Motion for Reconsideration

On January 6, 2020, there was a hearing on Defendants’ Motions to Dismiss. The Court decided for Defendants. Below is my Motion for Reconsideration.

My Motion has pertinent quotes re Independent Actions and Collateral Attacks.

 

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

Karen M. Kline, Self-Represented,
Plaintiff,

          No. D-101-CV-2019-00787

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

MOTION FOR RECONSIDERATION

            Plaintiff, Karen M. Kline, (hereinafter “Kline”) self-represented, moves for reconsideration as per the Court’s Order, “limited to addressing authorities supporting her “fraud on the court” argument concerning the representation of her former counsel which she presented during the hearing on the Motions,” on the following grounds:

1. The first authority is Rule 1-060 (6) NMRA, the second half of which says,

“This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the proceeding for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” (emphasis added)

            This authority, Rule 1-060 (6) NMRA, directed Kline to think in terms of an independent action. Given that Kline’s former counsel had said, “Judge Ortiz does not decide for homeowners,” Kline felt it imperative to pay for a jury of 12 despite the high cost and her indigence. The side effect of this was that she studied Jury Instructions, which, being very clear, caused her to lose sight of the fact her Complaint was for an Independent Action to Set Aside a Judgment for Fraud, and should have been titled as such, not by naming fraud elements she found in jury instructions.

 2. The second authority is Phoenix Funding LLC v. Aurora Loan Services LLC, Supreme Court of NM, No. S-1-SC-35512, decided: January 26, 2017, Exhibit 1, cited by Breckenridge Property Fund 2016, LLC (hereinafter “Breckenridge”), see the bottom of pg. 9, going to pg. 10, Transcript, Exhibit 2.

Phoenix Funding, says,

“{31} Although the Restatement (Second) of Judgments jettisons the terminology of “direct attacks” and “collateral attacks,” New Mexico courts have adhered to the use of those terms as shorthand for different ways of seeking relief from judgments.”

And,

““As Rule 1-060(B)(6) states, it “does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” (Emphasis added)” Paragraph {35}

And,

“{36} In contrast to the straightforward procedure for a direct attack under Rule 1-060(B), New Mexico cases have recognized a limited number of ways in which a litigant may seek relief from a prior judgment in a proceeding separate from that in which the judgment was rendered. First, a litigant may file an independent action to set aside a judgment for fraud, accident, or mistake. Sanders, 1996-NMCA-102, ¶ 15. New Mexico has long recognized this cause of action as a matter of common law. See Apodaca, 1971-NMSC-084, ¶¶ 2, 7 (reversing the dismissal of a complaint in equity attacking the validity of a prior judgment); Brown v. King, 1959-NMSC-088, ¶ 9, 66 N.M. 218, 345 P.2d 748 (“[A]n equity action lies to avoid judgment procured by fraud.”); Day v. Trigg, 1922-NMSC-012, ¶ 7, 27 N.M. 655, 204 P. 62 (deciding on the merits whether a judgment “may be vacated through an independent proceeding ․ solely upon the ground that it was obtained by false testimony”); Sanders, 1996-NMCA-102, ¶¶ 10-17 (assuming and describing an independent action for relief from judgment).”

A. Strangely, though perhaps not inexplicably, given its interests, Breckenridge said at the January 6, 2020 hearing (hereinafter “hearing”),

17· ·Now, the collateral attack is an attempt to
18· ·impeach a judgment in an action other than that in which
19· ·the judgment was rendered, which is forbidden by New
20· ·Mexico law.
21· · · · In 2017, the New Mexico Supreme Court issued
22· ·a decision known as Phoenix Funding, LLC, versus Aurora
23· ·Loan Services, LLC.··It’s 2017 NMSC 010, stating, “A
24· ·collateral attack refers to a litigant’s attempt to
25· ·nullify a judgment and makes that attempt in a separate
Page 10 ·1· ·action and not through a Rule 60(B) motion.” Exhibit 2, See Transcript pages 9-10.

