Jurisdiction Issue

 

              IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 

WELLS FARGO BANK, NA.,
Plaintiff-Appelles,

No. A-1-CA- 36946
Santa Fe County
D-101-CV-2008-00942

KAREN M. KLINE,
Defendant-Appellant,

and,

PUEBLO DE RODEO ROAD OWNERS
ASSOCIATION, INC. and MANHATTAN
CONDOMINIUM ASSOCIATION,
Defendants.

CORRECTION TO
INFORMAL MEMORANDUM IN OPPOSITION TO SUMMARY DISPOSITION COMBINED WITH MOTION TO AMEND DOCKETING STATEMENT TO INCLUDE FACTS I WAS TOO CONFUSED TO INCLUDE

          I wrote incorrectly in Issue 3. The issue of failure to serve and denial of due process is serious. I cannot agree in good conscience that the Trial Court should not be reversed on the issue of Wells Fargo not serving me, especially in view of Dailey v. Foster, 1912-NMSC-045, 17 N.M. 377, 128 P. 71 (S. Ct. 1912), cited by the New Mexico Court of Appeals; nor is it accurate that no law besides that related to perjury was overlooked. The truth is that the United States Constitution, Amendments 5 and 14, which provide for due process, where overlooked. I was denied due process. Everything but this correction remains the same.

The following is what I filed, with the errors that I must correct.

Issue 3:

  1. Did the Court of Appeals misunderstand or overlook any facts that are relevant to the issue(s) discussed in the notice of proposed summary disposition? Yes  . If yes, please explain.

The Informal Docketing Statement says, “In addition to the mistakes you listed above, are there any other reasons why you are appealing? Yes _X_   No___ If you answered yes, please tell us your other reasons for appealing and describe how you told the trial court it made a mistake.

I understood the Informal Docketing Statement to be asking for “reasons” which could be different from “mistakes” I wrote about in Issues 1 and 2.

I understood that the Trial Court would not be reversed because Wells Fargo did not serve me. What I meant to bring forward was that Wells Fargo acted in bad faith when it did not serve me and when it had a contractor try to break into my home to secure it for Wells Fargo.

Wells Fargo made me literally sick in that my legs would collapse under me from the stress of knowing that Wells Fargo felt entitled to ignore due process and not serve me and to instruct a contractor to break into my home to secure it for Wells Fargo. I could not walk or stand without holding on to something. I had to get a walker. Normal movement became a thing of the past because of the extreme stress caused by knowing Wells Fargo could flagrantly ignore and violate basic rules related to our Justice System, without being held to account. Though, a few months ago I received a check for $28 from the class action suit against Wells Fargo for inspection fees wrongly charged to me and millions of other Americans. Other people I came in contact with received $3. The lawyers received eight million dollars. That kind of disparity between what victims get and what lawyers get could be a reason why there is so little done to stop bad behavior by banks and other powerful entities. In the end, lawyers profit. For instance in the National Mortgage Settlement I got $500. Each of the lawyers got $10,000 at least. This kind of disparity erodes confidence in the American Justice System. For instance a National Center for State Courts survey in 2017 showed that a majority believe judges are not in touch with community concerns.

For me, it was a concern that Wells Fargo did not serve me. It concerned me that basic due process could be ignored by Wells Fargo without any repercussions. I was reminded that Deutsche Bank had done the same thing and taken my condo in 2007 without me fighting back because I did not know that Deutsche Bank was going forward with a foreclosure without proper service to me. Deutsche Bank’s foreclosure without due process of properly serving me the complaint threw me into severe poverty since my condo was meant to take care of me in my old age. I am 73, now.

Seeing the facts as a whole, following the trial in Wells Fargo’s foreclosure action, it becomes clear that Wells Fargo would have received a high degree of benefit from a default foreclosure within a month or two of filing the foreclosure, like the default foreclosure obtained by Deutsche Bank, since Wells Fargo could not show that it held the Note. By not serving me its Complaint for Foreclosure Well Fargo could greatly increase the odds that I would not answer.

Wells Fargo not serving me is in the same vein as Wells Fargo filing a false affidavit on July 19, 2011.

New Mexico Statute: 30-25-1. Perjury. 
A. Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.
B. Whoever commits perjury is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-25-1, enacted by Laws 1963, ch. 303, § 25-1; 2009, ch. 78, § 9.

It is amazing to me that State Courts had the power to avert the financial collapse by enforcing the UCC. Had State Courts made foreclosing plaintiffs produce the Original Note or show when they had lost it, banks would have modified loans to avoid foreclosure actions they could not win. Millions of American families would have kept their homes. Instead, family owned private properties were transferred to corporations in unprecedented numbers.

