My faith in the legal system is severely shaken

Going to Court Pro Se

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
Plaintiff – Appellee,
v.
KAREN MARIE KLINE, Pro Se,
Defendant – Appellant,

CROCKER, LTD., AMERICAN GENERAL FINANCIAL SERVICES,
INC.,
AND MANHATTAN CONDOMINIUM UNIT OWNERS’
ASSOCIATION,
Defendants – Appellees,

KAREN MARIE KLINE, Pro Se,
Petitoner-in-Redemption – Appellant,

RICHARD B. GREEN,
Purchaser; Cross- and Counter-Petitioner-in-Redemption – Appellee.


                                 COURT OF APPEALS NO: 26930
                                 DISTRICT CT NO: D-0101-CV-2005-00515

APPEAL FOR THE FIRST JUDICIAL DISTRICT COURT,
THE HONORABLE MICHAEL VIGIL, PRESIDING

APPELLANT’S CORRECTED AND COMPLETED DOCKETING
STATEMENT

APPEARANCES:

FOR THE PLAINTIFF-APPELLEE
Richard Leverick, Esq.
Albuquerque, New Mexico 87109

FOR THE DEFENDANT KAREN MARIE KLINE-APPELLANT
Karen Marie Kline, pro se
Santa Fe, New Mexico 87507

FOR DEFENDANT CONDOMINIUM UNIT OWNER’S
ASSOCIATION-APPELLEE
Rodney Schlagel, Esq. & Sherrill Filter, Esq.
Post Office Box 3170
Albuquerque, New Mexico 87190

FOR DEFENDANT EDWARD CROCKER, CROCKER LTD.-
APPELLEE
Edward Crocker, pro se
Santa Fe, New Mexico 87506

FOR THE PURCHASER;
CROSS- and COUNTER-PETITIONER-IN-REDEMPTION-
APPELLEE
John Hayes, Esq.
Santa Fe, New Mexico 87505

FOR THE PETITIONER IN REDEMPTION CATHERINE COOK-
APPELLEE
Charles Purdy, Esq.
Santa Fe, New Mexico 87501-1854

       STATEMENT OF NATURE OF PROCEEDINGS

The original action was a petition in foreclosure filed March 9, 2005 in
which appellant Kline was defendant. An amended complaint was filed
on March 16, 2005, adding defendants Manhattan Condominium
Association, American General Financial Services, Inc., and Crocker Ltd.
as defendants. Kline filed bankruptcy on March 21, 2005 and the Court
was informed on April 13, 2005. Kline was served the amended
complaint on March 29, 2005. On July 1, 2005, Stay was lifted in favor
of Deutsche. On July 25, 2005, summonses were again issued and the
amended complaint was served on July 27, 2005, but not to Kline. On
August 5, 2005, Motion for Summary Judgment and Application for
Entry of Stipulated Judgment and Default Judgment, Memorandum in
Support, Affidavit, Certificate of Service which shows Kline was not
served, and Certificate as to the State of the Record, citing the amended
complaint served during Kline’s bankruptcy, were filed. The Certificate
as to the State of the Record made no note of the bankruptcy and
automatic stay. None were served on Kline. On October 24, 2005,
despite the fact she had not been served the amended complaint when
she was not in bankruptcy and she was waiting to be served as provided
by Rule 1-005 NMRA, Kline filed an answer. On November 4, 2005,
Kline filed a Motion for Accommodation under the ADA, Title II, and
submitted her Neuropsychological Evaluation done through the Division
of Vocational Rehabilitation as evidence that she was slow and needed
more time in order not to be disadvantaged and prejudiced by her
disability. On December 15, 2005, without hearing and without
determining what accommodation Kline needed and was entitled to under
the ADA, Title II, in order to have due process, the Honorable Daniel
Sanchez entered a Summary Judgment, Stipulated Judgment, Default
Judgment, Decree of Foreclosure, Order of Sale and Appointment of
Special Master. On February 9, 2006, Affidavit of Juliane Hope, Kline’s
listing agent for the property, was filed. Hope said from personal
knowledge that Kline looked very concerned and upset when Hope took
her to check the court file on February 6, 2006. Hope said that when she
told Kline on February 4, 2006, that the condo had been sold, that Kline
had been angry with her and accused her of only saying the condo had
been sold as a way of pressuring her into accepting the offer in hand.
Hope stated upon her oath that Kline said it could not have been sold
because she, Kline, had never received any papers that said the property
had been foreclosed and a sale date scheduled.

