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Editor's Note: Previously Art. II, Veterans Leasehold Mortgages, adopted 7-7-1994 by Ord. No. 94-09, 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. I, Eviction Procedures, did not change and became Art. IX, Leasehold Mortgage FHA Section 248 Eviction Procedures, 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.
The purpose of this article is to avail the Menominee Tribe
and its members of financing for the construction and/or purchase
of family residences on trust land within the jurisdiction of the
Menominee Indian Tribe by prescribing procedures for the recording,
priority and foreclosure of leasehold mortgages given to secure loans
made by the Department of Veterans Affairs under the Native American
Veteran Direct Loan Program authorized under 38 U.S.C. § 3761
et seq.
For purposes of this article only, the following terms shall
have the meanings indicated:
The mortgage of a lease of trust property given to secure
a loan made under the VA Native American Direct Loan Program and 38
U.S.C. § 3761 et seq.
A proceeding in the Tribal Court:
To foreclose the interest of the mortgagor(s), and each person
or entity claiming through the mortgagor(s), in a lease for which
a mortgage has been given under the VA Native American Direct Loan
Program and 38 U.S.C. § 3761 et seq.; and
To assign such lease to the Secretary or the Secretary's
assignee.
The Secretary of the United States Department of Veterans
Affairs (VA) or designee.
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 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 in the Tribal Court a system
for the recording of leasehold mortgages and such other documents
as the Tribe may designate by law or resolution.
B.
Endorsement.
(1)
The Tribal Recording Clerk shall endorse upon any leasehold mortgage
or other document received for recording:
(a)
The date and time of receipt of the leasehold mortgage or other
document;
(b)
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; and
(c)
The name of the Tribal Recording Clerk receiving the leasehold
mortgage or document.
(2)
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.
(3)
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.
C.
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 grantor(s), grantee(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.
D.
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.
Upon the default of the mortgagor(s) under a leasehold mortgage,
the Secretary may commence a leasehold mortgage foreclosure proceeding
in the Tribal Court by filing:
A.
A verified complaint:
(1)
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), as a defendant;
(2)
Describing the property;
(3)
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;
(4)
Having appended as exhibits true and correct copies of each promissory
note, lease, leasehold mortgage, or assignment thereof relating to
the property; and
(5)
Including an allegation that all relevant requirements and conditions
prescribed in 38 U.S.C. § 3761 et seq., the regulations
promulgated thereunder by the Secretary, and the provisions of the
lease have been complied with by the Secretary.
B.
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.
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.
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.
If the alleged default(s) has not been cured, and if the Tribal
Court should find for the Secretary, the Tribal Court shall enter
judgment:
A.
Jurisdiction. The provisions of this section shall apply to all persons
and property subject to the governing authority of the Tribe as established
by the Tribal Constitution and Bylaws.
B.
Unlawful detainer. A tenant or other occupier of land shall be guilty
of unlawful detainer if such person shall continue in occupancy of
real property under any of the following situations:
(1)
Without the requirement of any notice:
(a)
After the expiration of the term of the lease or other agreement;
(b)
If such person has entered onto or remains on the real property
of another without the permission of the owner and without having
any substantial claim of a lease or title of the property;
(c)
After the Indian Housing Authority or other public housing authority
has terminated such person's tenancy pursuant to procedures providing
such person a hearing before the housing authority involved; or
(d)
After the interest of such person in a lease has been foreclosed
in a leasehold mortgage foreclosure proceeding in the Tribal Court.
(2)
After having received 30 days' notice, the tenant or occupier
shall remain in possession of the property contrary to the terms of
the notice as follows:
(a)
When such person has received notice:
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That he or she is in default in the payment of rent; and
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Requiring him or her to either pay the rent or surrender possession
of the occupied property, and such person has remained in possession
after receipt of such notice without either surrendering possession
of the property or paying the rent;
(b)
When the lease of the property is for an indefinite time, with
rent to be paid monthly or by some other period, and the lessor has
given notice of termination of the tenancy at least 30 days prior
to the end of such month or period;
(c)
When such person shall continue to fail to keep or perform any
conditions or covenant of the lease or agreement under which the property
is held after he has been given notice to surrender the property;
or
(d)
When such person continues to commit or to permit waste upon
or maintain a nuisance upon the occupied property after having been
given notice to either cease such waste or maintenance of nuisance
or to surrender the property.
C.
Procedures for service of notice.
(1)
Notice shall be served by:
(a)
Delivering a copy personally to the tenant or occupier or to
any adult members of his or her family residing on the premises; or
(b)
Posting said notice in a conspicuous place near the entrance
to said premises and by sending an additional copy to the tenant or
occupier by certified mail, return receipt requested, properly addressed,
postage prepaid.
(2)
Proof of service by either of the above methods may be made by affidavit
of any adult person stating that he or she has complied fully with
the requirements of either of these two methods of service.
D.
Complaint and summons. The owner of real property or lessor or Secretary
shall commence an action for unlawful detainer by filing with the
Court, in writing, the following documents:
(1)
A complaint, signed by the owner, lessor, the Secretary, and agent,
or attorney:
(2)
A summons, issued as in other cases, requiring the defendants to
appear for trial upon the complaint on a date and time specified in
the summons. The trial date specified in the summons shall be neither
less than six nor more than 30 days from the date of service of the
summons and complaint. The summons must notify the defendants that
judgment will be taken against them in accordance with the terms of
the complaint unless they file with the Court an answer and appear
for trial at the time, date and place specified in the summons.
E.
Service of summons and complaint.
(1)
The Tribal Court shall enter a writ of restitution if:
(2)
Upon issuance of a writ of restitution, the Tribal Court shall have
the authority to enter against the defendants a judgment for the following:
back rent; unpaid utilities; charges due the Tribe, Indian Housing
Authority, or landowner under any lease or occupancy agreement (not
including a leasehold mortgage); and for damages caused by the defendants
to the property other than ordinary wear and tear. The Tribal Court
shall have the authority to award to the prevailing party his costs
and reasonable attorney fees in bringing suit.
F.
Continuances in cases involving the secretary. Except by agreement
of all parties, there shall be no continuances in the cases involving
the Secretary that will interfere with the requirement that the writ
of restitution in a case involving the Secretary be enforced not later
than 60 days from the date of service of the summons and complaint.
G.
Enforcement. Upon issuance of a writ of restitution by the Tribal
Court, tribal law enforcement officers shall enforce the writ of restitution
by evicting the defendants and their property from the premises, which
are unlawfully occupied. In all cases involving the Secretary, the
writ of restitution shall be enforced not later than 60 days after
the date of service of the summons and complaint.
H.
Alternative remedies. In those cases, in which the persons or property
is subject to the jurisdiction of the courts of the State of Wisconsin
or the United States, the remedies and procedures provided by this
article are in the alternative to the remedies and procedures provided
by the laws of the State of Wisconsin or the United States.
