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

Karen M. Kline, Self Represented,
Plaintiff,

No. _______________

Wells Fargo Bank, NA, and
Breckenridge Property Fund 2016, LLC
Defendants.

COMPLAINT FOR NEGLIGENCE RESULTING FROM VIOLATION OF N.M. STATUTES 55-3-301 AND 55-3-309, FOR MALICIOUS ABUSE OF PROCESS BASED ON A PROCEDURAL IRREGULARITY AND IMPROPRIETY IN THE USE OF LEGAL PROCESS, FOR BREACH OF CONTRACT, FOR BREACH OF PROMISE OF GOOD FAITH AND FAIR DEALING, FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, INJURIOUS FALSEHOOD, AND FOR DAMAGES

         Plaintiff, Karen M. Kline, self represented, for her Complaint for Independent Action for Negligence Resulting from Violation of N.M. Statutes 55-3-301 and 55-3-309, for Malicious Abuse of Process Based on a Procedural irregularity or Impropriety in the use of Legal Process, for Breach of Contract, For Breach of Promise of Good Faith and Fair Dealing, For Intentional Infliction of Emotional Distress, Injurious Falsehood, and for Damages, states:

  1. This court has jurisdiction pursuant to N.M. Const. art. VI, §§ 1, 13.
  2. Plaintiff Karen M. Kline (hereinafter “Kline”) is a resident of Santa Fe County and resides at 3255 Calle de Molina, Santa Fe, New Mexico 87507.
  3. Defendant Wells Fargo Bank, N.A., filed its Complaint for Foreclosure, Case D101CV2008-00942, against Karen M. Kline and her home at 3255 Calle de Molina, Santa Fe, NM, 87507, under NM Statutes 38-1-18 and 53-17-1.
  4. Defendant Breckenridge Property Fund 2016, LLC, is the buyer at auction. The Secretary of State has Breckenridge Property Fund 2016, LLC (hereinafter “Breckenridge”) listed as a Limited Liability Company under Statute Law Code 53-19-1 to 53-19-74.

COUNT 1: NEGLIGENCE RESULTING FROM VIOLATION OF
N.M. STATUTE 55-3-301

  1. Kline made and delivered a Promissory Note (hereinafter “Promissory Note”) in the amount of $72,000 to Bank United of Texas FSB on March 18, 1993.
  2. The Promissory Note made by Kline was endorsed to G.E. Capital Mortgage Services, Inc. by Bank United of Texas FSB on March 23, 1993. Exhibit 1.
  3. Bank United of Texas FSB assigned the mortgage to G.E. Capital Mortgage Services, Inc. on September 17, 1993. Exhibit 2.
  4. The In Rem Judgment for Decree of Foreclosure and Order of Sale in Wells Fargo’s foreclosure proceeding, D101CV2008-00942, (hereinafter “In Rem Judgment”) contains the following evidentiary fact 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.” Exhibit 3.
  5. The In Rem Judgment contains the following evidentiary fact 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” Exhibit 3.
  6. Footnote 2 referenced above contains the following evidentiary fact, “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.” Exhibit 3.
  7. The In Rem Judgment has no evidentiary fact referencing the original of the Promissory Note after September 21, 2002. See paragraphs 8, 9, and 10, above.
  8. The evidentiary facts in the In Rem Judgment show that the Promissory Note was lost after it was sent to FNMA or the document custodian and out of Wells Fargo’s possession. See paragraphs 8, 9, and 10 above.
  9. The evidentiary facts in the In Rem Judgment show that the Promissory Note was lost sometime between September 21, 2002 and February 2, 2004. See paragraphs 8, 9, and 10 above.
  10. The In Rem Judgment contains the following evidentiary fact 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.” Exhibit 3.
  11. The evidentiary facts in the In Rem Judgment show that the mortgage was assigned to Wells Fargo after the Promissory note was lost. See paragraphs 8, 9, 10, 11, 12, 13, and 14 above.
  12. The evidentiary facts show that Wells Fargo did not have the Promissory Note and that as a result filing its Complaint for Foreclosure on April 7, 2008 to enforce the Promissory Note violated N.M. Statute 55-3-301.
  13. Wells Fargo’s conduct in violating N.M. Statute 55-3-301 constitutes negligence as a matter of law.
  14. Wells Fargo’s conduct in violating N.M. Statute 55-3-301 was one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to Kline and in the exercise of ordinary care, would not do.
  15. The foreclosure of Kline’s home at 3255 Calle de Molina, Santa Fe, N.M. 87507, resulting from Wells Fargo’s negligence resulting from violation of N.M. Statute 55-3-301 injured Kline.
  16. The foreclosure of Kline’s home at 3255 Calle de Molina, Santa Fe, N.M. 87507, resulting from Wells Fargo’s negligence resulting from violation of N.M. Statute 55-3-301 injured Kline by taking/claiming the improvements she made to the property:

