Motion to Set Aside Foreclosure Sale

Set Aside Foreclosure Sale for Violating the UCC

It’s Friday. Tomorrow is Saturday, one of the two days every week when I feel safe from being evicted by the sheriff. I feel sure the sheriff doesn’t evict on the weekend.

I wish I could feel confidence in the judicial system. It is painful, in the true sense of literal pain, and difficulty breathing, when I see the New Mexico courts foreclosing my home, and likely others, in violation of the UCC, New Mexico Statutes 55-3-301 and 55-3-309. Seeing the injustice makes me sick, not only is breathing more difficult, as if something heavy is on my chest, but my body aches as if I have the flu, though in fact I do not. Injustice is extremely distressing, both mentally and physically.

I do not understand why the NM Supreme Court has not filed my Motion for Rehearing: Foreclosure Violated The UCC, New Mexico Statutes 55-3-301 and 55-3-309, Submitted Under Americans With Disabilities Act, Title II.

Because the NM Supreme Court has not filed my motion, nor sent it back to me, I remain extremely worried every week about being put out on the street in eviction from my home which was sold at auction on September 19, 2018.

I am continuing to fight the foreclosure and sale because the Note was last seen in 2002, three years before my mortgage was assigned to Wells Fargo, and 6 years before Wells Fargo filed its Complaint for Foreclosure.

Below is my Motion to Set Aside Foreclosure Sale.


FIRST JUDICIAL DISTRICT COURT
COUNTY OF SANTA FE
STATE OF NEW MEXICO

Wells Fargo Bank NA,
Plaintiff,

         No. D-101-CV-200800942

Karen M. Kline, Self Represented
and
Pueblos de Rodeo Road Owners
Association, Inc.; Manhattan Condominium Association,
Defendants.

MOTION TO SET ASIDE FORECLOSURE SALE BECAUSE
THE FORECLOSURE VIOLATES THE UCC,
NM STATUTES 55-3-301 AND 55-3-309, AND TO DISMISS FORECLOSURE

COMES NOW Karen M. Kline, self represented defendant, and moves this court to set aside the foreclosure sale because it violates the UCC, New Mexico Statutes 55-3-301 and 55-3-309 in that the promissory note was last seen in 2002 at which time the mortgage had not yet been assigned to Wells Fargo. In fact, the mortgage was not assigned to Wells Fargo until 2005.

The UCC, New Mexico Statutes 55-3-301 and 55-3-309 provide:

55-3-301 . Person entitled to enforce instrument. 

“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 55-3-309 or 55-3-418(d) NMSA 1978.  A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

History: 1978 Comp., § 55-3-301 , enacted by Laws 1992, ch. 114, § 114.

55-3-309. Enforcement of lost, destroyed, or stolen instrument. 

(a)   A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b)   A person seeking enforcement of an instrument under Subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument.  If that proof is made, Section 55-3-308 NMSA 1978 applies to the case as if the person seeking enforcement had produced the instrument.  The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

History: 1978 Comp., § 55-3-309, enacted by Laws 1992, ch. 114, § 122.

The In Rem Judgment for Decree of Foreclosure and Order of Sale states in paragraph 28, “The following original documents were imaged at WFHM/GE CMS on May 16, 2002 and in possession of WFHM/GE CMS at that time: (1) the original of the Note, containing the special indorsement from Bank United of Texas FSB to GE CMS, and the subsequent blank indorsement by GE CMS; (2) the original of the Modification Agreement; and (3) a facsimile from Safeguard Properties, Inc. to GE Capital Mortgage Services.”

The In Rem Judgment for Decree of Foreclosure and Order of Sale states in paragraph 29, “On September 21, 2002, the original documents were returned to the Document Custodian, First Union, by the same WFHM/GE CMS employee that had received them on May 16, 2002 (“TPX”).2” The footnote says, “2 A servicing note also entered on September 21, 2002 states that certain other original documents were sent to the owner of the Loan, FNMA, on the same date, by a different employee of WFHM/GE CMS.  The original Note was not one of these original documents, however, as reflected in Wells Fargo’s servicing notes showing that Wells Fargo had requested the original Note from FNMA on January 15, 2004, and that the original Note had not been included in the file held by FNMA and sent back to Wells Fargo on February 2, 2004.”

The In Rem Judgment has no factual reference to the original of the Note being seen after 2002.

The In Rem Judgment states in paragraph 43, “On July 1, 2005, an assignment was executed by “GE Mortgage Services LLC, f/k/a GE Capital Mortgage Services Inc.” in favor of Wells Fargo Bank, N.A.” The assignment mentions the mortgage, “note and all other liens”, without evidence that the original of the note existed at the time.

WHEREFORE, the foreclosure is in violation of New Mexico Statutes 55-3-301, and 55-3-309 with the result that the foreclosure sale should be set aside and the foreclosure dismissed.

Respectfully submitted,

 

Karen M. Kline, aka Karen Marie Kline, Self Represented
XXXXXXX
Santa Fe, New Mexico 87507
XXX-XXXX 

CERTIFICATE OF SERVICE: I caused a true copy of the above MOTION TO SET ASIDE FORECLOSURE SALE BECAUSE THE FORECLOSURE VIOLATES THE UCC, NM STATUTES 55-3-301 AND 55-3-309, AND TO DISMISS FORECLOSURE to be mailed today, February 7, 2019, to:

Susan Barela
McCarthy & Holthus, LLP for Wells Fargo
6501 Eagle Rock NE, Suite A-3
Albuquerque, NM 87113
(505) 219-4900

James P. Eckels
Murr Siler & Accomazzo, P.C. for Wells Fargo
410 17th St. Ste. 2400
Denver, CO 80202
(303) 534-0311 ext. 36

Larry Montano
Holland & Hart for Wells Fargo
110 N Guadalupe Ste 1
Santa Fe, NM 87501
(505) 988-4421

Nathan Stimson
Kelcher and & McLeod, PA for Breckenridge Property Fund 2016 LLC
PO Box AA
Albuquerque, NM 87103
(505) 346-4646

Summary
Motion to Set Aside Foreclosure Sale
Article Name
Motion to Set Aside Foreclosure Sale
Description
I am fighting the foreclosure sale because the Note was last seen in 2002, three years before my mortgage was assigned to Wells Fargo..
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Health Boundaries
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