HO-CHUNK NATION CODE (HCC)

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TITLE 8 – HOUSING, REAL ESTATE AND

PROPERTY CODE SECTION 6 – TRIBAL LANDS

LENDING ACT

ENACTED BY LEGISLATURE: AUGUST 17, 2005

LAST AMENDED: December 19, 2023

CITE AS: 8 HCC § 6

This Act supersedes the Ho-Chunk Nation Tribal Lands Lending Code

enacted by Legislative Resolution 7/11/01A.

TABLE OF CONTENTS

Authority…..…………………………………1

Purpose…….…………………………………2

Scope…………………………………………2

Definitions ………………………………… 2

Lien Priority.………………………………....2

Recording of Mortgage Loan Documents…....2

Pre-Foreclosure Procedures……………….....4

Foreclosure Complaint and Summons……….5

Commencement of Foreclosure; Service

of Process and Expedited Procedures………..6

10. Cure of Default..……………………………..7

11. Judgment and Remedy…………..…………...7

12. Foreclosure Evictions………………..………7

13. No Mergers of Estates……………..………...9

14. Certified Mailing to Nation………..…….….10

15. Intervention…………...…………………….10

16. Appeals…………...…………………………10

Authority.

a. Article V, Section 2(a) of the Constitution of the Ho-Chunk Nation (“Constitution”) grants

the Legislature the power to make laws, including codes, ordinances, resolutions, and statutes.

b. Article V, Section 2(b) of the Constitution grants the Legislature the power to establish

Executive Departments, and to delegate legislative powers to the Executive Branch to be

administered by such Departments, in accordance with the law; any Department established by the

Legislature shall be administered by the Executive; the Legislature reserves the power to review

any action taken by virtue of such delegated power.

c. Article V, Section 2(d) of the Constitution grants the Legislature the power to authorize

expenditures by law and appropriate funds to the various Departments in an annual budget.

d. Article V, Section 2(i) of the Constitution grants the Legislature the power to negotiate

and enter into treaties, compacts, contracts, and agreements with other governments, organizations,

or individuals.

e. Article V, Section 2(l) of the Constitution grants the Legislature the power to enact laws

to manage, lease, permit, or otherwise deal with the Nation’s lands, interests in lands or other

assets.

f. Article V, Section 2(m) of the Constitution grants the Legislature the power to enact laws

to prevent the sale, disposition, or encumbrance of Ho-Chunk Lands or other Ho-Chunk assets.

g. Article V, Section 2(p) of the Constitution grants the Legislature the power to enact laws

to create and regulate a system of property including but not limited to use, title, deed, estate,

inheritance, transfer, conveyance and devise.

h. Article V, Section 2(x) of the Constitution grants the Legislature the power to enact any

other laws, ordinance, resolutions, and statutes necessary to exercise its legislative powers

delegated by the General Council pursuant to Article III including but not limited to the foregoing

list of powers.

2. Purpose. This Act shall govern lien priority, recording, foreclosure, and eviction of and under

leasehold mortgages on the Nation’s Tribal Lands.

Scope.

This Act shall apply to all mortgages on Tribal lands; provided that:

(1) In the case of the Nation’s Housing for the General Welfare of Veterans, Elders and

Non-Elders Act (HOP Act) (8 HCC § 5) or other financing of which the Nation is the holder of the

sole mortgage on the subject parcel, the application of this Act shall be limited as specifically

provided herein.

(2) If there is any conflict between this Act and HOP Act or other applicable Nation law

with respect to a mortgage of which the Nation is the sole mortgage holder, the HOP Act or other

applicable Nation law shall govern.

4. Definitions. For the purposes of this Act, the following definitions shall apply:

a. Certified Copy. A copy of a title document that is a true and correct copy of the title

document as recorded in the record of title and evidenced by an official seal.

Foreclosure. A proceeding that extinguishes a Mortgagor’s right of redeeming a

mortgaged estate.

c. Interested Party. A member or non-Indian individual or corporation, or tribal or non-tribal

government whose interests could be adversely affected by a decision of the Nation’s land.

d. Leasehold Mortgage. A mortgage, deed of trust, or other instrument that pledges a

Lessee’s leasehold interest as security for a debt or other obligation owed by the Lessee to a lender

or other mortgagee.

