United States of America v. Collins et al

Filing 16

JUDGMENT, DECREE OF FORCLOSURE and ORDER of Sale re; 15 Motion for Order/Judgment Signed by Judge Dana L. Christensen on 9/7/2016. (CDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
UNITED STATES OF AMERICA,

CV 15-162-M-DLC

Plaintiff,
JUDGMENT, DECREE OF
FORECLOSURE AND ORDER OF
SALE

vs.
COLLEEN COLLINS,
CONFEDERATED SALISH and
KOOTENAI TRIBES,

FILED
SEP 07 2016

Defendants.

Clerk, U.S District Court
District Of Montana
Missoula

This matter having been brought before this Court by Plaintiff, United States
of America, by and through its attorney, Victoria L. Francis, Assistant U.S.
Attorney, for the District of Montana, and upon considering the pleadings filed
herein, it appears there is no issue of material fact, and the Court now makes the
following Finding of Fact and Conclusions of Law.
FINDINGS OF FACT
1.

This Court has jurisdiction of this action for the reason that the United

States of America is the party Plaintiff under 28 U.S.C. § 1345. The real property
that is subject of this foreclosure action is a leasehold interest of real property
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owned by the Defendant Confederated Salish and Kootenai Tribes, located in the
County of Missoula, State of Montana, and is described as follows.
Lot 5 of the Evaro Homesite Tract No. 203-T-1548
located in Section 13, T. 15N., R.20W., P.M.M.,
Missoula County, Montana, Containing 3.93 acres, more
or less.
The Confederated Salish and Kootenai Tribes leased its Interest in the above
described property to the Salish Kootenai Housing Authority on October 1, 2007.
On that same date, the Salish and Kootenai Housing Authority, a tribally
designated housing entity, subleased the real property described above to
Defendant Colleen D. Collins.
2.

On January 10, 2011, Colleen Collins received a loan in the amount of

$104,030.00 from Bank2, pursuant to the Housing and Community Development
Act of 1992(12 U.S.C.§ 1715z-13a). The loan is evidenced by a promissory note
dated January 10, 2011. A true and correct copy of the promissory note is
attached to the Complaint at Exhibit A.
3. As security for the above described loan, Colleen Collins executed a
Deed of Trust on January 10, 2011. A true and correct copy of the Deed of Trust
is attached to the Complaint as Exhibit B. The Deed of Trust provides as security
Collins leasehold interest in the real property described in paragraph 1 above. The
Deed of Trust is also governed by HUD Section 184.

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4.

The Note and Deed of Trust was subsequently assigned to the

Secretary of Housing and Urban Development, which assignment was filed with
the Branch of Realty Titles and Records Section of the Confederated Salish and
Kootenai Tribes, BIA Title Status Report under document number 203-44383. A
true and correct copy of the assignment is attached to the complaint as Exhibit C.
5.

Defendant Colleen Collins, is in default under the terms of the

promissory note and leasehold mortgage due to failure to make timely payments of
principal and interest as agreed. The lender made numerous mitigation efforts to
work with Colleen Collins to cure the default. The default was not cured. The
lender assigned the loan to HUD to commence foreclosure proceedings.
6.

By virtue of the lease with Colleen Collins, Defendant Confederated

Salish and Kootenai Tribes and Salish Kootenai Housing Authority may claim a
right of first refusal to acquire the borrowers interest in the real property subject to
this foreclosure proceedings, upon payment of all sums in arrears, and either
payment of the balance of the loan or assumption of the mortgage. The right of
first refusal may be exercised within thirty days after notice in writing from the
lender of the borrower's default. By letter dated February 4, 2013, notice was
provided to the Tribe offering the right of first refusal. A true and correct copy of
the letter is attached to the complaint Exhibit D. The Tribe declined to exercise its
right of first refusal.

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7.

Defendant, Colleen Collins, is indebted to the Plaintiff for the loan

outlined above in the principal amount of $100,698.90, plus accrued interest in the
amount of $7,338.80 as of April 1, 2015, for a combined total of $108,037.70 as of
April 1, 2015. The Agency has waived collecting any additional interest.
However, the Plaintiff will seek post-judgment interest pursuant to 28 U.S.C. §
1961.
8.

On January 25, 2016 the United States Marshal's Office served the

Summons and Complaint on Colleen Collins. Defendant Colleen Collins did not
make an appearance and her default was entered on July 25, 2016. (Doc. #12).
9.

