CHAPTER 2-7
COLLECTION OF DEBTS
§ 2-7-1 Definitions
(a) "Garnishee" means an employer, trustee, financial agency or institute, or other person found within the reservation boundaries who has in his possession or control any credits or other personal property belonging to the defendant, or owes any debt to the defendant.
(b) "Homestead" means a dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved; or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as a principal home for the owner. (added 6/22/99)
(c) "Owner" means, but is not limited to, a purchaser under a deed of trust, mortgage, or contract.
§ 2-7-2 Writ of Attachment/Hearing
If within sixty (60) days after entry of a judgment awarding money damages and/or costs against a party or within sixty (60) days after final resolution of an appeal to the appellate court from such a judgment, it is made to appear to the Court that the judgment debtor has not paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties, or is not current in such payments owed to the creditor, the Court shall upon motion of the judgment creditor, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may have the property of the judgment debtor attached as security for satisfaction of the judgment.
§ 2-7-3 Intervening Creditors
Within two (2) business days after issuing the writ of attachment, the court clerk shall publish notice in a newspaper of general circulation in the area where the property is located or seized. Any creditor of the debtor, who, within twenty (20) business days after publication of the notice, shall commence and thereafter diligently prosecute to final judgment, his claim against the debtor, shall share with the attaching creditor in an amount as determined by the Court, the proceeds of debtor's property where there are not sufficient funds to pay all judgments in full against him.
§ 2-7-4 Execution of Writ
(a) Upon issuing a writ of attachment, the Court shall order the judgment debtor to appear before it and answer under oath regarding all his personal property. The Court shall then determine what property of the judgment debtor is available for execution and order the tribal police to seize as much of such property as reasonably appears necessary to pay any judgment meeting the standards for payment under this chapter.
(b) Failure of the judgment debtor to appear may be deemed a contempt of court and the Court may proceed without such appearance. Any sale of seized property shall be at public auction conducted by the tribal police after giving at least ten (10) business days public notice posted in at least three conspicuous public places on the reservation. Property shall be sold to the highest bidder who shall make payment for the property at the time of sale. The person conducting the auction such in his discretion if there is inadequate response to the auction or the bidding, and may reschedule such upon giving the required notice. The person conducting the sale shall give a certificate of sale to the purchaser and shall make a return to the Court reciting the details of the sale.
(c) Proceeds of the sale shall first go to satisfy the cost of the sale, second to any unpaid court costs, next to satisfy any portion of a judgment still owing and meeting the standards for payment under this chapter. Any amount remaining after the above has been paid shall be paid over to the debtor.
(d) The Court shall only order seizure and sale of such property of the judgment debtor to satisfy a money judgment the loss of which will not impose an immediate substantial hardship on the judgment debtor's immediate family.
(e) At any time within six (6) months after sale under this section, the judgment debtor may redeem his property from the purchaser by paying the amount such purchaser paid for the property plus eight (8) percent interest, plus any expenses actually incurred by the purchaser, such as taxes and insurance to maintain the property.
§ 2-7-5 Garnishment
(a) Upon receiving information in writing from the creditor or his attorney of the existence of a garnishee, the tribal police shall serve upon the garnishee, a copy of the writ and notice that any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession, are attached to the writ. Upon attachment, the garnishee shall pay or deliver to the police all debts he owes to the debtor or any of the debtor's money in his possession, or any portion thereof sufficient to discharge the claim of the creditor. The police shall issue the garnishee a receipt for any funds or property delivered.
(b) A person who is a garnishee at the time of service upon them of a copy of the writ and notices, shall be liable to the creditor for the amount of any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession until the attachment is discharged or any judgment recovered by the creditor is satisfied unless such property is delivered or such debts paid to the Court.
§ 2-7-6 Writ of Recovery
(a) Whenever the Court has issued a judgment ordering the party to deliver possession of real or personal property to another party and such delivery has not taken place within the time limit prescribed in the judgment, the Court shall upon motion of the aggrieved party, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may issue a writ of recovery for the property involved.
(b) The writ shall describe the real or personal property involved in enough detail to enable the Tribal Police to locate such property, and shall authorize a Tribal Police Officer to take possession of specified real or personal property from a wrongful holder and deliver possession to the party indicated on the writ. If real or personal property is within the jurisdiction of the Court, it may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.
§ 2-7-7 Specific Acts
If a judgment directs a party to perform any specific act and the party fails to comply within the time specified, the Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the Court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment against the property of the disobedient party to compel obedience to the judgment. The Court may also in proper cases adjudge the party in contempt.
§ 2-7-8 Service of Writ
Service of a writ under this chapter shall be in accordance with service of process as provided in the Rules of Civil Procedure.
§ 2-7-9 Exempt Property
Any property, wages or other assets which are exempt from execution by federal law and any Indian regalia, relics and family heirlooms, as determined by the tribal court judge, are exempt from execution under this chapter.
§ 2-7-10 Homestead Exemption
A homestead is automatically protected by exemption, in addition to those exemptions set forth in § 2-7-9. If the homestead exemption is made by a married person from the community property, the property, on the death of either of the spouses, vests in the survivor, subject to no other liability; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the Tribal Court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner. (added 6/22/99)