Jurisdiction Questioned

9/7/2018 ~ From the time I found this Wells Fargo foreclosure against my home I have been complaining that I was not served. The Court has repeatedly said that since I found the foreclosure I didn’t need to be served. The Appeals Court recently reiterated that. I felt that was wrong but was reluctant to criticize the Appeals Court.

Today I mailed a Correction to the Appeals Court, which I will post as a page as soon as it is filed in the Appeals Court. The Expedited Motion below is an exhibit to my Correction.



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, Pueblos de Rodeo Road Owners
Association, Inc.; Manhattan Condominium Association,
Defendants.

EXPEDITED MOTION
TO CORRECT THE DOCKET AND THE RECORD PROPER

            COMES NOW Karen M. Kline and moves this Court pursuant to 12-209(C) to correct the docket and the record proper. As it stands, the docket and record proper do not truly disclose what occurred in the district court. For that reason I am submitting the specifics to the Court so that the docket and record proper can be made to conform to, and show, what actually occurred.

C. Correction or modification of the record proper.  If anything material to either party is omitted from the record proper by error or accident, the parties by stipulation, or the district court or the appellate court on motion or on its own initiative, may direct that the omission be corrected, and a supplemental record proper transmitted to the appellate court.  The appellate court shall notify the parties when it has ordered supplemental material on its own accord. NMRA

            An expedited decision is requested pursuant to LR1-306 I, Expedited Matters, NMRA because the case is in Appeals where a decision is imminent. Delaying a correction could cause a decision to come down that is based on the error in the docket and record proper.

The docket and record proper from the very beginning of this case contain an error dated 5/8/2008, that needs to be corrected. Basically, the docket and record proper show 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.

I wrote “HAS NOT BEEN SERVED” which the clerks filed on 5/8/2008 as “RESPONSE.” This is an error. My Objection/Challenge was not a Response to the Complaint. I did not even have a copy of the Complaint.

Significantly, Rule 1-004 NMRA states,

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.

            Rather than “Response” the docket should say, NOT SERVED or CHALLENGE or something that does not mislead people who look at the record proper to think I was served. The very first time I “appeared” was to challenge the fact I had not been served. Specifically, I filed on 5/8/2008,

            “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.

            As a Pro Se Party, I used words that amount to saying the court did not have jurisdiction. The docket clearly shows there is no Summons Return for me. 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.

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

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, in everyday language, to jurisdiction. I am not a lawyer with a working knowledge of legal terms. I am a person who is trying to defend myself and my home.

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 plaintiff’s complaint. See Rule 1-004 NMRA above. These papers are collectively called process.

Service of Process

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.

Typically, it is not enough to simply mail process to the defendant. The summons and complaint must be either given directly to defendants or left with a suitable person at their home or place of business. Service may usually be performed by any adult who is not a party to the lawsuit. Plaintiffs may hire professional process servers to serve defendants. Cornell Law School

            Appeal was timely filed. Issue 3 regarded the fact Wells Fargo did not serve me.

            WHEREFORE I respectfully move the Court to instruct the clerks to correct the docket to say NOT SERVED or CHALLENGE rather than RESPONSE and forward a corrected record proper to the New Mexico Court of Appeals.

Respectfully submitted,

 

Karen M. Kline, aka Karen Marie Kline, pro se

XXXXXXXXXXX

Santa Fe, New Mexico 87507

XXX-XXXX

 

CERTIFICATE OF SERVICE: I caused a second true copy of the above EXPEDITED MOTION TO CORRECT THE DOCKET AND THE RECORD PROPER to be mailed today, August 29, 2018, to:

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

James P. Eckels
Murr Siler & Accomazzo, P.C.
410 17th St. Ste. 2400
Denver, CO 80202

Larry Montano
Holland & Hart
110 N Guadalupe Ste 1
Santa Fe, NM 87501