I’m sorry my Informal Docketing Statement was unclear as if I were raising the lack of service as an issue that could result in reversal. Wells Fargo did in fact make me sick by displaying how completely it believed it did not have to abide by basic rules of justice, but being made sick and having my health severely harmed are not cognizable claims for relief in terms of reversing the foreclosure.

2. Did the Court of Appeals misunderstand or overlook any laws that are relevant to the issues discussed in the notice of proposed summary disposition? Not in relation to Wells Fargo’s failure to serve. But in terms of Wells Fargo’s False Affidavit, there is statute which makes filing a false affidavit a felony. If yes, please explain.

Wells Fargo admitted at trial that it filed a false affidavit on July 19, 2011.

New Mexico Statute: 30-25-1. Perjury. 
A. Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.
B. Whoever commits perjury is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-25-1, enacted by Laws 1963, ch. 303, § 25-1; 2009, ch. 78, § 9.

I am correcting the above to read as follows,

I understood that the Trial Court had decided I did not need to be served since I had found out about the foreclosure. However, the very first time I “appeared” it was to challenge the fact I had not been served. I filed on May 8, 2008,

 “I demand to be served this complaint. This is shocking to find this and see that others have been served and answered and I have not been served. I have a right to be served this complaint.

Shocking. To have foreclosed and auctioned my condo without due process and then to begin to do the same thing again, where is the justice system that I as an American have a right to?

This needs to be served on me.” Filed May 8, 2008.

The docket shows the Complaint for Foreclosure filed on 4/7/08, and on the same date, 4/7/08, summonses were issued for Karen M. Kline, Pueblos de Rodeo Road Owners Association, Inc., Manhattan Condominium Association, and the Unknown Spouse of Karen M. Kline. On 4/22/08 a Disclaimer was filed by Manhattan Condominium Association. On 4/28/08 Summons Returns were filed for Manhattan Condominium Association and Pueblos de Rodeo Road Association. There is no Summons Return filed for me, Karen M. Kline. On 5/8/2008, the clerks filed my objection, “it has not been served on me” as a Response. My Objection was not a Response to the Complaint. I had not been served the Complaint or the Summons. I had no copy of the Complaint to which I could respond. My Expedited Motion to Correct the Docket and the Record Proper, Exhibit 1, was filed on August 31, 2018.

I did not waive service of summons, in fact, on 5/20/2008 I filed Motion to Compel Service of the Complaint. On 6/5/2008 Wells Fargo filed an Affidavit of Due Diligence and Non-Service. The affidavit was falsely sworn. It said there were cobwebs on my door. That was not true. That was, in fact, false. Further, Wells Fargo admitted at trial that its Affidavit of Lost Original Note filed on July 19, 2011 was false.

New Mexico Statute: 30-25-1. Perjury. 
A. Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.
B.Whoever commits perjury is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-25-1, enacted by Laws 1963, ch. 303, § 25-1; 2009, ch. 78, § 9.

On 6/11/2008 I filed the affidavits of two Kitchen Angels volunteers, Michal Hall Curry and Akio Pierre Hirano who regularly brought me meals and knew from personal experience that there were no cobwebs on my door. Their affidavits stated that there were no cobwebs. A true picture of my door was attached to each affidavit.

