Motion to Exclude Bank Witnesses

There was likely little chance of this motion succeeding. But, “no stone unturned” and “try as hard as I can” combined, is my modus operandi. 

Sometimes the amount of damage the ongoing stress has done to my nerves makes me want to give up, but we all know that giving up isn’t going to heal my nerves. Or, anyone’s nerves. Maybe, if the person can afford to go and forget it all on a sunny beach somewhere, but I can’t do that. I have to keep fighting to keep a roof, MY ROOF, over my head.

rightthumb29ridgespro50Stress lines show Low B12

If you are fighting foreclosure it’s likely taking a bite out of your nerve health. Look into symptoms of low vitamin B12. Using more B12/Methylcobalamin lozenges can protect you from a lot of nerve pain down the line. (In my experience, at least, that’s been true.)


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

Wells Fargo Bank NA,
Plaintiff,
No. D-101-CV-200800942

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

MOTION TO EXCLUDE WELLS FARGO BANK’S WITNESSES
FOR FAILURE TO COMPLY WITH SCHEDULING ORDER

            COMES NOW Defendant Karen Marie Kline and moves this honorable Court to issue an order excluding Wells Fargo Bank’s witnesses for Wells Fargo’s failure to comply with this Court’s Scheduling Order.

BACKGROUND EVENTS

On April 13, 2012, Holland and Hart filed Entry of appearance.

On June 13, 2012, Wells Fargo’s former counsel filed Motion to Withdraw.

On July 2, 2012, I objected to Withdrawal.

On December 27, 2012, Court Granted former counsel’s withdrawal. Case then fell dormant. For over two years after Wells Fargo’s new counsel entered appearance there was no prosecution; nothing until the Court’s July 8, 2014, Notice of Inactivity.

On August 6, 2014, Wells Fargo filed a Status Report and Motion for Setting Rule 1-016 Scheduling Conference. On December 3, 2014 a Scheduling Conference was held. On December 5, 2014 the Court filed its Scheduling Order which set December 31, 2014 for Plaintiff to file its list of expert witnesses and February 10, 2015 to file its list of all non-expert witnesses. The Scheduling Order also says,

“No later than seven days after the last date designated for disclosure of expert and non-expert witnesses, all counsel and self-represented litigants who are expected to participate at trial shall conduct a telephonic conference for the purpose of scheduling all depositions yet to be scheduled in this matter.”

.

.

Wells Fargo did not file an expert witness list on December 31, 2014, nor did it file a non-expert witness list on February 10, 2015 as required by the Scheduling Order. There was no telephonic conference.

On March 27, 2015 Wells Fargo’s “Witness List” arrived by mail. Its Certificate of Service shows March 24, 2015 as day of mailing and is evidence of Wells Fargo failure to comply with Scheduling Order, Exhibit 1, page 3. The List does not say the witnesses are expert or non-expert. There is no curriculum vitae, summary of the opinions to be presented at trial or any written reports prepared by the witness, Exhibit 1, page 1-2.

Despite being late, Wells Fargo names no witness other than me.  To be clear, Wells Fargo is not naming a witness when it says, “One or More Current or Former Employees And Corporate Representatives.” By not naming an actual person Wells Fargo denies me an opportunity to prepare questions for a particular witness and to depose the person. For the above reasons Wells Fargo’s witnesses should be excluded.

LEGAL SUPPORT

As an adversary of Wells Fargo, plaintiff, I am entitled to understand that Wells Fargo will proceed in a lawful manner and comply with the Rules of Civil Procedure to include those relating to discovery. Wells Fargo’s failure to comply is its own fault as the disobedient party. Zia Trust Co. v. San Juan Regional, January 9, 2012 (unpublished):

“When a plaintiff in a civil action files a lawsuit, his adversaries are entitled to generally understand that he will proceed in a lawful manner and that compliance will be had with the Rules of Civil Procedure, including those relating to discovery.” Pizza Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 326-27, 552 P.2d 227, 228-29 (Ct. App. 1976).