DATE OF JUDGMENT OR ORDER TO BE REVIEWED AND
SHOWING THAT THE APPEAL IS TIMELY FILED

This appeal is taken from the orders entered by the court on June 20,
2006: Order Denying Rule 59 Motion for Reconsideration, Order
Denying Rule 60 Motion, Order Correcting Certificate as to the State of
the Record, The Certificate of Redemption; and the Order which the
Court made but refused to sign and enter Denying Oral Motion for
Hearing on Disability to Determine what Accommodation Is Needed
Pursuant to the ADA, Title II. Notice of Appeal to the Appeals Court
was filed on July 20, 2006. Corrections to Notice of Appeal was filed on
August 18, 2006, after Kline received the trial court’s Memorandum.
Corrections to Corrections to Notice of Appeal was filed on August 18,
2006 when Kline realized she had forgotten to attach the Memorandum.
Correction to Certificate of Service for Corrections to Corrections to
Notice of Appeal was filed on August 18, 2006 after Kline wondered if
she had only had half of the recipients listed in the Certificate of Service,
and called the Appeals Court clerk to check. The right recipients were on
the filed papers, but not on Kline’s copy in her computer where she must
have accidentally deleted half of them. So she was able to correct that in
her computer, and in doing that she realized that the date in the
Certificate had been wrong, so she corrected that. She noted that the
number of mistakes she makes is frustrating to her, too, and is related to
her disability. The reason it was important to have a hearing on Kline’s
disability to determine what accommodation is necessary was that she is
intelligent and it may not seem as if she has a disability, but in fact she
has lost about half of her processing speed and working memory, and
this could be made clear if the person who administered the
Neuropsychological Evaluation for the Division of Vocational
Rehabilitation could testify. The docketing statement is filed August 21,
2006, a Monday, and the docketing fee is paid at that time.

THE CONCISE, ACCURATE STATEMENT OF THE CASE
             SUMMARIZING ALL FACTS MATERIAL
  TO A CONSIDERATION Of THE ISSUES PRESENTED

The original action was a petition in foreclosure filed March 9, 2005 in
which appellant Kline was defendant. An amended complaint was filed
on March 16, 2005, adding defendants Manhattan Condominium
Association, American General Financial Services, Inc., and Crocker Ltd.
as defendants; and summonses were issued.

Kline filed Chapter 13 bankruptcy on March 21, 2005.

Kline and each of the other defendants were served the amended
complaint on March 29, 2006.

On April 13, 2005, Notice of Bankruptcy was filed; and, Crocker Ltd.
filed an answer.

On April 14, 2005, Rodney Schlagel put in his appearance for Manhattan
Condominium Association.

On July 13, 2005, Suggestion of Bankruptcy Relief was filed.

On July 25, 2005, Answer and Cross Claim of Manhattan Condominium
Unit Owners’ Association was filed; and, summons was issued to
Crocker, Ltd. and American General Financial Services, Inc., both of
whom were served on July 27, 2005, this being the second time they
were served, except that the first time had been void as a result of the
automatic stay.

Kline was never served the amended complaint when she was not in
bankruptcy.

On August 5, 2005, Motion for Summary Judgment and Application for
Entry of Stipulated Judgment and Default Judgment, Memorandum in
Support, Affidavit, Certificate of Service which shows Kline was not
served, and Certificate as to the State of the Record, citing the amended
complaint served during Kline’s bankruptcy, were filed. The Certificate
as to the State of the Record made no note of the bankruptcy, and no
time was allowed for the automatic stay. None were served on Kline.

On October 5, 2005, Kline filed to excuse the Honorable Timothy Garcia.

On October 24, 2005, despite the fact she had not been served the
amended complaint when she was not in bankruptcy and she was waiting
to be served, as provided by Rule 1-005 NMRA, when she was not in
bankruptcy, Kline filed an answer.

On November 4, 2005, Kline filed a Motion for Accommodation under
the ADA, Title II, and submitted her Neuropsychological Evaluation
done through the Division of Vocational Rehabilitation as evidence that
she was slow and needed more time in order not to be disadvantaged and
prejudiced by her disability.

On December 15, 2005, without any hearing on Kline’s disability or the
foreclousre, Summary Judgment, Stipulated Judgment, Default
Judgment, Decree of Foreclosure, Order of Sale and Appointment of
Special Master was filed. It was not served on Kline, nor was Kline
notified in any way.

On December 28, 2005, Notice of Sale on Foreclosure was filed, setting
the sale date at January 27, 2006. Kline was not served a copy.

On January 3, 2006, unaware of the Foreclosure Judgment and Order of
Sale, Kline filed a Request for Additional Extension because her
computer which she had to replace in November was still not working.
Kline uses her computer to supplement her memory; it daily reminds her
of things an able minded person would simply remember, to include the
day and date.

On January 3, 2006, after Kline filed her Request for Additional
Extension, Deutsche filed Certificate/Proof of Mailing. It says Kline was
sent a copy of the Summary Judgment, Stipulated Judgment, Default
Judgment, Decree of Foreclosure, Order of Sale and Appointment of
Special Master on December 23, 2005. No such copy was ever delivered
to Kline. Kline did not receive it and had no notice. Had Kline had more
than a day’s notice to prepare for the hearing on approval of sale, she
could have deposed and brought as a witness the woman who has been
bringing in her mail every Thursday for the last year and a half, to testify
that she did not see any envelope with Leverick’s return address at the
time in question.

On January 27, 2006 the Foreclosure Sale was held without Kline having
received any notice.

On February 7, 2006, Kline filed an Objection to the Approval of Sale
and Foreclosure Judgment. (Having seen an Order Approving Special
Master’s Report and Confirming Foreclosure Sale in the court file, Kline
believed that the sale had also been approved with no notice to her.
Because of her disability and the stress of the shocking news it took
Kline weeks to see that the Order was proposed.)

On February 9, 2006, Affidavit of Juliane Hope, Kline’s listing agent for
the property, was filed. Hope said from personal knowledge that Kline
looked very concerned and upset when Hope took her to check the court
file on February 6, 2006. Hope said that when she told Kline on
February 4, 2006, that the condo had been sold, that Kline had been
angry with her and accused her of only saying the condo had been sold
as a way of pressuring her into accepting the offer in hand. Hope stated
upon her oath that Kline said it could not have been sold because she,
Kline, had never received any papers that said the property had been
foreclosed and a sale date scheduled.