            Breckenridge was untruthful to say a collateral attack is forbidden by New Mexico law, see quotes from Phoenix Funding, above. Apparently Breckenridge wanted so badly to influence the Court’s decision on Kline’s Independent Action that Breckenridge sank to falsehoods.

B. Similarly, Breckenridge plaits the true with the untrue,

25· ·As I mentioned also, the doctrine of
Page 11 ·1· ·res judicata also bars Ms. Kline’s claims here.··Res
2· ·judicata bars not only claims that were raised in the ·
3· ·prior proceeding, but also claims that could have been
4· ·raised provided the plaintiff had a full and fair ·
5· ·opportunity to do so. Exhibit 2, Transcript, pgs. 10-11

And,

22· ·And plaintiff was required
23· ·to assert in the foreclosure case all of her claims Exhibit 2, Transcript, pg. 12.

Except, Breckenridge had already stated,

10· · · · · · · · The Court held a hearing on that motion –
11· ·on various motions, and entered an order dated
12· ·March 15th, 2019 denying those motions, citing its
13· ·extremely detailed findings of fact and conclusions of
14· ·law, as George — I’m sorry, as Judge Ortiz noted.
15· · · · · · · · And the Court found that plaintiff’s
16· ·arguments had been repetitive of arguments she had
17· ·repeatedly raised in the trial court, at the Court of
18· ·Appeals and in the Supreme Court and, as I mentioned,
19· ·barred her from any further filings in the case unless
20· ·the Court had approved them in advance. Exhibit 2, Transcript pg. 8

True, Kline was barred on March 15, 2019, from filing anything further in the foreclosure. In fact, Kline’s Notice of Appeal was withheld from filing until she filed her priority mail receipts with the Appeals Court, showing that the District Court had received, but not filed, her Notice.

It was not true, however, that after being barred from filing Kline could have raised claims regarding the vandalism and stealing of her personal possessions, allowed by Breckenridge on May 17, 2019, the day Kline was supposed to have been able to get them.

C. Kline’s claims: as for instance, Kline wrote a 5 page letter on May 18, 2019, to the Mobile Crisis Team, Santa Fe Community Guidance, Exhibit 3, excerpted as follows,

“It was disturbing that the movers had gone through my things. Whoever opened up the house for the movers without me there should have acted on my behalf to safeguard my things.”… Bags of things in the doorway to my closet made it impossible for me to roll my walker into the opening… Similarly, things impeded my way to storage cubes against the bedroom wall. I wanted summer tops from them… So many things I need weren’t moved… Pat was looking in drawers instead of helping me with things I needed. I kept on trying to get boxes moved to the truck, over and over again, but I was ignored… When I wanted my rolling chair from the kitchen, which allows me to do things which I cannot do standing, the chair appeared all different places in “my” home, without getting carried out to the truck. I wanted very few things out of all there was, but I had an enormously difficult time getting them, and many were not ever moved… I wanted my washer and the table it sits on. But though I asked 3 times, it wasn’t moved… It was so chaotic when I arrived that a part of all my thinking, which is impaired by brain injury, had to go to seeing through the chaos, seeing to how things would have been before everything was displaced. In their original places I would have more easily seen what I wanted/needed to take… It makes me sad that all the thought I put into what I needed and what would fit in a 10×10 storage space was mostly wasted… I wanted a few things from the walk in closet. The movers had tipped the insulation in my plant room, at least it wasn’t like that last time I was there, moving my plants. The insulation crossed the path to the walk in closet, and to the little heater I wanted. There was no one to help me gain access, despite 5 people on the clock… Exhibit 3

On July 2, 2019, Kline wrote to N.M. Human Services Director, Dr. Scrase, “Re: Why wouldn’t I feel suicidal?” Exhibit 4, and attached her letter of May 18, 2019 (above),