Saltillo Floors:                              $2,500.00

New Roof:                                    $12,500.00

Roof Repairs:                                $3,000.00

New Deck:                                     $1,000.00

Frost Resistant Outdoor Faucets: $500.00

Low Flow Toilet:                              $500.00

Skylights:                                       $1,500.00

Solatubes:                                       $1,750.00

Additional Insulation:                $3,000.00

Landscaping:                                 $7,000.00

6 Panel Door for Pantry:                $500.00

Raised Beds for Deck:                 $1,200.00

$34,950.00

  1. The foreclosure of Kline’s home at 3255 Calle de Molina, Santa Fe, N.M. 87507, resulting from Wells Fargo’s negligence resulting from violation of N.M. Statute 55-3-301 injured Kline by making her spend over $15,000 on paper, ink, envelopes, postage, rides to court and to make copies, on filing, on CD copies of hearings to fight Wells Fargo’s negligence.
  2. The foreclosure of Kline’s home at 3255 Calle de Molina, Santa Fe, N.M. 87507, resulting from Wells Fargo’s negligence resulting from violation of N.M. Statute 55-3-301 injured Kline by making her homeless, or in emotional distress and extreme fear of being homeless.
  3. Throughout the foreclosure Wells Fargo’s conduct in violating N.M. Statute 55-3-301 caused injuries to Kline to include severe emotional distress and bodily harm resulting from it; she recorded on her website, “just a few steps caused me to be out of breath… I felt exhausted… It was hard to breathe. My hand would freeze so I couldn’t move it… Then, my lower jaw began feeling paralyzed. At other times it would suddenly become extremely painful. During the night, the pain would hit and wake me up… Wells Fargo was causing my days to be numbered. I was in bed, enduring it all, when Pinterest sent me a pin about signs you could be close to having a heart attack. One of the signs was extreme jaw pain.”
  4. Breckenridge Properties Fund, 2016, LLC, (hereinafter “Breckenridge”) became fully aware of the evidentiary facts through Kline’s 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, which was mailed to Nathan Stimson, attorney for Breckenridge, on February 7, 2019, and through the hearing held on March 4, 2019.
  5. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Stat ute 55-3-301 that constitutes negligence as a matter of law when Breckenridge drilled into Kline’s garage lock on September 17, before confirmation of sale, and destroyed the lock.
  6. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Statute 55-3-301 which was one a reasonably prudent person would foresee as involving an unreasonable risk of injury to Kline and in the exercise of ordinary care, would not do.
  7. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Statute 55-3-301 by posting a 3 Day Notice to Vacate on Kline’s door and sending her the same by certified mail causing Kline injuries and damages.

