At any time after the expiration of the time set in the notice
to quit, if the tenant or occupant of the premises refuses to quit
possession or occupancy of the premises, the landlord may file a complaint
in the Tribal Court for eviction and other relief. The complaint must
state:
A.
The name and known address of the tenant(s) against whom the suit
is brought, but it need not state the names of any other occupants,
who will be considered to be bound by a Court order;
B.
A description of the agreement of the parties or the terms under
which the person being sued occupies the premises;
C.
The address or location of the premises in sufficient terms to allow
a law enforcement officer to carry out any order of the Court;
D.
A description of the obligation the tenant has breached or the reason
for the action;
E.
A statement showing that any required termination notices and the
notice to quit have been served in accordance with the provisions
of this Code requiring them; and
A.
Procedure.
(1)
When a complaint is filed in the Tribal Court, it must be immediately
presented to a Tribal Court Judge. This must be on the date of filing,
or, if no Judge is present, on the first regular Court day after filing
or when a Judge may first be found.
(2)
The Judge must review the complaint and must, if it appears to be in compliance with § 480-25, complaint, shall issue an order of the Court requiring the defendant named in the complaint to appear before the Court on a day and at a place stated in the summons.
(3)
The appearance shall not be less than seven business days nor more
than 14 business days from the day of issuing the summons, except
as provided by below per the expedited procedure.
(4)
A copy of the complaint shall be attached to the summons, which shall
state that the copy is attached and the original has been filed.
B.
Expedited procedure.
(1)
In an eviction action brought under § 480-7E, § 480-17A(2) and (3), or § 480-18C or on the basis that the tenant is causing other illegal behavior that seriously endangers the safety of other tenants, their property, or the landlord's property, the person filing the complaint shall file an affidavit stating specific facts and instances that support why an expedited hearing is required.
(2)
The complaint and affidavit shall be scheduled for an expedited hearing
only if sufficient supporting facts are stated and they meet the requirements
of this subsection.
(3)
The appearance in an expedited hearing shall not be less than five
business days nor more than seven business days from the date the
summons is issued. The summons, in an expedited hearing, shall be
served upon the tenant within 48 hours of issuance unless the Court
orders otherwise for good cause shown.
C.
Summons; how served.
(1)
The summons must be served at least seven business days before the
date of the court appearance specified in the summons, in the following
manner:
(2)
Except as described below, service is effective when it is personally
delivered on the defendant;
(3)
If the defendant cannot be found within the Reservation, the summons
may be effectively served at least seven business days before the
date of court appearance by:
(a)
Leaving a copy at the defendant's last known residence
with a person of suitable age and discretion residing there; or
(b)
Leaving a copy at the property described in the complaint with
a person of suitable age and discretion occupying the premises.
(c)
Failure, after the requisite attempts, to serve the defendant
is prima facie proof that the defendant cannot be found within the
Reservation.
(4)
Where the defendant cannot be found within the Reservation, service
of the summons may be effectively made upon the defendant by posting
the summons in a conspicuous place on the property for not less than
five business days if:
(a)
The property described in the complaint is residential and service
has been attempted at least twice on different days, with at least
one of the attempts having been made between the hours of 6:00 p.m.
and 10:00 p.m.; and
(b)
The plaintiff or plaintiff's attorney has signed and filed
with the Court an affidavit stating that:
A.
Appearance; trial. At the court appearance specified in the summons,
the defendant may appear and answer the complaint, and the Court shall
hear and decide the action, unless it grants a continuance of the
trial as provided below.
B.
Answer; defenses, witness, alleging illegal conduct by landlord.
If the defendant is raising defenses against eviction under this Code,
alleging other illegal or retaliatory conduct of the plaintiff, and/or
providing witnesses other than the named defendants, the defendant
shall file an answer with the Court not less than three business days
before the appearance date on the summons. The Court, upon filing
an answer, shall notify the plaintiff and have a copy available to
pick up. The Court may send an electronic copy to the plaintiff, at
the request of the plaintiff.
C.
