A.
A mortgagor shall be considered in default when he/she is thirty
(30) days past due on his/her mortgage payments or is in violation
of any covenant under the mortgage for more than thirty (30) days
to the mortgagee.
B.
When the mortgagor is thirty (30) days past due on his/her mortgage
and before a foreclosure action or activity is initiated, the mortgagee
should complete the following:
(1)
Make a reasonable effort to arrange a face-to-face interview with
the mortgagor. This should include at least one trip to meet with
the mortgagor at the mortgaged property.
(2)
The mortgagee shall document its efforts to attempt to arrange a
face-to-face interview with the mortgagor.
(3)
The mortgagee may appoint an agent to undertake the efforts to arrange
for a face-to-face interview with the mortgagor and to conduct the
interview specified in this section.
C.
If the mortgagor is past due on three mortgage payments and at least
ten (10) days before initiating foreclosure proceedings, the mortgagee
shall advise the mortgagor in writing by mail, or by posting prominently
on the mortgaged property, with a copy provided to the Tribe, as follows:
(1)
Advise the mortgagor that information regarding the loan and default/delinquency
will be given to credit bureaus;
(2)
Advise the mortgagor of homeownership counseling programs available
through the mortgagee or other assistance regarding the mortgage/default;
(3)
Advise the mortgagor that if the leasehold mortgage remains past
due on three mortgage payments, the mortgagee may ask the applicable
government agency, if any, to accept assignment of the leasehold mortgage,
if this is an option of the governmental program;
(4)
Notify the mortgagor of the qualifications for forbearance relief
from the mortgagee, if any, and that forbearance relief may be available
from the applicable government agency, if any; and
(5)
Notify the mortgagor of the names and addresses of government officials
from the applicable agency, if any, to whom further communications
may be addressed.
Upon the default of the mortgagor(s) and upon expiration of
any applicable cure periods under a leasehold mortgage, the mortgagee
or its successors and assigns may commence a leasehold mortgage foreclosure
proceeding in the Tribal Court, as follows:
A.
By filling a verified complaint:
(1)
Citing authority for jurisdiction of the Tribal Court;
(2)
Naming the mortgagor(s) and each record owner claiming through the
mortgagor(s) subsequent to the recording of the leasehold mortgage,
including each subordinate lienholder, except the Tribe with respect
to a claim for a tribal tax on the leasehold estate subject to the
leasehold mortgage, as a defendant;
(3)
Describing the leasehold estate subject to the leasehold mortgage;
(5)
Having appended as exhibits true and correct copies of each promissory
note, lease, leasehold mortgage and, if applicable, assignment thereof
relating to such leasehold estate;
(6)
Including an allegation that all relevant requirements and conditions
prescribed in the federal mortgage loan guarantee program and/or leasehold
mortgage agreement and the lease have been complied with by the mortgagee
or its successors or assigns; and
(7)
Otherwise satisfying the requirements of the Tribal Court.
B.
By obtaining a summons, issued as in other cases, requiring the mortgagor(s)
and each other person or entity claiming through the mortgagor, as
defendants, to appear for a trial upon the complaint on a date and
time specified in the summons, and filing a copy of such summons with
the Tribal Court.
The laws of the Tribe governing service of process and all other
matters relating to the conduct of Tribal Court proceedings shall
apply to any leasehold mortgage foreclosure proceeding pursuant to
this chapter.
A.
Prior to the entry of a judgment of foreclosure of a leasehold mortgage
pursuant to this chapter, any mortgagor or any subordinate lienholder
may cure the default(s) under the leasehold mortgage.
B.
Any subordinate payments made by such subordinate lienholder to cure
such default(s) must comply with the terms of the mortgage, plus interest
on such amounts at the rate stated in the promissory note evidencing
the subordinate lien.
If the alleged default(s) have not been cured, and if the Tribal
Court should find for the mortgagee or its successors or assigns,
the Tribal Court shall enter judgment:
A.
Foreclosing the leasehold estate of the mortgagor(s) and each other
defendant named in the complaint upon whom proper and timely service
has been made, including each such subordinate lienholder; and
B.
Assigning such leasehold estate to the mortgagee or the mortgagee's
assignee, provided that, the mortgagee shall give the Tribe the right
of first refusal on any acceptable offer to purchase the lease and
the lessee's leasehold in the property.