On April 10, 2019, Deputy Sheriff, Robert Girnendonk, had my locks drilled so he could remove me from the home I bought in 1993… The courts had allowed Wells Fargo to use a false affidavit, other false filings, and fraud to foreclose. There was $84,000 left owing on my Promissory Note. Key here, is that under the UCC, §§ 55-3-301 and 55-3-309, Wells Fargo had to have my Promissory Note, or have lost it while it was in their possession: a foreclosure is an enforcement of a Promissory Note… My promissory note was last seen on May 16, 2002, when GE Capital Mortgage Services had my mortgage. On July 1, 2005, my mortgage was assigned to Wells Fargo. On April 7, 2008, Wells Fargo filed its Complaint for Foreclosure, but did not serve me… I didn’t find the foreclosure of my condo in 2007, and I was not allowed to redeem… I had planned to pay off my home, the one from which I was evicted, with the proceeds from the sale of my condo: I had a buyer at the time. Just to be clear, when my hot water heater broke at my condo, I took cold showers and paid my mortgage rather than buying a hot water heater and not having enough for my mortgage. Little good that did. The corruption stops at nothing… On May 17, 2019, Presbyterian Medical Service paid movers to move my things… PMS let the movers in without me there. When PMS brought me, an hour later, the movers would not move things I pointed out. They were going through my drawers and ignoring me when I asked for chairs and chrome carts to be moved to the truck. It was incredibly distressing. Two PMS people, joined by the Breckenridge Property Fund 2016, LLC (Breckenridge was the buyer at auction) employee, Eric Jones, stood around chatting and laughing. I couldn’t get their help with the movers. Copy of letter, “re: movers” attached… I wrote to upper level Presbyterian Medical Services people who responded two days ago, saying that I should take it up with the movers and Breckenridge. The letter was copied to PMS attorneys. I took that to mean I should sue Georges Moving and/or Breckenridge… The moving-my-things (losing-my-things) day was so distressing. I couldn’t sleep for days after that. And I was so dizzy. I was afraid to get up. Even with my walker the spinning sensation made me feel as if I was going to fall… May 17, the day I was to get things from 30 years of my life… things I kept saying I needed going forward… I have written to the Social Security Administration with a copy of my letter “re: movers” attached so they can see things for which they may have been charged, when in fact I was NOT helped by the questionable/horrific behavior of PMS and Breckenridge… I can’t trust my bank, I can’t trust New Mexico courts, I can’t trust law enforcement, I can’t trust health care providers, I can’t trust housing people. Why wouldn’t I feel suicidal? (emphasis added)

Kline copied to Breckenridge/Stimson her July 2, 2019, letter to N.M. Human Services Director, Dr. Scrase, Exhibit 4, and its attachment, Exhibit 3, as well as a reply from PMS, Exhibit 5, saying,

Breckenridge Property Fund was in sole possession of the house located at 3255 Calle de Molina. As that company also had installed a coded lock, it was the only entity with the authority and capability to enter the unit… cc: Pippa Amick, Director of Corporate Compliance, and Associate General Counsel” Exhibit 5.

Having received copies of the above letters, Breckenridge used the hearing to argue that under the doctrine of res judicata Kline should be barred from filing anything further regarding Breckenridge in “this judicial district” Exhibit 2, pg. 14, lines 22-24, because she should have dealt with it in the foreclosure case. The truth, however, was/is that the causes of action occurred in May, which was after Kline had been barred from filing in the foreclosure and thus res judicata did not apply.

On August 8, 2019, August 15, 2019, and August 23, 2019, Kline wrote of possessions of hers amounting to nearly $10,000 that had been denied to her,

I am in my apartment and have unpacked all the boxes. There are a lot of things I thought for sure had been moved, because I had asked for them to be moved, and I truly believed they would be moved, that are not in any of the boxes, nor in the black bags… There’s furniture missing that I had been sure was moved because I kept asking, but it’s not here. Exhibit 6

D. Prohibition against asking this Court for reconsideration of its bar, is achieved by Breckenridge’s wording in the form of Order it presented: “limited to addressing authorities supporting her “fraud on the court” argument concerning the representation of her former counsel which she presented during the hearing on the Motions,” which the Court chose to file.