Lien. A charge upon real property for the satisfaction of debt.

f. Mortgage. A lien on a Leasehold Estate given to secure advances on a loan to purchase,

construct, refinance, or renovate a Housing Unit or improvement, and may refer both to a security

instrument creating a lien, whether called a mortgage, deed of trust, security deed, or other term,

as well as the credit instrument, or note, secured thereby.

g. Mortgagee. Any person, entity, or government agency which lends under a Leasehold

Mortgage, and includes any assignee, or any heir, successor, executor, administrator, or assign

thereof.

h. Mortgagor. Any person or entity who has executed a Leasehold Mortgage, including any

heir, successor, executor, administrator, or assign thereof.

i. Public. Any Ho-Chunk tribal member or any interested party that has an interest in a

particular property.

j. Recording. Acceptance of a title document and entry into the record of title of a title

document by the Register of Deeds. An official Register of Deeds stamp affixed to the title

document provides evidence that the title document has been recorded.

l. TDHE. The Tribally Designated Housing Entity, Ho-Chunk Housing and Community

Development Agency, or its designated successor.

m. Tribal Lands. All lands that the Nation has jurisdiction over pursuant to Article I of the

Ho-Chunk Nation Constitution.

5.Lien Priority. All mortgage loans recorded in accordance with the recording procedures set

forth in this Act, including Leasehold Mortgages, and including loans made, guaranteed, insured,

or held by a governmental agency, 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. In those cases where the government

direct, guaranteed, or insured mortgage is created as a second mortgage, the loan shall assume that

position.

Recording of Mortgage Loan Documents.

a. The Nation’s Department of Administration shall maintain a system for the recording of

mortgage loans and such other documents as deemed necessary.

b. The Register of Deeds shall endorse upon any mortgage loan or other document received

for recording:

(1)

The date and time of receipt of the mortgage or other document.

(2) The filing number as assigned by the Register of Deeds, which shall be a unique

number for each mortgage or other document received.

(3) The name of the Register of Deeds or designee receiving the mortgage or document.

c. Upon completion of the above endorsements, the Register of Deeds shall make a true and

correct copy of the mortgage or other document and shall certify the copy as follows.

Ho-Chunk Nation

State of Wisconsin

)

)ss.

)

I certify that this is a true and correct copy of a document received for recording on this date. Given under my hand and

seal this

day of

, 20 .

(Signature)

(SEAL)

(Date)

d. The Register of Deeds shall maintain the copy in the Department of Administration and

shall return the original of the mortgage or other document to the person or entity that presented

the same for recording.

e. The Register of Deeds shall maintain a log of each mortgage loan or other document

recorded containing the following information.

(1) The name(s) of the Borrower/Mortgagor of each mortgage loan, identified as such.

(2) The name(s) of the Lender/Mortgagee of each mortgage loan, identified as such.

(3) The names(s) of the grantor(s), grantee(s), or other designation of each party named

in any other documents filed or recorded.

(4) The date and time of receipt.

(5) The filing number assigned.

(6) The name of the Register of Deeds or designee receiving the mortgage or document.

f. The certified copies of the mortgage loan and other documents and the log maintained by

the Department of Administration shall be made available for inspection and copying by the public.

In the case of any mortgage loan or other document designated as confidential by the Legislature,

only the relevant portion of the log, not the mortgage or other documents, will be available to

inspection and copying. Rules for inspecting and copying, including fees, shall be established and

made available by the Department of Administration.

g. All mortgages will be recorded with the Bureau of Indian Affairs (BIA) in addition to any

Tribal recording provisions.

7. Pre-Foreclosure Procedures.

a. A Borrower shall be considered to be in default when he or she is thirty (30) days past due

on his or her mortgage payment(s) or is in violation of any covenant under the mortgage for more

than thirty (30) days to the Lender (i.e., the 31st day from payment due date). When a Borrower

is in default and before any foreclosure action is taken, the Lender shall take the following actions.

(1)

Shall diligently attempt to arrange a face-to-face interview with the Borrower. The

Lender may appoint an agent to arrange and conduct the face-to-face interview.

(2)

Document that the Lender has made at least three separate attempts to contact the

Borrower by phone and/or email (or the nearest phone as designated by the Borrower able to

receive and relay messages to the Borrower) for the purpose of trying to arrange a face-to-face

interview.

(3)

Document that the Lender was unsuccessful in making contact with the Borrower

by phone and/or email and therefore mailed a letter via certified mail, return-receipt requested, to

the Borrower to attempt to arrange a face-to-face interview.