Michal Hall Curry and Akio Pierre Hirano had been bringing me meals since I had tetanus which I got because I could not feel my feet due to nerve damage from living in hydrogen sulfide in my Manhattan condominium which had been built with a floor of bricks on sand and no slab over a full outdoor toilet pit which emitted hydrogen sulfide. I had the pit excavated and the human excrement removed. I had the pit filled with the correct concrete product, per the structural engineer’s instructions. It cost me over $10,000. The Condominium Association refused to pay anything despite the fact the pit was in a common area, that is, the lot. The structural engineer said there could be a second pit because when one pit was full a second was dug. The first condominium unit had been the local grocery store, so there could have been a need for a second pit. If there was a second pit it most likely was under my living room. The first one was under my bedroom. Because of the possible health threat I did not rent my condo when I moved to my townhouse, where I am now. I did not want anyone else to have health problems like mine due to damaged nerves from living with hydrogen sulfide. After I sold my single family home I had tests run. The tests showed no hydrogen sulfide, so I readied my condo for sale. I had it thoroughly cleaned, painted, all the wood oiled. The appliances and floors gleamed. I had moss rock added to the landscaping and the fence repaired in places and replaced in others. I had a new light fixture installed outside. I then listed it. I had a buyer and was signing the sales contract when another Realtor in the same office as my listing agent said that he owned my condo because he bought it at a foreclosure auction. I was shocked. Literally shocked. I had had no notice of a foreclosure or any foreclosure auction. My listing agent took me to the courthouse so I could look at the file. I was so distressed that it looked as if the sale had already been confirmed. But really, it was the proposed confirmation that had been filed. The foreclosure judgment said I had not answered, but that was not true. There had been no hearing, despite my answer. I began fighting for my condo. My listing agent lent me $60,000. She knew I would repay her in a few weeks because we had a buyer. I paid her $7,000 interest for the short term loan. Together with $68,250 I still had from selling my single family home I got a cashier’s check for $128,250.00, Exhibit 2, which the clerks would not take. They said I had to talk to the judge and they sent me upstairs. I briefly saw the Honorable Judge Raymond Ortiz who said he couldn’t talk to me. He subsequently recused. I continued to fight for my condo and to redeem. But in the end I was not allowed to redeem, despite my mortgage contract giving me that right, because HSBC v. Fenton said that only the first person to file could redeem, and I, of course, had not been first when I had no notice of the foreclosure or auction. The man who was allowed to redeem got my condo for $85,000.

When I was not allowed to redeem, I was condemned to poverty. I have been in poverty ever since. My years of hard work to save via my condo in order to take care of myself in my old age were undermined. It is because I was deprived of my property, which I depended upon for the money to take care of myself in my old age, which is now, that I was adamant that I should be served Wells Fargo’s Complaint for Foreclosure. It was and is distressing that the Court said I didn’t need to be served. The ease with which the Court violated the United States Constitution is highly distressing. Significantly, Rule 1-004 NMRA states,

A.
(1) Scope of rule. The provisions of this rule govern the issuance and service of
process in all civil actions including special statutory proceedings.

(2) Summons; issuance. Upon the filing of the complaint, the clerk shall issue a summons and deliver it to the plaintiff for service. Upon the request of the plaintiff, the clerk shall issue separate or additional summons. Any defendant may waive the issuance or service of summons.

B. Summons; execution; form. The summons shall be signed by the clerk, issued under the seal of the court and be directed to the defendant. The summons shall be substantially in the form approved by the Supreme Court and must contain:

(1) the name of the court in which the action is brought, the name of the county in which the complaint is filed, the docket number of the case, the name of the first party on each side, with an appropriate indication of the other parties, and the name of each party to whom the summons is directed;

(2) a direction that the defendant serve a responsive pleading or motion within thirty (30) days after service of the summons and file a copy of the pleading or motion with the court as provided by Rule 1-005 NMRA;

(3) a notice that unless the defendant serves and files a responsive pleading or motion, the plaintiff may apply to the court for the relief demanded in the complaint; and

(4) the name, address and telephone number of the plaintiff’s attorney. If the plaintiff is not represented by an attorney, the name, address and telephone number of the plaintiff.

C. Service of process; return.

(1) If a summons is to be served, it shall be served together with any other pleading or paper required to be served by this rule. The plaintiff shall furnish the person making service with such copies as are necessary.

(2) Service of process shall be made with reasonable diligence, and the original summons with proof of service shall be filed with the court in accordance with the provisions of Paragraph L of this rule.

L. Proof of service of process. The party obtaining service of process or that party’s agent shall promptly file proof of service. When service is made by the sheriff or a deputy sheriff of the county in New Mexico, proof of service shall be by certificate; and when made by a person other than a sheriff or a deputy sheriff of a New Mexico county, proof of service shall be made by affidavit. Proof of service by mail or commercial courier service shall be established by filing with the court a certificate of service which shall include the date of delivery by the post office or commercial courier service and a copy of the defendant’s signature receipt. Proof of service by publication shall be by affidavit of publication signed by an officer or agent of the newspaper in which the notice of the pendency of the action was published. Failure to make proof of service shall not affect the validity of service.

The fact is that the original summons was not served despite Rule 1-004 stating, “If a summons is to be served, it shall be served together with any other pleading or paper required to be served by this rule.” I was not served and did not receive the things listed in Rule 1-004 (2), (3), and (4),

(2) a direction that the defendant serve a responsive pleading or motion within thirty (30) days after service of the summons and file a copy of the pleading or motion with the court as provided by Rule 1-005 NMRA;
(3) a notice that unless the defendant serves and files a responsive pleading or motion, the plaintiff may apply to the court for the relief demanded in the complaint; and
(4) the name, address and telephone number of the plaintiff’s attorney. If the plaintiff is not represented by an attorney, the name, address and telephone number of the plaintiff.