E. Prohibition against seeking reconsideration of leave to amend,achieved by the filed form of Order disregards Rule 1-015 NMRA,

“A.  Amendments. A party may amend its pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, the party may amend it at any time within twenty (20) days after it is served. Otherwise a party may amend its pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice requires.”  Emphasis added.

Kline has a brain injury and was unable to say in a meaningful way during the hearing why she needs and justice requires that she be given the reasonable accommodation of being allowed to write an amended complaint. She had attempted to file a Motion for Reasonable Accommodation in order to bring her brain injury to the attention of the Court, but the clerks called only one person to be helped during the fifteen minutes Kline waited. Had she known the hearing would be delayed, she could have waited longer.

Kline’s Motion for Accommodation said,

“Kline can write more easily than talk because writing is slower and the act of writing helps keep her mind focused. Answering questions is more difficult than simply recounting or talking because with her limited working memory it’s hard to keep the question clearly in mind and she can’t remember where she is in providing an answer.” Kline attached a Neuropsychological Evaluation that substantiated this.

When the Court asked Kline to explain why she needed reasonable accommodation, “If you could explain briefly what the reasonable accommodation is.” Exhibit 2, Transcript, pg. 18, lines 14-15, Kline was apprehensive, “I’m not very good at being — I’ll just try hard,” Exhibit 2, pg. 18, lines 16-18. She then talked about complexities of the fraud, and, unable to keep the question clearly in mind, did not explain that because of the complexity she needed to be able to write an amended complaint in order to show how her case had the elements required for an independent action in equity to set aside a judgment, and because, as she would put it, her complaint as it was presently written, “it’s totally wrong.”

Following Kline’s attempt to explain, the Court asked,

21· · · · · · · · So I hear you sort of saying two things.
22· ·One is that your amended complaint would relate to that
23· ·litigation with Judge Ortiz as against these defendants;
24· ·and then you’ve got an additional new claim which is
25· ·against your former lawyer in that case.··Is that
Page 28 ·1· ·correct? · Exhibit 2, Transcript, pg. 27 – 28

Kline responded, “I think that — I can see why you would think that, but it’s because I don’t think I said it clearly.” Exhibit 2, Transcript,pg. 28 lines 2-4.

Kline’s continued response shows the difficulty she was having, even though the printed transcript minimizes the difficulty by using dashes when she struggles to find words, or organize ideas:

To amend my complaint from having — from everything that I read in all the court cases going back to 1818, the perjury aspect, all of that, is finalized in the judgment. But, so what I’m really — in amending my complaint, what the — when I — one of the reasons I didn’t finish it was because it’s so cute the way it is, even though it’s totally wrong. Exhibit 2, Transcript, p 28 lines 5-12

The CD/audio shows Kline’s struggle more clearly, and can be written like this:

To amend my complaint, from having, from (jagged pause) everything that I read in the court cases going back to 1818, ahm… the… (pause) the… perjury aspect, all of that is finalized in the judgment. But so what I’m really, wha (incomplete word), in amending my complaint, what the, um… (pause)… (intake of breath), when I… (pause)… (she finally gives up and gives a speedy response in which she abandons trying to actually explain why she needs accommodation) one of the reasons I didn’t finish it was because it’s so cute the way it is, even though it’s totally wrong.