Failure to file an answer. If the defendant fails to file an answer
as described above:
D.
Continuance of trial.
(1)
In an eviction action, the Court, in its discretion, may grant a
continuance of the trial for no more than six business days unless
all parties consent to a longer continuance.
(2)
However, in all actions brought where the defendant has filed an
answer raising retaliation defense, illegal conduct of landlord, or
a cross-complaint filed by the defendant, the Court shall continue
the trial as necessary but for no more than three months if the defendant
or defendant's attorney:
(a)
States under oath that the defendant cannot proceed to trial
because a material witness is not present;
(b)
Names the witness(es);
(c)
States under oath that the defendant has made due exertion to
obtain the witness;
(d)
States the belief that if the continuance is allowed the defendant
will be able to procure the attendance of the witness at the trial
or to obtain the witness's deposition; and
(e)
Gives bond that the plaintiff will be paid all rent that accrues
during the pendency of the action and all costs and damages that accrued
due to adjournment.
(3)
The Court shall not grant a continuance where the complaint has been
filed and scheduled under the expedited procedure in this section
except under a finding of extraordinary circumstances. Such a continuance
shall not exceed six business days.
(4)
Computing days. Weekends, holidays, or Court closures, including
delays and closures resulting in partial days, shall not be counted
in scheduling continuances.
E.
Rent/damages owed during pendency of eviction proceedings. The Court
may, in its discretion and only upon motion from the landlord, order
the tenant to pay into the Court rents for the use and occupancy during
the pendency of the eviction case and/or damages to the rental unit
caused by the tenant. If the Court orders rents and/or damages owed
by tenant and the tenant fails to pay, the Court may find for contempt.
A.
Upon an appropriate showing, the Court must grant the remedies allowed
in this Code, unless it appears by the evidence that:
(1)
The premises are untenable, uninhabitable, or constitute a situation
where there is a constructive eviction of the tenant, in that the
premises are in such a condition, due to the fault of the landlord,
that they constitute a real and serious hazard to human health and
safety and not a mere inconvenience.
(2)
The landlord has failed or refused to make repairs which are his
or her responsibility after a reasonable demand by a tenant to do
so, without good cause, and the repairs are necessary for the reasonable
enjoyment of the premises.
(3)
There are monies due and owing to the tenant because he or she has
been required to make repairs which are the obligation of the landlord,
and the landlord has failed or refused to make them after a reasonable
notice. Such sums may be a complete or partial defense to a complaint
for eviction, but only to the extent that such sums set off monies
owed for occupancy. A tenant may be evicted after such a period if
he fails or refuses to pay the reasonable rental value of the premises.
(4)
Due to the conduct of the landlord, there is injury to the tenant
in such a way that justice requires that relief be modified or denied.
This shall include the equitable defenses of estoppel, laches, fraud,
misrepresentation, and breaches of serious and material obligations
for public health, safety, and peace standards.
(5)
There are such serious and material breaches of applicable housing
law on the part of the landlord that it would be unjust to grant him
a remedy.
(6)
The landlord is evicting the tenant because of his or her race, sex,
sexual orientation, religion, age, marital status, family status,
or because the tenant is disabled.
B.
No defense may be founded upon either of the grounds listed in Subsection
(A)(1) or (2) above unless:
(1)
The obligation to maintain or repair is that of the landlord under
this Code or the agreement of the parties, and a clear and reasonable
demand was made by the tenant to correct such conditions or the landlord
knew of them; and
(2)
The landlord has had a reasonable opportunity to maintain or make
repairs and the tenant has been cooperative in allowing them.
A.
Discovery shall be informal, and reasonably provided on demand of
a party. Requests for discovery must be made at the date of appearance.
The Court may enter reasonable orders requiring discovery, altering
the time requirements of this section or protecting the rights of
the parties upon reasonable notice.
B.
Extensive, prolonged, or time-consuming discovery and prehearing
proceedings will not be permitted, except in the interests of justice
and for good cause shown by the moving party.
Evidence in proceedings under this Code shall be according to
the following provisions:
A.
