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[Published by:] Municipal Code Corporation, P.O. Box 2235, Tallahassee,
FL 32316-2235, http://www.municode.com/
Current through October 2005, Supplement No. 5
Sec. 45-1. Definitions.
Borrower means a person to whom a thing or money is lent at the borrower's request.
Improvements means dwellings, structures, buildings and other development intended as permanent enhancements to the value, beauty or utility of real property.
Lease means the ground lease or other agreement for use of Tribal land on which a mortgage has or will be given.
Leasehold interest or leasehold estate are used interchangeably and mean an interest established pursuant to a lease between the holder of a possessory interest in Tribal land, as a tenant, and the Tribe, as landlord. A leasehold interest is created when the Tribe grants to a Tribal member a lease in exchange for are assignment of the member's possessory interest in Tribal land.
Lender means any lender or any successors or assigns of the lender. This definition also includes any subsequent holder, whether by assignment, succession or otherwise, of the original lender's right, title or interest in, and to, the mortgage and/or the mortgaged property.
Lessor or landlord means the Tribe, which is the beneficial or equitable owner of Tribal land underlying a leasehold estate on which a mortgage has been given, and includes successor(s) and assign(s).
Mortgage means a tenant's pledge of his or her leasehold interest as security for a debt owed by the tenant to a lender or other mortgagee. In this chapter, the term mortgage may be used to refer to any security instrument that performs the function of a mortgage, including deeds of trust.
Mortgagee means the person or entity that takes or receives a mortgage.
Mortgage foreclosure proceeding means a proceeding in the Cherokee Court;
(1) To foreclose the interest of the mortgagor(s), and each person or entity claiming through the mortgagor(s), in Tribal land on which a mortgage has been made by a mortgagee; and/or(2) To assign such interest of the mortgagor to the mortgagee or the mortgagee's successors or assigns.
Mortgagor means a person who, having assigned his or her possessory interest in Tribal land to the Tribe, has obtained from the Tribe a leasehold interest for that possessory interest and has pledged that leasehold interest as security for a loan to purchase, construct or improve a home.
Possessory interest or possessory holding are used interchangeably and mean an interest in Tribal land, granted by the Tribe only to an individual enrolled member of the Tribe or a group of enrolled members, giving the member or members the authority to use and occupy a specific parcel or parcels of Tribal lands pursuant to Tribal ordinance and resolution, but maintaining, if applicable, legal title in trust by the federal government for the benefit of the Tribe and, reserving to the Tribe certain rights regarding the parcel or parcels.
Recording clerk means the person within the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs responsible for recording leasehold mortgages and leasehold deeds of trust in the Books of Miscellaneous Records in that office.
Subordinate lienholder means the holder of any lien, including a mortgage, perfected subsequent to the recording of a mortgage under this chapter; provided, however, such definition shall not include the Tribe with respect to a claim for a Tribal tax on the mortgaged property, where applicable.
Tenant means any person who occupies Tribal land, as lessee, under a leasehold estate with the Tribe as lessor.
Tribe means the Eastern Band of Cherokee Indians.
Tribal land means land, or any interest therein, held by the United States in trust for, or for the use and benefit of the Tribe, and includes land held by the Tribe that is subject to federal restrictions against alienation.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5-2002)
Sec. 45-2. Application of chapter.
This chapter applies to the recording and foreclosure of leasehold mortgages and leasehold deeds of trust used to secure repayment of a loan; provided, that the leasehold interest subject to the mortgage or deed of trust was granted by the Tribe to an eligible person in exchange for an assignment to the Tribe of a possessory interest in Tribal land.
(Ord. No. 365, 10-1-2002)
Sec. 45-3. Tribe is not divested.
Nothing in this chapter shall be construed to divest the Tribe of its ownership and control of Tribal land, pursuant to its trust relationship with the United States, and the control of personal property on Tribal land, as provided in the Tribal Charter, ordinances and resolutions.
(Ord. No. 365, 10-16-2002)
Sec. 45-4. Priority.
Leasehold mortgages and leasehold deeds of trust recorded in accordance with this chapter, including those evidencing a loan made, guarantied, insured or held by the Tribe or a federal government agency, have priority over any lien not perfected at the time of recording and any subsequent lien or claim, except a lien or claim arising from a Tribal levy or assessment imposed against the property after the recording of the mortgage or deed of trust; provided, however, that in circumstances where a government direct guaranteed or insured mortgage is created as a second mortgage, the loan shall assume that position.
(Ord. No. 365, 10-16-2002)
Sec. 45-5. Recording.
