IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
WELLS FARGO BANK, NA.,
Plaintiff-Appellees,
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.
MOTION FOR REHEARING
I, Karen M. Kline, the Defendant in the trial court case, having read the Court of Appeals Memorandum Opinion filed on September 19, 2018, affirming the judgment entered by the district court below, moves this Court for Rehearing for the following reasons pursuant to Rule 12-404, NMRA. Pursuant to Rule 12-309(C) I have emailed Mr. Eckels, lawyer for Wells Fargo, to see if they oppose my Motion for Rehearing. He replied that they do.
1. FLAWED DOCKET AND LACK OF TRIAL TRANSCRIPT MAKE IT IMPROPER TO PUT THIS APPEAL ON THE SUMMARY CALENDAR
The docket is flawed. To use it as the basis of an appellate decision allows false entries to be controlling and is unjust. The docket is especially flawed in that at the September 17, 2018 hearing, the trial court denied my August 31, 2018 Motion to Correct the Docket to show “Objection” instead of “Response” on May 8, 2008. My May 8, 2008 filing was solely to object to not being served Wells Fargo’s Complaint for Foreclosure filed on April 7, 2008. May 8, 2008 was my first appearance in the case and I did not “Respond”, as the docket wrongly shows. I Objected. When my case was put on the summary calendar the appellate court did not have my filing to see what I actually wrote. My objection affects personal jurisdiction. In Garcia-Lopez v. State, 760 P.2d 142 (1988) 107 N.M. 450, the New Mexico Supreme Court wrote, “Resolution of a case on summary calendar is appropriate only when the facts are undisputed.” In the instant case the fact I objected, rather than responded, is disputed. For this reason, among others that follow, this case is appropriate for the general calendar, and not appropriate for the summary calendar.
Another reason to put this case on the general calendar is that the Docket shows Wells Fargo’s July 19, 2011, Affidavit of Lost Original Note, without any indication that at trial Wells Fargo admitted its Affidavit of Lost Original Note was false. This is a genuine issue of substantial evidence. A false affidavit does not support the reasonable conclusion that a certain act or omission occurred. In fact, a false affidavit is a fourth degree felony, a fact which I brought forward in my Informal Memorandum in Opposition, pages 5-6 and 20-21. In such a case assignment to the summary calendar is not proper because it allows a false affidavit to wrongly appear as true when only the docket is reviewed as opposed to the transcript of trial testimony where the falsity is admitted. The New Mexico Supreme Court wrote,
We believe that assignment to the summary calendar, as provided for in N.M.R.Crim. App. 207(d), is proper in cases where the application of legal principles to the facts involved is clear and where no genuine issue of substantial evidence is involved. State v. Anaya, 647 P.2d 413 (1982) 98 N.M. 211.
The only way for the Court of Appeals to see Wells Fargo’s admission that its Affidavit of Lost Original Note was false, is to review the transcript of the trial. The transcript is available to the Court of Appeals only after my case is on the General Calendar.
Similarly, the trial transcript is needed in order to determine whether Wells Fargo can establish its standing under the Lost Note Provisions of the UCC by means of its business records which show that Wells Fargo acquired Wachovia, which had previously merged with First Union, the document custodian. The crunch is that Wells Fargo’s business records show that its Wachovia acquisition began in October, 2008, long after Wells Fargo attached a copy of the note to its Complaint for Foreclosure, filed on April 7, 2008.
The fact is that there is no record of the Original Note being seen since 2002. This fact is in the testimony at trial and is a significant reason why it is proper to put this appeal on the general calendar so that the Court of Appeals can see the trial transcript.
In its Memorandum Opinion the Court of Appeals wrote that a plaintiff can prove its standing by way of evidence of its right to enforce an instrument that has since been lost,
‘The fact that standing existed at the time Plaintiff filed suit, however, can be proven in many different ways, including by way of evidence of its right to enforce an instrument that has since been lost” page 5
The trial transcript is needed in order to review Wells Fargo’s testimony which evidences that the instrument was not lost “since” Wells Fargo filed its Complaint for Foreclosure. In order for the Court of Appeals to have the trial transcript for review of Wells Fargo’s testimony, the case must be on the General Calendar.