On February 14, 2006, Kline filed Petition for Certificate and Order of
Redemption, but without money because of the little time and because
she had been unable to figure out how much was needed to cover all the
liens filed by the Condo Association, and the interest on the liens. She
invoked the court, pursuant to NM Statute 39-5-18, to determine the
amount needed to redeem. None of the liens were judgment liens. The
Stipulated Judgment did not find for the liens. Summonses were issued
and served. Returns were filed on February 23, 2006.

On February 21, 2006, Kline filed Motion for Mandatory Damages for
Willful Violation of the Automatic Stay.

On February 23, 2006, Kline petitioned the court to Determine the
Amount Validly Due on Liens on Property at 729 W. Manhattan Unit #3.

On February 24, 2006, Deutsche filed Motion for Approval of Order
Confirming Special Master’s Report and Approving Foreclosure Sale,
and filed Request for Hearing on same.
On February 24, 2006, Kline requested a hearing on her Objection to the
Order Approving Sale, (she still understood the Order she had seen in the
court file to be a signed and filed order approving sale), her Objection to
Foreclosure Judgment, Certificate of Redemption, and Redemption,
believing that February 27, 2006 was the last day of her redemption
period, as this is what the little legal aid that there is in New Mexico had
told her. When Kline called Leverick for concurrence as to need for
hearing, as required on the form she was using, Leverick’s paralegal said,
NO! “Concurrence of counsel as to need for hearing:
YES____ NO:__x__ (specify why not) __Paralegal said “NO!”__.”
Kline made three requests in all. All were ignored. Leverick did not seek
Kline’s concurrence nor did the form he used ask for this information.
Neither Leverick nor his paralegal mentioned to Kline when she called
them that they had requested a hearing on this same day.

On February 27, 2006, Kline tried to deposit her cashier’s check for
$128,250.00 for redemption per statute 39-5-18, but the clerks refused
her deposit, see copy of Cashier’s check, attached. Kline filed Notice of
Letter of Intent to Make Offer to Purchase 729 W. Manhattan, Unit 3 on
or Before February 28, 2006 and Indicating the Urgency of Having my
Redemption Allowed. Kline also filed Correction to the Total for the List
of Liens Shown in My Petition to the Court to Determine the Sum
Validly Due on Claimant’s Liens on the Property at 729 W. Manhattan,
Unit #3.

On February 28, 2006, Kline called Ocwen, to whom she had made her
mortgage payments. Ocwen told her that if she wired in all that was due
that her mortgage would be reinstated. Paragraph 19 of Kline’s
mortgage, attached, (but not attached to the Complaint for Foreclosure)
provides for reinstatement. See copy of Paragraph 19, attached. Kline
went directly to her bank and arranged for the money, $16,023.72, to be
wired at the first possible time. The amount included enough for the next
month’s payment in case it took longer than two weeks for the court to
sort it out. The money was wired on March 1, 2006, which was within
the time requirement for reinstating according to paragraph 19 of Kline’s
Mortgage. See copy of wire instructions, attached.

On March 2, 2006 Notice of Hearing was filed. The hearing was set for
March 8, 2006, at 10:00 a.m. on Motion for Order Approving Special
Master’s Report and Confirming Foreclosure Sale. March 8, 2006, was
two days before Kline’s 14 days to answer the motion had expired, not
counting the three days for mailing. Further, Kline only received her mail
on Thursdays when the Adult Protective Services worker came and
brought it in to her. Since February 24 was on a Friday, the soonest
Kline could have received the Motion was March 2, 2006, the same day
that the Notice of Hearing was filed, unbeknownst to Kline.

On March 7, 2006 at 11:25 a.m. Notice of Hearing which was set for 10:
00 a.m. on March 8, 2006, was delivered to Kline. See FedEx tracking
information attached.

On March 8, 2006, Kline attended the hearing which because of her
disability, the short notice and the extreme stress caused by the short
notice, she did not understand was to Approve the Sale. She still thought
that the Order she had seen in the court file was the actual order, not a
proposed order. Kline read something about the automatic stay, I think,
but I can’t find a copy in my computer, so I don’t know exactly what
happened. I tried to get a copy of the tape transcribed, but the people
who were to put the CD onto a tape for transcription said the court CD
was blank. They agreed to send it to the tape people at court, because I
still cannot drive. But so much happened that was so stressful that I
forgot, as a result of my disability, that I did not actually have the CD.

Because Adult Protective Services had provided Agnes Samora to get the
CD on March 13, 2006, which CD turned out to be blank, I had this
belief that I had it. But that was a confusion related to my disability. The
sale was confirmed despite the fact that Kline explained that she had
wired in the money to reinstate, and despite the due process denials that
she brought forward. Kline got physically sick on the way home, and
was physically sick for hours thereafter. That night Kline realized what
the hearing had actually been about, and why Rich Green had kept
having Juliane Hope call Kline to be sure Kline came to the hearing, so
she wouldn’t lose her rights, he cautioned, according to Hope.

On March 16, 2006, Kline filed a Motion to Reconsider Order Approving
Foreclosure and Foreclosure Sale and to Set Aside Foreclosure Judgment.