All evidence may be admitted which can be shown to be relevant, material,
and have reasonable probative value to the case. The Court may exclude
irrelevant or repetitious evidence or arguments.
B.
The proceedings shall not be governed by the common law or statutory
rules of evidence except those relating to the privilege. Fairness
will dictate the decision of the Judge on challenges to admissibility
of evidence. The Court may conduct questioning of the witness and
shall endeavor to ensure that the claims or defense of all parties
are fairly presented to the court.
C.
The Court may avail itself of any recognized and authoritative materials,
books or documents as guidance in reaching a decision on the admissibility
of evidence.
D.
Hearsay evidence is admissible if it is relevant, material, reasonably
competent under the circumstances, and has reasonable probative value.
An essential finding of fact may not be based solely on a declarant's
oral hearsay statement unless it would be admissible under the rules
of evidence. Hearsay evidence may be freely admitted where all parties
to the out-of-Court statement are present before the Court and qualified
to testify as to the statement made.
E.
At the discretion of the Judge, evidence may be excluded if its value
as proof is outweighed by the risk that its admission will create
a substantial risk of undue prejudice, confuse the issues, or unfairly
surprise the opposing party.
F.
Upon request of a party, the Court may take judicial notice of specific
facts which are so certain as not to be subject to reasonable dispute.
The burden of proof in all proceedings under this Code shall
be clear and convincing evidence. The burden of proof shall be on
the petitioner in an action before the Tribal Court.
A.
Default judgment. If a defendant fails to appear in person on the
date of the Court-scheduled appearance, the Court shall enter a default
judgment on behalf of the plaintiff based on the pleadings.
B.
Judgment on the merits. Within five business days of the date of
the hearing, the Court must grant and enter judgment on the merits.
The judgment must grant all relief that the parties are entitled to
as of the date of the judgment. The judgment may:
(1)
Order the immediate eviction of a tenant and delivery of the premises
to the landlord;
(2)
Grant actual damages as provided in the agreement of the parties
or this Code;
(3)
Order the parties to carry out an obligation required by law;
(4)
Establish a payment plan for the tenant;
(5)
Establish a power of attorney in another person/agency to fulfill
rights or obligations of either landlord or tenant;
(6)
Remediate the action in part or in whole through appropriate recalculation
of rent;
(7)
Remediate the action, in part or in whole, through a conversion from
a lease/purchase agreement to a rental tenant status;
(8)
Order the tenant to perform work for the landlord or the Housing
Department to pay off back rent due and/or damages incurred;
(9)
Order the payment of attorneys' fees and, where allowed by law
or agreement, costs and expenses of litigation;
(10)
Grant any relief provided in this Code or allowed in law or
equity.
A.
The judgment shall state the relief granted by the Court to any party,
but need not state findings of fact or conclusion of law in support
of the judgment. The judgment may state brief reasons for it. The
Judge should, whenever possible, render a decision immediately after
both parties have rested their case and award costs and restitution.
B.
The judgment shall be known as an "eviction order." It shall include
a writ of recovery of premises and an order to vacate.
C.
The Court shall develop a uniform form for the summons and writ of
recovery of premises and order to vacate.
D.
The Court shall identify a writ of recovery of premises and order
to vacate property that is issued pursuant to an eviction action under
the expedited procedure and clearly note on the order to vacate that
it is a priority order. Notice that it is a priority order must be
made in a manner that is obvious to an officer who must execute the
order.
A.
An eviction order may be executed by a duly authorized law enforcement
officer or officer of the Court, appointed by the Court for such purpose.
Any law enforcement officer shall, upon receipt of an order of the
Court, execute the judgment or order made by the Court within five
business days of the date of the judgment or order and make a report
to the Court on what was done to enforce it.
B.
Any law enforcement officer to whom a judgment or order is given
for enforcement who fails, in the absence of good faith, or refuses
to execute it shall be subject to the payment of reasonable damages,
costs and expenses to a party for failure to execute the judgment
and/or suspension from employment.
C.
