My portion of PreTrial Order

Wells Fargo sent me its portion of the PreTrial Order which took up several pages.

There were two small lines highlighted in yellow to indicate where I could put my side of the case.

I decided that I would not accept Wells Fargo Bank’s statements when in fact Wells Fargo has not produced evidence showing it has the right to foreclose under state statutes and the Universal Commercial Code.

I struck through all Wells Fargo’s statements that rely on Wells Fargo having standing to foreclose.

At the conference re the PreTrial Order the Judge ruled that Wells Fargo would have to prove all of the things I was showing to be contested. Happiness.

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Defendant’s Motion for Summary Judgment ~ Read more.

Motion to Exclude Bank’s Witnesses for failure to Comply with Scheduling Order ~ Read more.


 

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

Case No. D-101-CV-2008-0094

WELLS FARGO BANK, N.A.,
Plaintiff,
KAREN M. KLINE; PUEBLOS DE RODEO ROAD OWNERS ASSOCIATION, INC.; and, MANHATTAN CONDOMINIUM
ASSOCIATION,
Defendants.

 

DEFENDANT KAREN MARIE KLINE’S PORTION OF PRETRIAL ORDER

            Yesterday and the day before the post office was unable to tell me whether they delivered my Defendant’s Motion for Summary Judgment and Motion to Exclude Wells Fargo Bank’s Witnesses for Failure to Comply with Scheduling Order. I mailed the two motions by priority mail on Saturday. Scheduled delivery was Monday. But today, deadline for Summary Judgment Motions, there is still no confirmation that the motions were delivered.

I was traumatized yesterday by the failure to deliver. That’s because when my condo was foreclosed USPS was delivering my mail only sporadically. When my condo was foreclosed and sold without notice to me, I felt as if it was the fault of USPS. But later I learned that the Deutsche Bank lawyer had not mailed to me. In the Default Judgment of Foreclosure entered by Judge Sanchez it said I had not filed an Answer to the Complaint for Foreclosure but in fact I had and it was in the Record. Nevertheless I lost my condo and I was not allowed to redeem. I borrowed half the $124,000 I needed and paid $7,000 in interest to do that, but I was not allowed to redeem, either. It was extremely traumatic. My health has not fully recovered to this day.

So when USPS wasn’t delivering my motions I began to relive the loss of my condo.

In my severe anxiety yesterday, fearing I would once again be foreclosed without being heard, I rushed to get my side of the PreTrial Order to the Court. My brain injury makes thinking clearly under extreme distress impossible. I mailed my portion, not seeing that it was going to look as if it was an actual Pre-Trial Order if it was filed on the basis of having been sent in.

I’m housebound, walking is much more difficult than it was a few years ago. I can certainly see how the stress of foreclosure affects people so severely that it has increased suicide rates among Americans in foreclosure by 253%. If I could still stand without having to hold on to something, and if I could still drive, it would be easy to bring in my motions for filing. But, I can’t.

From talking with mediators I’ve found that they respect you in a way they did not find it possible to respect Judge Sanchez, who signed the Default Foreclosure Judgment despite the fact I had an answer filed and in the Record. The trauma hits and I relive it. This is a different time but when the trauma hits, it feels exactly the same and totally hopeless.

I am sending in the PreTrial Order again, attached to this, so that it won’t get date stamped and you can un-staple it and use it the way I expect it’s meant to be used.

A very helpful clerk, Victoria, has checked on my priority mail with my motions has not been received by the court. I mailed it Saturday. So I’m going to do another Motion to Accept as timely filed and mail it today, again, but not Priority.

Respectfully submitted,

 

Karen Marie Kline, Defendant, pro se
XXXXXXX
Santa Fe, New Mexico 87507

 

 

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

WELLS FARGO BANK, N.A.,
Plaintiff,

Case No. D-101-CV-2008-00942

KAREN M. KLINE; PUEBLOS DE RODEO ROAD OWNERS ASSOCIATION, INC.; and, MANHATTAN CONDOMINIUM
ASSOCIATION,
Defendants.

