Brief re Due Process

When Judge Vigil saw what I was getting at re the Certificate as to the State of the Record, he had that changed, which as a judge he had that power to do. He did not abide by the law, rather he changed the evidence.


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

Deutsche Bank National Trust,
Plaintiff,
v.                                                                                   No. D-0101-CV-2005-00515
Karen Marie Kline, Pro Se, et al,
Defendants.

BRIEF REQUESTED BY THE COURT REGARDING RULE 1-055 AND NOTICE

COMES NOW, Karen Marie Kline, pro se, and states as follows:

1.        Fundamental to default judgment is underlying due process. In this case due process was lacking. Plaintiff served Kline the Complaint on March 18, 2005. On March 21, 2005 Kline (also “I”, “me”, “mine”) filed Chapter 13 to save her home from foreclosure sale when she knew she could sell her rental and pay the arrears and her creditors if she had more time. On March 29 Plaintiff served Kline the Amended Complaint. The existence of the automatic stay made this service void. “Court actions taken in violation of the automatic stay are void and without effect.” Roberts v. C.I.R., 175 F.3d 889; Parker v. Bain, 68 F.3d 1131; Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d 1020. “Actions taken in violation of stay are void rather than merely voidable,” 11 U.S.C.A. §362(a) – Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass’n, 997 F.2d 581. “Ordinarily, any action taken in violation of stay is void and without effect, even where there is no actual notice of existence of stay,” In re Calder, 907 F.2d 569.

2.        On July 1, 2005, stay was lifted in favor of Deutsche. Because Rule 1-005 requires that every paper be served upon each of the parties, Deutsche was required to now serve the Amended Complaint, previously void when served in violation of the stay.

3.        On July 25, 2005 Amended Complaint Summons was again issued to all defendants but not Kline. Failure to serve the Amended Complaint on Kline violates Rule 1-005. The fact is that July 25, 2005 was 24 days after the stay had been lifted. Rule 1-006 provides that in calculating time, the day of the act from which the time begins to run shall not be included. By the same rule I had been served the Complaint three days before my Chapter 13 was filed, so together that is a total of 27 days of my thirty (30) days to answer. I was not in default and I had a right to be served the Amended Complaint, but Leverick did not serve me despite being required to do so.

4.        Because I believed in good faith that Leverick would follow the rules rather than violate them, I waited for the Amended Complaint to be served. I knew Leverick had to involve the other defendants, so I knew the Amended Complaint was a necessity.

5.        Because of my brain damage and consequent mental disability I have an imperfect sense of time. When I felt that it was getting to be pretty long I began to fear that the Amended Complaint had possibly been sent by mail and I had not received it. I knew that the other defendants were legally involved because my Realtor for the sale of my rental, Don Holman, called Leverick, spoke with him, and reported to me that Leverick had said there would be court proceedings in September or October because of the Second Mortgage Lien Holder, American General. When I sold my rental at the end of September, I paid American General, but I was still expecting to receive the Amended Complaint. Finally I got really worried and filed asking for accommodation under the ADA, Title II, hoping that if the Amended Complaint had been sent, but was languishing someplace unknown to me, that I would have sufficient additional time to not be hurt by that. And, I also filed a minimal answer so that I would not be in default, in case, again, the Amended Complaint was sent but I hadn’t received it. I knew from Rule 1-015, that I had 10 days from service of the Amended Complaint to answer, and it had not yet been served on me when the Automatic Stay wasn’t in place, at least that I knew of. The Record, of course, shows that it was served, once the legal time to serve had arrived, on all the other defendants, but not me.

5.        It was prejudicial error to file on August 5, 2005, and to rely in the Default Judgment of December 15, 2005, on a Certificate as to the State of the Record that failed to account for the automatic stay. The Certificate should be stricken.

6.        It was a violation of Rule 1-011 for Leverick to write and file a misleading Certificate as to the State of the Record and Motion for Summary Judgment and Application for Entry of Stipulated Judgment and Default Judgment. These violations have cost me immeasurable emotional pain and over $7,500 in the cost of borrowing money to redeem when had I known about the proceedings I could have paid the arrears, as indeed I tried to do the day after February 27, 2006 when the clerks refused to accept my redemption deposit: I had my bank wire to Ocwen all of the money they said was in arrears, plus $1,000 to cover the next month’s mortgage payment. I provided a copy of the wire instructions with my earlier pleading. It has also cost me $5,000 which I paid to Tami Schneider when I was unable to adequately present my case myself after the insufficient notice of hearing, coming less than 24 hours before the hearing. I should be compensated these amounts under the authority provided by Rule 1-011 to sanction. Punitive damages should be ordered to dissuade Leverick from this type of violation in the future.

