PRP.7.6.070 General Eviction Procedure

(a) Summons and Complaint. If, after the date set forth in the notice to quit for the tenant(s) to quit possession of the dwelling unit, the tenant has not quit possession, the Housing Authority may file a complaint in the Tribal Court for eviction and such other relief as the Court may deem just and proper. The complaint shall state:

(1) The names of the adult tenant(s) against whom the suit is brought;

(2) A description of the rental agreement, if any;

(3) The address or reasonable description of the location of the dwelling;

(4) The grounds for eviction;

(5) A statement showing that the notice to quit and any required termination notices have been served in accordance with this code or other applicable law; and

(6) A statement of the relief demanded, including any claim(s) for possession of the dwelling unit, damages, fees, costs, or other special relief.

(7) A statement that the Housing Authority has complied with all required regulatory processes prior to filing the eviction action.

(b) Action Upon Filing Complaint. When a complaint is filed in the Tribal Court, it shall be immediately presented to a Tribal Court Judge. This shall 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. The judge shall review the complaint and shall, if it appears to be in compliance with the provisions of this section and served as set forth in Section PRP.7.6.050, issue an order of the Court requiring the defendant named in the complaint to appear before the Court on a certain date to contest the complaint. The date for appearance for answering the complaint shall be no less than seven (7) calendar days after the date of the order in matters involving serious lease or admissions and occupancy violations pursuant to Section PRP.7.6.090 of this ordinance, or fifteen (15) calendar days in all other cases. Upon setting of the date for appearance, the plaintiff Housing Authority shall have defendant tenant served with the complaint and a summons to appear for the court date.

(1) If the tenant appears before the Court in person or in writing to contest the complaint, the Court shall set a hearing date. Any written response shall state any defenses or factual disputes and where any defendant appears in person, a written response shall be served upon the plaintiff within five (5) calendar days of any hearing, excluding weekends and holidays.

(2) The Court shall set a hearing date which is no more than fifteen (15) calendar days following the date for appearance, except when the hearing date would fall on a weekend or holiday, and in such a situation on the first regular Court day following that date.

(3) A defendant may, for good cause shown, and upon the payment of a reasonable sum for the fair rental value of the dwelling between the date on which the complaint was filed and the date of hearing, obtain an extension of time, beyond the fifteen (15) day period. The Court may refuse to extend the date of hearing where the complaint is based upon nuisance or injuries as provided in Section PRP.7.6.030(c) of this ordinance and shall not extend the date of hearing where the complaint is based upon conduct which is alleged to constitute a serious danger to public health, safety, or peace.

(4) The Court may in its discretion on motion from the Housing Authority order the tenant to pay into the Court rents for the use and occupancy during the pendency of the eviction case.

(d) Defenses. The Court shall grant the remedies allowed in this Code, unless it appears by the evidence that:

(1) The dwelling is untenable, uninhabitable, or constitute a situation where there is a constructive eviction of the tenant, in that the dwelling are in such a condition, due to the fault of the Housing Authority, that they constitute a real and serious hazard to human health and safety and not a mere inconvenience.

(2) The Housing Authority has failed or refused to make repairs which are his 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 dwelling.

(3) There are monies due and owing to the tenant because he has been required to make repairs which are the obligation of the Housing Authority and the Housing Authority 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 dwelling.

(4) That due to the conduct of the Housing Authority, 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) That there are such serious and material breaches of applicable housing law on the part of the Housing Authority that it would be unjust to grant him a remedy.

(6) The Housing Authority is evicting the tenant because of his/her race, sex, sexual orientation, religion, age, marital status, family status, or because the tenant is disabled.

(7) The Housing Authority terminated the tenancy in retaliation for the tenant's attempt to secure his rights under this Code or to force the Housing Authority to comply with his duties under this Code.

(8) Any other material or relevant fact the tenant might present that may explain why his eviction is unjust and unfair.