Thereafter Kline hired attorney Tammy Schneider, who filed several
things, was under the misapprehension that Kline had been served the
amended complaint before she filed bankruptcy, that Kline was
incompetent rather than mentally disabled, that Sotheby’s could be sued,
and that Kline should get a cashier’s check and have Schneider file a new
petition for redemption. Kline did not know Schneider filed a jury case
regarding the Sotheby’s suit.

At the May 5, 2006, hearing Schneider appeared for Kline, but quit at
the end of the hearing. She had missed the deadline on her amended
Rule 59 Motion, she had written in her motions and said in court that
Kline had been served the amended complaint before filing bankruptcy
which was patently false, she appeared unaware of the case which said
agencies like Sotheby’s could not be held responsible, she produced no
evidence to support her argument that the amount paid by Green, which
at about 36% of market value, was too far below market value to be
legitimate, and several other dispiriting things.

At the May 9, 2006 second part of the May 5th hearing, Kline who had
seen none of the pleadings from the other parties, because Schneider had
them, appeared pro se and focused again on how the amended complaint
was served when she was in bankruptcy. Kline also read and produced,
“Stay was lifted on July 1, 2005.
Copy of Bankruptcy Record/Docket page 5
Note: It shows that I knew and Leverick knew I knew about the
foreclosure action –
“All that is necessary to constitute an “appearance” to avoid default
judgment without notice, is an affirmative act by the party showing
knowledge of the suit and intention to appear, this affirmative act can be
shown by contacts between attorneys, by letter from one attorney to the
other or where plaintiff’s attorney has acquiesced in defendant’s request
for more time to answer.” Gengler v. Phelps, 89 N.M. 793, 558 P.2d 62
(Ct. App. 1976).”

Kline who remained shocked to not have known about the foreclosure
judgment and sale, also read, “5. Certificate as to the State of the Record
fails to account for bankruptcy/ automatic stay,” and asked the Court to
read the Certificate because she had been unable to get a copy because
the file was in chambers. The Court read it and made a sua sponte order
to change the Certificate so that it would no longer incorporate the
violation of the automatic stay. Because the Court had made it clear on
May 5 that she was out of the running for redemption because she had
not been first to file, Kline presented an order for the clerks to release
her deposit, on which she was paying $7,500 interest, to include $250 a
week, which if she had known her right of redemption given her in her
mortgage was no good after the Fenton case, she could have saved. How
can the Appeals Court take away a right that was mine when I got my
mortgage?

At the June 20, 2006 hearing on redemption, Kline read to the court how
she had been told that the Honorable Michael Vigil had responded to
Darci Burson, Rick Green’s broker, that there “was no way” Kline
would get the condo back. Kline read from a Cornell professor’s treatise
on how if there is a right but no way to enforce it then due process is
denied. This was in relation to how Kline’s mortgage gave her a right to
redeem, but in the actual event when she needed to redeem, that right
was not available because there was no way Kline could have been first
to file Petition for Redemption, either after the physical sale which she
did not know about or after the legal confirmation of the sale because the
Order confirming was given to the lawyer for Rick Green to file and he
filed Rick Green’s petition directly after. Kline also made an oral motion
requesting a hearing on her disability to determine how much additional
time she should have been given as an accommodation to her disability
under the ADA, Title II, to answer the complaint before she was held in
default. The court denied her motion, but thereafter would not sign the
order Kline provided, so the order could not be filed.

As a result, on June 30, 2006, Kline filed a Motion to Reconsider Order
Granting Amended and Restated Redemption Petition of Richard B.
Green and Order Denying Oral Motion for Hearing on Disability to
Determine what Accommodation Is Needed Pursuant to the ADA, Title
II. Kline reasoned that if the court continued to refuse to make its order
official, that by filing the motion there would be an automatic denial by
operation of law after 30 days. But then she had to file the appeal or
miss the appeal deadline.

On July 20, 2006, Kline filed Notice of Appeal.

On July 26, 2006, Deutsche filed Reply to Defendant Karen Marie Kline’
s Response to Reply by Plaintiff to the Motion to Reconsider Order.

On August 7, 2006, Kline filed Deutsche Bank’s Reply to Response to
Reply Exceeds the Provisions of Rule 1-007.1 and LR1-306(G) and on
This Account Must Be Stricken.

On August 8, 2006, Kline filed Request for Hearing pursuant to LR1-306
(G) which is an extremely hard rule for anyone with loss of working
memory and processing speed to follow, and it would be good if there
were a modification to this rule on the order of those used in the federal
courts for pro se litigants.

On August 15, 2006 the First Judicial Court filed its Memorandum
saying, “We are unable to set a hearing on the above-mentioned matter
because this Court no longer has jurisdiction while the case is on appeal.”

On August 17, 2006, Kline filed Corrections to Notice of Appeal, and
later, Corrections to Corrections to Notice of Appeal.

On August 18, 2006, Kline filed Correction to Certificate of Service for
Corrections to Corrections to Notice of Appeal.

STATEMENT OF THE ISSUES PRESENTED
HOW THEY AROSE AND HOW THEY ARE PRESERVED

ISSUE ONE: The amended complaint served on Kline during her
bankruptcy violated the automatic stay provisions of the bankruptcy code
(11 U.S.C. Section 362) and is void; Kline had a right to be served the
amended compliant pursuant to rule 1-005 NMRA. Because Kline had
been told by the Court, the Honorable Timothy Garcia, in the
Washington Mutual and GE Mortgage foreclosures, when she tried to get
the Court to hear her third party complaint against the condo association,
that she could not do a third party complaint because the third party
defendants were not a part of the Washington Mutual or GE Mortgage
foreclosures, Kline was counting on them being added to the Deutsche
Bank suit so that she could file her counterclaim, or crossclaim, and not
have it be dismissed without prejudice because they weren’t parties. See
cases D-101-CV-200400390 and D-101-CV-200400619.

