[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.
(1) 
A purpose of this article is to provide the Tribes and its members with means of financing the construction and/or purchase of one- to four-family residences or other construction or financing on individual trust lands and other trust lands, including leased or assigned Tribal lands, within the jurisdiction of the Tribes by prescribing procedures for the recording, priority, and foreclosure of mortgages on such property given to secure loans as provided and authorized pursuant to 25 U.S.C. 483(a) and (b) as now existing or as the same may hereafter be amended and as authorized by Tribal action or other Tribal law. Pursuant to this article, a lender, including the Tribes itself, who finances the purchase or construction of a one- to four-family residence or other construction on individual Tribal lands or other Indian trust lands, will be able to obtain a mortgage on individual Indian trust lands or other Indian trust lands and any improvements thereon so financed (“mortgaged property”), and to foreclose on such mortgage in the event of borrower default and thereby enable the lender or other purchaser at the foreclosure to obtain an unrestricted interest in the mortgaged property or in the lease. This article also allows through Tribal Court processes compliance with 25 CFR Part 162.610, Subleases and assignments, and the enforcement of leases of Tribal lands.
(2) 
A purpose of this article is to also provide the Tribes with means of financing by granting of mortgages or deeds of trust approved by the Secretary of the Interior under 25 U.S.C. 403a-2(c) for the acquisition and improvement of any trust or restricted lands of the Tribes within or without the exterior boundaries of the Tulalip Indian Reservation. The foreclosure of such mortgages or deeds of trust as provided herein and 25 U.S.C. 403a-2(c) shall be pursuant to the terms of such mortgages and deeds of trust in accordance with the laws of the State of Washington, the United States, and this article; provided, however, this article shall not be interpreted or construed to invest, confer, or grant jurisdiction to the courts and laws of any state.
(Ord. 88 § 1, 8-26-1996; Res. 2013-561)
(1) 
“Tribes”
shall refer to the Tulalip Tribes as defined in the Constitution and Bylaws of the Tulalip Tribes.
(2) 
“Board”
shall mean the Board of Directors that is the governing body of the Tribes.
(3) 
“Mortgage foreclosure proceedings”
shall mean a proceeding to judicially foreclose in Tribal Court the interest of the mortgagor(s) or to nonjudicially foreclose the interest of the mortgagor(s).
(4) 
“Mortgagee”
shall mean the Tribes or any mortgagee or beneficiary under any mortgage as described in this article or the successor(s) in interest of any such mortgagee or beneficiary.
(5) 
“Mortgagor”
shall mean the Tribes, any Indian(s) or any other natural or legal person who has executed a mortgage as described in this article, or any heir(s), successor(s), executor(s), administrator(s) or assign(s) of the Tribes, such Indian(s) or such other persons.
(6) 
“Subordinate lienholder”
shall mean the holder of any lien, including a subsequent mortgage or deed of trust, perfected subsequent to the recording of a mortgage under this article (except the Tribes with respect to a claim for a Tribal tax).
(7) 
“Tribal Court”
shall mean the Tribal Court established by the laws of the Tulalip Tribes 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.
(8) 
“Tribal Recording Clerk”
shall mean the person designated by the Board to perform the recording functions under this article or any deputy or designee of such person.
(9) 
“Tribal Secretary”
shall mean the Secretary of the Tribes as defined in the Tribal Constitution.
(10) 
“Reservation”
shall mean the Tulalip Indian Reservation located in Washington State.
(11) 
“Unlawful detainer ordinance”
shall mean Chapter 6.25 TTC which establishes procedures for removing a party from property which such party is occupying without right of possession.
(12) 
“Leasehold mortgage ordinance”
shall mean Article I of this chapter which establishes procedures for the recording, priority and foreclosure of a leasehold mortgage given to secure loans insured under Section 248 of the National Housing Act.
(Ord. 88 § 2, 8-26-1996)
A 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 over any lien or claim arising after the recording of the mortgage, excepting a lien or claim arising from a Tribal property tax assessed after the recording of the mortgage. Nothing in this article shall prevent any person or entity from recording a mortgage in accordance with State law or from filing a mortgage with the Bureau of Indian Affairs.
(Ord. 88 § 3, 8-26-1996)
Mortgages may and shall be recorded in the same manner as leasehold mortgages and other documents pursuant to TTC § 6.10.040. The recording procedures set forth in this article for mortgages shall also apply to any assignment of a mortgage.
(1) 
The Board 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 Board, 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 mortgages and such other documents as the Board may designate by law or resolution.
(3) 
The Tribal Recording Clerk shall endorse upon any mortgage or any other document received for recording:
(a) 
The date and time of receipt of the mortgage or other document;
(b) 
The filing number, to be assigned by the Tribal Recording Clerk, which shall be a unique number for each mortgage or other document received; and
(c) 
The name of the Tribal Recording Clerk receiving the mortgage or document.
Upon completion of the above endorsements, the Tribal Recording Clerk shall make a true and correct copy of the mortgage or other document and shall certify the copy as follows:
The Tulalip Tribes,
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 __________, 20_____.
(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 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 mortgage, identified as such;
(a) 
The name(s) of the mortgagor(s) of each 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 date and time of receipt;
(d) 
The filing number assigned by the Tribal Recording Clerk; and
(e) 
The name of the Tribal Recording Clerk receiving the mortgage or other document.
(5) 
The certified copies of the mortgage 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 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 __________, 20_____.