(a) Pursuant to 25 C.F.R. 150.6, all title documents shall be recorded in the Books of Miscellaneous Records in the Land Title and Records Office of the Cherokee Agency, Bureau of Indian Affairs, according to federal rules, regulations and policies applicable thereto. As stated in 25 C.F.R. 150.2, title documents means any document that affects the title to or encumbers Indian land and is required to be recorded by regulation or policy of the Bureau of Indian Affairs, including but not limited to issuance of possessory interests, assignment of such interests to the Tribe, each lease entered in return for such assignment, leasehold mortgages and leasehold deeds of trust, Tribal home loan guarantees, promissory notes, and other security instruments entered to purchase, construct or improve eligible housing, any sale and transfer of eligible housing backed by a Tribal guaranty pursuant to this chapter, and any amendment, modification or termination of any of the aforementioned documents.
(b) A mortgagee or trustee may also record leasehold mortgages and leasehold deeds of trust applicable to Tribal land in the office of the Register of Deeds in tile North Carolina county in which the properties are located; provided, however, that a recording with Cherokee Agency of the Bureau of Indian Affairs is the only official recording, that state and county governments have no authority or power over Tribal land or improvements thereon, and that recording with the Register of Deeds is for information purposes only. By allowing recording in the county; the Tribe shall not be construed to have waived its sovereign immunity.
(c) As required by federal law, public disclosure of information recorded in the Books of Miscellaneous Records in the Land Title and Records Office of the Cherokee Agency, Bureau of Indian Affairs is governed by 25 C.F.R. 150.11 and, as referenced therein, the Privacy Act (25 U.S.C. 552a) and the Freedom of Information Act (25 U.S.C. 552).
(d) Upon satisfaction of a leasehold mortgage or leasehold deed of trust, the holder thereof shall record in the Land Title and Records Office of the Cherokee Agency; Bureau of Indian Affairs an instrument evidencing the satisfaction of the debt. The satisfaction shall be filed with the Recording Clerk within 30 days of actual receipt of full payment under the mortgage. The Recording Clerk shall record the satisfaction in the Books of Miscellaneous Records.
(Ord. No. 365, 10-16-2002)
Sec. 45-6. Default.
A person is considered to be in default when he or she is 30 days past due on all or any part of his or her mortgage payment(s) or 30 days following any other default or material breach pursuant to the mortgage documents, unless in either situation the mortgage documents provide a time greater than 80 days, in which case the greater time applies.
(Ord. No. 365, 10-16-2002)
Sec. 45-7. Right to cure default.
(a) A mortgagor or a subordinate lienholder shall have the right and opportunity to cure a default by making a full payment of the delinquent amount, plus interest at the rate stated in the mortgage to the date of cure, and including reasonable legal and court costs incurred as a result of the default to the date of cure. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by the subordinate lienholder to cure a default, plus interest on those amounts at the rate stated in the note for the mortgage.
(b) A mortgagor or subordinate lienholder shall be given written notice of default and a reasonable opportunity to cure the default before a request for the Tribe to exercise an option to purchase or for payment under a Tribal guaranty may be made, and before an authorization or order of foreclosure may be entered by the Cherokee Court. Such notice shall, at a minimum, contain the items required in section 45-11(f)(1)(5), Cherokee Code.
(c) The right to cure a default shall exist until the Tribe exercises its option to purchase, or until the Tribe makes payment under a Tribal guaranty; or until entry of an authorization or order of foreclosure by the Cherokee Court, whichever occurs first; provided, however, the Tribe may provide a different time if it is a guarantor of the defaulted loan and has agreed in writing with the lender or federal government agency to a different time.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-8. Tribe's first option to purchase— Notice and authority.
(a) After default on a mortgage for which a leasehold interest is pledged as security; and upon failure of the debtor to cure after being given notice and a reasonable opportunity to cure, both as required in section 45-7, the mortgagee shall give to the Tribe written notice of the default and failure to cure and shall ask the Tribe to exercise its option to acquire the leasehold interest, subject to all valid liens and encumbrances, and/or if the Tribe has guaranteed the loan secured by the leasehold interest, to fill its obligations under the terms of the guaranty.
(b) The notice to the Tribe required in subsection (a) shall, at a minimum, include the information contained in the notice to the debtor required in section 45-7, and shall also include the following words or a reasonable facsimile, written prominently on the first page of the notice: "NOTICE TO TRIBE TO EXERCISE ITS FIRST OPTION TO PURCHASE AND/OR FULFILL ITS OBLIGATIONS UNDER ITS GUARANTY."
(c) Notice shall be given to the Principal Chief, the Chairman of Tribal Council, the Chairperson of the Business Committee, the Executive Director of the Qualla Housing Authority, the Executive Director of the Budget and Finance Office and the Tribal Attorney General. If other persons are entitled to notice pursuant to express agreement of Tribe, lender and/or mortgagee, those persons shall also be given written notice.
