4-4-101. Purpose. It is the purpose of this Chapter to promote the disposition of small claims in Tribal Court without the necessity of a formal trial.
 

4-4-102. Application and Parties. (1) Procedures provided by

this Chapter shall be applied by the Tribal Court sitting as the Small Claims Division of the Tribal Court in all actions for the recovery of money owed, as follows:
 

(a) when the amount claimed is not less that $50, nor more than $1000, exclusive of costs; and
 

(b) when the transaction on which the claim is based occurred within the exterior boundaries of the Flathead Reservation; and
 

(c) when one party is either
 

(i) a Tribal member residing on the Reservation or a resident member's guardian, conservator, or personal representative, or
 

(ii) a corporation, partnership, firm, association, Tribal agency, or other entity, whose principal place of business is located within the exterior boundaries of the Flathead Reservation and
 

(A) which is organized under Tribal law, or
 

(B) in which more than fifty per cent (50%) of the ownership interests are held by one or more Tribal members.
 

(2) A plaintiff in a small claims action may be an individual, partnership, corporation, association, firm, government agency or subdivision, guardian, conservator, or personal representative.
 

(3) Except for a personal representative, guardian, or conservator, only a plaintiff, natural oh otherwise, who was a party to the transaction with the defendant for which the claim is brought may file and prosecute a claim under these procedures. No plaintiff may file an assigned claim in the Small Claims Division.
 

(4) By filing a claim pursuant to these procedures, a plaintiff consents to the Jurisdiction of the Tribal Court for the purpose of adjudicating any counterclaim against him that the defendant may have.
 

4-4-103. Representation. (1) A party in a small claims proceeding may not be represented by an attorney or a Tribal Court Advocate unless every party is represented by an attorney or advocate. In the event that all parties are represented, each representative shall file a notice of appearance with the Clerk of Court no later than three (3) calendar days prior to the time set for hearing.
 

(2) An individual may represent himself in a small claims action. A partnership may be represented by a partner or by an employee. Any other kind of organization may be represented by a member or an employee.
 

4-4-201. Commencement of Action -- Assistance to Claimant.

(1) A small claims action is commenced whenever any person appears before the Clerk of Court and executes a sworn small claims complaint in substantially the same form as that set forth in Section 4-4-202.
 

(2) The Clerk of Court shall assist any claimant who requests assistance in preparing his complaint. The Clerk of Court shall prepare, in plain language, instructions explaining the procedures for prosecuting and defending a small claim. The Clerk shall give the plaintiff a copy of the instructions when the plaintiff appears to execute his complaint, and a copy must be attached to the order of court/notice to defendant.
 

4-4-202. Form of Complaint and Order of Court/Notice to Defendant. The sworn complaint and the order of Court/notice to defendant shall be made in substantially the following forms:
 

(l) Complaint:
 

___________________________________________________________________________________________

)

_____________________, ) Case No. __________

Plaintiff, )

)

vs. ) COMPLAINT )

_____________________, )

Defendant. )

___________________________________________________________________________________________
 

Comes now the plaintiff, being first duly sworn, upon oath, and complains and alleges that defendant is indebted to plaintiff in the sum of $___________for ________________________________________________

___________________________________________________________________________________________

___________________________________________________________________________________________

which sum is now due, owing, and unpaid despite demands for the payment thereof, together with plaintiff's costs expended herein.
 

Dated this ____ day of __________, _____.
 

_________________________ Plaintiff

_________________________

_________________________

_________________________

Plaintiff's address
 

Subscribed and sworn to before me this ____ day of __________, _______.
 

_________________________ Clerk of the Tribal Court

(2) Order of Court/Notice to Defendant:
 

__________________________________________________________

)

________________________, ) Case No. ___________

Plaintiff, )

vs. ) ORDER OF COURT

________________________, ) NOTICE TO DEFENDANT

Defendant. )

__________________________________________________________
 

THE SMALL CLAIMS DIVISION OF THE TRIBAL COURT TO THE ABOVE-NAMED DEFENDANT:

You are hereby directed to appear and answer the within complaint at the courtroom of the Tribal Court at the Tribal Complex at Pablo, Montana, on _______________, _____ at ___ : ____ a.m./p.m., or as soon thereafter as the matter may be heard, and to have with you all books, papers, and witnesses needed by you to establish your defense to the claim, and you are further notified that in case you do not appear, Judgment will be taken against you by default for the amount demanded in the complaint and for costs of this action.

You are hereby further notified that, within 10 days of service upon you of this complaint and order, you may request that this action not be heard under small claims procedures but, instead, under the usual trial court procedures, and that your failure to make such a request shall constitute a waiver of your rights to trial by jury and may also waive your rights to be represented by counsel at the small claims proceeding.

