolution of those claims. (Rev. 1-27-00.)
(2) If suit is filed concerning the underlying
debt in a jurisdiction other than the Tribal Court, then a violation of the
procedures set forth in this part shall act as a complete defense to any claim
for a deficiency judgment. (Rev.
1-27-00.)
CSKT Laws Codified January 1, 2000
(Rev. 4-15-03)