PRETRIAL ORDER

THIS MATTER having come before the Court on April 20, 2015, at a Pretrial Conference held before The Honorable Raymond Z. Ortiz, District Court Judge, pursuant to Rule 1-016(E) of the New Mexico Rules of Civil Procedure, and LR1-404 of the Local Rules of the First Judicial District Court, and Mr. Larry J. Montaño, Esq. having appeared as counsel for Plaintiff, and Ms. Karen Marie Kline (“Ms. Kline”) having appeared Pro Se; the following actions were taken.

  1. JURISDICTION AND PARTIES: Wells Fargo did not demonstrate that it had standing to foreclose when it filed this case. UCC, NMSA 55-3-301 provides that the party seeking to enforce the note has the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action. See Defendant’s Motion for Summary Judgment.
  2. GENERAL NATURE OF PARTIES’ CLAIMS. The parties’ claims are as follows:

(A)      Wells Fargo Bank N.A.’s claims:

  • Wells Fargo Bank, N.A. (“Wells Fargo”) is entitled to a foreclosure judgment against Ms. Kline on grounds that Ms. Kline executed a note and mortgage, now held by Wells Fargo, relating to certain real property located at 3255 Calle de Molina, Santa Fe, New Mexico 87505 (the “Property”); Kline defaulted on her note and mortgage by failing to make timely loan payments; Wells Fargo has a perfected, superior lien interest on the Property; Wells Fargo is entitled to a judgment against Ms. Kline, which amount Wells Fargo shall provide at the time of trial; Wells Fargo is entitled a decree of foreclosure and an order of sale of the Property.
  • Kline has no valid, legal, or factually supportable defense to Wells Fargo’s claim for a foreclosure judgment.

(B)       Ms. Kline’s claims as follows:

(1.) Wells Fargo is not entitled to foreclose for the following reasons:

  1. UCC, NMSA 55-3-301 provides that the party seeking to enforce the note has the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action.
  2. Wells Fargo’s copy of the note attached to Wells Fargo’s Complaint for Foreclosure, date stamped April 7, 2008, is not indorsed to Wells Fargo. Exhibit 1, page 2.
  3. Wells Fargo has provided no evidence that it had possession and ownership of the note at the time it filed this foreclosure.
  4. I mailed a Request for Production of the original note to Wells Fargo on May 26, 2009, and filed the Request the same day, but Wells Fargo has not produced the original note as required to have standing to foreclose. “If [the entity] was a successor in interest to a party on the [contract], it was incumbent upon it to prove this to the court.” Bank of New York v. Romero, 2014-NMSC-007.
  5. The Court’s Scheduling Order gives Wells Fargo till April 30, 2015 to produce the original note. However, even if the Original Note is produced by the Scheduling Order deadline, Wells Fargo failed to demonstrate that it had standing under New Mexico’s Uniform Commercial Code to bring the foreclosure action at the time it filed suit.
  6. UNCONTROVERTED FACTS: The following facts are established by admissions in the pleadings or by stipulations of counsel at the pretrial conference:
  • On or about March 18, 1993, Ms. Kline executed and delivered a promissory note (“Note”) payable to Bank United of Texas FSB in the amount of $72,000.00 (the “Loan”). Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • Kline has admitted signing the Note to Bank United of Texas, FSB.. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • Under the terms of the Note, Ms. Kline was required to make monthly payments in the amount of $534.60 to Bank United of Texas FSB. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • The Loan was secured by a mortgage encumbering the Property (the “Mortgage”). Kline executed the Mortgage on or about March 18, 1993.  Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • The Mortgage was recorded on March 23, 1993 in Book 907 Page 894 in the records of the County Clerk of Santa Fe County, New Mexico. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • On or about September 17, 1993, the Mortgage was assigned by Bank United of Texas FSB to GE Capital Mortgage Services, Inc. and recorded on June 4, 1996 as document number 947-880 in the records of the County Clerk of Santa Fe County, New Mexico. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • The Note was also transferred from Bank United of Texas FSB to GE Capital Mortgage Services, Inc. by way of a special indorsement on the Note. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • On or about March 9, 2000, Ms. Kline executed a loan modification agreement (the “Modification Agreement”) with GE Capital Mortgage Services, Inc. (F/K/A Traveler’s Mortgage Services, Inc. and F/K/A Shearson, Lehman, Hutton Mortgage Corporation). The Modification Agreement amended and supplemented the terms of the Note and the Mortgage.  Per the Modification Agreement the amount payable under the Note and Mortgage, as of March 1, 2000, was $92,495.11.  Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • Under the Modification Agreement, Ms. Kline was required to make monthly payments to GE Capital Mortgage Services, Inc. in the amount of $686.77. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • The Modification Agreement was recorded on June 19, 2000 in Book 1777 Page 774 as document number 1120081 in the records of the County Clerk of Santa Fe County, New Mexico. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • On or about July, 2005 GE Capital Mortgage Services, Inc. transferred the obligation evidenced by the Note to Wells Fargo. This is not demonstrated by an attachment to Wells Fargo’s Complaint for Foreclosure.
  • The Note was indorsed in blank by GE Capital Mortgage Services, Inc. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • On or about July 2005, an assignment of the Mortgage from GE Capital Mortgage Services, Inc. to Wells Fargo Bank, N.A. was recorded as document number 1388850 in the records of the County Clerk of Santa Fe County, New Mexico. Evidence of this is not attached to the Complaint for Foreclosure.
  • On or about August 2005, an assignment of the Mortgage from GE Capital Mortgage Services, Inc. to Wells Fargo Bank, N.A. was recorded as document number 1392582 in the records of the County Clerk of Santa Fe County, New Mexico. No such document is attached to Complaint for Foreclosure as evidence of standing and right to foreclose.
  • Both the July 2005 and August 2005 assignments indicate that “all beneficial interest in and to title to said Mortgage, together with the note and all other liens against said property securing the payment thereof, and all title held by the undersigned in and to said land” was transferred to Wells Fargo. Not attached to Complaint for Foreclosure. Standing must be demonstrated at beginning of case. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • The Mortgage provides that upon breach of any covenant or agreement in the Mortgage, including the covenant to pay when due any sums secured by the Mortgage, the holder may accelerate the indebtedness, foreclose on the Mortgage, and collect all costs and expenses of foreclosure, including attorneys’ fees. The Modification Agreement did not alter, void or cancel this provision of the Mortgage.  Mortgage follows note, Note has not been produced. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • In or around November 2007, Ms. Kline defaulted on her obligations under the Note, Mortgage and Modification Agreement by failing to make her monthly payments. Without evidence that Wells Fargo is the holder of the note, this is irrelevant. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • Wells Fargo declared the entire principal balance of the Note to be immediately due and payable. Without evidence that Wells Fargo is the holder of the note, this is irrelevant. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  • Kline has never cured the default and Ms. Kline has made no payment relative to the Mortgage since prior to November 2007. Without evidence that Wells Fargo is the holder of the note, this is irrelevant. Irrelevant without Evidence at filing of suit that Wells Fargo had standing.
  1. CONTESTED ISSUES OF FACTS: The contested issues of fact remaining for decision are:
  • Wells Fargo contends that there are no validly or competently contested issues of fact.Ms. Kline contends that: Wells Fargo does not have standing to foreclose. See Defendant’s Motion for Summary Judgment cited Bank of New York v. Romero 2014-NMSC-007.
  1. CONTESTED ISSUES OF LAW: The contested issues of law in addition to those implicit in the foregoing issues of fact are:
  • Whether Wells Fargo is entitled to foreclose on the Note and Mortgage;
  • Whether Ms. Kline’s counterclaims are valid counterclaims against Wells Fargo. Without Wells Fargo having standing to foreclose, counterclaims are irrelevant.
  1. EXHIBITS: Each party shall provide all other parties copies of all exhibits and shall make all demonstrative exhibits available for inspection no later than ___________. The parties intend to offer the following exhibits in evidence at trial: Without Wells Fargo having standing to foreclose, Exhibits are irrelevant. See Bank of New York v. Romero, 2014-NMSC-007
    1. Wells Fargo intends to offer the following exhibits at trial:

These are supposed to be Arabic numerals. They changed to Roman numerals and I can’t work out how to revert them. All of them are irrelevant without Wells Fargo having shown standing to foreclose when it filed suit.