__________________________________________________________

To the Server of Process of the Tribal Court, greetings:
 

Make legal service and due return thereof on the defendant at _________________________________________________________.

Dated this ____ day of ______________, _____.
 

___________________

Clerk of the Tribal Court
 

Return of service:
 

I, ______________________, hereby attest and affirm that I personally served the above-named defendant at ___ : ___ o'clock a.m./p.m., on _________________,_____, with the complaint and order of court/notice to defendant in the above-referenced cause.
 

4-4-203. Hearing Date. The date for the appearance of the defendant to be set forth in the order shall be determined by the Clerk of Court and may not be more than 30 working days nor less than 15 working days from the date of the order. Service of the order and a copy of the sworn complaint shall be made upon the defendant not less than 7 working days prior to the date set for his appearance by the order. If the order is not timely served, the plaintiff may have a new appearance date set by the Clerk and a new order delivered to the process server. If necessary, repeated orders may be issued at any time within one year after the commencement of the action. If no service is accomplished within one year from the date of the complaint, the complaint will be dismissed without prejudice.
 

4-4-204. Service on Defendant -- Return -- Notification to Plaintiff. (1) The original of the order and notice shall be shown to the defendant,.and a copy of it together with a copy of the sworn complaint shall be served upon the defendant in the same manner provided for service of process in civil actions generally.
 

(2) The process server shall, after effective service, remit the original order, with his signature and the time of service affixed thereto, to the Clerk of Court. Upon receipt of the returned original order, the Clerk shall mail a copy thereof, first class, postage prepaid, to the plaintiff.

4-4-205. Removal From Small Claims Division -- Effect of Failure to Remove. (1) Any action commenced in the small claims division of the Tribal Court may be removed to the trial court of the Tribal court by a defendant upon the filing of a notice of removal, in substantially the same form as that provided in Section 4-4-206, with the Clerk of the Court within 5 working days of the service of the complaint and order, or by a plaintiff within 3 working days of the service of a counterclaim as provided in Section 4-4-207.
 

(2) From the time of the filing of the notice of removal, the small claims division has no further jurisdiction over the claim, and the trial court of the Tribal Court has and exercises the same jurisdiction as though the action had been originally commenced in such , court.
 

(3) Upon the filing of a notice of removal, the Clerk of Court shall mail first class, postage prepaid, a copy of the notice to the other party in the action. The plaintiff is not required to replead unless the court so orders, and no additional fee is required of a plaintiff for the filing of the complaint or of a defendant for the filing of a Counterclaim. The time for the defendant to file an answer to the complaint commences upon the date of the filing of the notice of removal. All rules and statutes governing proceedings originally commenced in the trial court of Tribal Court are applicable to removed proceedings.
 

(4) Failure to request removal within the time provided in subsection (1) constitutes a waiver by the defendant of his right to trial by Jury and to representation by an attorney or by a Tribal Court Advocate, and the judge shall inform the defendant of such fact prior to the hearing.
 

4-4-206. Notice of removal. A notice of removal shall be in

substantially the following form:
 

___________________________________________________________________________________________

)

_______________________, ) Case No. __________

Plaintiff, )

vs. ) NOTICE OF REMOVAL

_______________________, )

Defendant. )

___________________________________________________________________________________________

To ____________________, the above-named party:

(plaintiff or defendant)
 

YOU ARE HEREBY NOTIFIED that the above-captioned case is removed from the Small Claims Division of the Tribal Court and is now pending in the trial court of the Tribal Court, pursuant to the procedures set forth in Section 4-4-205, and that any time previously set for hearing is vacated.
 

Dated this day ____ of ____________, _____.
 

_________________________

(Signature of party)

__________________________________________________________

I hereby certify that I mailed the within notice, first class, postage prepaid, on ____________, _____, and addressed the same to:
 

________________________________

________________________________

________________________________
 

_____________________

Clerk of the Tribal Court

4-4-207. Defendant's counterclaim. (1) The defendant may assert a counterclaim against the plaintiff arising out of the same transaction that is the subject matter of the plaintiff's claim by appearing before the Clerk of Court and executing a sworn small claims counterclaim in substantially the same form as set forth in subsection (3). The defendant shall cause the counterclaim to be served on the plaintiff not less than 3 working days before the date set for the hearing. Service shall be made in the same manner and according to the same terms and conditions in which service of the order of court/notice to defendant is made on the defendant. A defendant may not assert as a counterclaim any claim not arising out of the transaction that is the subject matter of the plaintiff's claim.
 

(2) a counterclaim or set off may not exceed $1000. If a counterclaim or set off is asserted in excess of $1000, the claim and counterclaim shall be removed to the trial court of the Tribal Court by the filing of a notice of removal by the Clerk of Court, and the action will proceed as provided in Section 4-4-205 (2).
 

