Personal Property Secured Transactions and Statutory Liens

WARM SPRINGS TRIBAL CODE
CHAPTER 731
PERSONAL PROPERTY SECURED TRANSACTIONS AND STATUTORY LIENS

Table of Contents

1. GENERAL
731.10 Legislative History
731.11 Creditor Claims Office
731.12 Jurisdiction
731.13 Scope
731.14 No Application to Property Subject to Federal Restrictions on Transfer
731.15 Security Interests Created off the Warm Springs Reservation
731.16 Goods Covered by Certificate of Title
731.17 One Action to Foreclose Personal Property Security Interest
731.18 Applicable Consumer Laws
731.19 Definitions

2. PERSONAL PROPERTY SECURITY INTERESTS
731.20 Creation of Personal Property Security Interests on the Warm Springs Reservation
731.21 Security Interest Perfected Upon Attachment
731.22 When Filing Required to Perfect Security Interest
731.23 When Possession by Secured Party Perfects Security Interest Without
Filing
731.24 Method of Filing Financing Statement
731.25 Priority of Claims
731.26 Self-Help (Repossession) Remedies

3. STATUTORY LIENS
731.30 Possessory Lien for Labor or Material Expended on Personal Property.
731.31 Nonpossessory Lien for Labor or Material Expended on Personal Property.
731.32 Attachment of Liens.
731.33 Time Period Before Foreclosure Allowed.
731.34 Fees for Storage of Property

4. FORECLOSURE
731.40 Proceeding to Foreclose Personal Property Security Interest or Statutory Lien.
731.41 Notice of Sale of Personal Property.
731.42 Conduct of Sale.
731.43 Return on Sale.
731.44 Title to Personal Property.
731.45 Surpluses and Deficiencies from Sales.

5. LEASES
731.050 Leases

6. MISCELLANEOUS PROVISIONS
731.60 Illegal Repossession of Personal Property
731.61 No Reporting

WARM SPRINGS TRIBAL CODE
CHAPTER 731
PERSONAL PROPERTY SECURED TRANSACTIONS AND STATUTORY LIENS

1. GENERAL

731.10 Legislative History.

This chapter is adopted as part of a larger effort by the Confederated Tribes of the Warm Springs Reservation of Oregon (“Tribe”) to establish a Warm Springs Commercial Code for the purpose of supporting and encouraging economic development activities on the Reservation, promoting the development of tribal member-owned businesses, and facilitating tribal member access to essential services such as housing and banking. The chapter is intended to strike an appropriate balance between the rights of debtors and creditors. The chapter deals with personal property security interests that apply to personal property. To the extent practical, this chapter follows Article 9 of the Uniform Commercial Code (UCC Article 9) published by the National Conference of Commissioners on Uniform State Laws. However, this chapter has been modified in some respects to suit the unique needs and situation on the Warm Springs Reservation and to promote ease of understanding. In particular, the Tribal Council has determined that these types of matters are best handled in an administrative forum that facilitates practical arrangements between debtors and creditors and provides an expedited process that quickly and fairly resolves disputes. In addition, it deals with matters beyond the scope of UCC Article 9 such as possessory liens and leases of personal property.

731.11 Creditor Claims Office.

There is hereby established the Creditor Claims Office. The Creditor Claims Office is an administrative (non-judicial) forum to rapidly and economically resolve debtor-creditor disputes arising under the provisions of this chapter. It shall operate under the supervision of the Chief Tribal Judge who shall act, or appoint someone to act, as an administrative hearings officer for the Creditor Claims Office. The hearings officer is empowered to consider matters pursuant to 731.040 arising under this Chapter and enter such orders and judgments as may be necessary to effectuate the provisions of this chapter. The Chief Tribal Judge shall promulgate rules of operation for the Creditor Claims Office. The orders and judgments of this Creditor Claims Office are administrative in nature and may not be appealed.

731.12 Jurisdiction.

1. The Creditor Claims Office shall have jurisdiction over cases for breach of contract that include the foreclosure of personal property security interests or mortgage security interests when: (a) The property subject to the security interest is personal property, any part of which is located within the external boundaries of the Reservation; and (b) Either a plaintiff or a defendant is an Indian or the Tribe; and (c) There is jurisdiction over the person pursuant to WSTC 200.025(1) or other Tribal jurisdictional enactments; and (d) No state court judgment has been entered in the matter.

