Appealing was extremely stressful because the state court judge was known to have said there was “no way” I’d get my condo back. The stress hurt my health. Stress is known to shorten your telomeres, which in turn shortens your life. Watch telomeres video.
If I hadn’t appealed I wouldn’t have known for sure how powerful the judge’s prejudice was. I did NOT get my condo back, nor was Deutsche’s lawyer, who lied to the court, reprimanded in any way. Just to be clear, the lies were recorded in the transcript. Evidence existed showing that the lies were indeed falsehoods.
Your court may not be corrupt. It may be a good idea for you to appeal. It wasn’t a good idea for me, nor was it a good idea for me to pay lawyers $7,000. For me that was money wasted.
I used to have pages with my entire brief. I thought the case law might be useful to people.
Now, I’ll simply show the issues I raised in my Corrected Revised Brief:
STATEMENT OF THE ISSUES PRESENTED
HOW THEY AROSE AND HOW THEY ARE PRESERVED
ISSUE ONE: The amended complaint served on Kline during her bankruptcy violated the automatic stay provisions of the bankruptcy code (11 U.S.C. Section 362) and is void.
ISSUE TWO: The bankruptcy court docket shows that Kline knew about the foreclosure proceedings and intended to appear. Kline filed an answer on October 24, 2005. Kline was not in default when default judgment was entered without any hearing and the default judgment is void and should be set aside.
ISSUE THREE: The foreclosure judgment entered December 15, 2005, violated the ADA, Title II, by failing to accommodate Kline’s mental disability which was discrimination.
ISSUE FOUR: The trial court acted improperly in entering the orders and appellant was not afforded due process. One day notice of a trial/hearing is insufficient notice.
ISSUE FIVE: The foreclosure sale held without notice to Kline violated Kline’s due process rights.
ISSUE SIX: The order approving foreclosure and foreclosure sale and the Certificate of Redemption were entered in violation of Kline’s right to reinstate her mortgage and she had timely wired the money pursuant to paragraph 19 of her mortgage.
ISSUE SEVEN: The Fenton case deprives Kline of her right to redeem as provided in her mortgage at paragraph 24. Plaintiff failed to attach to the complaint the page of the mortgage with the redemption right and Kline’s signature.
ISSUE EIGHT: There is an appearance of partiality given by the First Judicial District Court in this case which may relate to Kline suing the First Judicial District Court in Federal Court for discrimination under the ADA, Title II.
ISSUE NINE: Lawyer, Tami Schnieder, hired by Kline after Kline was not allowed enough time to prepare for the Hearing on Approval of Sale, which was particularly prejudicial because of Kline’s disability and the complexity, falsely wrote that Kline had not been served the amended complaint during her bankruptcy, Schneider would not return Kline’s phone calls, Schneider filed a jury case against Sotheby’s Green which Kline did not know about, and Schneider quit in the middle of a continued hearing. This prejudiced Kline severely.
The issues were preserved at trial, but there was no trial or any hearing
prior to the December 15, 2005 entry of Default Judgment.
LIST OF AUTHORITIES BELIEVED TO SUPPORT THE
CONTENTION AND ANY CONTRARY AUTHORITY KNOWN
TO THE APPELLANT WITH SHORT PROPOSITION FOR
WHICH THE CASE OR TEXT IS CITED
I. ISSUE ONE: The amended complaint served on Kline during her bankruptcy violated the automatic stay provisions of the bankruptcy code (11 U.S.C. Section 362) and is void; Kline had a right to be served the amended compliant pursuant to rule 1-005 NMRA.
Supporting Authority:
11 U.S.C. Section 362. Automatic stay provisions of the BankruptcymCode. Provide for stay of all actions by a creditor against a debtor. The automatic stay stops all collections efforts, all foreclosure actions. Also the stay is designed to protect other creditors of the debtor from one debtor proceeding to put itself in a better position regarding assets of debtor. Relief from the stay must be obtained from the bankruptcy court in which the debtor’s petition is filed before proceeding. Any action after the filing of the petition in bankruptcy is null and void unless the stay is lifted prior to the action.
Fortier v. Dona Ana Plaza Partner, 747 F.2d 1324 (10th Cir. 1984), at page 1330, discusses the meaning and Congressional purposes of the stay in bankruptcy, and outlines that the automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It stops all collection efforts, all harassment, and all foreclosure actions.