COUNT 2: NEGLIGENCE RESULTING FROM VIOLATION OF
N.M. STATUTE 55-3-309

  1. Paragraphs 5 through 15 are incorporated here by reference.
  2. On July 19, 2011, Wells Fargo filed a false Affidavit of Lost Original Note, Exhibit 4, (hereinafter “Affidavit of Lost Note”) stating that Wells Fargo was the legal holder of the Promissory Note when in fact Wells Fargo was not in possession of the Promissory Note as far back as July 1, 2005 when the mortgage was assigned to Wells Fargo, nor at any time thereafter. See evidentiary facts in paragraphs 8-15.
  3. Wells Fargo’s false Affidavit of Lost Note stated that the original Note was shipped to Wells Fargo Bank, N.A.’s litigation department which “has indicated that the original Note in this matter is now lost”.
  4. The evidentiary facts show that Wells Fargo did not lose the Promissory Note while the Note was in its possession, and as a result, by filing its Complaint for Foreclosure on April 7, 2008 Wells Fargo violated N.M. Statute 55-3-309.
  5. Wells Fargo’s conduct in violating N.M. Statute 55-3-309 constitutes negligence as a matter of law.
  6. Wells Fargo’s conduct in violating N.M. Statute 55-3-309 was one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to Kline and in the exercise of ordinary care, would not do.
  7. The foreclosure of Kline’s home at 3255 Calle de Molina, Santa Fe, N.M. 87507, resulting from Wells Fargo’s negligence resulting from violation of N.M. Statute 55-3-309 injured Kline.
  8. Throughout the foreclosure Wells Fargo’s conduct in violating N.M. Statute 55-3-309 caused injuries to Kline, see injuries recorded in paragraph 23, incorporated here by reference.
  9. Breckenridge became fully aware of the evidentiary facts through Kline’s 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, which was mailed to Nathan Stimson, attorney for Breckenridge, on February 7, 2019, and through the hearing held on March 4, 2019.
  10. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Stat ute 55-3-309 that constitutes negligence as a matter of law when drilled into the lock on Kline’s garage on September 17, before confirmation of sale, and destroyed the lock.
  11. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Statute 55-3-309 which was one a reasonably prudent person would foresee as involving an unreasonable risk of injury to Kline and in the exercise of ordinary care, would not do.
  12. Breckenridge joined Wells Fargo in Wells Fargo’s conduct in violating N.M. Statute 55-3-309 by posting a 3 Day Notice to Vacate on Kline’s door and sending her the same by certified mail causing Kline injuries and damages.