ISSUE TWO: The bankruptcy court docket shows that Kline knew
about the foreclosure proceedings and intended to appear. Kline filed an
answer on October 24, 2005. Kline was not in default when default
judgment was entered without any hearing and the default judgment is
void and should be set aside.

ISSUE THREE: The foreclosure judgment entered December 15, 2005,
violated the ADA, Title II, by failing to accommodate Kline’s mental
disability which was discrimination.

ISSUE FOUR: The trial court acted improperly in entering the orders
and appellant was not afforded due process. One day notice of a
trial/hearing is insufficient notice.

ISSUE FIVE: The foreclosure sale held without notice to Kline violated
Kline’s due process rights.

ISSUE SIX: The order approving foreclosure and foreclosure sale and
the Certificate of Redemption were entered in violation of Kline’s right to
reinstate her mortgage and she had timely wired the money pursuant to
paragraph 19 of her mortgage.

ISSUE SEVEN: The Fenton case deprives Kline of her right to redeem
as provided in her mortgage at paragraph 24. Plaintiff failed to attach to
the complaint the page of the mortgage with the redemption right and
Kline’s signature.

ISSUE EIGHT: There is an appearance of partiality given by the First
Judicial District Court in this case which may relate to Kline suing the
First Judicial District Court in Federal Court for discrimination under the
ADA, Title II.

ISSUE NINE: Lawyer, Tami Schnieder, hired by Kline after Kline was
not allowed enough time to prepare for the Hearing on Approval of Sale,
which was particularly prejudicial because of Kline’s disability and the
complexity, falsely wrote that Kline had not been served the amended
complaint during her bankruptcy, Schneider would not return Kline’s
phone calls, Schneider filed a jury case against Sotheby’s Green which
Kline did not know about, and Schneider quit in the middle of a
continued hearing. This prejudiced Kline severely.

The issues were preserved at trial, but there was no trial or any hearing
prior to the December 15, 2005 entry of Default Judgment.

LIST OF AUTHORITIES BELIEVED TO SUPPORT THE
CONTENTION
AND ANY CONTRARY AUTHORITY KNHOWN TO THE
APPELLANT
WITH SHORT PROPOSITION FOR WHICH THE CASE OR
TEXT IS CITED

I.         ISSUE ONE: The amended complaint served on Kline during
her bankruptcy violated the automatic stay provisions of the bankruptcy
code (11 U.S.C. Section 362) and is void; Kline had a right to be served
the amended compliant pursuant to rule 1-005 NMRA. Because Kline
had been told by the Court, the Honorable Timothy Garcia, in the
Washington Mutual and GE Mortgage foreclosures, when she tried to get
the Court to hear her third party complaint against the condo association,
that she could not do a third party complaint because the third party
defendants were not a part of the Washington Mutual or GE Mortgage
foreclosures, Kline was counting on them being added to the Deutsche
Bank suit so that she could file her counterclaim, or crossclaim, and not
have it be dismissed without prejudice because they weren’t parties. See
cases D-101-CV-200400390 and D-101-CV-200400619.

Supporting Authority:
11 U.S.C. Section 362. Automatic stay provisions of the Bankruptcy
Code. Provide for stay of all actions by a creditor against a debtor. The
automatic stay stops all collections efforts, all foreclosure actions. Also
the stay is designed to protect other creditors of the debtor from one
debtor proceeding to put itself in a better position regarding assets of
debtor. Relief from the stay must be obtained from the bankruptcy court
in which the debtor’s petition is filed before proceeding. Andy action
after the filing of the petition in bankruptcy is null and void unless the
stay is lifted prior to the action.

Fortier v. Dona Ana Plaza Partner, 747 F.2d 1324 (10th Cir. 1984), at
page 1330, discusses the meaning and Congressional purposes of the stay
in bankruptcy, and outlines that the automatic stay is one of the
fundamental debtor protections provided by the bankruptcy laws. It stops
all collection efforts, all harassment, and all foreclosure actions.

Valley Transit Mix v. Miller 928 F.2d 354 (10th Cir. 1991) the stay
provisions are broad, they not only protect the property of the estate but
also prohibit “any act to collect… or to recover a claim against the
debtor…”

First Sav. Bank Trust Co. v. Stuppi, (8th Cir. 1924) regarding the
successful action by the trustee in bankruptcy to obtain from a received
appointed in a district court action all the property and property proceeds
of the debts.

Section 39-5-18 through 39-5-23, NMSA. New Mexico Redemption
Statute. Provide for redemption of property by defendant for period after
affirmance of judicial sale. Appellant has a right in the property after the
entry of a valid order affirming the foreclosure sale. Kline retains rights
to property after judgment of foreclosure is entered, to the extent
afforded by the New Mexico Redemption Statute, her mortgage, and
case law. The judgment of foreclosure specified “one (1) month right of
redemption in favor of Defendants.” At B, page 6.

Speckner v. Riebold, 86 NM 275, 523 P.2d 10 (1974), at page 277. That
part of the decree of foreclosure that direct the manner and terms of the
sale of the mortgaged property does not become a final judgment until
the judicial confirmation of the sale, whereupon it becomes final.