Valley Transit Mix v. Miller, 928 F.2d 354 (10th Cir. 1991) the stay provisions are broad, they not only protect the property of the estate but also prohibit “any act to collect… or to recover a claim against the debtor…”
First Sav. Bank Trust Co. v. Stuppi, (8th Cir. 1924) regarding the successful action by the trustee in bankruptcy to obtain from a received appointed in a district court action all the property and property proceeds of the debts.
Section 39-5-18 through 39-5-23, NMSA. New Mexico Redemption Statute. Provide for redemption of property by defendant for period after affirmance of judicial sale. Appellant has a right in the property after the entry of a valid order affirming the foreclosure sale. Kline retains rights to property after judgment of foreclosure is entered, to the extent afforded by the New Mexico Redemption Statute, her mortgage, and case law. The judgment of foreclosure specified “one (1) month right of redemption in favor of Defendants.” At B, page 6.
Speckner v. Riebold, 86 NM 275, 523 P.2d 10 (1974), at page 277. That part of the decree of foreclosure that direct the manner and terms of the sale of the mortgaged property does not become a final judgment until the judicial confirmation of the sale, whereupon it becomes final.
Plaza Nat’l Bank v. Valdez, 106 NM 464, 745 P.2d 372 (1987), at page 465 affirming the holding in Speckner, supra, and at page 466, the special master can not execute a valid deed until the sale became final and had been court approved.
Matter of Brown, 73 B.R. 306 (Bkrtcy D.N.J. 1987), page 307-308, includes a discussion of the determination of the debtor’s rights in property upon foreclosure is based upon state law. Foreclosure actions determine the amount due to the creditor, gives the creditor the right to obtain title or to sell the property to obtain the value of the debt. Determination of property rights of the debtor in bankruptcy is determined by state law.
“Court actions taken in violation of the automatic stay are void and without effect.” Roberts v. C.I.R., 175 F.3d 889; Parker v. Bain, 68 F. 3d 1131; Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d1020.
“Actions taken in violation of stay are void rather than merely voidable,” 11 U.S.C.A. §362(a) – Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass’ n, 997 F.2d 581.
“Ordinarily, any action taken in violation of stay is void and without effect, even where there is no actual notice of existence of stay,” In re Calder, 907 F.2d 569.
Rule 1-005 NMSA provides that all papers be served on each of the parties.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance.
The cross or counter claim that Kline wanted to file was an objection, and Kline was not afforded an opportunity to present objections because no copy of the Amended Complaint was served on Kline that was not void.
Contrary Authority:
None known to appellant.
.
ISSUE TWO: The bankruptcy court docket shows that Kline knew about the foreclosure proceedings and intended to appear. Kline filed an answer on October 24, 2005. Kline was not in default when default judgment was entered without any hearing and the default judgment is void and should be set aside.
Supporting authority:
SCRA 1-055 provides for the procedure for default decrees. Provides default is not permissible upon answer of defendant.
Gengler v. Phelps, 89 N.M. 793, 558 P.2d 62 (Ct. App. 1976) all that is necessary to constitute an “appearance” to avoid default judgment without notice, is an affirmative act by the party showing knowledge of the suit and intention to appear, this affirmative act can be shown by contacts between attorneys, by letter from one attorney to the other or where plaintiff’s attorney has acquiesced in defendant’s request for more time to answer.”
Dyer v. Pacheco, 98 N.M. 670, 651 P.2d 1314 (Ct. Appl. 1982) Any doubts about whether relief should be granted are resolved in favor of the defaulting defendant because default judgments are not favored in the law; in the absence of a showing of prejudice to the plaintiff, cases should be tried upon the merits.
Kline had a right to have her counter/cross claim against the condominium association tried on its merits. She was denied that right when the amended complaint was not served on her. This is especially meaningful because the condominium association liens were the basis of Green’s redemption. Those liens would not have existed if the cross/counter claim could have been filed and the case tried on its merits. See Amended Third Party Complaint filed in cases D-101-CV-200400390 and D-101-CV-200400619. Kline had a right to be served Deutsche’s Amended Complaint. Failing that, the Foreclosure Judgment, Approval of Sale, and Redemption by Green should be set aside.
Ortega v. Vigil, 22 N.M. 18, 158 P. 487 (1916) Answer filed by defendant after time therefore had expired was not a nullity, and so long as it remained on file and undisposed of, rendition of default judgment constituted an irregularity for which judgment could be set aside upon motion filed within one year from date of rendition of such judgment. Kline filed motion to set aside on March 16, 2006.