731.13 Scope.

This Chapter applies to any transaction within the jurisdiction of the Tribe, regardless of its form, that creates a security interest in personal property or fixtures by contract.

731.14 No Application to Property Subject to Federal Restrictions on Transfer.

This Chapter does not apply to any property interest that is subject to federal restrictions regarding sale, transfer, or encumbrance unless the party seeking to apply this Chapter complies with applicable federal restrictions.

731.15 Security Interests Created off the Warm Springs Reservation.

Security interests created off the Warm Springs Reservation may be enforced in the Creditor Claims Office provided that they are valid in the jurisdiction where created, and if there is jurisdiction pursuant to WSTC 731.012.

731.16 Goods Covered by Certificate of Title.

This section applies to goods covered by a certificate of title of any jurisdiction (such as motor vehicles titled by the state of Oregon). The local law of the jurisdiction under whose certificate of title the goods are covered governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in goods covered by a certificate of title from the time the goods become covered by the certificate of title until the goods cease to be covered by the certificate of title.

731.17 One Action to Foreclose Personal Property Security Interest.

1. There can be but one action in the Creditor Claims Office to recover any debt or enforce or foreclose any right secured by a security interest, which action must be in accordance with this chapter.
2. Notwithstanding the above provision, if the debt for which the security interest is held is due in installments, the court may direct the sale of the encumbered property or of the defendant’s equity therein or so much thereof as may be necessary to satisfy the amount of the debt that is overdue, and such security interest shall otherwise remain in full force and effect and the holder thereof shall have the right to foreclose on the balance or any part thereof if subsequent installments are not satisfied in due course.

731.18 Applicable Consumer Laws.

1. A transaction subject to this chapter is also subject to: (a) Any applicable rule of law that establishes a different rule for consumers; (b) Any other applicable tribal, federal or state statute or regulation that limits or regulates the rates, charges, agreements, and practices for loans, credit sales or other extensions of credit including, but not limited to, WSTC Chapter 740 Consumer Credit/Usury; and (c) Any other applicable consumer protection statute or regulation.
2. In case of conflict between this chapter and a rule of law, statute or regulation described in subsection (1) of this section, such rule of law, statute or regulation prevails.

731.19 Definitions.

For purposes of this chapter, the following terms shall have the following meanings:

1. “Attachment” of a security interest occurs when the debtor agrees to the security in writing by knowingly executing a security agreement that describes the collateral, receives value from the secured party and obtains rights in the collateral.
2. “Bureau” or “BIA” means the Bureau of Indian Affairs of the Department of the Interior of the United States.
3. “Collateral” means the property subject to a security interest.
4. “Consumer” means a natural person who is the buyer, lessee, assignee or other transferee of a good, service or intangible for primarily personal, family or household use.
5. “Consumer Goods” means personal property used or bought for use primarily for personal, family or household purposes.
6. “Lease” means a lease of Personal Property.
7. “Fixtures” means personal property that has been attached to land or a building and that is regarded as an irremovable part of the real property (for example, a fireplace).
8. “Perfection” of a security interest means the security interest has been made legally valid against parties other than the debtor and the creditor through the filing of a financing statement or by taking possession of the collateral, as described in this chapter.
9. “Personal Motor Vehicles” means motor vehicles used or bought for use primarily for personal, family or household purposes.
10. “Personal Property” means property other than real property and that is not held in trust by the United States for the benefit of the Tribe or an individual.
11. “Personal Property Security Agreement” means an agreement which creates or provides for a personal property security interest.
12. “Personal Property Security Interest” means a non possessory interest in personal property held by other than the owner of the personal property.
13. “Purchase Money Security Interest” means a security interest that is created when a buyer uses the lender’s money to purchase the collateral and immediately gives the lender a security.
14. “Reservation” means the Warm Springs Indian Reservation established by the Treaty of June 25, 1855.
15. “Tribal Member” means an enrolled member of Tribe.
16. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
17. “Vital Statistics Department” means the Vital Statistics Department of Tribe.

2. PERSONAL PROPERTY SECURITY INTERESTS

731.20 Creation of Personal Property Security Interests on the Warm Springs Reservation.

A security interest is created upon attachment. However, a security interest is not perfected until the legal requirements set forth below have been met.

731.21 Security Interest Perfected Upon Attachment.

A purchase money security interest in consumer goods is perfected when it attaches except as otherwise provided in any applicable statute regarding goods subject to a certificate of title statute.