(4)

Document that the Lender was unsuccessful in making contact with Borrower by

phone and/or email, and mail and therefore prominently posted on the mortgaged property a

request to arrange a face-to-face interview with the Borrower.

b. The Lender shall give notice to the Borrower, at least ten (10) days in advance before

initiating foreclosure action in the Nation's Trial Court, and the Lender shall give a copy of the

notice to the Nation's Department of Administration. The notice shall contain the following

information:

(1)

bureaus.

That information regarding the loan and default/delinquency will be given to credit

(2)

That homeownership counseling opportunities/programs are available through the

Lender or otherwise.

(3)

The availability of other assistance regarding the mortgage/default.

(4)

Provide notice that if the Leasehold Mortgage remains past due on three (3)

installment payments, the Lender may ask the applicable governmental agency to accept

assignment of the Leasehold Mortgage if this is an option of the governmental program.

(5)

Provide notice of the qualifications for forbearance relief from the Lender, if any,

and that forbearance relief may be available from the government.

(6)

Provide the names and addresses of governmental officials to whom further

communications may be addressed, if any.

c. If a Borrower is past due on three (3) or more installment payments and the Lender has

complied with the procedures set forth above, the Lender may commence a foreclosure proceeding

in the Nation’s Trial Court by filing a verified complaint as set forth in Section 8.

d. If the sole Lender of the subject parcel is the Nation and HOP Act or other applicable

Nation law shall provide for an alternate pre-foreclosure procedure, said alternate pre-foreclosure

procedures shall apply in lieu of the above.

8. Foreclosure Complaint and Summons.

a. The verified complaint in a mortgage foreclosure proceeding shall contain the following:

(1) The name of the Borrower and each person or entity claiming through the Borrower

subsequent to the recording of the mortgage loan, including each Subordinate Lienholder (except

the Nation with respect to a claim for a tribal leasehold), as a defendant.

(2) A legal description and a physical address of the property subject to the mortgage

loan.

(3)

A concise statement of the facts concerning:

(a) The execution of the mortgage loan or, in the case of a Leasehold Mortgage, the

lease.

(b) The recording of the mortgage loan or the Leasehold mortgage.

(d) Such other facts as may be necessary to constitute a cause of action.

(4) True and correct copies of each promissory note, mortgage, deed of trust, or other

recorded real property security instrument (each a “security instrument”) and any other documents

relating to the property and, if a Leasehold Mortgage, a copy of the lease and any assignment of

any of these documents.

(5) Any applicable allegations concerning relevant requirements and conditions

prescribed in any of the following:

(a) Federal statutes and regulations.

(b) Ho-Chunk Nation Law.

Mortgage, the lease.

b. The complaint shall be verified by the Ho-Chunk Nation Trial Court Clerk (Clerk of

Court), along with a summons specifying a date and time of appearance for the Defendant(s).

9. Commencement of Foreclosure; Service of Process and Expedited Procedures.

a. The Foreclosure Action shall be commenced by filing a complaint with the Clerk of Court

pursuant to Rule 3 of the Ho-Chunk Nation Rules of Civil Procedure (Rules). The Trial Court shall

have jurisdiction from the time the complaint is filed.

b. Pursuant to Rule 5(C)(1), a summons and copy of the complaint shall be personally served

on the Borrower by the bailiff, or if authorized by the Court, a law enforcement officer from any

jurisdiction or any other person not a party to the action who is eighteen (18) years of age or older.

Pursuant to Rule 5(D), the Court shall approve personal service by a professional process service

firm proposed by Lender absent any notice to the Court of a pattern of professional or ethical

misconduct by such firm from any source.

c. If the Court or the Lender , notwithstanding the exercise of due diligence, is unsuccessful

in pursuing personal service and in the interest of encouraging Lenders to make homeownership

loans to Tribal members, which the Legislature finds to constitute good cause per se, the Court

shall then permit service by either of the following:

(1) Delivery of service to the Borrowers/Mortgagor’s home of usual place of business or

employment to someone of suitable age and discretion over fourteen (14) years of age.

