Chapter 10.03 Leasehold Mortgages

"Tribe"

shall refer to the Port Gamble S’Klallam Tribe defined in the Tribal Constitution.

"Tribal Council"

shall mean the Port Gamble S’Klallam Tribal Council as set forth under the Constitution of the Port Gamble S’Klallam Tribe.

(c)

"Tribal Recording Clerk"

shall mean the person designated by the Tribal Council to perform the recording functions under this Chapter or any deputy or designee of such person.

(d)

"Tribal Court"

shall mean the Port Gamble S’Klallam Community Court or other body authorized by the laws of this Tribe to exercise the powers and functions of a court of law.

(e)

"Lease"

shall mean the lease of trust or otherwise restricted property for which a Leasehold Mortgage, as defined in this Chapter, has been or will be given.

(f)

"Lessor"

shall mean the beneficial or equitable owner of trust or otherwise restricted property under a Lease for which a Mortgage, as defined in this Chapter, has been given, or the heir(s), successor(s), executor(s), administrator(s) or assign(s) of such Lessor.

(g)

"Leasehold Mortgage"

shall mean the mortgage of a lease of trust or otherwise restricted property given to secure financing or refinancing or other funding for the construction and/or purchase and/or repair or improvement of a family residence or residences and a related structure or structures and facilities, including infrastructure.

(h)

"Mortgagor"

shall mean the Tribe (including any entity of the Tribe), or member of the Tribe or any other person or entity authorized by resolution of the Tribal Council who has executed a Leasehold Mortgage as defined in this Chapter, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribe or tribal member or other person or entity.

"Leasehold Mortgage Foreclosure Proceeding"

"Mortgagee"

shall mean the mortgagee under any Leasehold Mortgage as defined in this Chapter or the successor(s) in interest or assignee of any such mortgagee.

(j)

"Subordinate Lienholder"

shall mean the holder of any lien, including a subsequent mortgage, perfected subsequent to the recording of a Leasehold Mortgage under this Chapter (except the Tribe with respect to a claim for a tribal leasehold tax).

(k)

shall mean 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 Leasehold Mortgage has been given.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.03 Priority.

A Leasehold Mortgage recorded in accordance with the recording procedures referred to in this Chapter 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 Chapter 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. Notwithstanding anything herein to the contrary, this Ordinance does not confer jurisdiction with respect to any recording under state law.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.04 Recording.

The Tribal Council shall from time to time designate by law or resolution a Tribal Recording Clerk and such additional deputy tribal recording clerks as it deems proper to perform the recording functions under this Chapter. If approved by resolution of the Tribal Council, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this Chapter.

The Tribal Recording Clerk shall maintain a system for the recording of Leasehold Mortgages and such other documents as the Tribal Council may designate by law or resolution.

(c)

The Tribal Recording Clerk shall endorse upon any Leasehold Mortgage or any other document received for recording:

The date and time of receipt of the Leasehold Mortgage or other document;

(ii)

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

(iii)

The name of the Tribal Recording Clerk receiving the Leasehold Mortgage or document.

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 as follows:

PORT GAMBLE S’KLALLAM TRIBE	)
	)
PORT GAMBLE S’KLALLAM RESERVATION	)
I certify that this is a true and correct copy of a document received for recording this date.
Given under my hand and seal this __________ day of ____________________.
(SEAL)
(Signature)	(Title)

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.

(d)

The Tribal Recording Clerk shall also maintain a log of each Leasehold Mortgage or other document recorded in which there shall be entered:

§ 10.03.05 Leasehold Mortgage Foreclosure Proceedings.

The name(s) of the Mortgagor(s) of each Leasehold Mortgage, identified as such;

(ii)

The name(s) of the Mortgagee(s) of each Leasehold Mortgage, identified as such;

(iii)

The name(s) of the grantor(s), grantee(s), or other designation of each party named in any other documents;

(iv)

The date and time of receipt;

(v)

The filing number assigned by the Tribal Recording Clerk; and

(vi)

The name of the Tribal Recording Clerk receiving the Leasehold Mortgage or document.

(e)

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.

(f)

In lieu of presenting an original Leasehold Mortgage or other document for recording, any person or entity may present a copy of the same upon which there is an original certification in substantially the following form which has been signed and sealed by a judge or clerk of the Tribal Court, the Tribal Secretary, or by a notary public or other authorized official of the State of Washington:

)
)	ss.
)
I certify that this is a true and correct copy of a document in the possession of ____________________ this date.
Given under my hand and seal this __________ day of ____________________.
(SEAL)	(Signature)
	(Title)
	(Date of Expiration of Commission, if applicable)

(g)

The recording procedures set forth in this Chapter for Leasehold Mortgages shall also apply to any assignment of a Leasehold Mortgage.

(h)

The Tribal Council may from time to time establish recording fees, copying fees, and fees for the certification of any document recorded under the recording system established under this Chapter.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

Upon the default of the Mortgagor(s) under a Leasehold Mortgage, the Mortgagee may commence a Leasehold Mortgage foreclosure proceeding in the Tribal Court by filing:

A verified complaint:

Naming the Mortgagor(s) and each person or entity 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 leasehold tax), as a defendant;

(ii)

Describing the property;

(iii)

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;

(iv)

Having appended as exhibits true and correct copies of each promissory note, Lease, Leasehold Mortgage, or assignment thereof relating to the property; and

(v)

Including an allegation that all relevant requirements and conditions prescribed in (i) all applicable statutes and ordinances, whether tribal, federal or state, (ii) all regulations promulgated under such statutes and ordinances and (iii) the provisions of the Lease and the Leasehold Mortgage have been complied with by the Mortgagee.

§ 10.03.06 Service of Process and Procedure.

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 trial date specified in the summons shall be not less than 20 nor more than 45 days from the date of service of the summons and complaint. The summons must notify the defendant(s) that judgment will be taken against the defendant(s) in accordance with the terms of the complaint unless the defendant(s) file an answer with the court and appear for trial at the time, date and place specified in the summons.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

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 under this Chapter.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.07 Certified Mailing to Tribe.

In any Leasehold Mortgage Foreclosure Proceeding where the Tribe is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribe by certified mail, return receipt requested, within 5 days after the issuance of the summons, but not less than 20 days prior to the date set for trial.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.08 Intervention.

The Tribe may petition the Tribal Court to intervene in any Leasehold Mortgage Foreclosure Proceeding under this Chapter. Neither the filing of a petition for intervention by the Tribe, nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.09 Cure of Default by Subordinate Lienholder.

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, if any, for the Leasehold Mortgage of the Subordinate Lienholder.

(Res. 03 A 117, 7/15/2003, adopted this section on an emergency basis; Res. 03 A 129, 9/9/2003, adopted this section following a public hearing.)

§ 10.03.10 Power of the Tribal Court.

If the alleged default(s) have not been cured, and if the Tribal Court should find for the Mortgagee, the Tribal Court shall enter judgment:

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