On December 23, 2015, the Confederated Salish and Kootenai Tribes

executed a Waiver of Service of Summons filed with the Court on December 29,
2015, as (Doc. #5). On February 1, 2016, the Confederated Salish and Kootenai
Tribes filed an Answer to the Complaint by and through their counsel of record,
Brian Upton see (Doc. #8). On July 26, 2016, Defendant Confederated Salish and
Kootenai Tribes and Salish Kootenai Housing Authority executed a stipulation
with the United States consenting to entry of judgment, decree of foreclosure and
order of sale pursuant to the terms set forth in the stipulation filed with the Court
under (Doc. # 14).
CONCLUSIONS OF LAW

10. Both the terms of the Stipulation (Doc. #14), and the statutes governing
HUD Section 184 mortgages, provide that upon any foreclosure sale the property
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described in the complaint may only be sold or transferred to an eligible tribal
member, the tribe, or the Indian housing authority (or Tribally-Designated Housing
Entity) serving the tribe. Any judgment of foreclosure shall incorporate the
limitations on the nature of the purchasers at foreclosure sale as set forth in 12
U.S.C. Section 1715z-13a(h)(2).
11. Also as set forth in the Stipulation (Doc. # 14), the judgment shall
further provide that the purchaser of the foreclosed leasehold interest is not entitled
to a deed, but is entitled to either a new lease or an assumption of the existing
lease, as described in the "Rider for Section 184 Mortgage - Leasehold." The
judgment shall also provide that any purchaser at a foreclosure sale must receive
the written consent of the Confederated Salish and Kootenai Tribes.
12. Salish Kootenai Tribal Ordinance incorporates Title 71, Chapter 1, Part
2 of the Montana Code Annotated regarding the notice and advertising for a
foreclosure sale, except that the Tribal law provides the debtors with a ninety (90)
day period to redeem, rather than the one year period of redemption provided
under Montana law.
13. Default was properly entered as to Defendant Colleen Collins.
WHEREFORE, the United States prays for judgment as follows:
1.

Plaintiff, United State of America, have foreclosure judgment against

Defendant, Colleen Collins, in the principal amount of $100,698.90, plus accrued
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interest in the amount of $7,338.80 as of April 1, 2015, for a combined total of
$108,037.70 as of April 1, 2015. The Agency has waived collecting any
additional interest. However, the Plaintiff is entitled to post-judgment interest
pursuant to 28 U.S.C. § 1961.
2.

The real property described in the Deed of Trust, may only be sold or

transferred to an eligible tribal member, the tribe, or the Indian housing authority
(or Tribally-Designated Housing Entity) serving the tribe. The notice of
foreclosure sale shall incorporate the limitations on the nature of the purchasers at
foreclosure sale as set forth in 12 U.S.C. Section 1715z-13a(h)(2).
3.

The purchaser of the foreclosed leasehold interest is not entitled to a

deed, but is entitled to either a new lease or an assumption of the existing lease, as
described in the "Rider for Section 184 Mortgage - Leasehold." Any purchaser at
the foreclosure sale must receive the written consent of the Confederated Salish
and Kootenai Tribes for the new lease or assumption of the existing lease.
4. Pursuant to the Confederated Salish and Kootenai Tribes Ordinance,
Title 71, Chapter 1, Part 2 of the Montana Code Annotated regarding the notice
and advertising of a foreclosure sale applies to this judgment, except that the
judgment debtor shall only have a ninety (90) day redemption period.
5.

The real property be sold in one unit.

6.

The U.S. Marshal be required to provide a Certificate of Sale to the

purchaser at the time of sale of the leasehold interest in real property. The
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purchaser be entitled to a new lease or assumption of lease subject to the consent of
the Confederated Salish and Kootenai Tribes at the expiration of ninety (90) days
from the date of the sale, unless the premises are previously redeemed as provided.
7.

The U.S. Marshal for the District of Montana, out of the proceeds of

the sale, shall retain his fee, disbursements, and expenses of the sale, and proceeds
shall next be applied to the debt owed to the Plaintiff, United States herein for
application to the amount due on its deed of trust and note, with the excess
proceeds, if any, to be paid to the Clerk of Court in order for the Court to
determine the priority to any surplus proceeds in accordance with law.
8.

The Defendant Colleen Collins, and any and all persons claiming

under her, and all persons having liens subsequent and inferior to the lien of the
Plaintiffs Deed of Trust, either by mortgage, judgment, or decree, upon the
leasehold interest in real property described in the Deed of Trust subject to this
foreclosure, and their personal representatives and all persons claiming to have
acquired any estate or interest in the premises, subsequent to the filing of this
action, be forever barred and foreclosed of and from all equity of redemption and
claim to the mortgage or premises, and every part or parcel thereof, from and after
the expiration of the 90 day redemption period. This judgment does not terminate
the Confederated Salish and Kootenai Tribes ownership of the real property held in
trust by the United States.

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L.~

Dana L. Christensen, Chief Judge
United States District Court Judge

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