7.        On August 5, 2005, relying on the prejudicial Certificate, a Motion for Summary Judgment and Application for Entry of Stipulated Judgment and Default Judgment was filed. The Certificate of Service shows it was not mailed to me. It should be stricken because it relies on the prejudicial error of the Certificate as to the State of the Record and because it relies on violation of Rule 1-015.

8.        Regarding notice, Western Bank v. Fluid Assets Dev. Corp., 111 N.M. 458, 806 P.2d 1048 (1991), says, “Mortgagee first lienholder could not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale.” It must be equally the case that Mortgagee first lienholder can not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve the defendant who had paid on the property faithfully for over fourteen years.

9.        On March 8, 2006, hearing was held to Approve the Sale. I received written notice less than twenty-four hours in advance which denied me adequate time to prepare and denied me due process. The law on this is clear:

“A judgment is not void merely because it is erroneous. It is void only if the court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or if the court acted in a manner inconsistent with due process of law. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973) and cases cited therein.” Taken from [8], In re Center Wholesale, Inc., 759 F.2d 1448.

The case at [8] continues, “We have previously acknowledged that a judgment may be set aside on voidness grounds under Rule 60(b)(4) for a violation of the due process clause of the Fifth Amendment. Winhoven v. United States, 201 F.2d 174, 175 (9th Circuit 1952). The Supreme Court set forth the due process requirements for notice in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950):

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to
present their objections. The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance.

Id. At 314, 70 S.Ct. at 657 (citations omitted).

[9] The Court later explained that “[t]he purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, Gas & Water Division v. Craft, 436 U.S 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978) (footnote omitted). Owens-Corning claims that Center’s mailgram notice, received on day before the hearing, came too late and provided insufficient information to permit Owens-Corning adequately to prepare and present its objections. We agree.”

When I was given less than 24 hours notice of the March 8, 2006, hearing, the notice came too late to permit me to adequately prepare and present my objections and violated the requirements of the Due Process Clause. Therefore, the Approval of Sale should be set aside.

WHEREFORE, I pray the Court to Order:

1.        the Amended Complaint be served on me;

2.        the Certificate as to the State of the Record to be Stricken;

3.        the Motion for Summary Judgment and Application for Entry of Stipulated Judgment and Default Judgment to be Stricken;

4.        the Foreclosure Judgment and the Order Approving the Sale to be set aside;

5.        my condo returned to me immediately in as good condition as when it was taken, or

6.        alternatively to provide the money to return it to that condition;

7.        allowing for a hearing if there is a discrepancy in its condition;

8.        rents in the amount of $900.00 per month for the time it was held, at a rate of $900.00 divided by the number of days in the month, times the number of days in each month that it was held;

9.        my redemption deposit to be released to me immediately;

10.        Sotheby’s broker Darci Burson to allow my listing agent to list my property again, (Ms. Burson has at present told my listing agent she must not to talk to me);

11.        compensatory damages/sanction under Rule 1-011 of the interest amount I have to pay as a result of Leverick’s misrepresentations to the court (I have to pay interest in the amount of $1,000 per ten thousand borrowed ($65,000 was borrowed) and $250 a week if the money was not repaid in one month from February 24, 2006);

12.         compensatory damages of $5,000 or the amount that Tami Schneider is allowed to keep of the $5,000 that I paid to her;

13.        punitive damages in the amount of $20,000 from Leverick, and that or ten times that amount from Deutsche Bank to be paid to Project Change, Fair Lending Center, which I believe is a non-profit group – It was the only place I found anyone who even remotely listened to me and tried to help when I was trying to redeem; these sums should be imposed to discourage this kind of gross violation in the future, and for which I will agree not to seek further damages;

14.        to allow me a day to prepare the Order(s), except for the redemption money one;

15.        and whatever other relief is right and just.
Respectfully submitted,

                                  Karen Marie Kline
                                     Karen Marie Kline

Santa Fe, New Mexico 87507

CERTIFICATE OF SERVICE: On May 9, 2006, I gave a true copy of the above, at the
hearing, to:

Richard Green’s attorney, John Hayes, of 530 B. Harkle Rd, Santa Fe, NM 87505, and

Catherine Cook’s attorney, Mr. Purdy, of PO Box 8002, Santa Fe, NM 87504.

and I mailed to:

Richard Leverick, 5120 San Francisco Rd. NE, Albuquerque, NM  87109;

Edward Crocker, 82 Estrada Redondo, Santa Fe, NM 87506;

Manhattan Condominium Unit Owners’ attorney: Rodney Schlagel & Sherrill Filter,
PO Box, 3170, Albuquerque, NM 87190.

      Karen Marie Kline