I wrote in my Informal Memorandum in Opposition, on page 11,
The necessity of having all of the exhibits and transcript of testimony in relation to the facts regarding the Original Note is a reason why the Court should not decide this case on the summary calendar. In summary calendar cases, the Court doesn’t have access to exhibits or trial transcripts. In order for the Court to decide this case with its complexity of facts, they’ll need to consider the exhibits and trial testimony. For this reason I am asking the Court to reassign the case to the general calendar. See Rule 12-210(D)(4).
Rule 12-210(D), along with the summary calendar, is discussed in Udall v. Townsend, 968 P.2d 341 (1998) 126 N.M. 251 1998-NMCA-162,
The summary calendar allows us to dispose of certain cases in an expeditious manner. See Rule 12-210(D) NMRA 1998 (describing procedure for summary calendar). It is used to decide those cases where “`the application of legal principles to the facts involved is clear and where no genuine issue of substantial evidence is involved.'” Garcia Lopez v. State, 107 N.M. 450, 450, 760 P.2d 142, 142(1988) (quoting State v. Anaya, 98 N.M. 211, 212, 647 P.2d 413, 414 (1982)). Cited from Udall v. Townsend, 968 P.2d 341 (1998) 126 N.M. 251
Under Udall, cited above, the summary calendar is improper for the instant case where there are genuine issues of substantial evidence regarding the Original Note. Further, the legal principles involved are not as clear as the Memorandum Opinion portrays. If indeed New Mexico Supreme Court’s decision in Deutsche v. Johnston, 369 P.3d 1046 (2016) 2016-NMSC-013, was the same as procedures described by the Court of Appeals and generally practiced at the time then Deutsche Bank would not have argued that, “requiring foreclosure plaintiffs to establish that they had standing at the time of filing contravenes our interest in judicial economy,” Deutsche v. Johnston, 2016, ¶ 20. It is the change to which Deutsche objected that I am relying on in my appeal under the issue related to standing under Deutsche v. Johnston, 2016.
Udall definitively, and apropos to this case, states that when there is some question regarding the facts material to the appeal the case is assigned to the general calendar so that “we may review the transcript in order to ascertain the facts”,
in any case where there is some question regarding the facts material to the appeal, whether the record shows something else or the appellee asserts that the facts are not as stated, the case is assigned to the general calendar so that we may review the transcript in order to ascertain the facts. Udall
2. LACK OF SERVICE CAUSING LACK OF PERSONAL JURISDICTION
In ¶¶ 18 and 20 of Deutsche v. Johnston, 2016, the New Mexico Supreme Court wrote,
When standing is a prudential consideration, it can be raised for the first time at any point in an active litigation, just like a defense of failure to state a claim, and unlike defenses relating to personal jurisdiction, venue, and insufficient service of process, all of which must be raised in an initial or amended responsive pleading. Compare Rule 1-012(H)(2) with Rule 1-012(H)(1).
The fact is that I raised insufficient service of process with an understanding that it related to personal jurisdiction in my initial filing on May 8, 2008. In order to see my actual filing which objects, rather than the misleading entry in the docket which says, “Response”, it is proper to recalendar my appeal to the general calendar.
On September 10, 2018, I filed a correction, Exhibit 1, to my error of trying to be agreeable for the sake of my other issues rather than strenuously offensive regarding not being served. After the Appeal Court clerks sent me a sheet saying I must file a motion for leave to file my correction, I filed on September 17, 2018, my Motion for Leave to File Correction along with my attached Correction, Exhibit 2.
Clearly a strenuous offense is superior to being “friendly” as a defense, but I have a brain injury that caused my great fear of offending the Court of Appeals due to my previous experience with my condo appeal, Court of Appeals No: 26930, District Court No. D-0101-CV-2005-00515. I was not allowed to redeem my condo because of HSBC v. Fenton, 125 P.3d 644, 138 N.M. 665, 2005-NMCA-138. My fear confused me, a confusion which I sought to correct on September 10 and September 17, 2018.
In my condo case there had been no hearing, despite my answer to Deutsche Bank’s Complaint for Foreclosure. The trial court entered a default judgment despite my answer, and as a result of that erroneous judgment Deutsche did not send me a copy of the foreclosure judgment, nor was I notified of the foreclosure sale, thus nullifying my right to attend the sale and destroying any chance I had to be the first to file to redeem, as required under HSBC v. Fenton.