(d) The Qualla Housing Authority is authorized to exercise the Tribes first option to purchase only in the following residential foreclosures: foreclosures on homes purchased, refinanced, constructed or improved with federal funds through a program administered by the Qualla Housing Authority or foreclosures on a home for which the Tribe has guarantied the loan for the purchase, refinance, construction or improvement of the home through a program administered by Qualla Housing Authority. The Tribe may revoke this authority to directly exercise its option in specific individual residential foreclosure actions. Revocation shall be by resolution adopted by the Tribal Council.
(e) The Tribal Business Committee is authorized to exercise the Tribe's first option to purchase in all residential foreclosures not described in subsection (d), and all commercial foreclosures.
(f) The Tribe's option to purchase mortgagor's interest in the property and/or fulfill its obligations under a guaranty shall be subject to any right the mortgagor may have under the mortgage or Tribal law to cure after acceleration, and the right to bring an appropriate action in the Cherokee Court action to assert the non-existence of a default of any other defense to acceleration.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-9. Foreclosure remedy requires power of sale.
The remedy of foreclosure described in this chapter is available and may be exercised only pursuant to security instruments containing a power of sale provision enforceable at law.
(Ord. No. 365, 10-16-2002)
Sec. 45-10. Tribe may intervene.
The Tribe may petition the Cherokee Court to intervene at any time in any mortgage foreclosure proceeding affecting an interest in Tribal land. In all cases the Court shall grant such a petition. Neither the filing of a petition to intervene by the Tribe, nor the granting of the petition by the Cherokee Court, shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5-2002)
Sec. 45-11. Notice of foreclosure hearing.
(a) Upon default and failure to cure after notice of default and a reasonable opportunity to cure, the mortgagee or trustee granted a power of sale under a mortgage or deed of trust who seeks to exercise the power of sale shall file a notice of foreclosure hearing with the Cherokee Court in accordance with this section. The foreclosure hearing shall be held before an associate judge, judge or justice of the Court.
(b) After the notice is filed with the Court, the notice shall be served upon each party entitled to notice under this section. The notice shall specify a time and place for the foreclosure hearing before an associate judge, judge or justice of the Court and shall be served not less than ten days before the date of the hearing. The notice shall be served and proof of service shall be made in any manner provided by the Rules of Civil Procedure adopted by the Tribe.
(c) In those instances in which notice by publication would be authorized, or if service upon a party cannot be effected after a reasonable and diligent effort in the manner authorized in subsection (b), service may be made by posting a notice in a conspicuous place and manner upon the property not less than 20 days before the day of the hearing. Service by posting may run concurrently with any other effort to effect service. The notice shall be posted by the Cherokee Police Department or other person or entity authorized by the Cherokee Court to serve documents. If service is obtained by posting, an affidavit shall be filed with the Court showing that service by posting was obtained.
(d) If any party is not served or is not timely served before the hearing date, the Court shall order the hearing continued to a date and time certain, not less than ten days from the date scheduled for the original hearing. All notices already timely served remain effective. The mortgagee or trustee shall satisfy the notice requirement of this section with respect to those parties not served or not timely served with respect to the original hearing. Any party timely served, who has not received actual notice of the date to which the hearing has been continued, shall be sent the order of continuance by first-class mail at his last known address.
(e) Notice of hearing shall be served on the following:
(1) All persons to whom the security instrument itself directs notice to be sent in case of default; and(2) If the loan is guarantied by the Tribe, notice shall be given to the Executive Director of the Qualla Housing Authority; the Attorney General of the Tribe, the Executive Director of the Budget and Finance Division of the Tribe, and all other persons entitled to notice under the guaranty documents; and
(3) In all cases, notice shall be given to all other persons obligated to repay the indebtedness against whom the holder of the indebtedness intends to assert liability for the debt. Any person not notified shall not be liable for any deficiency remaining after the sale.
(4) Every holder of a present or future interest in the possessory holding at issue whose interest is of record in the Books of Miscellaneous Records in the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs at the time the notice of hearing is filed and whose interest would be affected by the foreclosure proceeding.
(f) Notice shall be in writing and shall clearly identify the following:
(1) The particular property interest being foreclosed, with such a description as is necessary to identify the property; including the date, original amount, original holder, and book and page of the security instrument.(2) The name and address of the holder of the security instrument at the time that the notice of hearing is filed.
(3) The nature of the default claimed.
(4) The fact, if such be the case, that the secured creditor has accelerated the maturity of the debt.
(5) Any right of the debtor to pay the indebtedness or cure the default if such is permitted.