By contrasting the above paragraph to any paragraph in Kline’s written complaint, it becomes apparent that although Kline was given an opportunity to be heard at the hearing, what she said was garbled rather than meaningful. The contrast shows that when Kline is allowed time to write, she is able to put her ideas clearly into words. Kline needs additional time because of the loss of half her processing speed, as shown by the Neuropsychological Evaluation attached to her Motion for Reasonable Accommodation which the Court read but did not enter into the case. When asked a question to which she must verbally respond, she has many false starts, see above, until the pressure of the court situation makes her choose to be polite and not take more of the Court’s time by continuing her struggle. She knows that, were she writing, it could take her hours to get the words she needs to say what she means. Prior to her brain injury and consequent mental disability she did not have this problem.

Kline’s Motion for Reasonable Accommodation drew attention to the Due Process Clause and “a meaningful opportunity to be heard,”

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).”

The obstacle to Kline’s full participation in the judicial proceedings could not be removed by making it casual. Allowing her to stumble verbally did not accommodate in the way a ramp accommodates someone with a physical disability who is unable to navigatestairs. Kline sought to be allowed to write at the speed that would enable herto navigate throughthe essential elements of an independent action, as identified by authorities,and show that the elements exist in her case. She had already acknowledged that her Complaint as written was completely wrong. But, her mental disabilitykept her from making clear how the accommodation of being allowed to write would be appropriate.

In comparison to Kline’s stumbling, Breckenridge’s smooth presentation was convincing and, as if Breckenridge had spoken the truth when it asserted, “[T]he collateral attack is an attempt to impeach a judgment in an action other than that in which the judgment was rendered, which is forbidden by New Mexico law,” whereas the assertion was and is false, see “A. Strangely, though perhaps not inexplicably,” pg. 2, the Court decided against Kline, dismissing her case,

19· · · · · · · · I also think that this lawsuit that you have
20· ·filed against these defendants cannot be brought the way
21· ·that it’s been brought under New Mexico law.··So I’m
22· ·gonna grant their motion to dismiss on the basis that
23· ·they’ve put forth.··I think that they’re right. Exhibit 2, Transcript, pg. 34;

as well as disallowing amendment of her complaint so that the lawsuit could be brought, and prohibiting, via the form of Order it filed, reconsideration of anything but the authorities that were related entirely to an amended complaint, when amendment was being denied and reconsideration was being prohibited. The Court said,

24· · · · · · · · I am certainly, you know, cognizant of the
25· ·need to make reasonable accommodations under the ADA, as
Page 35 ·1· ·you’ve requested, and those usually come in the form of ·
2· ·some kind of, you know, physical or interpretive ·
3· ·assistance or something of that nature.··It’s usually ·
4· ·not like a legal mechanism, like “Allow me to amend as ·
5· ·an accommodation” or anything. ·
6· · · · · · · · So I think in terms of, you know, the way ·
7· ·we’re proceeding today, where it’s casual and you can ·
8· ·make sure that I review your pleadings, I think that ·
9· ·that’s appropriate accommodation.··But I don’t think
10· ·that, you know, any other accommodation such as allowing
11· ·amendment or something is appropriate.
12· · · · · · · · And also, again, while it hasn’t been
13· ·officially filed, the motion for leave to amend
14· ·complaint, I would not be inclined to grant that, Exhibit 2, Transcript, pgs. 34-35.