When the Court of Appeals affirmed what looked to me like the mutilation of my fundamental, constitutional right to due process and to be heard, it scared me more than any Friday the 13th movie ever had, or could.
Crucial in the instant case is that the United States Constitution and New Mexico Constitution provide me the right to due process before I am deprived of property:
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
New Mexico Constitution:
Sec. 18. [Due process; equal protection; sex discrimination.] No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall be July 1, 1973. (As amended November 7, 1972, effective July 1, 1973).
In the instant case, when I found on CaseLookUp that Wells Fargo had filed a Complaint for Foreclosure and had not served me, I immediately filed, before any other pleading, an objection to not being served. The clerks showed my Objection as a Response on the docket. The Court of Appeals needs the actual filing in order to see that it was not a Response, but an Objection. Seeing what I actually filed is important and shows that it is proper to recalendar and put this appeal on the general calendar.
As an ordinary person, but one with a brain injury, representing myself, I understood my objection to not having been served to be an objection to the court going forward without proper service on me. I was shocked when the Court took the position that since I had found the foreclosure there was no need for service. I continued to insist that I be provided due process and be served, but the Court denied me that due process. Eventually I responded to the Complaint for Foreclosure by filing an Answer, but I continued to feel that my basic right to due process had been violated when I objected on May 8, 2008 to not being served and the trial court allowed Wells Fargo to proceed despite the fact I had been denied due process when Wells Fargo did not serve me.
The United States Constitution provides me a right to due process and if a court fails to provide due process it is prohibited from exercising personal jurisdiction over me. In the instant case, the Court failed to provide me the due process to which I have a Constitutional right and as a result the Court deprived itself of personal jurisdiction while depriving me of due process. This is a fundamental error, one which violates a federal fundamental right enumerated in the U.S. Constitution.
Rule 12-321, NMRA. Scope of review; preservation. This rule enumerates fundamental error. Prior to 2016, when the committee renumbered Rule 12-216 NMRA and placed it in the general provisions article as Rule 12-321 NMRA, Gutierrez v. Meteor made the point that fundamental error is not confined to criminal cases,
The fundamental error doctrine is codified in Rule 12-216(B)(2) of the Rules of Appellate Procedure, which provides: “This rule shall not preclude the appellate court from considering . . . in its discretion, questions involving . . . (2) fundamental error.. . .” There is nothing in the rule’s text to indicate that this discretion is confined only to criminal cases. Estate of Gutierrez Ex Rel. Jaramillo v. Meteor Monument, 274 P.3d 97 (N.M. 2012)
It is my most sincere hope that the appellate court will consider the fundamental error in Wells Fargo’s foreclosure action against my home and garden, keeping in mind both the fact that the first time I appeared it was to object and only object, and 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. Dailey v. Foster
The above issue was conceded in error and appellant, noting her brain injury, diligently sought and continues to seek to correct the error and requests that the court consider the issue of fundamental error in relation to lack of service causing lack of personal jurisdiction.
3. UNJUST ENRICHMENT AND MONEY HAD AND RECEIVED WERE NOT ABANDONED
In my Informal Docketing Statement I wrote that Wells Fargo qualified me for a Home Affordable HAMP loan modification but then broke its word after I kept the terms of the agreement/contract. Wells Fargo could have been being paid since 2009 but refused to accept payments after it broke its word. Instead of lowering interest rates so Americans could keep their homes, Wells Fargo used TARP funds to buy Wachovia. TARP funds were taxpayer money which Congress said would be used to modify loans so people could keep their homes. In my Informal Memorandum in Opposition I alluded to this and explained,
Parenthetically, Wells Fargo acquired Wachovia using Troubled Asset Relief Program (TARP) funds which came under The Emergency Economic Stabilization Act of 2008. Taxpayers were led to believe the funds would help homeowners by means of modification of their home mortgages.