(6) The holder has confirmed in writing to the person giving the notice, or if the holder is giving the notice, the holder shall confirm in the notice, that, within 30 days of the date of the notice, the debtor was sent by first-class mail at the debtor's last known address a written statement of the amount of principal and interest that the holder claims in good faith is owed as of the date of the written statement, a daily interest charge based on the contract rate as of the date of the statement, and the amount of other expenses the holder contends it is owed as of the date of the statement.
(7) The right of the debtor (or other party served) to appear before the Cherokee Court at a time and on a date specified for the foreclosure hearing, at which appearance he shall be given the opportunity to show cause as to why the foreclosure should not be allowed to be held.
(8) The notice shall contain a statement that if the debtor does not intend to contest the creditor's allegations of default, the debtor does not have to appear at the foreclosure hearing and that his failure to attend the hearing will not affect his right to pay the indebtedness and thereby prevent the proposed sale, or to attend the actual sale, should he elect to do so.
(9) That if the foreclosure sale is consummated, the purchaser will be entitled to possession of the real estate as of the date of delivery of his deed, and that the debtor, if still in possession, can then be evicted.
(10) The name, address, and telephone number of the trustee or mortgagee.
(11) That the debtor should keep the mortgagee notified in writing of his address so that he can be mailed copies of the notice of foreclosure setting forth the terms under which the sale will be held, and notice of any postponements or resales.
(12) If the notice of hearing is intended to serve also as a notice of sale, such additional information as is set forth in this chapter for notice of sale.
(13) That the hearing may be held on a date later than that stated in the notice and that the party will be notified of any change in the hearing date.
(g) The person giving the notice of hearing, if other than the holder, may rely on the written confirmation received from the holder under subsection (f)(6) and is not liable for inaccuracies in the written confirmation. Any dispute concerning the mailing or accuracy of the written statement described in subsection (0(6) this section shall not be considered in a hearing under this section.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5-2002)
Sec. 45-12. Conduct of foreclosure hearing.
At the foreclosure hearing, the associate judge, judge or justice presiding shall consider the evidence of the parties and may consider, in addition to other forms of evidence required or permitted by law, affidavits and certified copies of documents. An order of foreclosure shall be issued if the person presiding finds the existence of the following:
(1) A valid debt of which the party seeking to foreclose is the holder;(2) Default;
(3) Right to foreclose under the instrument; and
(4) Notice to those entitled to notice under section 45-11, then the person presiding shall authorize the mortgagee to proceed under the instrument, and the mortgagee can give notice of and conduct a sale pursuant to the provisions of this chapter.
A certified copy of any authorization or order by the person presiding shall be filed in the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs before the mortgagee may proceed to advertise and sell, and may be filed in the county or counties where any portion of the property to be sold is located but must be so filed before the sale.
(Ord. No. 365, 10-16-2002)
Sec. 45-13. Appeal
(a) The act of the associate judge, judge or justice of the Court in finding or refusing to so find the elements described in section 45-12 may be appealed to the Cherokee Court any time within 10 days after the person presiding makes his or her findings. Appeals shall be heard de novo. If an appeal is taken, the Court may require the appealing party to post a bond with sufficient surety as the associate judge, judge or justice who presided at the hearing deems adequate to protect the opposing party from any probable loss by reason of appeal; and upon posting of the bond, if one was required by the Court, the associate judge, judge or justice presiding shall stay the foreclosure pending appeal.
(b) If a party appeals, either party may demand that the matter be heard at the next succeeding term of the Court to which the appeal is taken which convenes 10 or more days after the original hearing. The appeal hearing shall take precedence over the trial of other cases, provided the person presiding at the appeal may in his or her discretion postpone the appeal hearing if the rights of the parties or the public in any other pending case require that the other case be heard first. A certified copy of any order entered as a result of the appeal shall be filed in all offices where the notice of hearing was filed.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-14. Waiver of right to notice and hearing.
No party may waive the right to notice and hearing provided in sections 45-11, 45-12 and 45-13 except as permitted in this section. In any case in which the original principal amount of indebtedness secured was one hundred thousand dollars ($100,000), or more, any person entitled to notice and hearing may waive after default the right to notice and hearing by written instrument signed and duly acknowledged by that party. In all other cases, at any time after service of the notice of hearing provided, above, the associate judge of the Cherokee Court, upon the request of the mortgagee, shall cause to be mailed to all other parties entitled to notice of the hearing a form by which the parties may waive their rights to the hearing. Upon the return of the forms to the Court bearing the signatures of each such party and that of a witness to each such party's signature (which witness shall not be an agent or employee of person the mortgagee or trustee), the associate judge, in his discretion may dispense with the necessity of a hearing and proceed to issue the order authorizing sale.
(Ord. No. 365, 10-16-2002)
Sec. 45-15. Contents of notice of sale.
