[1]
Code reviser’s note: TTC § 1.05.010 appoints the Tribal Court Clerk as the Tribal Recording Clerk for the purposes of this article.
The purpose of this article is to avail the Tulalip Tribes (“Tribes”) and its members of financing for the construction and/or purchase of family residences on trust and otherwise restricted lands within the jurisdiction of the Tribes by prescribing procedures for the recording, priority and foreclosure of leasehold mortgages given to secure loans insured under Section 248 of the National Housing Act.
(Ord. 79 § 1.0, 2-5-1994)
(1) 
“Tribes”
shall refer to the Tulalip Tribes, a Federally recognized Indian tribe reorganized pursuant to the Indian Reorganization Act of 1934, as amended, and as defined in the Tribal Constitution and Bylaws.
(2) 
“Board of Directors”
shall mean the Board of Directors of the Tulalip Tribes, the governing body of the Tribes.
(3) 
“Tribal Recording Clerk”
shall mean the person designated by the Business Committee to perform the recording functions under this article or any deputy or designee of such person.
(4) 
“Tribal Secretary”
shall mean the Secretary of the Tribes as defined in the Tribal Constitution.
(5) 
“Tribal Court”
shall mean the Tribal Court as established by TTC Title 2 or such body as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and functions of a court of law.
(6) 
“Secretary”
shall mean the Secretary of the United States Department of Housing and Urban Development (HUD) or his or her designee, attorney or agent.
(7) 
“Section 248”
shall mean Section 248 of the National Housing Act, 12 U.S.C. 1715z-13.
(8) 
“Lease”
shall mean the approved form of lease of trust or otherwise restricted property for which a leasehold mortgage, as defined in this article, has been or will be given.
(9) 
“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 article, has been given, or the heir(s), successor(s), executor(s), administrator(s) or assign(s) of such lessor.
(10) 
“Leasehold mortgage”
shall mean a mortgage or deed of trust of a lease of trust or otherwise restricted property given to secure a loan insured under Section 248.
(11) 
“Mortgagor”
shall mean the Tribes or any Indian(s) who has executed a leasehold mortgage as defined in this article, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribes or such Indian(s).
(12) 
“Mortgagee”
shall mean the mortgagee or beneficiary under any leasehold mortgage as defined in this article or the successor(s) in interest of any such mortgagee, including the Secretary as defined in this article, or the Secretary’s assignee under any such mortgage.
(13) 
“Subordinate lienholder”
shall mean the holder of any lien, including a subsequent mortgage or deed of trust, perfected subsequent to the recording of a leasehold mortgage under this article (except the Tribes with respect to a claim for a Tribal leasehold tax).
(14) 
“Leasehold mortgage foreclosure proceedings”
shall mean a proceeding:
(a) 
To judicially foreclose in Tribal Court the interest of the mortgagor(s) or to nonjudicially foreclose the interest of the mortgagor(s), and in either proceeding the interest of each person or entity claiming through the mortgagor(s), in a lease for which a mortgage has been given under Section 248; and
(b) 
To assign such lease to the Secretary or the Secretary’s assignee.
(Ord. 79 § 2.0, 2-5-1994)
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.
(Ord. 79 § 3.0, 2-5-1994)
(1) 
The Board of Directors 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 article. If approved by resolution of the Business Committee, the Tribal Recording Clerk may designate one or more designees to perform the recording functions under this article.
(2) 
The Tribal Recording Clerk shall maintain in the Tribal Court a system for the recording of leasehold mortgages and such other documents as the Board of Directors may designate by law or resolution.
(3) 
The Tribal Recording Clerk shall endorse upon any leasehold mortgage or any 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.
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:
TULALIP TRIBES OF WASHINGTON
)
TULALIP INDIAN 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 _____ 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.
(4) 
The Tribal Recording Clerk shall also maintain a log of each leasehold mortgage or other document recorded in which there shall be entered:
(a) 
The name(s) of the mortgagor(s) of each leasehold mortgage, identified as such;
(b) 
The name(s) of the grantor(s), grantee(s), or other designation of each party named in any other documents;
(c) 
The name(s) of the grantor(s), grantee(s), or other designation of each party named in any other documents;
(d) 
The date and time of receipt;
(e) 
The filing number assigned by the Tribal Recording Clerk; and
(f) 
The name of the Tribal Recording Clerk receiving the leasehold mortgage or document.
(5) 
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.
(6) 
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 __________.