F. The Court did not voice at the hearing the limit that is in its Order,

THE COURT:··So there is a motion for
20· ·reconsideration, and that is something that’s provided
21· ·for by the rules.··And you could file that if there is
22· ·something new or different we haven’t, you know,
23· ·considered today.
24· · · · · · · · MS. KLINE:··But specifically, I’m asking if
25· ·I could do it and put in the case that said whatever,
Page 39 ·1· ·whatever, fraud on the Court, yes, and let you see it. ·
2· · · · · · · · THE COURT:··Yeah.··You can certainly do ·
3· ·that. ·
4· · · · · · · · MS. KLINE:··Okay.··So that’s — ·
5· · · · · · · · THE COURT:··And then again, on my — on my ·
6· ·end — ·
7· · · · · · · · MS. KLINE:··You can deny it. ·
8· · · · · · · · THE COURT:··Or not.··But that is something ·
9· ·that you, under the rules, have a right to do.··So
10· ·that’s not — you know, that’s not the type of new and
11· ·independent claim against these defendants that I’m
12· ·saying you can’t bring without leave of Court.··That’s
13· ·something you could bring in this action and file it.
14· ·But when — you know, when that’s decided –
15· · · · · · · · MS. KLINE:··It’s over.
16· · · · · · · · THE COURT:··That’s right.··Then it’s — the
17· ·reconsideration will be done.··Or, again, maybe I would
18· ·realize that my understanding of all this is entirely
19· ·errant.··And I have to say that, you know, I’m proud to
20· ·say that’s not the most common scenario, but it’s
21· ·probably not unheard of.
22· · · · · · · · So I — just know, all joking aside, I — I
23· ·have an open mind towards reviewing what people present
24· ·and looking at it.··And I understand that you’re — you
25· ·know, I guess from my perspective, this isn’t about you
Page 40 ·1· ·giving up or not giving up.··It’s making sure that I ·
2· ·apply the Rules of Civil Procedure and the caselaw ·
3· ·correctly so that you’re not unfairly prejudiced and ·
4· ·these defendants are not subject to claims that have ·
5· ·already been adjudicated, because that’s not allowed. ·
6· ·Okay? ·
7· · · · · · · · MS. KLINE:··Thank you. ·
8· · · · · · · · THE COURT:··All right.··Thank you. Exhibit 2, pgs. 38-40

E. Kline provided a form of the Order that seemed more accurate, based on what the Court had actually said (above),

“D.  Ms. Kline may file a motion for reconsideration pursuant to Rule 1-059(E) NMRA, within thirty (30) days after entry of this Order;” however, the Court chose to file Breckenridge’s restrictive form, despite the fact the rule itself is not restrictive and would have allowed Kline to ask for reconsideration of leave to amend.

4. The third authority is Sanders v. Estate of Sanders, 927 P.2d 23 (1996), 122 N.M. 468, a case mentioned in Phoenix Funding, above. Sanders says,

The independent action for relief from judgment is a creature of the common law…

[A]doption of Rule 60(B)(3) was not meant to entirely supplant independent actions as recognized at common law either in federal courts or in state courts…

[T]he Supreme Court allowed a wife to bring such an action ten years after entry of judgment in Trujillo, 79 N.M. at 247, 442 P.2d at 205…

15. Parties filing an independent action for relief from a judgment would bear a heavy burden to allege and provide evidence of five elements:
(1) a judgment which ought not, in equity and good conscience, to be enforced;
(2) a good defense to the alleged cause of action on which the judgment is founded;
(3) fraud, accident, or mistake which prevented the defendant in the judgment
from obtaining the benefit of his defense;
(4) the absence of fault or negligence on the part of the defendant; and
(5) the absence of any adequate remedy at law…

[S]tating action was available only if the asserted fraud, accident or mistake prevented the claimant from presenting his case, and also requiring plaintiff to present evidence that he could not have discovered the truth by reasonable *28 diligence)…

Under requirement (5) (the absence of any adequate remedy at law) the party bringing the independent action would as a practical matter have to show that the normal procedures under the enumerated paragraphs of Rule 60(B) are not available; otherwise there would be an adequate remedy at law…

16. The independent action is intended to be used as a “last ditch remedy.” Robert Duane Sharp, Relief From Fraudulent Judgments in the Federal Courts: Motion to Vacate or Independent Action Opposite Sides of the Same Coin, 36 Drake L.Rev. 389, 390 (1987) [hereinafter Sharp]. Because only that fraud, accident, or mistake that has prevented a party from fairly litigating an issue may be asserted as a basis for relief in an independent action, the action, where allowed, is much narrower than one under Rule 60(B). The essence of an independent action is that “one party had not had an opportunity to present his claims fully before judgment.”…

Third Circuit: “[w]e believe truth is more important than the trouble it takes to get it.” Publicker v. Shallcross, 106 F.2d 949, 952 (3d Cir.1939), cert. denied, 308 U.S. 624, 60 S. Ct. 379, 84 L. Ed. 521 (1940).