State v. Duran, 107 NM 603, 762 P.2d 890, at page 608-609 to establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice. The failure to serve Kline the amended complaint served to allow plaintiff to proceed in effective silence and secret from Kline, shown by Kline’s surprise and shock as described by Juliane Hope in her affidavit filed on February 9, 2006. The failure to serve Kline the Foreclosure Judgment and Schedule of the Foreclosure Sale deprived Kline of her right to reinstate her mortgage before the sale and to compete for redemption; further, it caused Kline to spend nearly $5,000 on her property to ready it for sale after it had been foreclosed without her knowing and sold without her knowing because she received no notice.
Contrary authority:
None known to appellant.
.
ISSUE THREE: The foreclosure judgment entered December 15, 2005, violated the ADA, Title II, by failing to accommodate Kline’s mental disability which was discrimination.
Supporting authority:
Americans with Disabilities Act, Title II, mandates accommodation: “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U. S. C. §12101(a)(7).
Title II, §§12131—12134, prohibits any public entity from discriminating against “qualified” persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term “public entity” to include state and local governments, as well as their agencies and instrumentalities. §12131(1). Persons with disabilities are “qualified” if they, “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” §12131(2). Title II’s enforcement provision incorporates by reference §505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U.S. C. § 794a which authorizes private citizens to bring suits for money damages. 42 U.S.C. § 12133.”
Tennessee v. Lane, 541 U.S. 509 (2004), “The ADA was passed by large majorities in both Houses of Congress after decades of deliberation and investigation into the need for comprehensive legislation to address discrimination against persons with disabilities. In the years immediately preceding the ADA’s enactment, Congress held 13 hearings and created a special task force that gathered evidence from every State in the Union. The conclusions Congress drew from this evidence are set forth in the task force and Committee Reports, described in lengthy legislative hearings, and summarized in the preamble to the statute.2 Central among these conclusions was Congress’ finding that “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U. S. C. §12101(a)(7).”
Tennessee v. Lane, 541 U.S. 509 (2004), “Title II, §§12131—12134, prohibits any public entity from discriminating against “qualified” persons with disabilities in the provision or operation of public services, programs, or activities. The Act defines the term “public entity” to include state and local governments, as well as their agencies and instrumentalities. §12131(1). Persons with disabilities are “qualified” if they, “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” §12131(2). Title II’s enforcement provision incorporates by reference §505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U.S. C. § 794a which authorizes private citizens to bring suits for money damages. 42 U.S.C. § 12133.”
Tennessee v. Lane, 541 U.S. 509 (2004), “The Due Process Clause also requires the States to afford certain civil litigants a “meaningful opportunity to be heard” by removing obstacles to their full participation in judicial proceedings. Boddie v. Connecticut, 401 U.S. 371, 379 (1971); M. L. B. v. S. L. J., 519 U.S. 102 (1996).”
For Kline to have been afforded a meaningful opportunity to be heard the amended complaint would have to have been served, Kline’s mental disability would have had to be accommodated with additional time to answer the complaint following service of the amended complaint, and a hearing would have to have been held so that Kline would have known what was going on. Failure to require service of the amended complaint to Kline, failure to grant Kline additional time to answer as a reasonable
accommodation prior to the filing of a Certificate as to the State of the Record and Motion for Default Judgment for which the Certificate of Service shows Kline was not served, and failure to provide her with a clear date upon which her answer was required were all obstacles that should have been removed so as to afford Kline accessibility and full participation in the judicial proceedings, and as such were violations of the Due Process Clause. Each failure was an obstacle to her full participation in the judicial proceedings.
Tennessee v. Lane, 541 U.S. 509 (2004), “It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, “[a]s of 1979, most States … categorically disqualified ‘idiots’ from voting, without regard to individual capacity.”5 The majority of these laws remain on the books,6 and have been the subject of legal challenge as recently as 2001.7 Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying8 and serving as jurors.9 The historical experience that Title II reflects is also documented in this Court’s cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e.g., Jackson v. Indiana, 406 U.S. 715 (1972); the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo, 457 U.S. 307 (1982);10 and irrational discrimination in zoning decisions, Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). The decisions of other courts, too, document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system,11 public education,12 and voting.13 Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice.14”
It was unconstitutional treatment in the administration of justice for Kline to be denied each of her motions seeking to have the denial of due process righted by the removal of barriers to accessibility.