Plaza Nat’l Bank v. Valdez, 106 NM 464, 745 P.2d 372 (1987), at page
465 affirming the holding in Speckner, supra, and at page 466, the
special master can not execute a valid deed until the sale became final
and had been court approved.

Matter of Brown, 73 B.R. 306 (Bkrtcy D.N.J. 1987), page 307-308,
includes a discussion of the determination of the debtor’s rights in
property upon foreclosure is based upon state law. Foreclosure actions
determine the amount due to the creditor, gives the creditor the right to
obtain title or to sell the property to obtain the value of the debt.
Determination of property rights of the debtor in bankruptcy is
determined by state law.

“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.

Rule 1-005 NMSA provides that all papers be served on each of the
parties.

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.

The cross or counter claim that Kline wanted to file was an objection,
and Kline was not afforded an opportunity to present objections because
no copy of the Amended Complaint was served on Kline that was not
void.

Contrary Authority:
None known to appellant.

ISSUE TWO: The bankruptcy court docket shows that Kline knew
about the foreclosure proceedings and intended to appear. Kline filed an
answer on October 24, 2005. Kline was not in default when default
judgment was entered without any hearing and the default judgment is
void and should be set aside.

Supporting authority:

SCRA 1-055 provides for the procedure for default decrees. Provides
default is not permissible upon answer of defendant.

Gengler v. Phelps, 89 N.M. 793, 558 P.2d 62 (Ct. App. 1976) all that is
necessary to constitute an “appearance” to avoid default judgment
without notice, is an affirmative act by the party showing knowledge of
the suit and intention to appear, this affirmative act can be shown by
contacts between attorneys, by letter from one attorney to the other or
where plaintiff’s attorney has acquiesced in defendant’s request for more
time to answer.”

Dyer v. Pacheco, 98 N.M. 670, 651 P.2d 1314 (Ct. Appl. 1982) Any
doubts about whether relief should be granted are resolved in favor of
the defaulting defendant because default judgments are not favored in the
law; in the absence of a showing of prejudice to the plaintiff, cases
should be tried upon the merits.

Kline had a right to have her counter/cross claim against the
condominium association tried on its merits. She was denied that right
when the amended complaint was not served on her. This is especially
meaningful because the condominium association liens were the basis of
Green’s redemption. Those liens would not have existed if the
cross/counter claim could have been filed and the case tried on its merits.
See Amended Third Party Complaint filed in cases D-101-CV-
200400390 and D-101-CV-200400619. Kline had a right to be served
Deutsche’s Amended Complaint. Failing that, the Foreclosure Judgment,
Approval of Sale, and Redemption by Green should be set aside.

Ortega v. Vigil, 22 N.M. 18, 158 P. 487 (1916) Answer filed by
defendant after time therefore had expired was not a nullity, and so long
as it remained on file and undisposed of, rendition of default judgment
constituted an irregularity for which judgment could be set aside upon
motion filed within one year from date of rendition of such judgment.
Kline filed motion to set aside on March 16, 2006.

State v. Duran, 107 NM 603, 762 P.2d 890, at page 608-609 to
establish a due process violation, and thus reversible error, the defendant
must demonstrate prejudice. The failure to serve Kline the amended
complaint served to allow plaintiff to proceed in effective silence and
secret from Kline, shown by Kline’s surprise and shock as described by
Juliane Hope in her affidavit filed on February 9, 2006. The failure to
serve Kline the Foreclosure Judgment and Schedule of the Foreclosure
Sale deprived Kline of her right to reinstate her mortgage before the sale
and to compete for redemption; further, it caused Kline to spend nearly
$5,000 on her property to ready it for sale after it had been foreclosed
without her knowing and sold without her knowing because she received
no notice.

Contrary authority:
None known to appellant.

ISSUE THREE: The foreclosure judgment entered December 15, 2005,
violated the ADA, Title II, by failing to accommodate Kline’s mental
disability which was discrimination.

Supporting authority:

Americans with Disabilities Act, Title II, mandates accommodation:
"individuals with disabilities are a discrete and insular minority who have
been faced with restrictions and limitations, subjected to a history of
purposeful unequal treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assumptions
not truly indicative of the individual ability of such individuals to
participate in, and contribute to, society." 42 U. S. C. §12101(a)(7).

Title II, §§12131—12134, prohibits any public entity from discriminating
against “qualified” persons with disabilities in the provision or operation
of public services, programs, or activities. The Act defines the term
“public entity” to include state and local governments, as well as their
agencies and instrumentalities. §12131(1). Persons with disabilities are
“qualified” if they, “with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, mee
[t] the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.”
§12131(2). Title II’s enforcement provision incorporates by reference
§505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U.S.
C. § 794a which authorizes private citizens to bring suits for money
damages. 42 U.S.C. § 12133.”

Tennessee v. Lane, 541 U.S. 509 (2004), “The ADA was passed by
large majorities in both Houses of Congress after decades of deliberation
and investigation into the need for comprehensive legislation to address
discrimination against persons with disabilities. In the years immediately
preceding the ADA's enactment, Congress held 13 hearings and created a
special task force that gathered evidence from every State in the Union.
The conclusions Congress drew from this evidence are set forth in the
task force and Committee Reports, described in lengthy legislative
hearings, and summarized in the preamble to the statute.2 Central among
these conclusions was Congress' finding that
"individuals with disabilities are a discrete and insular minority who have
been faced with restrictions and limitations, subjected to a history of
purposeful unequal treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assumptions
not truly indicative of the individual ability of such individuals to
participate in, and contribute to, society." 42 U. S. C. §12101(a)(7).”