I in no way forgot or abandoned the issue of Wells Fargo taking 25 Billion in tax payer money and using it for private gain by buying Wachovia, rather than for the public good by modifying mortgages under the Home Affordable Modification Program. Wells Fargo got more tax dollars in the bailout than any other bank. Money had and received and unjust enrichment apply to Wells Fargo, not me, in that Wells Fargo bought Wachovia rather than lowering high interest rates like mine.
It would seem that the Court of Appeals made an unintentional error revealing subconscious feelings, when it wrote “Plaintiff” on page 6, line 6, instead of Defendant. The whole of the Memorandum Opinion was written in support of the Plaintiff, but in the end, the underlying feeling may have been that the Defendant deserved support.
4. WHETHER UNDER DEUTSCHE V. JOHNSTON, 2016, A FORECLOSING PARTY CAN ATTACH A COPY OF THE NOTE TO ITS 2008 COMPLAINT AS IF IT HOLDS THE NOTE THEN SWITCH TO UCC LOST NOTE PROVISIONS WITHOUT HAVING SEEN THE NOTE SINCE 2002
In its Memorandum Opinion the Court of Appeals agrees on page 3 that “a foreclosure plaintiff must establish its right to enforce a note under one of the three statutory categories described in NMSA 1978, Section 55-3-301 (1992).” This is in keeping with New Mexico Supreme Court’s opinion in Deutsche v. Johnson, 2016,
The UCC provides that there are three scenarios in which a person is entitled to enforce a negotiable instrument such as a promissory note: (1) when that person is the holder of the instrument; (2) when that person is a non-holder in possession of the instrument who has the rights of a holder; and (3) when that person does not possess the instrument but is still entitled to enforce it subject to the lost-instrument provisions of UCC Article 3. Section 55-3-301. To show a “direct and concrete” injury, Deutsche Bank needed to establish that it fell into one of these three statutory categories that would establish both its right to enforce Homeowner’s promissory note and its basis for claiming that it suffered a direct injury from Homeowner’s alleged default on the note. ¶ 14
What is confusing is that the Court of Appeals either misunderstands or appears to contradict itself when it opines that I “graft” on the requirement to elect one of these three statutory provisions and the requirement to identify the election in the complaint,
Defendant then proceeds to graft onto that statute two additional requirements that a plaintiff should satisfy at the time of the complaint by arguing that the plaintiff must elect one of those three statutory provisions before filing suit and also should identify that election in the complaint. [MIO 12-13] Put simply, there are no such requirements.
In my Informal Memorandum in Opposition I quoted the New Mexico Supreme Court, verbatim, and noted that it, the New Mexico Supreme Court, says “one” of the three categories, rather than the group as a whole,
The Supreme Court wrote, “Deutsche Bank needed to establish that it fell into one of these three statutory categories,” Deutsche v. Johnston, 2016 ¶ 14. As it reads, this statement says that one of the three statutory categories, rather than the group as a whole, must be identified by the Plaintiff in its Complaint for Foreclosure in order to establish Plaintiff’s right to enforce Homeowner’s promissory note and to establish the basis for claiming it suffered a direct injury from Homeowner’s alleged default on the Note.
I arrived at my belief that the New Mexico Supreme Court meant precisely what it said, when it said, “one”, by reading subsequent paragraphs in the decision, several times. For instance, in ¶ 23 it appeared undeniable that Deutsche Bank was arguing against. The argument appears to be against ¶ 14. That Deutsche bank was arguing against led me to believe that the Supreme Court had said something out of the ordinary in ¶ 14 when it said, “Deutsche Bank needed to establish that it fell into one of these three statutory categories.” If “one” was out of the ordinary, then the ordinary way of things must have been more than one. For instance, it would have been ordinary for a foreclosing party to file its Complaint for Foreclosure with a copy of the original note, then later switch to the Lost Note provisions of the UCC if the Original Note could not be produced. I felt that the prohibition against switching from one provision to another was the change Deutsche did not want.