(2) Service by publication in accordance with Rule 5(C)(f).

d. In addition, pursuant to its authority under Rule 5(A), if it is the most likely to result in

actual notification of parties, the Court shall allow service by securely posting a copy of the notice

to the main entry door of the mortgage property 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 premises, including a Tribal

office, public store, branch office, or other commonly frequented place, and by sending a copy by

first-class mail, postage prepaid, addressed to the Borrower at the premises.

e. In order to meet the timeframe stated in Section 11, the Court shall schedule the action so

that a trial on the foreclosure claim (or hearing to decide a default motion) is held not later than

fifteen (15) days after the expiration of the twenty (20) day answer period allowed by Rule 6.

10. Cure of Default. Prior to the entry of judgment of foreclosure, any Borrower or a Subordinate

Lienholder may cure the default(s) under the Mortgage by making a full payment of the

delinquency to the Lender and all reasonable legal and Court costs incurred in foreclosing on the

property. 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 mortgage. There shall be no

right of redemption in any Leasehold Mortgage foreclosure proceeding.

11. Judgment and Remedy. This matter shall be heard and decided by the Court in a prompt

and reasonable time period not to exceed sixty (60) days from the date of service of the Complaint

on the Borrower. If the alleged default has not been cured at the time of trial and the Court finds

for the Lender, the Court shall enter the following judgment:

a. Foreclosing the interest of the Borrower and each other defendant, including Subordinate

Lienholder, in the mortgaged property; and

b. Granting title to the property to the Lender or the Lender’s designated assignee. In the

case of a Leasehold Mortgage, the Lease and the Leasehold Estate will be assigned to the Lender

or the Lender’s designated assignee, subject to the following provisions:

(1) The Lender shall give the Nation the right of first refusal on any acceptable offer

to purchase the Lease and the Lessee’s leasehold interest in the property described in the lease

which is subsequently obtained by the Lender or Lender’s designated assignee.

(2) The Lender or Lender’s designated assignee may only transfer, sell, or assign the

Lease and Lessee’s leasehold interest in the property described in the Lease to a Tribal member,

the Nation, or the TDHE, in accordance with the Ho-Chunk Nation Leasing Codes (8 HCC § 9, 8

HCC § 10, and 8 HCC § 11) and the Title Recording and Transfer Ordinance (8 HCC § 14).

(3) Until issues are resolved, U.S. Department of Housing and Urban Development

Federal Housing Administration Section 248 financing will not be considered.

12. Foreclosure Evictions. Foreclosure evictions shall be handled according to the general

eviction process that follows.

a. Jurisdiction. The provisions of this Section shall apply to all persons and property subject

to the governing authority of the Nation as established by the Constitution of the Ho-Chunk Nation,

the Ho-Chunk Nation Law, and applicable federal law.

b. Unlawful Detainer. A Lessee, Sublessee, or other occupant of a Leasehold Estate subject

to a Leasehold Mortgage shall be guilty of unlawful detainer if such person shall continue

occupancy of such Leasehold Estate without the requirement of any notice by the Lessor, after

such person’s Leasehold Estate has been foreclosed in a Leasehold Mortgage foreclosure

proceeding in the Nation’s Trial Court.

c. Complaint and Summons. The lender or the federal agency (which made, guaranteed, or

insured the mortgage loan) as appropriate, shall commence an action for unlawful detainer by

filing with the Court, in writing, the following documents:

(1)

A complaint, signed by the lender or federal agency, or an agent or attorney on their

behalf:

(a)

Citing facts alleging jurisdiction of the Nation’s Trial Court.

(b) Naming as defendants the mortgagors and any other record owner (including

sublessees and subordinate lienholders), of which the complainant has record notice (except the

Nation with respect to a claim for a Tribal tax on the Leasehold Estate subject to the Leasehold

Mortgage).

(c)

Describing the Leasehold Estate subject to the Leasehold Mortgage.

(d) Stating the facts concerning (i) the execution of the lease and the Leasehold

Mortgage, (ii) the recording of the Leasehold Mortgage, and (iii) the facts upon which he or she

seeks to recover.

(e) Stating any claim for damages or compensation due from the persons to be evicted.

(f)

Otherwise satisfying the requirements of the Ho-Chunk Nation Rules of Civil

Procedure.

(2)

A copy of the summons, issued in accordance with established Ho-Chunk Nation

Rules of Civil Procedure, requiring the defendants to file a response to the complaint by the date

specified in the summons. The deadline specified in the summons for filing a response shall be

twenty (20) days from the date of service of the summons and complaint. The summons shall

notify the defendants that judgment will be taken against them in accordance with the terms of the

complaint unless they file a response with the Court by the date specified in the summons.

d. Service of Process and Expedited Procedures. The provisions regarding service of process

and expedited procedures described in Section 10 shall likewise apply to evictions in order to

produce a final judgment within sixty (60) days of service of the complaint, subject only to

continuances allowed pursuant to paragraph 11g, below.

e. Powers of the Trial Court.

