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Editor's Note: Previously Art. III, Leasehold Mortgage Regulations and Eviction Procedures, adopted 7-1-1999 by Ord. No. 99-10, in Ch. 138, Leases and Mortgages. Chapter 138 was amended in its entirety by the Legislature of the Menominee Indian Tribe December 1, 2016, by Ord. No. 16-27, but the substantive language of the previous named Art. III, Leasehold Mortgage Regulations and Eviction Procedures, did not change and became Art. VII, Leasehold Mortgage Regulations, in the newly amended Ch. 138. Chapter 138 was amended in its entirety on 3-21-2019 by Ord. No. 18-38; no amendments were made to this article except for renumbering.
This article shall be titled "Leasehold Mortgage Regulations." The purpose of this article is to make available to the Menominee Tribe and its members who reside on trust land pursuant to a lease from the Menominee Tribe the same mortgage lending opportunities available to persons who reside on fee land. This article accomplishes that purpose by setting up procedures for the orderly recording, prioritizing and foreclosure of leasehold mortgages given to secure loans.
A. 
All leasehold mortgages under a lease must be separately authorized by the Legislature, unless the lease authorizes a leasehold mortgage and states the law governing foreclosure.
B. 
After the Secretary approves the regulations in Article I of this chapter, all leasehold mortgages which are authorized under Article I of this chapter shall be effective without federal approval under 25 U.S.C. § 415 unless the Secretary rescinds approval of this Code and reassumes responsibility for such approval.
A leasehold mortgage recorded in accordance with the recording procedures set forth in this article shall have priority over any lien not perfected at the time of such recording and any subsequent lien or claim excepting a lien or claim arising from a tribal leasehold tax or fee assessed after the recording of the mortgage. Nothing in this article shall prevent any person or entity from recording a leasehold mortgage in accordance with state law or from filing a leasehold mortgage with the Bureau of Indian Affairs.
A. 
The Tribal Recording Clerk shall maintain a system for the recording of leasehold mortgages and such other documents as the Tribe may designate by law or resolution.
B. 
The Tribal Recording Clerk shall endorse upon any leasehold mortgage or other document received for recording:
(1) 
The date and time of receipt of the leasehold mortgage or other document.
(2) 
The filing number, to be assigned by the Tribal Recording Clerk, which shall be a unique number for each leasehold mortgage or other document received.
(3) 
The name of the Tribal Recording Clerk receiving the leasehold mortgage or document.
C. 
Upon completion of the above endorsements, the Tribal Recording Clerk shall make a true and correct copy of the leasehold mortgage or other document and shall certify the copy.
D. 
The Tribal Recording Clerk shall maintain the copy in the records of the recording system and shall return the original of the leasehold mortgage or other document to the person or entity that presented the same for recording.
E. 
The Tribal Recording Clerk shall also maintain a log of each leasehold mortgage or other document recorded in which should be entered:
(1) 
The name(s) of the mortgagor(s) of each leasehold mortgage, identified as such;
(2) 
The name(s) of the mortgagee(s) of each leasehold mortgage, identified as such;
(3) 
The name(s) of the lessor(s), lessee(s), or other designation of each party named in any other documents;
(4) 
The date and time of receipt;
(5) 
The filing number assigned by the Tribal Recording Clerk; and
(6) 
The name of the Tribal Recording Clerk receiving the leasehold mortgage or document.
F. 
The certified copies of the leasehold mortgages and other documents and the log maintained by the Tribal Recording Clerk shall be made available for public inspection and copying.
G. 
All documents recorded under this section shall also be recorded with the Bureau of Indian Affairs in accordance with its recording procedures and with the register of deeds of the county where the land is located.
A. 
Upon the default of the mortgagor(s) under a leasehold mortgage, the mortgagee or its designee may commence a leasehold mortgage foreclosure proceeding in the Tribal Court by filing:
(1) 
A verified complaint:
(a) 
Naming the mortgagor(s) and each person or entity claiming through the mortgage, including each subordinate lienholder (except the Tribe with respect to a claim for a tribal leasehold tax or fee), as a defendant;
(b) 
Describing the property;
(c) 
Stating the facts concerning the execution of the lease and the leasehold mortgage, the facts concerning the recording of the leasehold mortgage, the facts concerning the alleged default(s) of the mortgagor(s), and such other facts as may be necessary to constitute a cause of action;
(d) 
Having appended as exhibits true and correct copies of each promissory note, lease, leasehold mortgage, or assignment thereof relating to the property; and
(e) 
Alleging that all relevant requirements and conditions of applicable federal law as well as the provisions of the lease have been complied with.