COUNT 3: MALICIOUS ABUSE OF PROCESS BASED ON A PROCEDURAL IRREGULARITY AND IMPROPRIETY IN THE USE OF LEGAL PROCESS

  1. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s use of process involved the procedural irregularity of serving each of the defendants except Kline.
  2. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s use of process involved the procedural irregularity of not serving Kline.
  3. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s use of process involved the procedural irregularity of not filing a Return of Service for Kline.
  4. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s use of process involved the misuse of the procedural device of filing Returns of Service which made it appear that all of the defendants had been served.
  5. By law the foregoing uses of process by Wells Fargo, each of which involves a procedural irregularity or misuse of a procedural device are deemed irregular and improper.
  6. Wells Fargo’s conduct in its use of process involving the procedural irregularity of not serving Kline the Complaint and Summons was wanton with utter indifference to or conscious disregard for Kline’s rights.
  7. Wells Fargo’s conduct in its use of process involving the procedural irregularity of not serving Kline the Complaint and Summons caused Kline injuries, some of which she recorded on her website, “I find myself trembling from the stress of dealing with Wells Fargo’s foreclosure action (since they didn’t serve me, which is a denial of due process, everything Wells Fargo does now makes me uneasy, as if there’s some element of trap in it).” See also the injuries recorded in paragraphs 23, 46, and 102.
  8. Wells Fargo’s conduct in its use of process involving the procedural irregularity of not filing a return of service for Kline was wanton with utter indifference to or conscious disregard for Kline’s rights.
  9. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s primary motive in misusing the legal process described above was to accomplish an illegitimate end as for instance causing a default judgment to be rendered against Kline/Kline’s property as a result of Kline not knowing about the foreclosure and consequently not answering.
  10. The above described conduct of Wells Fargo not serving the Complaint and Summons on Kline caused damages to Kline.
  11. When challenged by Kline about not serving Kline, Wells Fargo misused the legal process by the act of filing an Affidavit of Due Diligence and Non-Service, Exhibit 5, (hereinafter “Affidavit of Non-Service) which falsely stated that there were cobwebs on Kline’s door when in fact Kitchen Angels volunteers Michal Hall Curry and Akio Pierre Hirano each attested in their affidavit, complete with a picture, that they delivered meals to Kline in April and May of 2008 and “there are not any cobwebs on Karen Kline’s door, nor have there been any cobwebs on Karen Kline’s door at any time during April and May of 2008 when I have been delivering her meals.”
  12. When challenged by Kline about not serving Kline, Wells Fargo misused the legal process by the act of filing an Affidavit of Non-Service, which falsely stated that Kline owned a home at 2836 Vereda de Pueblo and that when service was attempted there the process server learned Kline had moved out of state, when in fact Kline had not owned the Vereda de Pueblo house since 2005, and was consistently filing in the legal proceedings showing her address as 3255 Calle de Molina.
  13. When challenged about not serving Kline, Wells Fargo misused the legal process by the act of filing an Affidavit of Non-Service, which falsely stated that service was attempted by certified mail; the fact, however, was that Fargo was unable to produce any evidence of service by certified mail when asked to do so in Discovery.
  14. In the judicial proceeding, D101CV2008-00942, Wells Fargo’s primary motive in misusing the legal process by filing the Affidavit of Non-Service, containing statements which Wells Fargo knew or should have known were false was to accomplish an illegitimate end.
  15. Wells Fargo’s conduct in the intentional filing of the Affidavit Non-Service, containing statements which Wells Fargo knew or should have known to be false, with knowledge that the act of filing a false affidavit was wrongful, was malicious.
  16. The above described conduct of Wells Fargo filing an Affidavit of Non-Service containing false statements caused injuries and damages to Kline.
  17. Wells Fargo also misused the legal process by the act of filing a false Affidavit of Lost Note, see paragraphs 29, 30, and 31, incorporated here by reference.
  18. Wells Fargo’s conduct in the intentional filing of its Affidavit of Lost Note containing statements which Wells Fargo knew to be false, with knowledge that the act of filing a false affidavit was wrongful, was malicious.
  19. The above described conduct of Wells Fargo intentionally filing its Affidavit of Lost Note containing statements which Wells Fargo knew to be false, with the knowledge that the act of filing a false affidavit was wrongful, caused injuries and damages to Kline.