Phoenix Funding (2017), and Sanders before it (1996), make clear that an independent action is not prohibited in New Mexico, in other words, it is legal as long as it was “fraud, accident, or mistake that has prevented a party from fairly litigating an issue.” And, Sanders quotes the Third Circuit, “[w]e believe truth is more important than the trouble it takes to get it.”

As clear as Sanders is, Kline was unable to grasp how the third necessary element of a proper independent action worked: “(3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense;” given that at the same time Wells Fargo’s perjury was protected by the doctrine of Finality of Judgments.

Only after Kline found and read Rocha v. Rocha, 24 Am. Samoa 2d 55 (1993) did she see how the fraud worked. At the point at which she found it, there was no longer sufficient time left to amend her complaint prior to the hearing. Rocha v. Rocha is the case she could not remember the name of in order to cite it at the hearing.

5. The fourth authority is Rocha v. Rocha, 24 Am. Samoa 2d 55 (1993) Exhibit 6, which clarifies the kind of fraud that is an element of an independent action.

Rocha says two things which made clear to Kline how badly wrong she had been when she based her Complaint on Jury Instructions related to fraud and other offenses. Although Kline saw that she had to ditch her Complaint as it was written, her brain injury caused her to have an incomplete grasp of how to say the things that existed and made her independent action acceptable under the law.

As previously discussed, Kline tried to say in a Motion for Reasonable Accommodation Under the ADA that she needed to be able to write what was needed. However, Kline’s hurried motion, (“hurried” because it was written when she could not complete amending her complaint prior to the hearing) when read by the Court, came across as a request to be allowed to amend as an accommodation, rather than being allowed the opportunity to write in order to make herself heard, as a reasonable accommodation.

Kline stated at the hearing that there was fraud in that Wells Fargo used perjury in the form of false affidavits, and that fraud was a part of the judgment and could not be attacked because of the finality of judgments and res judicata. She wanted to make clear that the fraud she knew she needed to address was exactly that which Rocha discusses,

The fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial. Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1358 (4th Cir. 1982) (citing United States v. Throckmorton, 98 U.S. 61 (1878)

This type of fraud occurs when “the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function–thus where the impartial functions of the court have been directly corrupted.” Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985)

Fraud which mainly concerns the opposing parties and [24ASR2d58] which does not threaten harm to the public does not meet this standard. Great Coastal Express, 675 F.2d at 1356 (citing Hazel-Atlas Glass Co. v. Hartford Empire Co. , 322 U .S. 238 (1944); Comment, 60 Cal. L. Rev. 531,557 (1972)). Only fraud which normally cannot be exposed during trial will suffice.

In short, “[p]erjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible,” Great Coastal Express, 675 F.2d at 1357 (citing Hazel-Atlas, 322 U.S. at 245;

“[F]raud on the court’ is typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged.” Great Coastal Express, 675 F.2d at 1356 (citing Addington v. Farmer’s Elevator Mutual Ins. Co., 650 F.2d 663,668 (5th Cir. 1981), cert. denied 454 U.S. 1098 (1981); Lockwood v. Bowles, 46 F.R.D. 625, 630 (D.D.C. 1969)).

The fraud in Kline’s case could not be exposed during the trial because it was her lawyer, Eric Ortiz, who was a corrupted or influenced member of the court. At the hearing Kline recounted that Mr. Ortiz had said he has appraisers he works with, and if he couldn’t get the needed appraisal, he has investors he talks to daily who would give Kline something for her home.