(2) 
A summons, issued as in other cases, requiring the mortgagor(s) and each other defendant to appear for a trial upon the complaint on a date and time specified in the summons.
B. 
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 article, unless otherwise specified herein.
C. 
Prior to the entry of a judgment of foreclosure, any mortgagor or any subordinate lienholder may cure the default(s) under the leasehold mortgage. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such subordinate lienholder to cure the default(s), plus interest on such amounts at the rate stated in the note for the leasehold mortgage.
D. 
If the alleged default(s) has not been cured and the mortgagee or its designee has proven the allegations contained in its complaint, the Tribal Court shall enter judgment:
(1) 
Foreclosing the interest in the lease of the mortgagor(s) and each other defendant named in the complaint upon whom proper and timely service has been made, including each such subordinate lienholder; and
(2) 
Assigning such interest in the lease to the mortgagee if the mortgagee is any of the following:
(a) 
The Menominee Tribe.
(b) 
A Menominee tribal member.
(c) 
An agency of the United States government.
(3) 
Fixing the amount of mortgage debt then due and also the amount of each installment thereafter to become due and the time when it will become due.
E. 
If the mortgagee is not one of the entities or persons listed in Subsection D(2), the interest in the lease shall be assigned to a receiver appointed by the Court. The only person or entity eligible to be a receiver is the Tribe. All contracts for services entered into by the receiver shall be satisfied solely from the proceeds from the sale or rental of the leased premises or shall be advanced by the mortgagee. The Court shall discharge the receiver when the leasehold interest is sold and the proceeds are distributed according to this article.
A. 
A mortgagee or mortgagee's designee who has been granted a mortgagor's interest in a lease pursuant to this article shall not commence any eviction proceeding under this article or offer for sale said leasehold interest until six months after judgment has been entered except as provided in Subsections B, C, D and E below.
B. 
A mortgagee or mortgagee designee may commence an eviction proceeding under this article and offer for sale a leasehold interest acquired pursuant to this article above three months after judgment has been entered if as part of said judgment a mortgagee or mortgagee's designee has waived the right to a deficiency judgment against the mortgagor.
C. 
A mortgagee or mortgagee designee may offer for sale a leasehold interest acquired pursuant to this article above at any time after judgment has been entered if, upon motion to the Tribal Court, the Tribal Court determines that said premises have been abandoned.
D. 
A mortgagee or mortgagee designee may offer for sale a leasehold interest acquired pursuant to this article above at any time after judgment has been entered if all parties stipulate to said sale.
E. 
A mortgagee or mortgagee designee may commence an eviction proceeding under this article and offer for sale a leasehold interest acquired pursuant to this article above at any time after judgment has been entered if, upon motion to the Tribal Court, the Tribal Court determines that waste is being committed on said premises.
F. 
Notice of any sale of a leasehold interest acquired pursuant to this article must be published at least five days in advance in the Menominee Tribal News and the Shawano Evening Leader. The only persons eligible to purchase said leasehold are enrolled members of the Menominee Indian Tribe or the Menominee Indian Tribe itself. This provision shall be included in any notice of sale.
G. 
No sale by a mortgagee or mortgagee's designee of the leasehold interest acquired pursuant to this article shall be effective until confirmed by Tribal Court. A mortgagee or mortgagee's designee seeking confirmation of a leasehold sale pursuant to this article shall submit to Tribal Court, with a copy to all defendants, an application for confirmation containing the following:
(1) 
Proof of compliance with the requirements of Subsection F above.
(2) 
The sale price received for said leasehold interest.
(3) 
The amount of the judgment.
(4) 
Notice of whether a deficiency judgment shall be sought and in what amount.
(5) 
Name of the proposed purchaser.