COUNT 4: BREACH OF CONTRACT

  1. On September 22, 2009, Wells Fargo communicated an offer by letter, signed by Ben Windust, Senior Vice President, to Kline that satisfied the four conditions required of an offer. Exhibit 6, (hereinafter “offer by letter”).
  2. First, Wells Fargo’s offer by letter showed a willingness to enter into a contract with Kline by proposing a mortgage loan modification trial period under the government’s Home Affordable Modification Program and estimating that her new payment amount would be $280.
  3. Second, the material terms of Wells Fargo’s offer by letter were reasonably certain: • You must call us to finalize this offer by October 6, 2009 so that we can establish your trial modification plan • During this phone call we’ll schedule a date for your first trial payment • You’ll need to make two additional payments over the next 60 days • Within a week of setting up your trial period, we will send you a package of information.
  4. Third, Wells Fargo communicated its terms to Kline by writing them in its offer by letter of September 22, 2009.
  5. Fourth, by its offer by letter communication Wells Fargo must have intended to give Kline the power to create a contract by accepting the terms because Wells Fargo wrote, “Don’t let this opportunity to lower your monthly mortgage payments through the Home Affordable Modification Program pass you by. Call us right away to schedule your required trial period payments and you are in the program. It’s that easy. Call a Wells Fargo Home Mortgage representative today at 1-877-357-9227.
  6. On September 24, 2009, Kline justifiably relied on Wells Fargo’s offer by letter and began performing as requested by Wells Fargo by calling 1-877-357-9227, speaking with Wells Fargo representative Shikara who said Kline’s new payment amount would be $279.56, and taking notes on Wells Fargo’s offer by letter; Shikara asked Kline to call back in three days time.
  7. On Saturday, September 26, 2009, Kline accepted Wells Fargo’s offer and took notes as she showed her agreement to the terms of Wells Fargo’s offer by letter by calling Wells Fargo at 1-877-357-9227 and speaking with Wells Fargo representatives Lakeisha and Penny who established Kline’s trial period with the first payment on October 4, 2009, for $299.56, to include a $20 check cashing fee, Confirmation #7088478093; two subsequent payments were also set up, one for November 4, 2009, for $279.56, Confirmation #7088478234, and another for December 4, 2009, for $279.56, Confirmation #7088478287. Exhibit 6.
  8. On September 28. 2009, Kline wrote a thank you letter to Ben Windust, “Thank you for your letter regarding the government’s Home Affordable Modification Program. This means so much to me! Thank you! When I first read your letter I started trembling. The trembling stopped but I was dizzy all day. I think it must have been from so much pressure being lifted that my body couldn’t immediately adjust. I love my garden so much. I’m so grateful to you that I will be able to keep it and my home.” Exhibit 7.
  9. Wells Fargo’s offer by letter allowed for acceptance by performance and could not be withdrawn once performance had begun.
  10. Wells Fargo may have tried to withdraw its offer by letter by not sending Kline the package of information mentioned in its certain terms. See paragraph 49.
  11. Performance by Kline was acceptance of Wells Fargo’s offer by letter given that Kline reasonably understood that Wells Fargo wanted performance rather than a return promise, and given that Kline reasonably believed Wells Fargo would learn of the performance given that she had called the number provided by Wells Fargo, 1-877-357-9227, and spoken with Wells Fargo representatives.
  12. Kline’s performance met Wells Fargo’s material term that it must be completed by October 6, 2009 and as such her acceptance was effective.
  13. The confirmation numbers given to Kline by Wells Fargo’s representative, Penny, constituted notification of Wells Fargo’s acceptance.
  14. The consideration of one payment of $299.56 and two payments of $279.56 under the government Home Affordable Modification Program, followed by consistent mortgage payments were the overt bargained-for benefit to Wells Fargowhich was a reason why Wells Fargo wanted to enter into the contract.
  15. The government’s Home Affordable Modification Program guidelines were widely promulgated, assuring that the parties to a Home Affordable Modification Program mortgage loan modification had the same understanding.
  16. On page 9 of the Home Affordable Modification Program guidelines it says, “Modification is effective the first calendar month following the successful completion of the Trial Period. Successful completion means that the borrower is current (under the MBA delinquency calculation) at the end of the Trial Period.”
  17. On October 20, 2009, Wells Fargo sent Kline a letter saying she had to start the review process again because she had missed a payment in a Special Forbearance Agreement that had been approved. Exhibit 8.
  18. Wells Fargo’s letter of October 20. 2009 was a breach of contract.
  19. Kline had not agreed to the Special Forbearance Agreement which required a $34,342.78 balloon payment in 2010.
  20. 78. In response to Wells Fargo’s October 20, 2009 letter Kline called the number provided, (800) 678-7986 and took notes on the letter, Exhibit 8, as she told Wells Fargo representative, Duane, that she had an agreement for a Home Affordable Modification Program trial period, and questioned why the “papers were not sent to me after HAMP letter from Mr. Windust.”
  21. On October 28, 2009, Kline wrote to Wells Fargo, ” I am asking Wells Fargo: 1.) to recognize that I finalized Wells Fargo’s offer of a trial period in HAMP when I called Wells Fargo on September 26, 2009 and scheduled my three HAMP trial period payments; 2.) to send me the package of information that I was promised by Wells Fargo in the event I finalized Wells Fargo’s offer of a HAMP trial period; and 3.) to remove any legal fees that were or might be billed to me from September 22, 2009 when I was offered the HAMP trial period, or alternatively from September 26, 2009 when I finalized my acceptance of the offer.” Exhibit 9.
  22. Following a generic response from Wells Fargo, Kline wrote to Ben Windust, Senior Vice President, who signed the Home Affordable Modification Program offer, “Why was I not sent the things which your letter of September 22, 2009 clearly stated would be sent to me after I finalized my acceptance of Wells Fargo’s HAMP trial period offer by calling in before October 6, 2009 and scheduling three payments at the new rate provided to me under HAMP? (I finalized on Saturday, September 26, 2009.)” Exhibit 10.
  23. On February 3, 2010, Wells Fargo falsely wrote, “It was stated in the letter that we would send out a package of information listing the terms and required documentation you would need to provide once the program was set up. As you were not approved for the Home Affordable Modification Program, no package was sent.” Exhibit 11.
  24. On September 23, 2010, Karen Kline filed, Motion to Abate or Dismiss with Prejudice Foreclosure Proceedings, which said in part, “29. All three of my trial period payment checks were cashed by Wells Fargo per their confirmation numbers. Exhibit 2. 30. Wells Fargo never sent me the package of information it promised in its September 22, 2009 letter. Exhibit 2. 31. Wells Fargo denied my loan modification in bad faith.”
  25. Karen Kline’s Motion to Abate or Dismiss asserted the breach and lack of good faith and thereby began tolling the statute of limitations.
  26. Wells Fargo’s breach of contract caused injuries to Kline.
  27. Wells Fargo’s breach of contract caused damages to Kline.