731.22 When Filing Required to Perfect Security Interest.

1. Except as otherwise provided in subsection (2) of this section, a financing statement must be filed in accordance with this chapter to perfect all security interests.
2. The filing of a financing statement is not necessary or effective to perfect a security interest: (a) that is perfected under WSTC 731.030, dealing with liens securing rights to payment (mechanics liens); (b) that is perfected when it attaches under WSTC 731.021; (c) in property subject to a certificate of title statute as described in WSTC 731.016; (d) in collateral in the secured party’s possession under WSTC 731.023; (e) that is perfected under the law of another jurisdiction; or (f) that is created pursuant to a Consumer Lease.
3. If a secured party assigns a perfected security interest, a filing under this chapter is not required to continue the perfected status of the security interest against creditors of and transferees from the original debtor.

731.23 When Possession by Secured Party Perfects Security Interest Without Filing.

1. Except as otherwise provided in subsection (2), a secured party may perfect a security interest in certificated securities, negotiable documents, goods, instruments, money, or chattel paper by taking possession of the collateral.
2. With respect to goods covered by a certificate of title issued by any jurisdiction, a secured party may perfect a security interest in the goods by taking possession of the goods only in compliance with the laws of the jurisdiction under which the certificate of title is issued.
3. If perfection of a security interest depends upon possession of the collateral by a secured party, perfection occurs no earlier than the time the secured party takes possession and continues only while the secured party retains possession.

731.24 Method of Filing Financing Statement.

Financing statements shall be filed in accordance with the laws of the state in which the security interest was created.

731.25 Priority of Claims

1. Priority among conflicting security interests and statutory liens in the same collateral is determined as follows: (a) Conflicting perfected security interests in the same collateral rank according to priority in time of filing or perfection. Priority dates from the earlier of the time a filing covering the collateral is first made or the security interest is first perfected, if there is no period thereafter when there is neither filing nor perfection. (b) A perfected security interest has priority over a conflicting unperfected security interest. (c) The first security interest to attach has priority if conflicting security interests are unperfected.
2. A security interest is subordinate to the rights of: (a) a person who holds a possessory lien as defined in Section 731.030; (b) a person who becomes a nonpossessory lien creditor before the security interest is perfected; (c) a buyer of tangible personal property, a lessee of goods, a licensee of a general intangible, or a buyer of accounts or general intangibles or securities that both gives value and acquires possession without knowledge of the security interest and before it is perfected; and (d) a secured party entitled to priority under subsection (1).
3. Notwithstanding subsection (2), a purchase money secured party that files a financing statement before or within 20 days after the debtor acquires possession of the collateral has priority over the rights of a buyer, lessee or lien creditor which arise between the time the security interest attaches and the time of filing.

731.26 Self-Help (Repossession) Remedies.

1. All self-help remedies for the recovery of personal property secured to ensure payment of obligations are prohibited except as provided in this section.
2. Personal property in which there is a personal property security interest shall not be taken from the Reservation under the procedures of repossession except as follows: (a) Written consent to remove the property from the Reservation must be secured from the debtor after default by means of a separate signed and dated personal statement that describes the powers to be exercised by the secured party and expressly acknowledges and waives the debtor’s right to require a proceeding in the Creditor Claims Office as described in subsection (b) of this section. The written consent shall be retained by the creditor and exhibited to the Warm Springs Tribal Police and/or the Creditor Claims Office upon demand. (b) If the owner refuses to sign said written consent to permit removal of the property from the Reservation, the property shall be removed only by order of the Creditor Claims Office in an appropriate proceeding.
3. A creditor who takes advantage of self-help remedies as provided by this section to repossess consumer goods takes the collateral in full satisfaction of the underlying debt, and forfeits any right under the contract or applicable law to any deficiency balance owing on the debt.
4. A creditor who takes advantage of self-help remedies as provided by this section to repossess consumer goods is not entitled to recover collection fees or expenses related to the retrieval or subsequent sale of the collateral.

3. STATUTORY LIENS

731.30 Possessory Lien for Labor or Material Expended on Personal Property.

A person who makes, alters, repairs, transports, stores, pastures, cares for, provides services for, supplies materials for or performs labor on personal property at the request of the owner or lawful possessor of the personal property (such as an automobile mechanic) has a lien on that property in his or her possession for the reasonable or agreed charges for labor, materials or services, and the person may keep possession of the property until those charges are paid.