____________________
(Signature)
____________________
(Title)
____________________
(Date of Expiration of Commission, if applicable)
(7) 
The recording procedures set forth in this article for leasehold mortgages shall also apply to any assignment of a leasehold mortgage.
(8) 
The Board of Directors 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 article.
(Ord. 79 § 4.0, 2-5-1994)
(1) 
Judicial Foreclosure. 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) 
A verified complaint:
(i) 
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 Tribes 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 (A) Section 248, (B) the regulations promulgated thereunder by the Secretary, and (C) 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 trial date specified in the summons shall not be less than 30 nor more than 90 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.
(c) 
Service of Process and Procedure. The laws of the Tribes 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 article.
(d) 
Alternate Service. If it appears by affidavit filed in the Tribal Court that any party to a leasehold mortgage foreclosure proceeding cannot be located, then service of process may be had upon such party by:
(i) 
Posting a copy of the summons and complaint in a conspicuous place on the property which is the subject of the lease within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial; and
(ii) 
Mailing a copy of the summons and complaint by certified mail, return receipt requested, to such party at the last known address of such party and in care of the Superintendent of the Puget Sound Agency of the Bureau of Indian Affairs within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial.
(e) 
Certified Mailing to Tribes and Lessor. In any leasehold mortgage foreclosure proceeding where the Tribes or the lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes and to the lessor(s) by certified mail, return receipt requested, within 10 days after the issuance of the summons, but not less than 30 days prior to the date set for trial. If the location of the lessor(s) cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the lessor(s) in care of the Superintendent of the Puget Sound Agency of the Bureau of Indian Affairs.
(f) 
Intervention. The Tribes or any lessor may petition the Tribal Court to intervene in any leasehold mortgage foreclosure proceeding under this article. Neither the filing of a petition for intervention by the Tribes nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribes, except as may be expressly authorized by the Tribes.
(g) 
Cure of Default by Subordinate Lien-holder. 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.
(h) 
Power of the Tribal Court. If the alleged default(s) have not been cured, and if the Tribal Court should find for the Secretary, the Tribal Court shall enter judgment:
(i) 
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
(ii) 
Assigning such lease to the Secretary or the Secretary’s assignee.
(i) 
No Homestead. There shall be no homestead or rights similar thereto to the mortgagor or any heir(s), successor(s), executor(s), administrator(s) or assign(s) thereof.
(j) 
No Redemption. There shall be no right of redemption in any leasehold mortgage foreclosure proceeding.
(k) 
No Deficiency Judgment. No deficiency judgment shall be entered in any leasehold mortgage foreclosure proceeding.
(l) 
Remedies Exclusive. The remedies provided under this article are exclusive for the judicial foreclosure of the mortgage.
(2) 
Nonjudicial Foreclosure. If the mortgage meets the requisites of RCW 61.24.030, the same may be foreclosed nonjudicially in conformity with Chapter 61.24 RCW, which is incorporated herein as though set forth in full to the extent not inconsistent herewith.
(Ord. 79 § 5.0, 2-5-1994)
There shall be no merger of estates by reason of the execution of a lease or leasehold mortgage or the assignment or assumption of same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the leasehold mortgage.
(Ord. 79 § 6.0, 2-5-1994)
In any case where the Tribes is a mortgagor under a leasehold mortgage, the Tribes may be named as a defendant in such capacity only and only under this article; provided, that there shall be no award of damages, attorneys fees or costs against the Tribes in any proceeding involving the Tribes, except where prior, express written consent to such an award has been given by the Tribes.
(Ord. 79 § 7.0, 2-5-1994)
To the extent not inconsistent herewith, the laws of the State of Washington contained in RCW Titles 6 and 61 shall be incorporated herein by this reference as though set forth in full as to the procedure and substance of the respective foreclosure proceedings and the enforcement thereof as they now exist or may hereafter be amended. The laws of the State of Washington, not inconsistent with the provisions of this article, shall determine the priority of liens against the leasehold. The rules of decision of the Courts of the State of Washington shall guide the Tribal Court’s determination and interpretation relating to such foreclosure proceedings and the enforcement thereof.
(Ord. 79 § 8.0, 2-5-1994)
Post-foreclosure actions to obtain possession of the leasehold interest foreclosed shall be undertaken pursuant to the summary proceedings to obtain possession of real property as provided in Chapter 6.25 TTC as it now exists or may hereafter be amended or other post-foreclosure judgment proceedings available under State of Washington common law.
(Ord. 79 § 9.0, 2-5-1994)