¶ 23 begins,
Further, although we are sympathetic to the additional burdens this may impose on an entity seeking to foreclose on a home, New Mexico is hardly alone among the states in requiring a foreclosure plaintiff to prove that it was entitled to enforce the note when it filed suit. Deutsche v. Johnston, 2016
To me, the above means the foreclosure plaintiff had to be able to prove it held the note, or that the note was lost. It couldn’t have it both ways, though whichever way it chose to go, it had the whole litigation of the case to do it. Paragraphs 26 and 27 clarify,
{26} We further disagree with Deutsche Bank’s argument that the Court of Appeals’s opinion in this case, Deutsche Bank Nat’l Tr. Co., 2014-NMCA-090, ¶¶ 11-13, requires that a “plaintiff conclusively establish its standing upon first filing the complaint.” … We agree with Deutsche Bank that “it is only at trial or in a dispositive motion that plaintiffs are required to prove the necessary elements of their claims,” including standing, and that a bare statement that the plaintiff holds the note may satisfy pleading standards. See N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co., 2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342 (“In reviewing the district court’s decision to dismiss for failure to state a claim, we accept as true all well-pleaded factual allegations in the complaint and resolve all doubts in favor of the complaint’s sufficiency.”).
{27} However, this is an issue of proof rather than pleading standards. The elements of standing are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, [and therefore] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan, 504 U.S. at 561. For example, a foreclosure plaintiff may satisfy pleading requirements by simply alleging that it is the holder of the note without attaching any additional documentary evidence, but when a defendant subsequently raises the defense that the plaintiff lacks standing to foreclose, the plaintiff must then prove that it held the note at the time of filing. Emphasis added. Ibid.
In the case of Wells Fargo’s foreclosure against my home, after I raised the defense that Wells Fargo lacked standing to foreclose, Wells Fargo created an Affidavit of Lost Original Note and filed it on July 19, 2011. At trial, however, Wells Fargo admitted that its Affidavit of Lost Original Note was false.
In order for the Court of Appeals to see the transcript from trial and Wells Fargo’s admission of falsity/perjury this appeal needs to be recalendared to the general calendar. See, Flawed Docket and Lack of Trial Transcript, above.
Seeing the trial transcript is vital to deciding this “Deutsche v. Johnston, 2016” issue of my appeal re standing, the UCC, and the Original Note. This is because Wells Fargo’s business records, produced at trial, show that the last time the Original Note was seen was in 2002.
The Court of Appeals wrote, page 5 of its Memorandum Opinion,
‘The fact that standing existed at the time Plaintiff filed suit, however, can be proven in many different ways, including by way of evidence of its right to enforce an instrument that has since been lost” page 5
In this case the instrument is not one that has “since been lost.” Wells Fargo filed its Affidavit of Original Note on July 19, 2011, in order, presumably, to give the impression that the Original Note had “since been lost” but at trial Wells Fargo admitted that its Affidavit of Lost Original Note was false. The fact is, there is no record of the Original Note being seen since 2002. This fact is in testimony at trial and is a significant reason why it is proper to recalendar this appeal on the general calendar in order for the Court of Appeals to see the trial transcript.
In diligently trying to understand the distinction between “at” and “as of” brought forward by the Court of Appeals, at the bottom of page 4 of its Memorandum Opinion,
Defendant is arguing that standing must be established at the time of filing suit when Deutsche Bank actually says that, “standing must be established as of the time of filing suit.” Id. ¶ 20.
I read ¶¶ 14, 20, 21 and 23 repeatedly and noticed that the New Mexico Supreme Court began paragraph 21, as follows,
{21} There are sound policy reasons for requiring strict compliance with the traditional procedural requirement that standing be established at the time of filing in mortgage foreclosure actions. Deutsche v. Johnston, 2016.
I understood, “requiring a foreclosure plaintiff to prove that it was entitled to enforce the note when it filed suit,” to mean that at/“as of” the time of filing the foreclosure plaintiff had to be entitled to foreclose and had to be able to prove that. If, for instance, the foreclosure plaintiff filed as the holder of the note, as Wells Fargo did in this case, then the foreclosure plaintiff had to be able to prove at some time within the case that its entitlement as holder existed at the time it filed suit.
the plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.” (internal quotation marks and citation omitted)); Deutsche Bank Nat’l Tr. Co. v. Mitchell, 27 A.3d 1229, 1234-36 (N.J. Super. Ct. App. Div. 2011) (stating that a plaintiff must have standing at the time the foreclosure complaint is filed, and a lack of standing cannot be cured by showing that a plaintiff acquired standing after the complaint was filed); Wells Fargo Bank, N.A. v. Marchione, 887 N.Y.S.2d 615, 616-17 (N.Y. App. Div. 2009) (noting that a plaintiff-assignee lacked standing where the note and mortgage were assigned to the plaintiff after commencement of the foreclosure action); U.S. Bank Nat’l Ass’n v. Kimball, 2011 VT 81, ¶¶ 12-20, 27 A.3d 1087 (stating that standing must be established at the time of filing suit, and it did not contravene the interest of judicial efficiency to dismiss the complaint of a foreclosure plaintiff who acquired standing after the complaint had been filed). As a result, we conclude that it is not presumptuous to require, as do a substantial number of other states, that a company claiming to be a mortgage holder must produce proof that it was entitled to enforce the underlying promissory note prior to the commencement of the foreclosure action by, for example, attaching a note containing an undated indorsement to the initial complaint or producing a note dated before the filing of the complaint at some appropriate time in the litigation. Ibid. ¶23
It appears that “at some appropriate time in the litigation” is linked inseparably to “a company claiming to be a mortgage holder.” In Wells Fargo’s foreclosure action against my home and garden it attached a copy of the note to the initial complaint, but was unable to produce the note at any time in the litigation, nor could Wells Fargo prove that it had the Original Note when it filed its foreclosure complaint, then later lost the original note.
Based on the above, I appealed in my Informal Docketing Statement, the trial court allowing Wells Fargo to Amend its Complaint for Foreclosure. If Wells Fargo did not have standing because it did not hold the note it showed in its Complaint for Foreclosure, then Wells Fargo did not have standing to Amend its Complaint.
5. REGARDING “TRANSFER”
On page 6 of its Memorandum Opinion the Court of Appeals writes,
Plaintiff seems to be suggesting that the trial evidence could have supported findings that the note was being “transferred,” for purposes of Section 55-3-309, when it was lost. But the word “transfer,” as used in that section requires more than the mere change of possession; instead, “transfer,” as used in Section 55-3-309, is explicitly defined by New Mexico statute, which explains that “[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” NMSA 1978, § 55-3-203(a) )1992) emphasis added).
I, the Defendant (“Plaintiff” in the above writing is inaccurate) used the word “transfer” specifically because that is the word the Fannie Mae Announcement 08-12, published May 23, 2008 used in regard to “Note Holder Status for Legal Proceedings Conducted in the Servicer’s Name,” Exhibit 3,
The temporary transfer of possession, and any reversion of possession to Fannie Mae, are evidenced and memorialized by this Section of the Guide. This Guide provision may be relied upon by a Court to establish that the servicer conducting the foreclosure, bankruptcy, probate, or other legal proceeding in its name has possession, and is the holder, of the note during the foreclosure, bankruptcy, probate, or other legal proceeding, unless the Court is otherwise notified by Fannie Mae. Page 3 Exhibit 3
Fannie Mae itself uses the word “transfer” in relation to possession, even when possession is temporary. Fannie Mae’s use of the word matches the statutory meaning,
“[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” NMSA 1978, § 55-3-203(a) )1992) emphasis added).
Since Fannie Mae provides a scenario, the Court of Appeals is in error to write,
“Thus, regardless of whether the note went missing while in transit between the entities involved, there is no scenario by which Defendant’s theory of “loss in transit” would amount to a loss resulting from “transfer,” as that term is used in Section 55-3-309(a)(ii).
I did not write a ‘theory of “loss in transit”’, I in fact wrote that the note was transferred to Fannie Mae or First Union in 2002,
Wells Fargo failed to prove that loss of possession of the Note was not a result of the September 21, 2002 transfer to either FNMA or First Union. There is no record of the Note being seen after the September 21, 2002 transfer. By failing to establish that the Note was not lost in the transfer, Wells Fargo fails to qualify to enforce the note under 55-3-309 (ii) “the loss of possession was not the result of a transfer by the person or a lawful seizure.” Further, Wells Fargo perjured itself in its affidavit of July 19, 2011. Certainly it would have been preferable to show, had there been facts to support that choice, that the note had transferred successfully to either FNMA or First Union and that the Note had been lost thereafter.