Tennessee v. Lane, 541 U.S. 509 (2004), “This pattern of disability discrimination persisted despite several federal and state legislative efforts to address it. In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing laws that rendered them “inadequate to address the pervasive problems of discrimination that people with disabilities are facing.” S. Rep. No. 101—116, at 18. See also H. R. Rep. No. 101—485, pt. 2, at 47.15 It also uncovered further evidence of those shortcomings, in the form of hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions. See Garrett, 531 U.S., at 379 (Breyer, J., dissenting). See also id., at 391 (App. C to opinion of Breyer, J., dissenting). As the Court’s opinion in Garrett observed, the “overwhelming majority” of these examples concerned discrimination in the administration of public programs and services. Id., at 371, n. 7; Government’s Lodging in Garrett, O. T. 2000, No. 99—1240 (available in Clerk of Court’s case file).” The First Judicial Court is a public program and service for the administration of justice and it is required by law to accommodate Americans with Disabilities. Kline is an American with a Disability. The First Judicial Court is required by law to reasonably accommodate Kline who has a disability.
Tennessee v. Lane, 541 U.S. 509 (2004), “Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent’s contention that the record is insufficient to justify Congress’ exercise of its prophylactic power is puzzling, to say the least.”
It is puzzling that the trial court discriminated against Kline, a person with a disability given the clear language of Tennessee v. Lane.
Tennessee v. Lane, 541 U.S. 509 (2004), “Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts at issue in this case, that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifications.”
A searching standard of review is called for.
Tennessee v. Lane, 541 U.S. 509 (2004), “The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself: “[D]iscrimination against individuals with disabilities persists in such critical areas as … education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. § 12101(a)(3) (emphasis added). This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.”
Legislation and case law being in place as they are, Kline should not lose her condo without due process as a result of failure to remove barriers to accessibility and reasonably accommodate her disability.
Tennessee v. Lane, 541 U.S. 509 (2004), “Whatever might be said about Title II’s other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under §5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. See United States v. Raines, 362 U.S. 17, 26 (1960).19”
Kline had a constitutional right of access to the court and was denied the right of accessibility of judicial services. No hearing was held to determine how much additional time she required to answer the complaint because of her mental disability and no additional time was granted: the Certificate as to the State of the Record and the record thereafter show this.
Tennessee v. Lane, 541 U.S. 509 (2004), “Congress’ chosen remedy for the pattern of exclusion and discrimination described above, Title II’s requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this “difficult and intractable proble[m]” warranted “added prophylactic measures in response.” Hibbs, 538 U.S., at 737 (internal quotation marks omitted).”
The First Judicial District Court has repeatedly excluded Kline and discriminated against her. By failing to remove obstacles to accessibility for her, the Court denied her right of access to the court. Kline had filed a copy of her Neuropsychological Evaluation done through the Division of Vocational Rehabilitation which shows her mental disability and despite this the problem of disability discrimination deprived her of her condo without opportunity to be heard. The Certificate as to the State of the Record shows that no additional time was granted Kline as a reasonable accommodation of her disability prior to its filing concomitant with Deutsche’s Motion for Default Judgment against her. The Record shows that no hearing was held to determine what reasonable accommodation Kline needed prior to being held in default.
Tennessee v. Lane, 541 U.S. 509 (2004), “The remedy Congress chose is nevertheless a limited one. Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. 42 U.S.C. § 12131(2).”
For Kline the short time frames were a barrier to accessibility; as was the service of the void amended complaint, served in violation of the automatic stay. Kline required the reasonable accommodation of additional time. No amount of additional time was provided as shown by the Certificate as to the State of the Record, nor was a hearing held to determine how much additional time she needed. In fact, no hearing was held whatsoever prior to entry of default judgment against Kline, thereby ensuring Kline would have no access to the court.
Tennessee v. Lane, 541 U.S. 509 (2004), “It requires only “reasonable modifications” that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. Ibid.”
As defendant, Kline was eligible for the service. Additional time is a reasonable modification. The Certificate as to the State of the Record shows no additional time was provided. The record shows no hearing was held to determine what amount of additional time Kline required to accommodate her disability in answering the Complaint and making her objections, as to the liens filed by the condominium association. Kline was not in default when the Motion for Default Judgment was not served on her. It was filed and not served on Kline before any additional time had been granted. When the court saw Kline’s Psychological Evaluation in the file, the Court had a duty to provide reasonable modifications and failed to do so.
