Rules for Summary Repossession

 

RULE 1.         TITLE AND SCOPE.

(a) These rules govern summary repossession proceedings in the High Court of American Samoa Trial Division. They shall be known as the Trial Court Rules for Summary Repossession and cited as TCRSR _________.

(b) Insofar as these rules explicitly contradict the statutory provisions found in Title 43, Chapter 14 of the American Samoa Code Annotated (hereinafter “A.S.C.A.”), the latter will take precedence.

(c) No provision of these rules shall be construed to prevent the bringing of a subsequent action for damages in the Land and Titles Division or, when appropriate, the Trial Division of the High Court of American Samoa. The remedy provided by summary repossession is in addition to, and not exclusive of, other remedies, either legal, equitable, or statutory. A judgment for repossession does not merge with or bar any other claim for relief.

HISTORY: Effective June 1, 2012

 

RULE 2. ACTION FOR REPOSSESSION

(a) A summary repossession action shall be deemed filed with the High Court of American Samoa upon the payment of the required filing fee and the timely filing of a complaint for repossession.

(b) A valid complaint for repossession shall have two exhibits attached thereon: firstly, a copy of the demand letter for repossession or payment in the form outlined in A.S.C.A. § 43.1406, and, secondly, a copy of the lease agreement provided one exists. The complaint will also state:

(1) a reasonably identifiable description of the premises ;

(2) that the defendant is in possession of the premises;

(3) that the defendant

(A) holds the premises in excess of the pertinent lease’s termination or expiration terms;

(B) is in default of the payment of rent 7 days after the service of a written demand letter for repossession for nonpayment of the rent due (however, the rent due cannot include accelerated indebtedness for reason of breach of the lease under which the premises are held);

(C) or any person in possession of the disputed premises, based upon reasonable grounds, is, or has been, engaged in the willful or negligent administration of a serious and continuing health hazard on the disputed premises 7 days after service of a demand letter for repossession of the premises or a demand letter for substantial restoration of disputed premises to pre-hazardous conditions; or

(D) possesses the disputed premises by force after a peaceable entry or came into possession of the premises by trespass without color of title or other possessory interest;

(4) that the defendant was served the demand letter(s) for repossession for violation of lease’s terms, for nonpayment of the rent due, for substantial restoration of disputed premises to pre-hazardous conditions, or for trespass by the method of process outlined in A.S.C.A. § 43.1407; and

(5) that, if applicable, legal damages are attributable to defendant for either wrongful entry, detainer or possession, for breach of the lease or contract under which the disputed premises were held, or for waste or malicious destruction to the premises.

(c) A complaint devoid of the attachments and statements articulated in subsection (b) is subject to dismissal without prejudice at the court’s discretion, if brought by motion, or upon the court’s independent discovery.

HISTORY: Effective June 1, 2012

 

RULE 3. PROCESS

(a) Summary repossession actions shall be filed and adjudicated in the Trial Division of the High Court of American Samoa or removed thereto.

(b) Upon the filing of a summary repossession action, the Court Clerk will issue a summons (in both Samoan and English) commanding the defendant to appear for trial within 10 days of the filing of a summary repossession action. The trial date can be extended by the court. However, summons must be served not less than 3 days before the date set for trial.

(c) Except as provided within these rules, the provisions of the Trial Court Rules of Civil Procedure and Rules of Evidence are applicable in summary repossession proceedings for purposes of issuing process and subpoenas, rendering default judgment, authenticating documents, accepting the testimony of witnesses, etc.

HISTORY: Effective June 1, 2012

 

RULE 4. DEFENDANT’S AFFIRMATIVE DEFENSES TO A REPOSSESSION ACTION

(a) A judgment for repossession of the premises for an alleged termination of tenancy may not be entered against a defendant if one or more of the following are established:

(1) the alleged termination was intended primarily as retribution for a lawful act arising out of the tenancy;

(2) the plaintiff attempted to increase the defendant’s obligations under the lease or contract as a penalty for a lawful act and that the defendant’s failure to perform the additional obligations was the primary reason for the alleged termination of tenancy; or

(3) the plaintiff committed a breach of the lease which excuses the payment of rent if possession is claimed for nonpayment of rent.