Under 55-3-309. Enforcement of lost, destroyed, or stolen instrument
(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
On the face of Wells Fargo testimony regarding the Original Note, the fact there is no record of the entity that was to have received the note, actually receiving it, raises the question of whether the note was received as opposed to being lost as the result of transfer. There was nothing in Wells Fargo’s testimony at trial that showed Wells Fargo was entitled to enforce the instrument under 55-3-309(ii). Testimony at trial is available to the Court of Appeals when the appeal is put on the general calendar.
6. MOTION TO AMEND SHOULD NOT BE DENIED
In State v. Hunter, 2006-NMSC-043, 140 N.M. 406, 143 P.3d 168, the New Mexico Supreme Court discussed “without merit” within the framework of a criminal case in which counsel had “incorrectly determined that Defendant’s motion to dismiss was without merit, and the Missouri court had proper jurisdiction to issue the 1997 modification to the custody order,” ¶ 15. The Supreme Court went on to write,
{16} Defendant first argues that counsel erred in determining that his motion to dismiss was without merit. We first consider whether there is a factual basis for this claim, and then consider whether a reasonably competent attorney could have reached a similar conclusion.
Applying the Supreme Court’s reasoning and decision to my case, my Motion to Amend should be granted because there is a factual basis for using the word, “transfer” in that it is the word Fannie Mae uses in its Announcement 08-12, published May 23, 2008 regarding “Note Holder Status for Legal Proceedings Conducted in the Servicer’s Name,” Exhibit 3, See above.
The Court of Appeals specifically wrote at the top of page 7, “there is no scenario by which Defendant’s theory of “loss in transit” would amount to a loss resulting from “transfer,” as that term is used in Section 55-3-309(a)(ii).” This however is in error because I did not say, “transit”. I specifically wrote, “transfer.” Page 3 of Fannie Mae’s “Note Holder Status for Legal Proceedings Conducted in the Servicer’s Name,” uses the specific word, “transfer.”
The temporary transfer of possession, and any reversion of possession to Fannie Mae, are evidenced and memorialized by this Section of the Guide. This Guide provision may be relied upon by a Court to establish that the servicer conducting the foreclosure, bankruptcy, probate, or other legal proceeding in its name has possession, and is the holder, of the note during the foreclosure, bankruptcy, probate, or other legal proceeding, unless the Court is otherwise notified by Fannie Mae. Page 3 Exhibit 3
The Court of Appeals’s paragraph in which it erroneously says, “there is no scenario by which Defendant’s theory of “loss in transit” would amount to a loss resulting from ‘transfer’,” whereas Fannie Mae itself used the word “transfer” in 2008 in relation to temporary possession, ends by saying, “her motion to amend the docketing statement is denied.
Because there is a factual basis for writing “transfer”, my Motion to Amend should be granted under the Supreme Court reasoning in its State v. Hunter decision.
Motion to Amend is viable because Fannie Mae used the word “transfer” in relation to temporary possession transfer, which is what I was using it for in my motion to amend.
WHEREFORE for the foregoing reasons I move this Court for rehearing.
Respectfully submitted,
Karen M. Kline, aka Karen Marie Kline, pro se
You must type or word process all of the information required on this form.
AFFIDAVIT OF SERVICE FOR MOTION FOR REHEARING
I, Karen M. Kline (your full name), being duly sworn upon his or her oath or affirmation, hereby declares under penalty of perjury that he or she mailed the foregoing Emergency Motion for Rehearing to the following people or entities at the addresses indicated on the 2nd day of October, 2018 .
The following spaces are for the names and addresses of the people you are required to mail or deliver the motion for extension to. You must fill them all in. The district court clerk or the judge=s secretary may be able to help you with these names and addresses.
Larry Montano (name of opposing counsel)
110 N. Guadalupe, Suite 1 (street or P.O. address of opposing counsel)
Santa Fe, NM 87501-1849 (city, state, zip code of opposing counsel)
James P. Eckels (name of other counsel or party)
410 17th St. Ste. 2400 (street or P.O. address of other counsel or party)
Denver, CO 80202 (city, state, zip code of other counsel or party)
(Sign your name here in front of a Notary Public)
Subscribed and sworn to before me this 2nd day of October , 2018 .
Notary Public
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_______________________________