The notice of sale in a foreclosure action brought pursuant to this chapter shall do all of the following:
(1) Describe the instrument pursuant to which the sale is held, by identifying the original mortgagors and recording data. If the record owner of the leasehold interest is different from the original mortgagors, the notice shall also list the record owner of the property, as reflected on the records of the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs, not more than 10 days prior to posting the notice. The notice may also reflect the owner not reflected on the records if known;(2) Designate the date, hour and place of sale consistent with the provisions of the instrument and this Chapter;
(3) Describe the property interest to be sold in such a manner as is reasonably calculated to inform the public as to what is being sold, which description may be in general terms and may incorporate the description as used in the instrument containing the power of sale by reference thereto. Any property interest described in the instrument containing the power of sale which is not being offered for sale should also be described in such a manner as to enable prospective purchasers to determine what is and what is not being offered for sale;
(4) State the terms of the sale provided for by the instrument pursuant to which the sale is held, including the amount of the cash deposit, if any, to be made by the highest bidder at the sale;
(5) Include any other provisions required by the instrument to be included therein;
(6) State that the property interest may be subject to levy and special assessments if it is to be so sold;
(7) State whether the property interest is being sold subject to or together with any subordinate rights or interests provided those rights and interests are sufficiently identified; and
(8) State that the property interest is subject to limitations regarding possession and transfer under federal and Tribal law.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-16. Mailing, posting and publishing notice of sale
(a) In addition to complying with the provisions for mailing, posting or publishing notice of sale as are expressed in the security instrument, notice of sale shall be:
(1) Mailed or delivered to the debtor in foreclosure, the Principal Chief, the Chairman of Tribal Council, the Chairperson of the Business Committee, the Executive Director of the Qualla Housing Agency, the Executive Director of the Budget and Finance Office and the Tribal Attorney General at least 20 days immediately preceding the sale;(2) Posted at the front door of the Cherokee Agency of the Bureau of Indian Affairs at least 20 days immediately preceding the sale; and
(3) Published once a week for at least two successive weeks in the newspaper of record published and qualified for legal advertising on the Qualla Boundary.
(b) In addition to the required newspaper advertisement, an associate judge, judge or justice of the Court may, in his or her discretion and/or on application of any interested party; authorize such additional advertisement as in the opinion of the associate judge, judge or justice of the Court will serve the interest of the parties, and permit the charges for such further advertisement to be taxed as a part of the costs of the foreclosure.
(c) When the notice of sale is published in the newspaper of record, the period from the date of the first publication to the date of the last publication, both dates inclusive, shall not be less than seven days, including Sundays, and the date of the last publication shall be not more than ten days preceding the date of the sale.
(d) The notice of sale shall also be mailed by first-class mail at least 20 days prior to the date of sale to each party entitled to notice of the hearing whose address is known to the trustee or mortgagee and in addition shall also be mailed by first-class mall to any party desiring a copy of the notice of sale who has notified in writing the trustee or mortgagee of their desire. Such notice shall contain the information required by section 45-15, describing contents of notice of sale.
(e) Any time periods relating to notice of hearing or notice of sale that are provided in the security instrument may commence with and run concurrently with the time periods provided for notice of hearing and notice of sale provided in this chapter.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-17. Requests for copies of notice of sale.
(a) Requests for copies Any person desiring a copy of any notice of sale may, at any time after the recordation of the security instrument and prior to the filing of notice of foreclosure hearing, cause to be filed for record in the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs a duly acknowledged request for a copy of the notice of sale. This request shall be a separate instrument entitled "Request for Notice of Sale" and shall be signed and acknowledged by the party making the request, shall specify the name and address of the party to whom the notice is to be mailed, shall identify the deed of trust or mortgage by stating the names of the parties thereto, the date of recordation, and shall be in substantially the following form:
"REQUEST FOR NOTICE OF SALE"
In accordance with Tribal law, I hereby request that a copy of any notice of sale under the deed of trust (mortgage)recorded on______________ (date) in the Books of Miscellaneous Records in the Land Titles and Records Office of the Cherokee Agency, executed by __________________ as trustor (mortgagor), in which is named as beneficiary (mortgagee), and __________________ as trustee, be mailed to __________________ at the following address: _____________.
Signature: ___________ [Acknowledgment]
(b) Clerk's duties. Upon the filing in the record of a request for notice of sale; the recording clerk of the Land Titles and Records Office shall file with the copied security instrument or enter into the appropriate place in the Books of Miscellaneous Records the names of the persons requesting copies and the security instrument to which the request refers.
(c) Mailing notice. The person authorized to conduct the sale shall at least 20 days prior to the date of the sale cause to be deposited in the United States mail an envelope with postage prepaid containing a copy of the notice of sale, addressed to each person whose name and address are set forth in the request for notice of sale, and directed to the address designated in the request.