  1. A copy of the Promissory Note at issue;
  2. The Mortgage;
  • The Modification;
  1. The Assignments of Mortgage;
  2. Correspondence between Ms. Kline and Wells Fargo;
  3. Portions of Wells Fargo’s Servicing Notes;
  • Portions of Ms. Kline’s discovery responses;
  • Portions of Ms. Kline’s deposition transcript;
  1. Portions of Wells Fargo’s discovery responses;
  2. Payoff Quote and supporting information;
  3. Portions of Ms. Kline’s payment histories;
  • Pleadings in prior foreclosure actions involving Ms. Kline;
  • Demonstrative or summary exhibits which have not yet been prepared;
  • Any and all documents and exhibits produced, disclosed, revealed, or necessitated through discovery and depositions;
  1. Any and all exhibits listed or offered by other parties in this matter that are not objected to by Wells Fargo;
  • Any and all deposition exhibits that are not objected to by Wells Fargo;
  • Any and all exhibits attached to Wells Fargo’s pleadings, motions, and briefs; and
  • Any and all rebuttal or impeachment exhibits.
  1. Kline intends to offer the following exhibits at trial: None. I rely on the law and Wells Fargo’s lack of standing to foreclose.
  2. If other Exhibits are to be offered, the offering party will mark their own Exhibits and make a list thereof. Lists of such Exhibits will be furnished to all opposing counsel and the Court at least 10 days prior to trial. At that time all such Exhibits will be made available for examination by opposing counsel.   This rule does not apply to rebuttal Exhibits, which cannot be anticipated.    Wells Fargo did not demonstrate standing to foreclose when it filed this foreclosure. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), wherein the U.S. Supreme Court said,

 

“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U.S. 737, 751 (1984).” … “longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed.” Lujan v. Defenders of Wildlife.

 

  1. Any counsel requiring authentication of an Exhibit must so notify in writing the offering counsel within 15 days after the Exhibit is made available to opposing counsel for examination. Failure to do so is an admission of authenticity. I, Karen Kline, have a brain injury and cannot do things as quickly as I would like. I need more time as an accommodation under the ACA, Title II. Additionally, without Wells Fargo having standing to foreclose exhibits are irrelevant.
  2. Any other objections to admissibility of Exhibits must, where possible, be made at least three days before trial, and the Court notified of such objections. Where possible, admissibility will be ruled on before trial, and objections reserved for the record. Without Wells Fargo having standing to foreclose there can be no trial
  3. At time of trial, each counsel will furnish to the Court two copies (and one copy to each opposing counsel) of the list of all Exhibits to be offered. Wells Fargo has not demonstrated standing to foreclose.
  4. All Exhibits will be offered and received in evidence as the first item of business at the trial. Wells Fargo did not demonstrate standing to foreclose at filing of case.
  1. DEPOSITIONS: Any party proposing to offer all or any portion of a deposition shall notify opposing counsel at least 10 days before trial of the offers to be made  (unless the necessity for using the deposition develops unavoidably thereafter). If objection is to be made, or if additional portions of a deposition are to be requested, opposing counsel will notify offering counsel at least 7 days before trial of such objections or requests.  If any differences cannot be resolved, the Court must be notified in writing of such differences at least 3 days before trial. Wells Fargo did not demonstrate standing to foreclose at filing of case.
  2. DISCOVERY: Discovery is to be completed by April 30.  Wells Fargo did not demonstrate standing to foreclose at filing of case.
  3. WITNESSES: Wells Fargo failed to comply with the Court’s Scheduling Order re Witness List. I have asked that Wells Fargo’s Witnesses be excluded for failure to comply with the Scheduling Order.

The parties will call or have available at trial: (Set out list for each party.)