Regarding “shall” as used in Rule 1-004 NMRA, “C. Service of process; return. (1) If a summons is to be served, it shall be served together with any other pleading or paper required to be served by this rule.”: Up until 2010 and the publication of the Federal Plain Writing Act and the Federal Plain Language Guidelines, law schools taught that “shall” meant “must”. In 2008, when Wells Fargo’s Complaint for Foreclosure was filed and summonses issued, “shall” was generally accepted to mean “must.

Black’s Law Dictionary gives the following definition of “shall”,

As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to “may,”) to carry out the legislative intention and In cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Also, as against the government, “shall” is to be construed as “may,” unless a contrary intention is manifest. See Wheeler v. Chicago, 24 111. 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 9.”.:;: Madison v. Daley (C. C.) 58 Fed. 753; Cairo & F. R. Co. v. Ilecht, 95 U. S. 170, 24 L. Ed. 423. SHAM PLEA. See PLEA. SHARE 1082 SHERIFF

Black’s says “shall” may be construed as merely permissive or directory, (as equivalent to “may”) to carry out the legislative intention and in cases were no right or benefit to any one depends on its being taken in the imperative sense…”

In this case, the right which depends on “shall” being taken in the imperative sense is provided by the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment 5

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 14th Amendment

I was not served the summons or the complaint despite the imperative in Rule 1-004 C (1). The docket and record of this case show that I was not served. The docket incorrectly said that I responded when in fact I objected to not being served.

As a Pro Se Party, I used words that amount to saying the court did not have jurisdiction. The docket shows there is no Return of Service for me. Rule 1-004 L says it doesn’t matter if there’s no proof of service. That’s stunning. It appears to be a give away of Constitutional Rights. It is unjust to allow a plaintiff to not serve the defendant, especially in a foreclosure when the person’s home could be taken without basic due process.

I am thankful to the Court of Appeals for providing me the following case:

 Dailey v. Foster, 1912-NMSC-045, 17 N.M. 377, 128 P. 71 (S. Ct. 1912),

2. Whether an appearance is general or special is governed by the object and purpose of the appearance and any action upon the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.

I objected on May 8, 2008, in everyday language, to jurisdiction, see above. I am not a lawyer with a working knowledge of legal terms. I am a person defending myself, my home and my food producing garden. I don’t know the intricacies of the law, but I know that the United States Constitution provides me a right to due process and that if a court fails to provide due process it is prohibited from exercising personal jurisdiction over me.

The Due Process clauses in the United States Constitution prohibit courts from exercising personal jurisdiction over a defendant unless the defendant has proper notice of the court’s proceedings. To meet this rule, courts require plaintiffs to arrange for defendants to be served with a court summons and a copy of the plaintiffs’ complaint. These papers are collectively called process. Cornell Law School

The Trial Court iterated at every opportunity that it had jurisdiction. I felt the Trial Court was wrong to allow Wells Fargo to commence foreclosure without serving me, but there was nothing I could do except to continue to say that I had a right to be served and Wells Fargo was violating my due process right and the Court should not be allowing that, nor should the Court be allowed to do that. Basically, that amounts to challenging jurisdiction.  When the Court allowed Wells Fargo to deny me due process and not serve me I could see that Wells Fargo would go to any unlawful extreme to take my home and I began to look for other examples of how Wells Fargo’s foreclosure was unlawful. That is how I found the UCC Original Note requirements.

2. Did the Court of Appeals misunderstand or overlook any laws that are relevant to the issues discussed in the notice of proposed summary disposition? If yes, please explain.

          The Court of Appeals overlooked the United States Constitution, Amendments 5 and 14:

United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment 5

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 14th Amendment

It is also the case that the Court of Appeals overlooked the law related to perjury. Wells Fargo admitted at trial that it filed a false affidavit on July 19, 2011. Additionally, the affidavits of two Kitchen Angel volunteers, together with pictures of my door show there were no cobwebs. Wells Fargo’s affidavit swears there were cobwebs.

New Mexico Statute: 30-25-1. Perjury. 
A. Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.
B. Whoever commits perjury is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-25-1, enacted by Laws 1963, ch. 303, § 25-1; 2009, ch. 78, § 9.

Respectfully submitted,

Sign your name:    ___________________________

Type your name:               Karen M. Kline                                            .

Your address:                                                       .

City, State, Zip Code        Santa Fe, NM 87507                                   .

Telephone Number:                                                     .

 

Be sure you attach an affidavit of service.