(d) Effect of request on title. No request for a copy of any notice filed pursuant to this section nor any statement or allegation in any such request nor any record thereof shall affect any interest in real property or improvements thereon, or be deemed notice to any person that the person requesting copies of notice has any claim or any right, title or interest in, or lien or charge upon, the property described in the deed of trust or mortgage referred to therein.
(e) Evidence of compliance. The affidavit of the person authorized to conduct the foreclosure sale that copies of the notice of sale have been mailed to all parties filing requests for the same shall be deemed prima facie true. If on hearing it is proven that a party seeking to have the foreclosure sale set aside or seeking damages resulting from the foreclosure sale was mailed notice in accordance with this section or had actual notice of the sale before it was held (or if a resale was involved, prior to the date of the last resale), then the party shall not prevail. Costs, expenses, and reasonable attorneys' fees incurred by the prevailing party in any action to set aside the foreclosure sale or for damages resulting from the foreclosure sale shall be allowed as of course to the prevailing party.
(f) Action to set foreclosure set aside for failure to comply. A person entitled to notice of sale by virtue of this section shall not bring any action to set the sale aside on grounds that he was not mailed the notice of sale unless such action is brought prior to the filing of the final report and account as provided in this chapter, if the property was purchased by someone other than the secured party; or if brought by the secured party; unless such action is brought within six months of the date of such filing and prior to the time the secured party sells the property to a bona fide purchaser for value, if the property was purchased by the secured party. In either event, the party bringing such an action shall also tender an amount exceeding the reported sale price or the amount of the secured party's interest in the property, including all expenses and accrued interest, whichever is greater. Such tender shall be irrevocable pending final adjudication of the action.
(g) Action for damages from foreclosure sale for failure to comply. A person entitled to notice of sale by virtue of this section shall not bring any action for damages resulting from the sale on grounds that he was not mailed the notice unless such action is brought within six months of the date of the filing of the final report and account as provided in this chapter. The party bringing such an action shall also deposit with the Cherokee Court a cash or surety bond approved by a associate judge or judge of that Court and in such amount as the associate judge or judge deems adequate to secure the party defending the action for such costs, expenses, and reasonable attorneys' fees to be incurred in the action.
(Ord. No. 365, 10-16-2002)
Sec. 45-18. Satisfaction of debt after publishing or posting notice,
but before completion of sale.
A power of sale is terminated if; before the time fixed for a sale, payment is made or tendered of:
(1) The obligation secured by the mortgage; and(2) The expenses incurred with respect to the sale or proposed sale, which in the case of a deed of trust also include compensation for the trustee's services.
(Ord. No. 365, 10-16-2002)
Sec. 45-19. Postponement of sale.
(a) A person exercising a power of sale may postpone the sale to a day certain not later than 90 days, exclusive of Sunday, after the original date for the sale:
(1) When there are no bidders; or(2) When, in his judgment, the number of prospective bidders at the sale is substantially decreased by inclement weather or by any casualty; or
(3) When there are so many other sales advertised to be held at the same time and place as to make it inexpedient and impracticable, in his judgment, to hold the sale on that day; or
(4) When he is unable to hold the sale because of illness or for other good reason; or
(5) When other good cause exists.
(b) The person exercising a power of sale may postpone the sale more than once whenever any of the above conditions are met, so long as the sale is held not later than 90 days after the original date for the sale.
(c) Upon postponement of a sale, the person exercising the power of sale shall personally, or through his agent or attorney:
(1) At the time and place advertised for the sale, publicly announce the postponement;(2) On the same day, attach to or enter on the original notice of sale or a copy thereof, posted at the front door of the Cherokee Agency of the Bureau of Indian Affairs, a notice of the postponement; and
(3) Give written or oral notice of postponement to each party entitled to notice of sale.
(c) The posted notice of postponement shall:
(1) State that the sale is postponed;(2) State the hour and date to which the sale is postponed;
(3) State the reason for the postponement; and
(4) Be signed by the person authorized to hold the sale, or by his agent or attorney.
(d) If a sale is not held at the time fixed for the sale and is not postponed as provided by this section, or if a postponed sale is not held at the time fixed for the sale, or is not held within 90 days of the date originally fixed for the sale, or if on appeal the appellate court orders the sale to be held, then prior to the sale taking place, sections 45-11 (notice of foreclosure hearing), 45-12 (conduct of foreclosure hearing), 45-13 (appeal) and 45-14 (waiver of right to notice and hearing) need not be complied with again, but Sections 45-15 (contents of notice of sale), 45-16 (posting and publishing notice of sale), and 45-17 (requests for copies of notice of sale) shall be complied with again.
(e) A sale may be postponed more than once provided the final postponed sale date is not later than 90 days, exclusive of Sunday and legal holidays, after the original date for the sale.
