Navajo Rules for Repossession of Personal Property Proceedings

These rules were reviewed by the Solicitor to the Navajo Nation Courts and adopted by the judges of the Navajo Nation on January 29, 1982.

• Index

Rule 1.        Scope of Rule. This rule is applicable to the repossession of personal property and chattels where such property constitutes a security to protect payment pursuant to any agreement for the extension of credit.  This rule shall apply whether or not credit was extended within the Navajo Nation and shall apply in all situations where the security is located, possessed, garaged, kept or otherwise found within the Navajo Nation.

Rule 2.        Jurisdiction.  Any person or entity seeking remedies of repossession or [otherwise] with respect to a credit transaction shall be deemed to have submitted to the jurisdiction of the court for the purpose of determining the rights of all parties to the credit transaction.  The right to a remedy is based upon the submission to the court’s jurisdiction and orders with respect to the entire transaction between the parties.

Rule 3.        Federal Statutes and Remedies.  The Navajo Tribal Courts are competent to apply and determine any and all remedies afforded to consumers and others under Federal law, and the court may make an independent determination of Federal statutes guided by applicable Federal statutes guided by applicable Federal regulatory and decisional law.

Rule 4.        Liberal Interpretation.  This rule will be liberally construed to protect the rights of the parties, and no remedy will be denied for failure to comply with this rule where the person seeking the remedy has substantially complied with it within its spirit.  In all cases where the right to repossess personal property is regulated by a contract, and the court shall apply the terms of that contract unless they are unconscionable or contrary to law.  Where the right to repossess is clear, the court shall not deny that remedy unless the provisions of this rule placing limitations on repossession will not be satisfied.

Rule 5.        Petition to Repossess. 

(a)              The remedy of repossession of a chattel or personal property will be sought by means of a verified petition.  The petition may be a standardized form, and it may be informal or drafted by a creditor without counsel, as long as it substantially complied with this rule.

(b)             A petition to repossess property will contain the following information:

(1)              The name and address of the person from whom the property is sought to be repossessed and the location of the property;

(2)              An identification of the property to be repossessed which is sufficient to either relate it to a written agreement affecting it or give a reasonable description for identification by police seizing the property under court order;

(3)              A description of the agreement which gives the petitioner a right to repossess the property and the grounds for breach of the agreement which gives rise to the right of repossession.  A copy of any written agreement must be attached to the petition;

(4)              Where applicable, the total balance due and owing under the agreement;

(5)              The exact relief or remedy, which is being sought (e.g. repossession by the creditor, repossession by the police, delivery into court, damages, etc.).

(c)              The petition must be acknowledged or sworn to.

Rule 6.        Action on Petition. 

(a)              Upon the filing of the petition, if the petitioner does not seek immediate repossession of the property without a prior hearing, the clerk of court must at the time of filing issue a citation or order to show cause directed to the person possessing the property in question directing that person to appear before the court at a time and date certain to show good legal grounds why the property should not be repossessed.

(b)             The citation or order to show cause must contain the following items:

(1)              Below the caption of the citation or order there must be an indication of notice to the respondent with his or her name all in capital letters and a description of the property all in capital letters;

(2)              A statement that a petition has been filed to repossess the identified property and that a hearing will be held on the petition on a certain date, at a certain time and at the courtroom of a certain courthouse.

(c)              A statement that if the person does not actually appear to contest the repossession, the court may order repossession.

(d)             A statement that any attempt to destroy, damage, remove, conceal or otherwise damage the use of the property as a security is forbidden and is a crime under the laws of the Navajo Nation and any such attempt will be punished by arrest, prosecution and possible conviction;

(e)              When applicable, a statement of the total balance due and owing under the agreement.

Rule 7.        Time of Hearing.

A hearing will be conducted on the petition no less than five or more than ten days following the issuance of the citation or order to show cause.  The court may grant a continuance of no more than five days from the date of the hearing originally set upon the request of the respondent, with appropriate limitations to protect the petition’s interest in the security.  The petitioner may request a continuance, which may be granted unless prejudice of the respondent appears.

Rule 8.        Conduct of Hearing. 

(a)              Proceedings under this rule shall be informal and designed to provide substantial justice to the parties before the court.  The respondent shall not be required to file any pleading at hearing, due to the speedy nature of the remedy, but may present oral defenses or objections to the petition.  The rules of evidence will be applied liberally, given the summary nature of the remedy, and the court will admit evidence and consider it in light of its credibility under the circumstances.

(b)             The only question the court may consider at the time of hearing shall be whether or not the property is a security under an agreement, and whether or not there has been a breach of the agreement so as to justify repossession.  The court shall not consider any counterclaim, setoff or other independent claim in ruling upon the question of repossession.

(c)              The court shall make a ruling on the right to repossession at the conclusion of the hearing.  If the petitioner has a proper order for the court’s consideration, it may be used by the court as its order.  If the prevailing party does not have an order prepared for the court’s consideration, the courts own order must be issued within 24 hours of the hearing.

(d)             The court may make a ruling as to attorney’s fees and make appropriate orders as to the future disposition of other claims of the parties, including conditions for obtaining remedies and p[ro]secuting claims arising out of the transaction in the future.