COUNT 5: BREACH OF PROMISE OF GOOD FAITH AND FAIR DEALING

  1. Wells Fargo knew that in every contract there is an implied promise of good faith and fair dealing that protects the parties’ reasonable expectations under the contract and that the implied promise is breached when a party seeks to prevent the contract’s performance or to withhold the contract’s benefits from the other party.
  2. Paragraphs 59-83 are incorporated here by reference.
  3. Wells Fargo acted in bad faith when it did not send the package of information it promised in its offer by letter.
  4. Wells Fargo acted in bad faith when it falsely wrote on February 3, 2010, to Kline, “It was stated in the letter that we would send out a package of information listing the terms and required documentation you would need to provide once the program was set up. As you were not approved for the Home Affordable Modification Program, no package was sent.” Exhibit 11.
  5. Wells Fargo’s conduct writing Kline a letter containing statements which Wells Fargo knew to be false, with knowledge that the act of writing falsely was wrong, was malicious.
  6. Wells Fargo acted in bad faith when it withheld the contract’s benefits from Kline and pursued foreclosure rather than allowing Kline to pay her mortgage under the terms of Wells Fargo’s offer by letter.
  7. Wells Fargo’s bad faith conduct in not sending the package of information promised in its offer by letter caused injuries and damages to Kline.
  8. Wells Fargo’s bad faith conduct in writing falsely to Kline on February 3, 2010 caused injuries and damages to Kline.