Tennessee v. Lane, 541 U.S. 509 (2004), “This duty to accommodate is perfectly consistent with the well-established due process principle that, “within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard” in its courts. Boddie, 401 U.S., at 379 (internal quotation marks and citation omitted).20 Our cases have recognized a number of affirmative obligations that flow from this principle: the duty to waive filing fees in certain family-law and criminal cases,21 the duty to provide transcripts to criminal defendants seeking review of their convictions,22 and the duty to provide counsel to certain criminal defendants.23 Each of these cases makes clear that ordinary considerations of cost and convenience alone cannot justify a State’s failure to provide individuals with a meaningful right of access to the courts. Judged against this backdrop, Title II’s affirmative obligation to persons with disabilities in the administration of justice cannot be said to be “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Boerne, 521 U.S., at 532; Kimel, 528 U.S., at 86.24 It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.”
Kline was denied a meaningful opportunity to be heard when the Certificate as to the State of the Record was filed concomitant with Deutsche’s Motion for Default Judgment on a day when no additional time had been granted Kline to answer; Kline was denied a meaningful opportunity to be heard when the Motion for Default Judgment was not served on her and she could not therefore address the problems – Deutsche knew that Kline was disabled because Kline had filed her Neuropsychological Evaluation with the bankruptcy court; Kline was denied a meaningful opportunity to be heard when the Court failed to have a hearing on Kline’s disability and her need for additional time; Kline was denied a meaningful opportunity to be heard when there was no hearing on the Motion for Default Judgment; Kline was denied a meaningful opportunity to be heard when there was no notice to her of the Foreclosure Judgment and Schedule of Sale; Kline was denied a meaningful opportunity to be heard when the Hearing on Approval of Sale was held less than 24 hours after the notice of hearing was delivered to Kline; and Kline was denied a meaningful opportunity to be heard when the Court denied her motion for a hearing on her disability and then would not sign such an order thereby preventing it from being entered into the record. Significantly Kline was denied a meaningful opportunity to have her claims against the condominium association heard, and at the same time the condominium association’s claims against her in the form of unadjudicated liens were used by Rick Green to redeem. Foreclosure judgment, default judgment, summary judgment, stipulated judgment, approval of sale, and certificate of redemption should be set aside as void for failure to provide a meaningful opportunity to be heard and lack of due process.
Tennessee v. Lane, 541 U.S. 509 (2004), “ For these reasons, we conclude that Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ §5 authority to enforce the guarantees of the Fourteenth Amendment. The judgment of the Court of Appeals is therefore
affirmed.”
Kline, as a disabled American therefore has a right to reasonable accommodation and failing reasonable accommodation she has been denied a meaningful opportunity to be heard and has been denied due process and the orders and certificate should be set aside.
Contrary authority:
None known to appellant.
.
ISSUE FOUR: The trial court acted improperly in entering the orders and appellant was not afforded due process. One day notice of a trial/hearing is insufficient notice.
Supporting authority:
11 C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973) A judgment is not void merely because it is erroneous. It is void only if the court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or if the court acted in a manner inconsistent with due process of law. … Taken from [8], In re Center Wholesale, Inc., 759 F.2d 1448.
Winhoven v. United States, 201 F.2d 174, 175 (9th Circuit 1952). We have previously acknowledged that a judgment may be set aside on voidness grounds under Rule 60(b)(4) for a violation of the due process clause of the Fifth Amendment.
Kline was not provided reasonable accommodation and was denied a meaningful opportunity to be heard in relation to the liens which were ultimately used to redeem her property when she herself was denied any possible opportunity to redeem since she was not notified of the foreclosure judgment or sale and she therefore did not know about them and could take no action. Further, not knowing about them she spent nearly $5,000 on the property readying it for sale, when it had been sold without notice to her.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance.
Kline was not served a valid amended complaint when such was served upon other parties. Kline was therefore not afforded an opportunity to object to the claims of the condominium association or of Crocker. Ultimately, although Kline was not afforded an opportunity to object, these liens were used to redeem Kline’s property when Kline herself was afforded no opportunity to redeem because she was not given notice. Kline received the notice of hearing less than 24 hours prior to the hearing to approve sale. Such short notice would have given inadequate for an able minded person to prepare for the hearing; it was grossly inadequate notice to Kline who has a mental disability. The proceedings should not be accorded finality.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 “[t]he purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, Gas & Water Division v. Craft, 436 U.S 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978) (footnote omitted). Owens-Corning claims that Center’s mailgram notice, received on day before the hearing, came too late and provided insufficient information to permit Owens-Corning adequately to prepare and present its objections. We agree.