(e)              Any order of repossession must specifically identify the property to be repossessed and state its location.  The order may be executed by the petitioner or by an officer of the Navajo Police, and in all cases a return must be filed with the court showing what action was taken on the order.

Rule 9.        Claims by Respondent. 

(a)              Where a respondent makes claims against the petitioner in the nature of counterclaim, setoff or otherwise, the court may make a preliminary inquiry as to whether or not [t]here is probable cause to believe the respondent may have a valid claim for relief which can be asserted against the petitioner.

(b)             If it appears from the preliminary inquiry in open court that there may be a valid claim by the respondent, the court may:

(1)              Order impoundment of the property pending the filing of a proper pleading by the respondent and a ruling upon its legal sufficien[c]y;

(2)              Permit the repossession and removal of the property from the territorial jurisdiction of the court for disposition upon the posting of a bond by the petitioner in the sun claimed by the respondent;

(3)              Permit the respondent to keep the chattel or property upon the posting of a bond equal to the value of the property or the balance due on it, payment of the value of the property or the balance due on it into court or, with the consent of the petitioner, payment of monthly time payments stated in the contract into court pending disposition of the claims of the parties;

(4)              Permit the repossession and removal of the property by the petitioner upon his submission to the jurisdiction of the court for the adjudication and enforcement of the claims of the respondent.

Rule 10.      Immediate Seizure of Chattel or Property.

At the time of the filing of the petition for repossession the court may order the immediate seizure of the chattel or property claimed.  The court may order the property to be seized and held by the petitioner, either within the territorial jurisdiction of the court or outside the territorial jurisdiction of the court.  Alternatively the court may order the property to be seized and held in a location under the control of the Navajo Nation or the court, or at an independent storage place, either within or without the territorial jurisdiction of the court.  The procedure for the immediate seizure of a chattel or property without a prior hearing shall be as follows:

(a)              At the time of the filing of the petition the petitioner must file a motion for the immediate seizure of the subject property stating there is an immediate and likely danger the security will be damaged, destroyed, hidden, removed from the jurisdiction of the court or impa[i]red as a security.  The motion must be accompanied by an affidavit giving specific facts and reasons showing such a danger and containing factual information, which will reasonably give the court grounds to conclude it must grant an order of immediate seizure.  Orders will not be granted on the basis of mere statements of injury but only on the basis of facts stated by persons with knowledge of the situation.  Hearsay statements shall be permitted.

(b)             The court may require a bond, a written promise on the part of the petitioner, a document assigning title to the property (to be revoked or reassigned after hearing), the deposit of title document or other reasonable security to protect the rights of the respondent.

(c)              Upon the granting of an order of immediate repossession of the property the court must set a hearing as in section (9), with the citation or order to show cause as in subsection (7), indicating the fact of repossession and that the immediate repossession will be final if no appearance is made at the hearing.

Rule 11.      Remedies for Noncompliance with this Rule.

(a)              As to respondents.  Where a respondent or repossessor of a chattel or personal property subject to this rule fails to obey the rule or an order of this court, the court may issue a bench warrant or order to show cause for criminal or civil contempt of court, order seizure of the subject property or issue a bench warrant for violation of any applicable criminal law of the Navajo Nation.

(b)             As to petitioners. Where any petitioner fails to comply with this rule or any orders hereunder the court may:

(1)              Issue a bench warrant for contempt of court for any petitioner or agent or employee of a petitioner who falls within the criminal jurisdiction of the court;

(2)              Issue an order to show cause or arrest warrant for imposition of the penalties set forth in 7 N.T.C. §§ 608, 609;

(3)              Order the forfeiture of any bond or other property subject to an action under this rule;

(4)              Issue an order to show cause for exclusion of the individual or any employee or agent of such individual under 7 N.T.C. § 608(a) and 17 N.T.C. § 1901.

(5)              Issue an order to show cause for the denial of the right of any business or its officers, agents and employees to do business on land subject to the jurisdiction of the Navajo Tribe under 7 N.T.C. § 608(b);

(6)              Impose penalties for civil contempt of court.

Rule 12.      Forms.

The Legal Counsel to the Courts of the Navajo Nation or any professional employee of the Judicial Branch is hereby authorized to prepare model court forms to implement this rule.  Any party may either use forms developed by the court or any form, which is in substantial compliance with this rule.  No relief may be denied for the failure of a party to use the forms developed under this section, as long as the documents submitted are in substantial compl[ia]ance with this rule, and parties will be given liberal leave to amend their pleadings where the interest of justice and fairness so require.

Rule 13.      Duties of Peace Officers and Parties under Rules when Enforcing Court Order.

(a)              It shall be the duty of any member of the Navajo Police or any peace officer of the Navajo Nation to immediately and without delay to execute and enforce any order of the court under the seal of the court.

(b)             Where an order of the court permits a party to obtain property, officers shall give whatever assistance may be necessary to assist the party in obtaining the property and preserve the peace.

(c)              The officer’s return to the court shall indicate the time, date and place of the seizure of the property by an officer or party and shall show that the property seized is the property described in the order of the court.

(d)             Where a party is permitted to seize property under an order of the court under court seal, the party shall make a return under oath as in subsection (c).

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