Tennessee v. Lane, 541 U.S. 509 (2004), “Title II, §§12131—12134,
prohibits any public entity from discriminating against “qualified” persons
with disabilities in the provision or operation of public services,
programs, or activities. The Act defines the term “public entity” to
include state and local governments, as well as their agencies and
instrumentalities. §12131(1). Persons with disabilities are “qualified” if
they, “with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, mee[t] the
essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.”
§12131(2). Title II’s enforcement provision incorporates by reference
§505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U.S.
C. § 794a which authorizes private citizens to bring suits for money
damages. 42 U.S.C. § 12133.”

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); M. L. B. v. S. L. J., 519 U.S. 102 (1996).”

For Kline to have been afforded a meaningful opportunity to be heard
the amended complaint would have to have been served, Kline’s mental
disability would have had to be accommodated with additional time to
answer the complaint following service of the amended complaint, and a
hearing would have to have been held so that Kline would have known
what was going on. Failure to require service of the amended complaint
to Kline, failure to grant Kline additional time to answer as a reasonable
accommodation prior to the filing of a Certificate as to the State of the
Record and Motion for Default Judgment for which the Certificate of
Service shows Kline was not served, and failure to provide her with a
clear date upon which her answer was required were all obstacles that
should have been removed so as to afford Kline accessibility and full
participation in the judicial proceedings, and as such were violations of
the Due Process Clause. Each failure was an obstacle to her full
participation in the judicial proceedings.

Tennessee v. Lane, 541 U.S. 509 (2004), “It is not difficult to perceive
the harm that Title II is designed to address. Congress enacted Title II
against a backdrop of pervasive unequal treatment in the administration
of state services and programs, including systematic deprivations of
fundamental rights. For example, “[a]s of 1979, most States …
categorically disqualified ‘idiots’ from voting, without regard to individual
capacity.”5 The majority of these laws remain on the books,6 and have
been the subject of legal challenge as recently as 2001.7 Similarly, a
number of States have prohibited and continue to prohibit persons with
disabilities from engaging in activities such as marrying8 and serving as
jurors.9 The historical experience that Title II reflects is also documented
in this Court’s cases, which have identified unconstitutional treatment of
disabled persons by state agencies in a variety of settings, including
unjustified commitment, e.g., Jackson v. Indiana, 406 U.S. 715 (1972);
the abuse and neglect of persons committed to state mental health
hospitals, Youngberg v. Romeo, 457 U.S. 307 (1982);10 and irrational
discrimination in zoning decisions, Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432 (1985). The decisions of other courts, too, document
a pattern of unequal treatment in the administration of a wide range of
public services, programs, and activities, including the penal system,11
public education,12 and voting.13 Notably, these decisions also
demonstrate a pattern of unconstitutional treatment in the administration
of justice.14”
It was unconstitutional treatment in the administration of justice for Kline
to be denied each of her motions seeking to have the denial of due
process righted by the removal of barriers to accessibility.

Tennessee v. Lane, 541 U.S. 509 (2004), “This pattern of disability
discrimination persisted despite several federal and state legislative efforts
to address it. In the deliberations that led up to the enactment of the
ADA, Congress identified important shortcomings in existing laws that
rendered them “inadequate to address the pervasive problems of
discrimination that people with disabilities are facing.” S. Rep. No. 101—
116, at 18. See also H. R. Rep. No. 101—485, pt. 2, at 47.15 It also
uncovered further evidence of those shortcomings, in the form of
hundreds of examples of unequal treatment of persons with disabilities by
States and their political subdivisions. See Garrett, 531 U.S., at 379
(Breyer, J., dissenting). See also id., at 391 (App. C to opinion of
Breyer, J., dissenting). As the Court’s opinion in Garrett observed, the
“overwhelming majority” of these examples concerned discrimination in
the administration of public programs and services. Id., at 371, n. 7;
Government’s Lodging in Garrett, O. T. 2000, No. 99—1240 (available
in Clerk of Court’s case file).”
The First Judicial Court is a public program and service for the
administration of justice and it is required by law to accommodate
Americans with Disabilities. Kline is an American with a Disability. The
First Judicial Court is required by law to reasonably accommodate Kline
who has a disability.

Tennessee v. Lane, 541 U.S. 509 (2004), “Given the sheer volume of
evidence demonstrating the nature and extent of unconstitutional
discrimination against persons with disabilities in the provision of public
services, the dissent’s contention that the record is insufficient to justify
Congress’ exercise of its prophylactic power is puzzling, to say the least.”

It is puzzling that the trial court discriminated against Kline, a person with
a disability given the clear language of Tennessee v. Lane.

Tennessee v. Lane, 541 U.S. 509 (2004), “Title II is aimed at the
enforcement of a variety of basic rights, including the right of access to
the courts at issue in this case, that call for a standard of judicial review
at least as searching, and in some cases more searching, than the
standard that applies to sex-based classifications.”

A searching standard of review is called for.