Kline received notice on day before hearing. Notice came too late to permit Kline who is mentally disabled to adequately prepare and present her objections. See cites from Tennessee v. Lane, above.
Contrary authority:
None known to appellant.
.
ISSUE FIVE: The foreclosure sale held without notice to Kline violated Kline’s due process rights.
Supporting authority:
Western Bank v. Fluid Assets Dev. Corp., 111 N.M. 458, 806 P.2d 1048 (1991), “Mortgagee first lienholder could not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale.”
It must be equally the case that Mortgagee first lienholder can not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve the defendant who had paid on the property faithfully for over fourteen years. No certificate of service was filed until after Kline had filed something which showed she did not know of the impending foreclosure sale. Kline did not receive any notice. Because Kline’s mail was brought in to her by Michelle Duran, a state worker in the Department of Adult Protective Services, Michelle Duran could have been deposed and asked to testify in court that no envelope came from Leverick with Leverick’s distinctive return address. Adequate time was not afforded Kline to allow her to prepare and to show that Deutsche had deliberated failed to serve her even though she was entitled to actual notice.
Contrary authority:
None known to Appellant.
.
ISSUE SIX: The order approving foreclosure and foreclosure sale and the Certificate of Redemption were entered in violation of Kline’s right to reinstate her mortgage and she had timely wired the money pursuant to paragraph 19 of her mortgage.
Supporting authority:
19. Borrower’s Right to Reinstate After Acceleration. If Borrower meets certain conditions Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security Instrument; (b) such other period as Applicable Law might specify for the termination of Borrower’s right to reinstate; or (c) entry of judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenant or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorney’s fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender’s interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender’s interest in the Property and rights under this Security Instrument, and Borrower’s obligation to pay the sums secured by this Security Instrument, shall continue unchanged.
Art. I, §10, of the Constitution of the United States prohibits impairment of contracts.
Beneficial Delaware, Inc. v. Lena Waples, Delaware Superior Court, July 3, 2006, “In taking an inflexible approach, Beneficial deprived Waples of the right to reinstate, and it breached its obligations under paragraphs 17 and 18.”
Kline provided the court with a copy of her wire instructions which gave Deutsche Bank through Ocwen all of the money owed to it to include costs. The wire instructions show that this was done more than five days before the sale. Deutsche breached its obligations under paragraph 19 when it did not reinstate but rather had Leverick pursue approval of sale which would make the sale a fact under New Mexico law.
Citicorp Savings v. First Chicago Trust Co., 269 Ill. App. 3d 293 (1995), On appeal, the reviewing court determined that it would have been against the interests of justice for the trial court to have confirmed the sale given that Citicorp had represented to the mortgagors that the sale would be postponed and that the sale took place by mistake.
Kline was led to believe that Ocwen would accept the payment in full which Kline wired to Ocwen. In fact Ocwen accepted the funds and held them, further leading Kline to believe that reinstatement was accomplished. Leverick, however, continued to press for approval of sale and was successful against the interests of justice.
Contrary authority:
None known to Appellant.
.
ISSUE SEVEN: The Fenton case deprives Kline of her right to redeemas provided in her mortgage at paragraph 24. Plaintiff failed to attach to the complaint the page of the mortgage with the redemption right and Kline’s signature.
Supporting authority:
24. Redemption Period. If this Security Instrument is foreclosed, the redemption period after judicial sale shall be one month.
Art. I, §10, of the Constitution of the United States prohibits impairment of contracts.
“The right of redemption is the mortgagor’s valued and protected equitable right to reclaim her estate in foreclosed property.” Deluxe Motel, Inc. v. Patel, 770 So. 2d 283, 284 (Fla. 5th DCA 2000); Saidi v. Wasko, 687 So. 2d 10, 11 (Fla. 5th DCA 1996); Action Realty & Invs., Inc. v. Grandison, 31 Fla. L. Weekly D786 (Fla. 4th DCA Mar. 15, 2006); Indian River Farms v. YBF Partners, 777 So. 2d 1096, 1099 (Fla. 4th DCA 2001).