Mr. Ortiz admitted in his letter of March 15, 2017 that his reason for the amendment he prepared, then filed late, resulting in it being struck for being late, (Kline’s Answer to Wells Fargo’s Amended Complaint) was for leverage in obtaining a reverse mortgage,

“I can assure you the reason for the amendment was to gain leverage. It’s an old (sic.) and it’s clear to me that the judge wanted a more simple foreclosure trial. It’s truly unfortunate that he did not allow the counterclaim but I still think we have enough leverage to negotiate a lower payoff which would help you obtain a favorable reverse mortgage.” Exhibit 7.

Mr. Ortiz’s admission that he wrote Kline’s Answer to Wells Fargo’s Amended Complaint to gain leverage toward obtaining a reverse mortgage, indicates improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged. That is, the Court’s function which was related to the foreclosure, was reduced to playing a part in Mr. Ortiz’s extralegal need to have Kline settle and apply for a reverse mortgage so that he could profit from his business and contacts outside the legal field.

Kline’s lawyer’s relationships with real estate investors and appraisers, which he told her about in trying to make her give up fighting the foreclosure and instead settling with Wells Fargo for $30,000+/- to be used in preparing her home to apply for a reverse mortgage, prevented the raising of an argument or the assertion of a claim or defense at trial. Mr. Ortiz’s alternative source of income appears to have been his priority. Mr. Ortiz needed the foreclosure. Had Judge Ortiz not foreclosed it would have weakened Mr. Ortiz’s prospective business opportunities.

6. Wells Fargo’s deliberate scheme to directly subvert the judicial process is the kind of fraud that can be an element of a proper independent action. Wells Fargo’s Foreclosure Manual details how to get a Lost Note Affidavit from the WFHM Default Docs Team, Exhibit 8. Thus, the perjury that so upset Kline when the falsity of the Lost Note Affidavit was revealed, was not idiosyncratic to her foreclosure, it was part of a scheme Wells Fargo used to take the homes of millions of Americans, putting many of them, including children, on the street, homeless going forward.

Homeowners who try to represent themselves in court, going up against crafty lawyers, perhaps not unlike Breckenridge’s lawyer who sounded utterly convincing at the hearing when he was making false statements for Breckenridge, may ask, “Has the finality of judgments made perjury the preferred way of pleading for banks preying on homeowners?”

Kline questioned Wells Fargo’s Lost Note Affidavit within the foreclosure, but lost to the persuasive Wells Fargo lawyer who persuaded without providing any evidence that the Lost Note Affidavit was not perjury. Wells Fargo’s scheme worked well. So well, in fact, that one may wonder if it is the inspiration to ancillary lying like that exhibited by the buyer at auction of Kline’s home, Breckenridge, see “A. Strangely, though perhaps not inexplicably,” above.

All fraud is not “fraud on the court,” but only that which constitutes “a deliberate scheme to directly subvert the judicial process.” Great Coastal Express, 675 F .2d at 1356 (citing 11 Wright & Miller , Federal Practice and Procedure § 2870, at 253 (1973)); see Budge, 544 F. Supp. at 377 (citing Rozier v. Ford Motor Co. , 573 F .2d 1332, 1338 (5th Cir. 1978)). Rocha, Exhibit 3.

WHEREFORE, Defendant Kline, being disallowed from asking for reconsideration of her request to move for Leave to Amend and to amend her complaint for her Independent Action to Set Aside a Judgment for Fraud and to attach a copy of her amended complaint to her Motion for leave, Kline must rely on the Court to decide of its own accord to do justice.

Respectfully submitted,

 

 

Karen Marie Kline, Defendant, self-represented
XXXXXXXXXXXXXXXXXXXXXXX
Santa Fe, NM  87507
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CERTIFICATE OF SERVICE: I mailed a copy of the above Motion for Reconsideration to:

 

Jeanne Y. Sohn
Snell & Wilmer L.L.P., Attorneys for Wells Fargo Bank, N.A.
201 Third St. N.W. Suite 500
Albuquerque, NM 87102
(602) 382-6000
[email protected]

 

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