____________________
Signature
____________________
Title
____________________
Date of expiration of commission, if applicable
(7) 
The recording procedures set forth in this article for mortgages shall also apply to any assignment of a 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. 88 § 4, 8-26-1996)
A mortgagee who forecloses a mortgage as provided in this section will obtain an unrestricted fee simple interest in the mortgaged property or lease, and any individual trust, allotment, or other restriction will be extinguished thereby. Such foreclosure proceeding, whether conducted judicially or nonjudicially, shall divest the mortgagor and the United States of any and all title or interest to the mortgaged property or lease; provided, that where the interest foreclosed is a leasehold, the trust title to the underlying trust land shall not be disturbed.
(1) 
Judicial Foreclosure.
(a) 
A mortgage may be foreclosed judicially in conformity with Chapter 61.12 RCW, as in effect as of the date of this article, a complete copy of which is attached hereto and which is incorporated herein as though set forth in full (a “judicial mortgage foreclosure proceeding”); provided, however, for purposes of this article all references in Chapter 61.12 RCW to “county” shall be deemed to mean “Reservation” and all references to “court” or “superior court” shall be deemed to mean “Tribal Court.”
(b) 
Upon the default of the mortgagor(s) under a mortgage, the mortgagee may commence a judicial mortgage foreclosure proceeding in the Tribal Court by filing:
(i) 
A verified complaint:
(A) 
Naming the mortgagor(s) and each person or entity claiming through the mortgagor(s) subsequent to the recording of the mortgage, including each subordinate lienholder (except the Tribes with respect to a claim for a Tribal property tax), as a defendant;
(B) 
Describing the property;
(C) 
Stating the facts concerning the execution of the mortgage; the facts concerning the recording of the 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; and
(D) 
Having appended as exhibits true and correct copies of each promissory note, mortgage, or assignment thereof relating to the property.
(ii) 
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) in accordance with the terms of the complaint unless the defendants 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 judicial mortgage foreclosure proceeding under this article.
(d) 
Alternate Service. If it appears by affidavit filed in the Tribal Court that any party to a judicial mortgage foreclosure proceeding cannot be located, then service of process may be had upon such a party by:
(i) 
Posting a copy of the summons and complaint in a conspicuous place on the property which is subject to the mortgage 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 Regional Agency of the Bureau of Indian Affairs, whose office is located at 911 N.E. 11th Avenue, Portland, Oregon, 97232, 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. In any judicial mortgage foreclosure proceeding where the Tribes is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes 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.
(f) 
Intervention. The Tribes may petition the Tribal Court to intervene in any judicial 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.
(2) 
Nonjudicial Foreclosure. If a mortgage meets the requisites of RCW 61.24.030, the same may be foreclosed nonjudicially in conformity with Chapter 61.24 RCW, as in effect as of the date of this article, a complete copy of which is attached hereto and which is incorporated herein as though set forth in full (a “nonjudicial mortgage foreclosure proceeding”); provided, however, for purposes of this article, all references in Chapter 61.24 RCW to “county” shall be deemed to mean “Reservation” and all references to “court” or “superior court” shall be deemed to mean “Tribal Court.”
(3) 
Rules of Decision – Interpretation. 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 interest of the property subject to the mortgage. 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.
(4) 
Remedies Exclusive. The remedies provided under this article are exclusive for the judicial or nonjudicial foreclosure of a mortgage.
(Ord. 88 § 5, 8-26-1996)
In any case where the Tribes is a mortgagor under a 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. 88 § 6, 8-26-1996)
Following foreclosure of a mortgage as provided in this article, the mortgagor or other purchaser of the mortgaged property at a judicial mortgage foreclosure proceeding or nonjudicial mortgage foreclosure proceeding may enter trust lands to obtain possession of the fee interest in the foreclosed mortgaged property or lease.
(Ord. 88 § 7, 8-26-1996)
Post-foreclosure actions to obtain possession of the interest foreclosed may be undertaken at the option of the mortgagee or other party that acquired their interest through foreclosure pursuant to either (1) the summary proceedings to obtain possession of the real property as provided in Chapter 6.25 TTC, Forcible Entry and Forcible and Unlawful Detainer, or (2) the laws, rules and regulations of Washington State applicable to post-foreclosure proceedings for real property.
Notwithstanding any provision of Tribal law, a mortgagee obtaining foreclosure through the Tribal Court under this article shall be authorized to bring an unlawful detainer action pursuant to Chapter 6.25 TTC against any mortgagor whose mortgage of land or leasehold is subject to the provisions of this article, and any such mortgagor shall be guilty of unlawful detainer under Chapter 6.25 TTC when such mortgagor holds over or continues in possession of lands which have been duly foreclosed upon pursuant to a mortgage or lease subject to the provisions of this article and such mortgagor shall be considered a tenant of lands or leasehold of lands for the purpose of bringing an action under Chapter 6.25 TTC.
(Ord. 88 § 8, 8-26-1996)
Notwithstanding any State statute adopted as Tribal law by this article, where the Tribes is enforcing its own interest in lands or other mortgaged property, (1) the Court shall grant the Tribes a judgment for any deficiency remaining unsatisfied after the application of the proceeds of sale of the mortgaged property, real or personal, to the debt owed the Tribes; (2) the Court shall have no authority to upset the bid price; and (3) no period or right of redemption shall be available to the mortgagor or any person deriving an interest from the mortgagor.
(Ord. 88 § 9, 8-26-1996)