(Ord. No. 365, 10-16-2002)
Sec. 45-20. Time of sale.
The foreclosure sale shall be held between the hours of 10:00 a.m. and 4:00 p.m. on any day other than Sunday or a legal holiday recognized by the Tribe. A sale shall begin at the time designated in the notice of sale or as soon thereafter as practicable.
(Ord. No. 365, 10-16-2002)
Sec. 45-21. Continuance of uncompleted sale.
A sale commenced but not completed within the time allowed by section 47-20 describing the time of sale shall be continued by the person holding the sale to a designated time between 10:00 a.m. and 4:00 p.m. on the following day, other than Sunday or a legal holiday. If a continuance becomes necessary, the person holding the sale shall publicly announce the time to which the sale is continued.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-22. Preliminary report of sale.
(a) The person exercising a power of sale, shall, within five days after the date of the sale, file a report of sale with the Cherokee Court and the Recording Clerk of the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs.
(b) The report shall be signed by the person authorized to hold the sale, or by his agent or attorney, and shall show:
(1) The authority under which the person making the sale acted;(2) The name of the mortgagor or grantor;
(3) The name of the mortgagee or trustee;
(4) The date, time and place of the sale;
(5) A description of the property sold, sufficient to identify it, and, if sold in parts, a description of each part so sold;
(6) The name or names of the person or persons to whom the property was sold;
(7) The price at which the property, or each part thereof, was sold, and that such price was the highest bid therefor;
(8) The name of the person making the report; and
(9) The date of the report.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5-2002)
Sec. 45-23. Property interests at foreclosure.
(a) When the Cherokee Court authorizes or orders foreclosure on a leasehold interest, the lender, maker, insurer or guarantor of the mortgage loan, including successors and assigns, may assume the leasehold interest without further Tribal approval of the transfer. However, anyone who subsequently purchases or rents the leasehold property must be approved by the Tribe except as otherwise provided in the lease.
(b) When the Cherokee Court authorizes or orders foreclosure on a leasehold interest pledged as security for a loan to construct, improve, purchase, or refinance a home, the possessory holding assigned to the Tribe to obtain the leasehold interest shall revert to the Tribe, and the debtor in foreclosure shall have no further right to the possessory holding.
(c) When the Cherokee Court authorizes or orders foreclosure on a leasehold interest pledged as security for a loan to construct, improve, purchase, refinance or operate a business or commercial enterprise, the foreclosure shall effect only the leasehold interest, and shall have no effect on the possessory holding given to the Tribe to obtain the leasehold interest.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-24. Orders for possession.
(a) Orders for possession of property sold pursuant to this chapter in favor of the purchaser and against any party or parties in possession at the time application for possession is made, may be issued by the associate judge, judge or justice of the Court who presided at the foreclosure hearing, or the associate judge, judge or justice who, presided at the appeal after the foreclosure hearing, if an appeal was made, when:
(1) The property has been sold in the exercise of a lawful power of sale;(2) The provisions of this chapter have been complied with;
(3) The sale has been consummated, and the purchase price has been paid;
(4) The purchaser has acquired the applicable interest and is entitled to possession of the property sold;
(5) Ten days' notice has been given to the party or parties who remain in possession at the time application for possession is made; and
(6) Application for possession is made by petition to the Cherokee Court by the mortgagee, the trustee, the purchaser of the property, or their authorized representative.
(b) An order for possession issued pursuant to this section shall be directed to the Cherokee Police Department and shall authorize officers of that department to remove all occupants and their personal property from the premises and to put the purchaser in possession, and shall be executed in accordance with the procedure for executing a writ or order for possession in a summary ejectment proceeding. The purchaser shall have the same rights and remedies in connection with the execution of an order for possession and the disposition of personal property following execution as are provided to a landlord.
(c) Section 1-33, Cherokee Code, shall not preclude the Cherokee Court from issuing orders for possession and other orders necessary to accomplish the intent of this chapter.
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5- 2002)
Sec. 45-25. Failure of bidder to make cash deposit or to comply with
bid; resale.
(a) If the terms of a sale of property require the highest bidder to make a cash deposit at the sale, and he fails to make the required deposit, the person holding the sale shall at the same time and place again offer the property for sale.
(b) When the highest bidder at a sale fails to comply with his bid upon tender or attempt to tender to him the applicable interest, the Court may, upon motion, enter an order authorizing a resale of the property. The procedure for such resale shall be the same in every respect as is provided by this chapter in the case of an original sale of property except that the provisions of sections 45-11 (notice of foreclosure hearing), 45-12 (conduct of foreclosure hearing), 45-13 (appeal) and 45-14 (waiver of right to notice and hearing) do not apply to the resale.