(e) Discovery and Pre-Hearing Proceedings. Extensive, prolonged, or time-consuming discovery and preheating proceedings will not be permitted, except in the interests of justice and for good cause shown by the moving party. Discovery shall be informal, and reasonably provided on demand of a party, and it shall be completed within five (5) calendar days of the date of hearing. Requests for discovery shall be made no later than three (3) calendar days following the setting of a hearing date. The court may enter reasonable orders requiring discovery or protecting the rights of the parties upon reasonable notice.

(f) Evidence. Evidence in proceedings under this Code shall be informal and may include relevant and reliable hearsay evidence if such evidence is not the basis for a final decision. The books and records of the parties as to the payment or nonpayment of monies owed will be received in evidence and the files and business records of the Housing Authority with respect to the agreement of the parties will be received in evidence and the files and business records of the Housing Authority with respect to the agreement of the parties will be received in evidence upon their presentation to the Court; provided, however, that a tenant may examine the custodian of such records as to their contents. All hearings will be informal and designed to receive evidence in a fair and just manner.

(g) Burden of Proof. The burden of proof in all proceedings under this Code shall be by a preponderance of the evidence.

(h) Judgment.

(1) Within five (5) calendar days of the date of the Trial, the Court shall grant and enter judgment and the judgment shall grant all relief that the parties are entitled to as of the date of the judgment. The judgment may:

(A) Order the immediate eviction of a tenant and delivery of the dwelling to the Housing Authority;

(B) Grant actual damages as provided in the agreement of the parties or this Code, including interest;

(D) Establish a payment plan for the tenant;

(E) Order rent payments or damage judgments through tax intercept or garnishment;

(F) Establish a Power of Attorney in another person/agency to fulfill rights or obligations of either the Housing Authority or the tenant;

(G) Remediate the action in part or in whole through appropriate recalculation of rent;

(H) Order the tenant to perform work for the Housing Authority to pay off back rent due and/or damages;

(I) Order the payment of attorneys' fees and, where allowed by law or agreement, costs and expenses of litigation;

(J) Order the parties into negotiations as provided in Section PRP.7.6.060 of this ordinance; or

(K) Grant any relief provided in this code or allowed in law or equity.

(2) If a tenant fails to appear in person or in writing on or before the date of appearance, the Court shall enter a default judgment against the defendant, so long as the plaintiff can reasonably show that relief should be granted and what kind of relief.

(i) Form of Judgment. The judgment shall state the relief granted by the Court to any party but need not state findings of fact or conclusions of law in support of the judgment. The judgment may state brief reasons for it. If a trial is held, the judge should, whenever possible, render his decision immediately after both parties have rested their case and award costs and restitution as appropriate.

(j) Execution of Judgment. An eviction order may be executed by a duly authorized law enforcement officer or officer of the Court, appointed by the Court for such a purpose. To execute the order, the officer shall:

(1) Remove all the evicted persons from the dwelling and verbally order them not to re-enter;

(2) Provide a copy of the order of eviction to all adult tenants;

(3) Post copies of the order of eviction on the doors of the dwelling is there is not any adult tenant present at the time of execution; and

(4) Supervise the removal of the possessions of the evicted persons. Any law enforcement officer shall, upon receipt of an order of the Court, execute the judgment or order made by it with in five (5) calendar days of the date of the judgment or order and make a report to the Court on what was done to enforce it. 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. 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.

(k) Stay of Execution. If judgment for possession of the dwelling unit enters in favor of the Housing Authority, the tenant may apply for a stay of execution of the judgment or order if within five (5) days of the judgment being rendered, the following is established:

(1) Good and reasonable grounds affecting the wellbeing of the party are stated;

(2) There would be no substantial prejudice or injury to the prevailing party during the period of the stay;

(3) Execution of the judgment could result in extreme hardship for the tenant(s); or

(4) 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 dwelling during the period of time following the judgment. No stay may exceed three months in the aggregate. The clerk shall distribute such arrearages to the Housing Authority in accordance to any order of the court.

(l) Appeals. Appeals under this ordinance shall be handled according to the general tribal appellate provisions as established at Chapter TCT.3 of the LCOTCL – Appeals Code, with the exception that the party taking the appeal shall have only five (5) days from the entry of the order of judgment to file an appeal. All orders from the Court will remain in effect during the pendency of an appeal under this ordinance unless otherwise ordered by the Court.