“To enforce this, the rules permit a court to impose sanctions for failure to comply with discovery orders. See Rule 1-037(B), (D). Sanctions can vary in severity from fines, to orders precluding parties from establishing facts or pursuing claims or defenses, up to the most extreme remedies of dismissal or default judgment.” Ibid.

New Mexico cases have treated lesser sanctions—including the exclusion of witnesses—as dismissals when their effect is to compel the dismissal of the case. See Allred, 1997-NMCA-070, ¶ 25… cf. State v. Harper, 2011-NMSC-044, ¶ 21, N.M., P.3d… Because the order excluding all expert witnesses in this case was the functional equivalent of dismissal, we treat it as a dismissal. An additional rule applies when the sanction is dismissal. Although discovery sanctions are reviewed for abuse of discretion, sanctions “entailing the denial of an opportunity for a hearing on the merits may only be imposed when the failure to comply is due to the willfulness, bad faith, or fault of the disobedient party.” United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 202, 629 P.2d 231, 278 (1980).” Ibid.

“Sanctions are appropriate not only to achieve justice in this case, but to ensure the integrity of the discovery process in the future. See Lewis, 2001-NMSC-035, ¶ 24. Accordingly, we conclude that the district court did not abuse its discretion by excluding the experts.” Ibid.

Wells Fargo’s witnesses should be excluded to achieve justice in this case and ensure the integrity of the discovery process in the future. See Lewis, 2001-NMSC-035.

Also supporting exclusion of witnesses, even if that means dismissal, is D’Antonio v. Garcia, 2008-NMCA-139, 145 N.M. 95, 194 P.3d 126, which says that dismissal serves to protect a diligent party from continual delay and uncertainty as to his (or her) rights.

“We agree with the underlying rationale of the district court’s conclusion that dismissals must only be ordered “sparingly.” Newsome v. Farer, 103 N.M. 415, 420, 708 P.2d 327, 332 (1985). We stress, however, that when a party willfully fails to comply with a court order, dismissal may be appropriate. Id. at 420-21, 708 P.2d at 332-33. Under such circumstances, we have stated that a dismissal serves to “protect a diligent party from continual delay and uncertainty as to his rights.” Kutz v. Indep. Publ’g Co., 101 N.M. 587, 589, 686 P.2d 277, 279 (Ct. App. 1984).

New Mexico Rule 1-041 . Dismissal of actions says:

Involuntary dismissal; effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.

New Mexico Supreme Court and federal courts agree, The Court has the inherent power to impose a variety of sanctions on litigants in order to regulate its docket and promote judicial efficiency.” Martinez v. Internal Revenue Serv., 744 F.2d 71, 73 (10th Cir. 1984).

CONCLUSION: Factors in this case weigh in favor of exclusion of Wells Fargo’s witnesses even if that means dismissal, See Defendant’s Motion for Summary Judgment re factors weighing in favor of dismissal. The degree of actual prejudice to Defendant is great – this case has been pending since 2008. Defendant has had to expend time and money in answering the compliant, making several attempts to contact Plaintiff about paying the mortgage after being qualified for HAMP loan modification and otherwise defending. When a party’s legitimate efforts are thwarted by the foreclosing party’s failures, to include following the Rules of Civil Procedure, actually prejudice arises. See, i.e., Atlas Resources, *50; E.E.O.C. v. Roswell Radio, Inc., 2007 WL 5685110, *13 (D.N.M. 2007) (unpublished).

The amount of interference with the judicial process is significant, and the culpability of Plaintiff is clear. A lesser sanction than exclusion of witnesses would not be effective in this case.

WHEREFORE Defendant moves the Court to dismiss with prejudice.

Respectfully submitted,

 

Karen Marie Kline, Defendant, pro se

XXXXX        Santa Fe, New Mexico 87507

 

CERTIFICATE OF SERVICE: I caused a second true copy of the above MOTION TO EXCLUDE WELLS FARGO BANK’S WITNESSES FOR FAILURE TO COMPLY WITH SCHEDULING 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: 988-4421   FAX: 983-6043

I’m not going to put the exhibits on my site, merely to save time.

Exhibit 1, page 1 of 3

 

Exhibit 1, page 2 of 3

 

Exhibit 1, page 3 of 3

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