Kline was disallowed by the court clerks on February 27, 2006, from depositing her cashier’s check for $128,250 which would have satisfied all liens and paid interest and costs on same, despite the fact the court had refused to have a hearing on the sum actually due on the liens. Kline had no knowledge of the foreclosure judgment or sale until long after it was held. Kline had paid on the property for nearly two decades and had remedied the privy pit over a part of which her condo bedroom had been built. Kline spent nearly $5,000 completing remediation and readying the property for sale, not knowing that a Certificate as to the State of the Record had been filed or a default judgment requested and entered. Kline has a mental disability and had asked for accommodation.
This equity of redemption is an estate in land. Deluxe Motel, Inc., 770 So. 2d at 284; Saidi, 687 So. 2d at 12; Indian River Farms, 777 So. 2d at 1099; John Stepp, Inc. v. First Fed. Sav. & Loan Ass’n of Miami, 379 So. 2d 384, 386 (Fla. 4th DCA 1980).
Kline, an American with a disability, had counted on the money from her condo to take care of herself in her old age. Kline is in her sixties and had paid on the condo for nearly two decades. The fact of the privy pit over a part of which her bedroom had been built and which caused her sewer pipe to break thereby causing raw sewage to pool in the cavities produced by the continually subsiding raw excrement of the privy pit, with the result that hydrogen sulfide was in her unit and caused her to lose feeling and have nerve damage, as recorded in her journal at the time. Hydrogen sulfide is a known toxin. Kline was afforded no opportunity to counterclaim against the condominium association that refused to pay its share of the remediation costs, as required under the
Condominium Act, because the amended complaint which added the condominium association was never validly served on Kline. Copy served during bankruptcy was void.
“[T]he right of redemption is an incident of all mortgages and cannot be extinguished except by due process of law.” Indian River Farms, 777 So. 2d at 1099; John Stepp, Inc., 379 So. 2d at 386; VOSR Indus., Inc. v. Martin Properties, Inc., 919 So. 2d 554, 556 (Fla. 4th DCA 2005)
Kline was not afforded an opportunity to counterclaim or cross claim against the condominium association; she was disallowed by the court clerks from depositing her $128,250 cashier’s check on February 27, 2006, and she was beaten out in the race to redeem by the condominium association giving their leins to the condominium association’s director’s real estate agent, Green, who was also the highest bidder at the foreclosure sale about which Kline had no knowledge. This was not due process of law.
Craft v. Storey is a 1997 Colorado Court of Appeals decision resting on Plute and Osborn Hardware. Craft holds that an owner (or his or her agent) may satisfy liens encumbering the property to eliminate the redemption rights of junior lienholders. Craft also addresses the additional question of when the owner’s ability to satisfy junior liens terminates, concluding that owners may defeat the redemption rights of lienholders by satisfying liens even after the lienor has tendered redemption funds, as long as the lien is satisfied before expiration of that lienor’s redemption period. Kline was not allowed to deposit her cashier’s check for $128,250 on
February 27, 2006. Kline’s deposit would have paid all liens encumbering the property.
Ware v. Schintz, 190 Ill. 189, 193, 60 N. E. 67, 69: ‘Under the repeated rulings of this court a mortgagee, as against the mortgagor, is held, as in England, in law, to be the owner of the fee, having the jus in re as well as ad rem, and entitled to all the rights and remedies which the law gives to such owner, and may, after condition broken, maintain ejectment against the mortgagor. The mortgagor or his assignee, however, is the legal owner of the mortgaged estate as against all persons, excepting the mortgagee or his assignees. Delahay v. Clement, 4 Ill. 201; Vansant v. Allmon, 23 Ill. 30; Carroll v. Ballance, 26 Ill. 9, 79 Am. Dec. 354; Oldham v. Pfleger, 84 Ill. 102; Fountain v. Bookstaver, 141 Ill. 461, 31 N. E. 17; Esker v. Hefferman, 159 Ill. 38, 41 N. E. 1113.
Kline was the mortgagor and owner of the mortgaged condo as against all persons except the mortgagee or his assignees.
Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143, the statute objected to gave the mortgagor twelve months to redeem after the sale, and Mr. Chief Justice Taney said: ‘It declares that, although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable estate of the mortgagor shall not be extinguished, but shall continue for twelve months after the sale; and it moreover gives a new and like estate, which before had no existence, to the judgment creditor, to continue for fifteen
months. If such rights may be added to the original contract by subsequent legislation, it would be difficult to say at what point they must stop . . . . Any such modification of a contract by subsequent legislation, against the consent of one of the parties, unquestionably impairs its obligations, and is prohibited by the Constitution.’ Kline as mortgagor had equitable estate not extinguished until the end of her redemption period; to modify Kline’s contract by allowing Green, the reputed real estate agent of the condominium association’s director, when the association had refused to pay its share of remediation costs of the privy pit which was in the common element, to redeem on the basis of liens filed by the condominium association and which were not judgment liens nor were ever adjudicated by the court despite Kline repeatedly asking that a valid sum be determined by the court for the liens, and against Kline’s consent, unquestionably impairs the contractual obligations Kline relied upon, and is prohibited by the Constitution.