(3) A counterclaim filed by a defendant shall be in substantially the following forms:
 

___________________________________________________________________________________________

)

________________________, ) Case No. ____________

Plaintiff, )

vs. ) COUNTERCLAIM

________________________, )

Defendant. )

___________________________________________________________________________________________

Comes now the defendant, being first duly sworn, upon oath, and alleges that defendant is entitled to counterclaim against the plaintiff in the plaintiff's pending action in the sum of $ ____________, for__________ ___________________________________________________________________________________________

___________________________________________________________________________________________

which sum is now due, together with defendant's costs herein expended.
 

Dated this ____ day of _______________,______.
 

_____________________

Defendant

_____________________

_____________________

Defendant's address
 

Subscribed and sworn to before me this ____ day of ____________,_______.
 

______________________

Clerk of the Tribal Court
 

To the Server of Process of the Tribal Court, greetings:

Make legal service and due return thereof on the plaintiff at__________________________________________.

Dated this ____ day of _________________,______.
 

______________________

Clerk of the Tribal Court
 

I, ___________________, hereby affirm that I personally served the above-named plaintiff at ___ : ___ o'clock, a.m./p.m., on __________, _________,with the counterclaim in Case No. __________ .
 

4-4-208. No further pleading. No form of pleading other than the complaint, the order of the court/notice to defendant, and the counterclaim of the defendant, if there is one, is allowed.
 

4-4-209. Fees. The Clerk of Court shall collect a fee of:
 

(1) $25 from the plaintiff upon the filing of the sworn complaint; and
 

(2) $10 from the defendant upon the execution of a sworn counterclaim.

4-4-301. Proceedings to be informal. The hearing and disposition of small claims actions shall be informal.
 

4-4-302. Witnesses -- evidence -- subpoena power. The plaintiff and the defendant may offer evidence in their behalf by witnesses appearing at such hearing or by written evidence, and the judge may direct the production of evidence as he considers appropriate. The small claims division has the subpoena power of Tribal Court generally.
 

4-4-303. Burden of proof. A plaintiff has the burden of proving his claim by a preponderance of the evidence, and a defendant bears the burden of proof of his counterclaim by a preponderance of the evidence.
 

4-4-304. Record of Proceedings. The Clerk of Court shall keep a record of all pleadings, returns of service, and of the judgment in a small claims procedure. The proceedings at hearing will not be recorded.

4-4-401. Entry of Judgment. Upon the conclusion of the hearing, the judge shall make his findings and enter judgment. The entry of judgment shall be prepared by the Clerk of Court, and a copy of the same shall be mailed, first class postage prepaid, by the Clerk to the parties within 5 days of the conclusion of the hearing.
 

4-4-402. Default Judgment and Dismissal. (1) A defendant's failure to appear at hearing may result in a default judgment against him and in a dismissal with prejudice of any counterclaim he may have filed.
 

(2) A plaintiff's failure to appear at hearing may result in a dismissal of his claim and, if a counterclaim has been filed against him, in a default judgment against, him on the counterclaim.
 

(3) Non-appearance by both parties at a hearing will result in dismissal of the action with prejudice.
 

4-4-403. Execution on judgment. Proceedings to enforce or collect a judgment are governed by the tows relating to execution upon the Tribal Court's Judgments.
 

4-4-404. Costs and Interest. The prevailing party in an action before the small claims division is entitled to his costs. If a money judgment is awarded, the party in whose favor the judgment is entered will be entitled to interest on the judgment amount commencing on the date of entry of judgment and continuing until the principal balance and accumulated interest is paid in full, by execution on the judgment or otherwise. Interest will be at the rate agreed to by the parties or 10% per annum on the judgment amount and accumulated balance, whichever is less.
 

4-4-405. Appeal to the trial court of the Tribal Court -commencement and scone. (1) If either party is dissatisfied with the judgment of the court of the small claims division, he may appeal to the trial court of the Tribal Court. An appeal shall be commenced by filing a notice of appeal, payment of a fee of $25 to the Clerk of Court, and serving a copy of the notice of appeal on the adverse party within 10 days after entry of judgment.
 

(2) The appeal will be heard as a trial de nova in Tribal Court and all of the rules of practice, of civil procedure, and of evidence will apply.
 

4-4-406. Attorney's fees upon appeal or removal. (1) A party may be represented upon appeal by an attorney or, if the party is a Tribal member, by an Advocate, and the court may grant the prevailing party his reasonable attorney's fees or any fees charged by an advocate, in addition to costs.
 

(2) If a defendant removes a matter to the trial court of the Tribal Court under the provisions of Section 4-4-205 (1) and (2) but does not prevail in the trial court, the court may grant the plaintiff his reasonable attorney's fees, if any.