731.31 Nonpossessory Lien for Labor or Material Expended on Personal Property.

A person who makes, alters, repairs, transports, stores, provides services for or performs labor on personal property at the request of the owner of the personal property has a lien on that property for the reasonable or agreed charges for the labor or services the person performs and for the materials the person furnishes in connection therewith.

731.32 Attachment of Liens.

The liens created by this section attach to the personal property when:

1. The services or labor are performed or the materials or money are furnished by the lien claimant to the lien debtor;
2. The charges for the services or labor performed and materials or money furnished are due and the lien debtor either knows or should reasonably know that the charges are due; and
3. In the case of a nonpossessory lien, when notice of such lien is filed with the Creditor Claims Office.

731.33 Time Period Before Foreclosure Allowed.

1. Except as otherwise provided in subsections (2) and (3) of this section, a person claiming a possessory lien under this section must retain the property that is subject to the lien for at least 60 days after the lien attaches to the chattel before bringing an action to foreclose the lien.
2. A person claiming a possessory lien for cost of care, materials and services bestowed on an animal must retain the animal for at least 30 days after the lien attaches to the animal before bringing an action to foreclose the lien. If the animal is a dog or cat, the period shall be at least 15 days.
3. A person claiming a possessory lien for the cost of removing, towing or storage of a vehicle that is appraised at a value of $1,000 or less must retain the vehicle at least 30 days after the lien attaches to the vehicle before bringing and action to foreclose the lien.

731.34 Fees for Storage of Property

1. If a lien claimant incurs expenses in storing the personal property prior to foreclosure, the lien claimant may charge reasonable fees for the storage of the property for a period not to exceed six months from the date that the lien attaches to the property.
2. A lien claimant seeking to recover storage fees must send a written notice by first class mail to the lien debtor within 10 days from the date that the storage fees began to accrue. If the lien claimant fails to comply with the notice requirements of this subsection, the lien claimant is limited to recovering reasonable storage fees for a period of time not to exceed 20 days.

4. FORECLOSURE

731.40 Proceeding to Foreclose Personal Property Security Interest or Statutory Lien.

1. A proceeding to foreclose a personal property security interest or statutory lien shall be commenced by filing a petition in the Creditor Claims Office.
2. A petition to foreclose a personal property security interest or statutory lien shall name as parties all persons who claim an interest in said personal property which has been recorded in tribal, county, or state records. No interest of the Tribe shall be affected in any action in which the Tribe is not a party by its own affirmative action or consent.
3. At the commencement of the hearing the parties shall attempt to informally resolve the dispute. If they are able to resolve the dispute, their agreement shall be reduced to writing and the Creditor Claims Office may enter a judgment in accordance with the agreement. If the parties are unable to reach agreement the hearing of the matter shall proceed forthwith.
4. In the event of a hearing pursuant to subsection (3) immediately above, the Creditor Claims Office shall determine the issues presented and may by its judgment, direct the sale of the judgment debtor’s interest in the encumbered property, or so much thereof as is necessary, and direct the application of the proceeds of the sale to the payment of the costs of the Creditor Claims Office, the expenses of such sale, and to the amount due the plaintiff under the judgment of the Creditor Claims Office. If it appears from the report on the return of the sale that the proceeds are insufficient to satisfy the judgment and that an amount is still due and owing, the Creditor Claims Office can, subject to the limitation of WSTC 731.045, direct entry of a deficiency judgment for such balance against the defendant, and the defendant shall remain liable for the payment of the balance of the judgment.
5. If, after the complaint is filed, it appears that the collateral is in imminent danger of being concealed or removed from the reservation or otherwise disposed of in a manner inconsistent with the security interest, the Creditor Claims Office may issue a restraining order and an order to the person having possession or control over such property to appear and show cause why such property should not be taken into the custody of the Creditor Claims Office or other security provided to prevent the improper disposal of the collateral.
6. Sale of the property under the Creditor Claims Office’s judgment shall be conducted according to the rules of the Creditor Claims Office and this Chapter.

731.41 Notice of Sale of Personal Property.

1. Before the sale of personal property subject to a decree of foreclosure and order of sale the Creditor Claims Office will provide notice as follows: (a) By posting written notice of the time and place of the sale giving a specific description of the property, for twenty (20) days prior to the sale in at least four (4) public places on the reservation, including one (1) copy posted at the tribal headquarters, and one (1) copy posted at the Warm Springs post office; and (b) By publication in the Spilyay Tymoo newspaper, or successor newspaper, at least thirty (30) days prior to the sale. (c) By mailing a copy of the notice to the owner at the owner’s last known address by certified mail.
2. If there is a sale of personal property conducted without substantial compliance with the notice requirements as set forth herein, the sale may be declared void and of no effect by the Creditor Claims Office.