In Barnitz v. Beverly, 163 U.S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042, it was held that a state statute which authorized redemption of property sold in foreclosure of a mortgage, where no such right previously existed, or extended the period of redemption beyond the time previously allowed, could not apply to a sale under a mortgage executed before its passage, and Mr. Justice Shiras, referring to Brine v. Hartford F. Ins. Co. 96 U.S. 627, 637, 24 S. L. ed. 858, 862, said: ‘But this court held, through Mr. Justice Miller, that all the laws of a state existing at the time a mortgage or any other contract is made, which affect the rights of the parties to the contract, enter into and become a part of it, and are obligatory on all courts which assume to give a remedy on such contracts, . . . that it is therefore said that these laws enter into and become a part of the contract’-and that ‘the remedy subsisting in a state when and where a contract is made and is to be performed is a part of the obligation.’ . . .
At the time Kline’s mortgage contract was made she had a right to redemption after foreclosure sale and that right was obligatory on all courts which assume to give a remedy on such contracts; the remedy at the time the contract was made is a part of the obligation. Disallowing Kline’s redemption right takes her property without due process.
Contrary authority:
Fenton case
.
ISSUE EIGHT: There is an appearance of partiality given by the First Judicial District Court in this case which may relate to Kline suing the First Judicial District Court in Federal Court for discrimination under the ADA, Title II.
Supporting authority:
U.S.C. Title 28, Part I, Chapter 21 § 455. Disqualification of justice, judge, or magistrate judge. (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which hisimpartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
Because the Honorable Michael Vigil ruled against each due process violation which Kline presented, to include ones which were supported in her favor by U.S. Supreme Court cases, his impartiality might reasonably be questioned given that Kline sued the First Judicial District Court for violations of the ADA, Title II, and the Honorable Michael Vigil is a judge in the First Judicial District. The Honorable Daniel Sanchez who entered the default foreclosure judgment against Kline without hearing on the foreclosure or on Kline’s disability, might also have his impartiality reasonably questioned for the same reasons. Kline was told that Darci Burson, Green’s broker, had said she had called Judge Vigil and asked him about the case, and had been told , there is no way Kline would get the condo back. There was no opportunity to depose Burson or the informant, or call for phone records. The Honorable Michael Vigil denied he had spoken to Burson. Such a denial would be de rigueur.
Contrary authority:
None known to appellant.
.
ISSUE NINE: Lawyer, Tami Schnieder, hired by Kline after Kline was not allowed enough time to prepare for the Hearing on Approval of Sale, which was particularly prejudicial because of Kline’s disability and the complexity, falsely wrote that Kline had not been served the amended complaint during her bankruptcy and that Kline was “incompetent”, Schneider would not return Kline’s phone calls, Schneider filed a jury case against Sotheby’s which Kline did not know about, and Schneider cried and quit in the middle of a continued hearing. Schneider’s conduct fell below a reasonable level of professional conduct such that the defendant, Kline, was unfairly prejudiced.
Supporting authority:
Strickland v. Washington, 466 U.S. 668 (1984) To uphold a claim of ineffective assistance of counsel, the court must find that counsel’s performance was seriously deficient and that the ineffective performance resulted in prejudice to the defendant.
Kline has lost half of her processing speed and working memory, none of her previous level of education; Kline is disabled and not incompetent. Schneider’s inability/failure to make the legal distinction between incompetent and disabled rendered her unable to identify the problems in this case deriving from Kline not being afforded adequate time to prepare to present at the hearing on approval of sale, or answer before the Certificate as to the State of the Record was filed. This resulted in serious prejudice to Kline. Further, it was seriously deficient for Schneider to write that Kline had not been served the amended complaint during her bankruptcy when the record clearly shows that the amended complaint had been served after Kline filed Chapter 13 and before the
stay was lifted. Service of the amended complaint during Kline’s bankruptcy rendered it void. To say the opposite, as Schneider did,
resulted in prejudice to Kline.
Contrary authority:
None known to appellant.