(m) Miscellaneous Complaints and Claims. Any miscellaneous complaint or claim including a complaint or claim by a tenant which does not fall within the procedures of this subchapter may be made pursuant to other provisions of this ordinance.

(n) Notice to Leave the Dwelling. Any notice to leave a dwelling, shall be by written order of the court, and shall be delivered to the tenant in the following manner:

(1) Delivery shall be made by:

(A) A law enforcement officer of the Tribe or an agency of the United States Government, or

(B) Any person authorized by the Tribal Court.

(2) Delivery will be effective when it is:

(A) Personally, delivered to a tenant with a copy delivered by mail, or

(B) Personally, delivered to an adult living in the dwelling with a copy delivered by mail, or

(3) If the notice cannot be given by means of personal delivery, or tenant cannot be found, the notice may be delivered by means of:

(A) Certified mail, return receipt requested, at the last known address of the tenant, or

(B) Securely taping a copy of the notice to the main entry door of the dwelling in such a manner that it is not likely to blow away, and by posting a copy of the notice in some public place near the dwelling, including a tribal office, public store, or other commonly frequented place and by sending a copy first class mail, postage prepaid, addressed to the tenant at the dwelling.

(C) Posting the notice in the Tribal Newspaper, Tribal Newsletter, or any other local Newspaper and by sending a copy first class mail, postage prepaid, addressed to the tenant at the dwelling.

(o) Forcible Eviction.

(1) Where the Court orders an eviction, and the defendant or any other occupant of the dwelling refuses to vacate voluntarily by the effective date of that Order, the defendant or other occupants may be forcibly removed from the dwelling by a law enforcement officer. At the hearing where the eviction is ordered, the Court shall inform the defendant that if he does not vacate the dwelling voluntarily by the effective date, he and the other occupants will be subject to forcible eviction, and their property will be subject to storage, sale and disposal as set forth in Section PRP.7.6.070(o)(3) below.

(2) Following eviction, the Court may allow the Housing Authority access to any property leased by either of them for purposes of preserving and securing it.

(3) Following forcible eviction of the defendant and/or other occupants, the former occupant's personal property shall be stored by the Housing Authority for at least thirty (30) days, either on the dwelling or at another suitable location. In order to reclaim their property, the former occupants shall pay the reasonable costs of its removal and storage. If they do not pay such costs within thirty (30) days, the Housing Authority is authorized to sell the property in order to recover these costs. The Housing Authority shall not condition return of the former occupant's personal property on the payment of any costs or fees other than those of removal and storage of those personal possessions. Should the Housing Authority attempt to condition return of personal possessions on payment of any other cost or fee, the Housing Authority shall forfeit its right to the costs of removal and storage. Upon request by the former occupants, the Housing Authority shall provide them with pertinent information concerning the sale, including the time, date and location. Any proceeds from the sale in excess of the storage and removal costs shall 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 in a manner satisfactory to the owner. If the abandoned property is of cultural, religious, or ceremonial significance, the Housing Authority shall have an affirmative duty to locate next of kin and/or contact the Tribe to return these items.

(p) No Self-Help Evictions. The Housing Authority may not compel a tenant to vacate any dwelling under this subchapter in a forceful fashion or way which causes a breach of the peace. For purposes of this section, the Housing Authority shall give a notice to quit and obtain a court order as provided in this under this subchapter.

(q) Security Deposits.

(1) Payment of Security Deposit at Termination of Tenancy. The Housing Authority shall pay to the tenant or former tenant the amount of the security deposit that was deposited by the tenant with the Housing Authority at the time such security deposit, was deposited less the value of any damages which the Housing Authority, has suffered as a result such tenant's failure to comply with such tenant's obligations. Damages shall not include normal wear and tear.

(2) Action to Reclaim Security Deposit. Any tenant may bring a civil action in Tribal Court to reclaim any part of his/her security deposit which may be due.