731.42 Conduct of Sale.

1. All sales of property under decree of foreclosure and order for sale shall be conducted by the Warm Springs Tribal Police at the Tribal Court Building between the hours of 9:00 A.M. and 5:00 P.M. on any regular business day, shall be by oral auction, and shall be sold to the highest bidder.
2. Once sufficient property has been sold to satisfy the judgment plus costs of the court and of the sale, no more property shall be sold.
3. The person conducting the sale may not be a purchaser or be interested in any purchase at such sale.
4. All purchasers must pay in cash or by certified check except the judgment creditor who may bid any or all of the judgment creditor’s judgment. Payment shall be made into the Creditor Claims Office. The Creditor Claims Office shall distribute funds as appropriate and enter the appropriate satisfaction of judgment. If a purchaser refuses or is unable to pay the amount bid by him for property sold to him at sale, the officer conducting the sale may again sell the property to the highest bidder. If any loss be occasioned thereby, the officer may by court order recover the amount of such loss plus costs from the bidder so refusing. When a purchaser refuses to pay, the person conducting the sale may thereafter reject any subsequent bid of such person.

731.43 Return on Sale.

1. The person conducting the sale shall make a return thereon to the Creditor Claims Office reciting all the details of the sale including but not limited to the name of the purchaser, the judgment debtor, the specific description of the personal property, and the amount bid.
2. A certified copy of such return, together with a certified copy of the court’s order directing said sale, shall be filed by the purchaser in the Creditor Claims Office.

731.44 Title to Personal Property.

1. On a sale of personal property, the purchaser acquires all the right, title, interest, and claim of the judgment debtor thereto.
2. At the time of payment the officer conducting the sale must give to the purchasers a bill of sale containing: (a) The name of the purchaser; (b) The name of the judgment debtor; (c) A description of the property sold; (d) The total price paid; and (e) The date of sale.

731.45 Surpluses and Deficiencies from Sales.

1. If there remains surplus money after the payment of the costs of court and of the sale and payment of the judgment creditor, such funds may be distributed by the court to the judgment debtor or other person entitled thereto.
2. No deficiency judgment may be entered by the court if the personal property security interest is in consumer goods or personal motor vehicles, unless the creditor is the Tribe.

5. LEASES

731.050 Leases.

For purposes of this Chapter Consumer Leases shall be treated as a Personal Property Security Agreement. Consumer Lease provisions creating a right of possession in the Lessor upon default of the Lessee under the terms of the Consumer Lease shall be deemed to create a Personal Property Security Interests and all provisions of this chapter applicable to personal property secured transactions shall apply.

6. MISCELLANEOUS PROVISIONS

731.60 Illegal Repossession of Personal Property.

1. Any nonmember of the Tribe, except persons authorized by federal law to be present on tribal land, violating the provisions of WSTC 731.026 may be excluded from the territorial jurisdiction of the Tribe in accordance with the procedures set forth in WSTC Chapter 300.
2. Any business whose employees are found to be in violation of WSTC 731.026 may be denied the privilege of doing business on the Reservation.
3. Any person who violates the provisions of WSTC 731.026 shall be guilty of a civil infraction, and upon conviction shall be punished by a fine of up to $500.
4. Any person or business violating the provisions of WSTC 731.026 shall forfeit the right to a deficiency judgment, whether in Tribal, state, or any other court.
5. Any person who violates the provisions of WSTC 731.026 and any business whose employee violates such section is deemed to have breached the peace of the Reservation and shall be civilly liable to the purchaser for any loss caused by the failure to comply with WSTC 731.026.

731.61 No Reporting.

In the event that a creditor chooses to enforce its rights of foreclosure or repossession under this Chapter, that creditor shall be prohibited from reporting the fact that it is enforcing such rights to (i) any individual or entity involved in maintaining credit reports and/or supplying the same to creditors or (ii) any other individual or entity, if such reporting is reasonably likely to lead to disclosure of the type prohibited by (i). Rather, the creditor shall only be permitted to tell such an individual or entity that the contract between the creditor and tribal member is no longer in effect, and that neither party thereto has any remaining rights or obligations thereunder.