COUNT 6: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

  1. Wells Fargo knew that Section 46 of the Restatement (Second) of Torts provides that one who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it, for such bodily harm.
  2. The conduct of Wells Fargo was an intentional invasion of Kline’s right to freedom from severe emotional distress.
  3. Wells Fargo acted for the purpose of causing severe emotional distress to Kline or knew that such distress was substantially certain to result.
  4. Evidentiary facts show there was intentional infliction of emotional distress by Wells Fargo on Kline.
  5. The conduct of Wells Fargo was extreme and outrageous under the circumstances that Kline had a special relationship with Wells Fargo because she banked with Wells Fargo.
  6. The conduct of Wells Fargo was extreme and outrageous under the circumstances that Kline had a special relationship with Wells Fargo and trusted Wells Fargo because Wells Fargo was subject to various regulations, to include FDIC regulation § 1341 against frauds and swindles that said whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, places in any post office or authorized depository for mail any such matter or thing, or knowingly causes to be delivered any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.
  7. The conduct of Wells Fargo was extreme and outrageous under the circumstances that it claimed to have sent its Complaint for Foreclosure which was devised to obtain Kline’s property by means of false premises, see paragraphs 16 and 31, as certified mail, see paragraph 52, which was prohibited by FDIC regulation § 1341 against frauds and swindles.
  8. The conduct of Wells Fargo was extreme and outrageous under the circumstances that dozens of times it mailed papers in its foreclosure based on the false premises that it held the Note or had lost the Note while the Note was in its possession when such mailing was prohibited by FDIC regulation § 1341 against frauds and swindles.
  9. As a result of the conduct of Wells Fargo Kline experienced severe emotional distress, see paragraphs 23 and 46. Kline also wrote on her website, “I’m beginning to wonder if my lungs feel congested in part because over several years I’ve felt a lot of fear… of being foreclosed and losing my home, even though it’s clear Wells Fargo has filed false affidavits, etc.”, “the foreclosure violated the UCC, New Mexico statutes 55-3-301 and 55-3-309. I was freezing cold all day… Also, my legs have been collapsing and I’m having a crippling kind of pain,”, “when Wells Fargo renews its foreclosure efforts I’m hit with waves of stress. And, extreme anxiety affects my sleep and destroys my sense of well being,”, “there’s so much stress with foreclosurelooming, that I can’t handle it.”
  10. Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person; emotional distress is “severe” if it is of such an intensity and duration that no ordinary person would be expected to tolerate it.

COUNT 7: INJURIOUS FALSEHOOD

  1. Paragraph 51 is incorporated here by reference.
  2. Wells Fargo told First American Field Services the injurious falsehood that Kline’s home was vacated on 5/24/ 2008. Exhibit 12.
  3. At the time Kline was actively defending against Wells Fargo’s foreclosure stating she hadn’t been served and was consistently using her address, 3255 Calle de Molina, in papers and when she appeared in court, and as a result Wells Fargo knew that what it told First American Field Services was a falsehood.
  4. Wells Fargo knew its injurious falsehood would cause an Initial Securing Work Order to be put in place.
  5. Wells Fargo knew that under the direction of the Initial Securing Work Order caused by Wells Fargo’s injurious falsehood a man would be sent to Kline’s home to drill into her front door lock.
  6. In fact a man was sent to Kline’s home and began drilling into her front door lock when Kline stopped him.
  7. Kline insisted the man with the drill give her his work order.
  8. Kline called the police and reported the attempted break in.
  9. Wells Fargo’s conduct using injurious falsehood was intentional.
  10. Wells Fargo’s intentional doing of the act of injurious falsehood was carried out with utter indifference to the consequences which in law is recklessness.
  11. Wells Fargo’s conduct in using injurious falsehood was carried out in reckless disregard of Kline.
  12. Wells Fargo’s injurious falsehood caused injuries to Kline.
  13. On July 4, 2008, Kline wrote on her website, “on June 9 a man tried to break in. Apparently Wells Fargo’s lawyer told the man’s company that my home was foreclosed and I’d vacated. Not true, but pretty typical for these lawyers and Wells Fargo. After that I couldn’t sleep and any noise scared me, thinking he’d come back. Then I started losing my balance and having blindingly sharp pain that caused me to fall. Exercising didn’t feel good, instead my muscles cramped and spasmed.” Wells Fargo’s lawyer’s acted in the name of Wells Fargo.
  14. The above described conduct of Wells Fargo using injurious falsehood caused damages to Kline.

DAMAGES

         WHEREFORE Kline seeks compensatory damages, damages for injuries, damages for pain and suffering from injuries, and punitive damages.

Respectfully submitted,

 

 

Karen M. Kline, Plaintiff – Self Represented

3255 Calle de Molina

Santa Fe, NM  87507

(505) 471-2367