  1. In the absence of reasonable notice to opposing counsel to the contrary, Wells Fargo will call or have available at trial the following witnesses: Wells Fargo failed to comply with the Court’s Scheduling Order re Witness List. I have asked that Wells Fargo’s Witnesses be excluded for failure to comply with the Scheduling Order.
    1. Ms. Kline;
    2. One or more corporate representatives of Wells Fargo;
  • Any witness identified by Ms. Kline, not objected to by Wells Fargo;
  1. Foundation witnesses, if and as required, for Trial Exhibits;
  2. Any rebuttal or impeachment witnesses; and
  3. Any witnesses identified by any party pursuant to Rule 1-030(B)(6) NMRA.
  1. In the absence of reasonable notice to opposing counsel to the contrary, M Kline will call or have available at trial the following witnesses:
  2. In the event there are other witnesses to be called at the trial a statement of their names and addresses and the general subject matter of their testimony will be served upon opposing counsel and filed with the Court at least 10 days prior to trial. This restriction shall not apply to rebuttal witnesses, the necessity of whose testimony reasonably cannot be anticipated before the time of trial. Wells Fargo failed to comply with the Court’s Scheduling Order and as a result a motion has been filed to exclude Wells Fargo’s witnesses.

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Each party shall submit proposed Findings of Fact and Conclusions of Law by ___________. Without standing to foreclose shown at the filing of this case, Wells Fargo cannot foreclose. See Bank of New York v. Romero, 2014-NMSC-007, and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), wherein the U.S. Supreme Court said,

“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U.S. 737, 751 (1984).”

 

“longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed.” Lujan v. Defenders of Wildlife.

 

  1. AMENDMENTS TO PLEADINGS: There were no requests to amend pleadings.
  2. MODIFICATIONS-INTERPRETATION: This pretrial order has been formulated after conference at which counsel for the respective parties have appeared. Reasonable opportunity has been afforded counsel for corrections or additions prior to signing by the Court. Hereafter, this order will control the course of the trial and may not be amended except by consent of the parties and the Court, or by order of the Court to prevent manifest injustice. The pleadings will be deemed merged herein. In the event of ambiguity in any provision of this order, reference may be made to the record of this conference to the extent reported by stenographic notes, and to the pleadings. Wells Fargo did not demonstrate at the filing of this foreclosure that it had standing to foreclose.
  3. TRIAL SETTING: The case was set for a non-jury trial call on May 26, 2015.  No definite setting was made, but it was estimated that the case will be reached for trial __________________.  Wells Fargo did not demonstrate at the filing of this foreclosure that it had standing to foreclose.
  4. MEMORANDUM: Estimated length of trial is 2 days. Possibility of settlement of this case is considered: Wells Fargo did not demonstrate at the filing of this foreclosure, as is required by law, that it had standing to foreclose.

DATED:  _________________

 

                                                                                   

Honorable Judge Raymond Ortiz

 

 

The foregoing proposed pretrial order (prior to execution by the Court) is hereby approved this __ day of April, 2015.

 

Holland & Hart LLP

 

 

By______________________

Larry J. Montaño
Julia Broggi
110 N. Guadalupe, Suite 1
Santa Fe, New Mexico 87505
TEL:    (505) 988-4421

 

Attorneys for Wells Fargo Bank, N.A.

 

~ and ~

 

Karen Marie Kline
By:                                         

Karen Marie Kline

xxxxxxx
Santa Fe, New Mexico 87505

Defendant Pro Se

 

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

 

WELLS FARGO BANK, N.A.,

Plaintiff,
Case No. D-101-CV-2008-00942

KAREN M. KLINE; PUEBLOS DE RODEO ROAD OWNERS ASSOCIATION, INC.; and, MANHATTAN CONDOMINIUM
ASSOCIATION,
Defendants.

 

CERTIFICATE OF SERVICE FOR
DEFENDANT KAREN MARIE KLINE’S PORTION OF PRETRIAL ORDER

 

CERTIFICATE OF SERVICE: I caused a true copy of DEFENDANT KAREN MARIE KLINE’S PORTION OF PRETRIAL ORDER to be mailed today, April 15, 2015, to:

 

 

Larry J. Montaño
110 N. Guadalupe, Suite 1
Post Office Box 2208
Santa Fe, New Mexico 87505
TEL:   (505) 988-4421
FAX:   (505) 983-6043

 

 

 

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