(1)

The Nation’s Trial Court shall enter an Order of Repossession if:

(a) Notice of suit is given by service of summons and complaint in accordance with

the procedures provided herein;

(b) The Court finds during pre-trial motion proceedings or at trial that the Lessee,

Sublessee, or other occupant under color of law of the Leasehold Estate subject to the Leasehold

Mortgage is guilty of an act of unlawful detainer.

(2) Upon issuance of an Order of Repossession, the Court shall have the authority to enter

a judgment against the defendants for the following, as appropriate:

(a) Back rent, unpaid utilities, and any other charges due to the Nation, including the

Department of Housing, TDHE, or Sublessor under any sublease or other written agreement

(except for a Leasehold Mortgage.

(b) All amounts secured by the Leasehold Mortgage that are due to the lender (or

federal agency).

(c)

Damages to the property caused by the defendants, other than ordinary wear and

tear.

(3) The Court shall have the authority to award to the prevailing party its costs and

reasonable attorney’s fees in bringing the suit.

f. Enforcement.

(1)

Upon issuance of an Order of Repossession by the Court, Nation tribal law

enforcement officers then shall help plaintiffs enforce the Order by evicting the defendants and

their personal property from the unlawfully occupied Leasehold Estate. If the Nation does not

have tribal law enforcement officers, the Court’s Order shall be delivered to the appropriate County

Sheriff for enforcement under the Wisconsin Full Faith and Credit Statute.

(2) In all cases involving the lender or federal agency, the Order shall be enforced no

later than forty-five (45) days after a pre-trial proceeding or trial in which the Court finds against

the defendants, subject to paragraph 11g, below.

g. Continuances in Cases Involving Lender or Federal Agency. Except by agreement of all

parties, there shall be no continuances in cases involving the lender or federal agency that will

interfere with the requirement that the Order of Repossession be enforced not later than forty-five

(45) days after a pre-trial proceeding or trial in which the Court finds against the defendants,

subject to the sound discretion of the Court.

13. No Merger of Estates. There shall be no merger of estates by reason of the execution of a

Lease or a Leasehold Mortgage or the assignment or assumption of the same, including an

assignment adjudged by the Court, or by operation of law, except as such merger may arise upon

satisfaction of the Leasehold Mortgage.

14. Certified Mailing to Nation. In any foreclosure proceedings on a Leasehold Mortgage

where the Nation is not named as a defendant, a copy of the summons and complaint shall be

mailed to the Nation by certified mail, return receipt requested, within five (5) calendar days after

the issuance of the summons. If the Lessor is not the Nation, this notice will also be mailed to the

Lessor at the same time the notice is mailed to the Nation. If the location of the Lessor cannot be

ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the

Lessor in care of the Superintendent of the applicable agency of the BIA.

15. Intervention. The Nation or any Lessor may petition the Court for permission to intervene

in any Lease or Leasehold Mortgage foreclosure proceeding under this Act. Neither the filing of a

petition for intervention by the Nation, nor the granting of such petition by the Court shall operate

as a waiver of the sovereign immunity of the Nation, except as may be expressly authorized by the

Nation.

16. Appeals. Appeals under this Act shall be handled in accordance with the Nation’s Rules of

Appellate Procedure.

Legislative History:

7/11/01

11/24/04

6/10/05

8/13/05

8/17/05

10/24/23

12/19/23

Enacted by Legislative Resolution 7/11/01A.

Tribal Lands Lending Act reformatted IAW Legislative Resolution 11/16/04A as a Proposed Bill (8 HCC

§ 6) and submitted to the Office of the President for Executive Review and Coordination.

Legislature places Draft Bill out for 45-Day Public Review.

45-Day Public Review period ends. Comments provided by the Department of Housing.

Legislature adopts Tribal Lands Lending Act as 8 HCC § 6 by Legislative Resolution 8/17/05M.

Legislature places out for 45 Day Public Review, comment period expired 12/10/23.

Legislature adopt Tribal Lands Lending Act amendments by Legislative Resolution 12.19.23N.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.