(c) A defaulting bidder at any sale is liable on his bid, and in case a resale is had because of the bidder's default, the bidder shall remain liable to the extent that the final sale price is less than his bid plus all the costs of the resale. Any deposit or compliance bond made by the defaulting bidder shall secure payment of the amount, if any, for which the defaulting bidder remains liable under this section.
(d) Nothing in this section deprives any person of any other remedy against the defaulting bidder.
(Ord. No. 365, 10-16-2002)
Sec. 45-26. Disposition of proceeds of sale; payment of surplus to clerk.
(a) The proceeds of any sale shall be applied by the person mailing the sale, in the following order, to the payment of:
(1) Costs and expenses of the sale, including the trustee's commission, if any, and a reasonable auctioneer's fee if such expense has been incurred,(2) Any Tribal levy or assessment unpaid on the property sold unless the notice of sale provided that the property be sold subject to taxes thereon and the property was so sold;
(3) The obligation secured by the mortgage, deed of trust or conditional sale contract.
(b) Any surplus remaining after the application of the proceeds of the sale as set out in subsection (a) shall be paid to the person or persons entitled thereto, if the person who made the sale knows who is entitled thereto. Otherwise, the surplus shall be paid to the Cherokee Court in the following cases:
(1) In all cases when the owner of the property sold is dead and there is no qualified and acting personal representative of his estate, and(2) In all cases when the Court is unable to locate the persons entitled thereto, and
(3) In all cases when the mortgagee, trustee or vendor is, for any cause, in doubt as to who is entitled to such surplus money, and
(4) In all cases when adverse claims thereto are asserted.
(c) Such payment to the Court discharges the mortgagee, trustee or vendor from liability to the extent of the amount so paid.
(d) The Court shall receive such money from the mortgagee, trustee or vendor and shall execute a receipt therefor.
(e) The Court is liable for the safekeeping of money so received until it is paid to the party or parties entitled thereto, or until it is paid out under the order of the Court.
(Ord. No. 365, 10-16-2002)
Sec. 45-27. Special proceeding to determine ownership of surplus.
(a) A special proceeding may be instituted in Cherokee Court by any person claiming any money, or part thereof, paid into to the Court under section 45-24, to determine who is entitled thereto.
(b) All other persons who have filed with the Court a notice of their claim to the money or any part thereof, or who, as far as the petitioner or petitioners know, assert any claim to the money or any part thereof, shall be made defendants in the proceeding.
(c) If any answer is filed raising issues of fact as to the ownership of the money, the proceeding shall be transferred to the civil issue docket of the Court for trial. When a proceeding is so transferred, the Court may require any party to the proceeding who asserts a claim to the fluid by petition or answer to furnish a bond for costs in the amount of $200.00.
(d) The Court may, in its discretion, allow a reasonable attorney's fee for any attorney appearing in behalf of the party or parties who prevail, to be paid out of the funds in controversy, and shall tax all costs against the losing party or parties who asserted a claim to the fund by petition or answer.
(Ord. No. 365, 10-16-2002)
Sec. 45-28. Final report of sale of real property.
(a) A person who holds a sale of an interest in property pursuant to a lawful power of sale shall file and record with the Cherokee Court and the Recording Clerk of the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs a final report and account of his receipts and disbursements within 30 days after the receipt of the proceeds of the sale. The report shall show whether the property was sold as a whole or in parts and whether all of the property was sold. The report shall also show whether all or only a part of the obligation was satisfied with respect to which the power of sale of property was exercised.
(b) The person who holds the sale shall also file with the Court and the Recording Clerk of the Land Titles and Records Office of the Cherokee Agency of the Bureau of Indian Affairs:
(1) A copy of the notices of sale and resale, if any, which were posted; and(2) A copy of the notices of sale and resale, if any, which were published in a newspaper, together with an affidavit of publication thereof, if the notices were so published;
(3) Proof as required by the Court, which may be by affidavit, that notices of hearing, sale and resale were served upon all parties entitled thereto under this chapter. In the absence of an affidavit to the contrary filed with the Court, an affidavit by the person holding the sale that the notice of sale was posted on the front doors of the Cherokee Agency of the Bureau of Indian Affairs 20 days before the sale shall be proof of compliance with the requirements of section 45-16(a)(1).
(Ord. No. 365, 10-16-2002; Ord. No. 607, 12-5-2002)
Sec. 45-29. Application of state law.
Issues regarding recording, sales and foreclosures of mortgages and deeds of trust not expressly addressed in this chapter shall be resolved by applying relevant sections of Chapter 45 of the North Carolina General Statutes, to the extent that application is consistent with Tribal law. The application of North Carolina state law shall not be deemed a waiver of sovereign immunity of the Tribe, which is hereby reserved.
(Ord. No. 365, 10-16-2002)