HISTORY: Effective June 1, 2012

 

RULE 5. CONTINUANCE

Should the court, in its discretion, grant a continuance, or if the parties stipulate to a continuance in writing, its term shall not exceed 7 days, sufficient security as a condition may be mandated. Unless the action is continued for court-scheduling conflicts, any summary repossession action unresolved by trial or agreement within the timeframe promulgated in A.S.C.A. § 43.1410 and these rules shall be dismissed without prejudice.

HISTORY: Effective June 1, 2012

 

RULE 6. JUDGMENT ON TRIAL BY COURT

If, after hearing the evidence the court concludes that the complaint is not true, it shall enter judgment against the plaintiff for costs. If the court finds the complaint true or if judgment is rendered by default, the court shall render a general judgment against the defendant and in favor of the plaintiff, for restitution of the premises and the costs of the action. If the court finds the complaint true in part, it shall render judgment for the restitution of such part only, and the costs shall be taxed as the court deems just and equitable. Any person who shall become a subtenant of the premises or any part thereof after the service of notice as provided in these rules shall be bound by the judgment. No provision of these rules shall be construed to prevent the bringing of an action for damages.

HISTORY: Effective June 1, 2012

 

RULE 7. JOINDER OF CLAIMS AND COUNTERCLAIMS

A party to a summary repossession action may join claims and counterclaims for money judgment for damages attributable to wrongful entry, detainer or possession, for breach of the lease or contract under which the premises were held, or for waste or malicious destruction to the premises. However, it is within the court’s discretion to order separate summary disposition of the claim for possession, without prejudice to other claims or counterclaims. The other claims and counterclaims if raised in a summary repossession action can be heard by either the Trial Division or the Land and Titles Division of the High Court of American Samoa.

HISTORY: Effective June 1, 2012

 

RULE 8. DETERMINATION OF AMOUNT PAYABLE TO PRECLUDE ISSUANCE OF WRIT OF REPOSSESSION

(a) If it is found that the plaintiff is entitled to possession of the premises, in consequence of the nonpayment of money due under a tenancy, the court determines the amount due or in arrears at the time of trial and will state that amount in the judgment for repossession.

(b) In determining the amount due under a tenancy, the court deducts, if any, that portion of the rent which it finds to be excused by the plaintiff’s breach of the lease. This amount which, together with taxed costs, is the amount a tenant must pay to plaintiff to preclude issuance of the writ of restitution. The judgment may include an award of costs.

(c) If the defendant pays the amount due under a tenancy calculated under subsection (b) within 10 days of the issuance of a judgment for repossession, a writ of repossession shall not issue.

(d) If the plaintiff is exercising a termination clause contained in a lease that was not affirmatively pled and proven by defendant to be influenced by those circumstances contained in Rule 4 of these rules, or no written lease filed with the Territorial Registrar pursuant to A.S.C.A. § 37.0210 exists, then subsections (a), (b), and (c) of this Rule are inapplicable.

HISTORY: Effective June 1, 2012

 

RULE 9. ISSUANCE OF WRIT OF REPOSSESSION

(a) A writ of repossession shall not issue until 10 days after a judgment for repossession.

(b) If TCRSR 8(b) is applicable, a writ of restitution shall not issue if a tenant pays the amount due under a tenancy within 10 days following a judgment for repossession.

(c) If the defendant in a repossession action files a motion for new trial and a subsequent notice of appeal, the court may mandate the defendant file a satisfactory bond to stay proceedings. If either a motion for new trial or a notice of appeal is filed, a writ shall not issue until the final disposition of the appeal, or motion for new trial should the defendant not seek an appeal.

(d) Should judgment of restitution render, the writ shall be in the following form:

[CAPTION]

TO: THE MARSHAL OF THE HIGH COURT OR ANY POLICE OFFICER

A judgment in favor of Plaintiff and against Defendant in a summary eviction action was entered on __________[date] for restitution of the following premises:

___________________________________________________________

___________________________________________________________

_________________[description of the property in metes and bounds, if possible, or with enough clarity to effectuate]


It is ordered that within 10 days after you receive this writ, you remove or supervise removal of the Defendant and all other person found upon the premises claiming under the Defendant and restore unto Plaintiff full possession of the premises.

It is so ordered.

Dated:___________________

HISTORY: Effective June 1, 2012