This section shall also apply to any judgment on behalf of a tenant
obtained under the general tribal civil procedure code and/or tribal
small claims procedure code. All other portions of the judgment shall
be subject to execution in the manner otherwise provided under tribal
law.
D.
To execute the order, the officer shall;
(1)
Provide a copy of the order of eviction to all adult tenants;
(2)
Post copies of the order of eviction on the doors of the premises,
if there is not any adult tenant present at the time of execution;
(3)
Remove all the evicted persons from the dwelling and verbally order
them not to reenter;
(4)
Supervise the removal of the possessions of the evicted persons.
If the Court issues judgment for possession of the dwelling
unit in favor of the landlord, the tenant may apply for a stay of
execution of the judgment or order, provided it is within five business
days of the judgment rendered and there is evidence that one or more
of the following conditions is met:
A.
Good and reasonable grounds affecting the wellbeing of the party
are stated; or
B.
There would be no substantial prejudice or injury to the prevailing
party during the period of the stay; or
C.
Execution of the judgment could result in extreme hardship for the
tenant(s); or
D.
A bond is posted or monies are paid to the Court, to satisfy the
judgment or payment for the reasonable use and occupancy of the premises
during the period of time following the judgment. The clerk shall
distribute such arrearages to the landlord in accordance with any
order of the Court.
E.
No stay shall exceed three months in the aggregate.
F.
For actions brought under the expedited procedure the Court may not
stay the writ of recovery of the premises and order to vacate unless
the Court makes written findings specifying the extraordinary and
exigent circumstances that warrant staying the writ for a reasonable
period, not to exceed seven days.
A.
Reopening a default judgment. A party may file a motion to reopen
a default judgment within 15 calendar days of the Court's judgment
or order. A motion under this section does not affect the finality
of a judgment or suspend its operation. This section does not limit
the power of a court to entertain an independent action to relieve
a party from judgment, order, or proceeding, or to set aside a judgment
for fraud on the Court. On motion and upon such terms as are in the
interest of justice, the Court may relieve a party or legal representative
from a default judgment if the movant is able to demonstrate both:
B.
Appeals. Appeals under this Code shall be handled according to the
general tribal appellate provisions, with the exception that the party
making the appeal shall have only five business days from the entry
of the order of judgment to file a notice of appeal. All orders from
the Court will remain in effect during the pendency of an appeal under
this Code unless otherwise ordered by the Court.
Any miscellaneous complaint, cross-complaint, or claim including
a complaint or claim by a tenant which does not fall within the procedures
of this Code may be made under the general tribal civil procedure
Code and/or tribal small claims procedure Code.
A.
At the hearing where eviction is ordered, the Court shall inform the defendants that if they do not vacate the premises voluntarily by the effective date, they and any other occupants will be subject to forcible eviction, and their property will be subject to storage, sale and disposal as set forth in § 480-39, Storage of personal property following forcible eviction.
B.
Where the Court orders an eviction, and the defendant or any other
occupant of the premises refuses to vacate voluntarily by the effective
date of that order, the defendant or other occupants may be forcibly
removed from the premises by a tribal law enforcement officer.
C.
Following eviction, the Court may allow the landlord, the Tribe,
or the United States government access to any property leased by either
of them for purposes of preserving and securing it.
A.
Following forcible eviction of the defendant and/or other occupants,
the former occupants' personal property shall be stored by the
owner of the premises for at least 30 calendar days, either on the
premises or at another suitable location.
B.
In order to reclaim their property, the former occupants must pay
the reasonable costs of its removal and storage.
C.
If they do not pay such costs within 30 calendar days, the owner
of the premises is authorized to sell the property in order to recover
costs incurred.
D.
Upon request by the former occupants, the landlord must provide them
with pertinent information concerning the sale, including the time,
date and location.
E.
Any proceeds from the sale in excess of the Court-ordered judgment,
storage, and removal costs must be remitted to the former occupants.
Nothing in this section shall be construed to prevent the former occupants
from reclaiming property remaining after the sale if they can arrange
to do so in a manner satisfactory to the owner.