H. 
The Tribal Court shall set a date for a hearing on the application for confirmation of a sale. At said hearing, the Tribal Court shall have the authority to confirm said sale and determine the rights of all parties as to any surplus or deficiency. The Tribal Court, in determining whether any deficiency exists, shall determine the fair value of the premises and shall credit the fair value against judgment owed. There shall be no presumption that the premises were sold for its fair value.
I. 
If a leasehold interest is transferred to a receiver pursuant to this article, a mortgagee, subject to other terms of this article and the terms of the mortgage, shall enjoy the following rights:
(1) 
The receiver shall follow the directions of the mortgagee in setting the terms of, and conducting, a public or private sale and the acceptance of any offer to buy the leasehold interest, subject to the following:
(a) 
All assignments shall be in form and substance satisfactory to the mortgagee.
(b) 
All assignees shall be bound by the terms of the lease.
(c) 
The receiver shall obtain the consent of the Secretary if such consent is required by law and has not been given.
(d) 
If no offer is accepted at the public sale conducted pursuant to Subsection F of this section, the receiver may sell the leasehold interest at private sale.
(2) 
The receiver shall follow the directions of the mortgagee in renting the leased premises, subject to the following:
(a) 
Preference shall be given to financially qualified members of the Tribe and the Tribe.
(b) 
Lease terms shall not exceed one year, and the preference listed in Subsection I(2)(a) above shall apply upon expiration of the lease term.
(c) 
Leases entered into pursuant to this section are not and shall not be construed to grant any interest in tribal land to the lessee.
(d) 
All rental proceeds shall be paid to the mortgagee and shall be applied to amounts outstanding under the note or judgment.
(e) 
The receiver shall obtain the consent of the Secretary if such consent is required by law and has not been given.
A. 
At any time during the redemption period, as defined below, the mortgagor(s), the mortgagor's heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the Clerk of Tribal Court or to the plaintiff the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any fees paid by the plaintiff subsequent to the judgment upon the mortgaged premises. On payment to the Clerk or on filing the receipt of the plaintiff or the plaintiff's assigns for such payment in the office of Tribal Clerk of Courts the Tribal Court shall discharge said judgment.
B. 
"Redemption period" shall mean the time between the entering of judgment of foreclosure pursuant to this article and the earliest date a mortgagee or mortgagee's designee may offer for sale the leasehold interest pursuant to this article.
A. 
These eviction procedures shall apply only to tenants with lease terms of 25 years or more and who have granted a mortgage upon said leasehold.
B. 
Any mortgagor remaining in occupancy of property foreclosed upon pursuant to this article above after the end of the redemption period, as defined above, shall be guilty of unlawful detainer.
C. 
At any time after the end of the redemption period a mortgagee or mortgagee's designee may file with the court a motion requesting a writ of restitution. Said motion shall be served upon the person or person(s) occupying the property foreclosed upon and shall contain the facts upon which he or she seeks to recover as well as a description of the pertinent property.
D. 
The Court shall schedule a hearing not less than five nor more than 10 days after the respondent receives notice. If the Court determines that the mortgagor is guilty of unlawful detainer it shall issue a writ of restitution. Upon issuance of said writ, the Tribal Court shall have the authority to enter a judgment for any damages caused by the respondents to the property other than ordinary wear and tear.
E. 
Upon issuance of a writ of restitution by the Tribal Court, tribal law enforcement officers shall enforce the writ of restitution by evicting the respondents and their property from the premises, which is unlawfully occupied. Said writ shall be enforced not later than 10 days after its issuance.
In order to be eligible for certain loan programs, the Menominee Indian Tribe may enter into tri-party agreements between the Tribe, Fannie Mae and lending institutions. The terms of any such tri-party agreement, which is listed below, shall be incorporated into this article by reference and the terms of those agreements are enforceable against the Tribe in Menominee Tribal Court under Article XVIII, Sovereign Immunity of the Constitution and Bylaws of the Tribe. The Tri-party agreement between Menominee Indian Tribe, Fannie Mae and Associated Mortgage, Inc., entered into on or about August 30, 2000, is on file at the office of the Administrative Manager.