Tennessee v. Lane, 541 U.S. 509 (2004), “The conclusion that Congress
drew from this body of evidence is set forth in the text of the ADA itself:
“[D]iscrimination against individuals with disabilities persists in such
critical areas as … education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services.”
42 U.S.C. § 12101(a)(3) (emphasis added). This finding, together with
the extensive record of disability discrimination that underlies it, makes
clear beyond peradventure that inadequate provision of public services
and access to public facilities was an appropriate subject for prophylactic
legislation.”

Legislation and case law being in place as they are, Kline should not lose
her condo without due process as a result of failure to remove barriers to
accessibility and reasonably accommodate her disability.

Tennessee v. Lane, 541 U.S. 509 (2004), “Whatever might be said about
Title II’s other applications, the question presented in this case is not
whether Congress can validly subject the States to private suits for
money damages for failing to provide reasonable access to hockey rinks,
or even to voting booths, but whether Congress had the power under §5
to enforce the constitutional right of access to the courts. Because we
find that Title II unquestionably is valid §5 legislation as it applies to the
class of cases implicating the accessibility of judicial services, we need go
no further. See United States v. Raines, 362 U.S. 17, 26 (1960).19”

Kline had a constitutional right of access to the court and was denied the
right of accessibility of judicial services. No hearing was held to
determine how much additional time she required to answer the
complaint because of her mental disability and no additional time was
granted: the Certificate as to the State of the Record and the record
thereafter show this.

Tennessee v. Lane, 541 U.S. 509 (2004), “Congress’ chosen remedy for
the pattern of exclusion and discrimination described above, Title II’s
requirement of program accessibility, is congruent and proportional to its
object of enforcing the right of access to the courts. The unequal
treatment of disabled persons in the administration of judicial services
has a long history, and has persisted despite several legislative efforts to
remedy the problem of disability discrimination. Faced with considerable
evidence of the shortcomings of previous legislative responses, Congress
was justified in concluding that this “difficult and intractable proble[m]”
warranted “added prophylactic measures in response.” Hibbs, 538 U.S.,
at 737 (internal quotation marks omitted).”

The First Judicial District Court has repeatedly excluded Kline and
discriminated against her. By failing to remove obstacles to accessibility
for her, the Court denied her right of access to the court. Kline had filed
a copy of her Neuropsychological Evaluation done through the Division
of Vocational Rehabilitation which shows her mental disability and
despite this the problem of disability discrimination deprived her of her
condo without opportunity to be heard. The Certificate as to the State of
the Record shows that no additional time was granted Kline as a
reasonable accommodation of her disability prior to its filing concomitant
with Deutsche’s Motion for Default Judgment against her. The Record
shows that no hearing was held to determine what reasonable
accommodation Kline needed prior to being held in default.

Tennessee v. Lane, 541 U.S. 509 (2004), “The remedy Congress chose
is nevertheless a limited one. Recognizing that failure to accommodate
persons with disabilities will often have the same practical effect as
outright exclusion, Congress required the States to take reasonable
measures to remove architectural and other barriers to accessibility. 42 U.
S.C. § 12131(2).”

For Kline the short time frames were a barrier to accessibility; as was the
service of the void amended complaint, served in violation of the
automatic stay. Kline required the reasonable accommodation of
additional time. No amount of additional time was provided as shown by
the Certificate as to the State of the Record, nor was a hearing held to
determine how much additional time she needed. In fact, no hearing was
held whatsoever prior to entry of default judgment against Kline, thereby
ensuring Kline would have no access to the court.

Tennessee v. Lane, 541 U.S. 509 (2004), “It requires only “reasonable
modifications” that would not fundamentally alter the nature of the
service provided, and only when the individual seeking modification is
otherwise eligible for the service. Ibid.”

As defendant, Kline was eligible for the service. Additional time is a
reasonable modification. The Certificate as to the State of the Record
shows no additional time was provided. The record shows no hearing
was held to determine what amount of additional time Kline required to
accommodate her disability in answering the Complaint and making her
objections, as to the liens filed by the condominium association. Kline
was not in default when the Motion for Default Judgment was not served
on her. It was filed and not served on Kline before any additional time
had been granted. When the court saw Kline’s Psychological Evaluation
in the file, the Court had a duty to provide reasonable modifications and
failed to do so.

Tennessee v. Lane, 541 U.S. 509 (2004), “This duty to accommodate is
perfectly consistent with the well-established due process principle that,
“within the limits of practicability, a State must afford to all individuals a
meaningful opportunity to be heard” in its courts. Boddie, 401 U.S., at
379 (internal quotation marks and citation omitted).20 Our cases have
recognized a number of affirmative obligations that flow from this
principle: the duty to waive filing fees in certain family-law and criminal
cases,21 the duty to provide transcripts to criminal defendants seeking
review of their convictions,22 and the duty to provide counsel to certain
criminal defendants.23 Each of these cases makes clear that ordinary
considerations of cost and convenience alone cannot justify a State’s
failure to provide individuals with a meaningful right of access to the
courts. Judged against this backdrop, Title II’s affirmative obligation to
accommodate persons with disabilities in the administration of justice
cannot be said to be “so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to, or
designed to prevent, unconstitutional behavior.” Boerne, 521 U.S., at
532; Kimel, 528 U.S., at 86.24 It is, rather, a reasonable prophylactic
measure, reasonably targeted to a legitimate end.”

Kline was denied a meaningful opportunity to be heard when the
Certificate as to the State of the Record was filed concomitant with
Deutsche’s Motion for Default Judgment on a day when no additional
time had been granted Kline to answer; Kline was denied a meaningful
opportunity to be heard when the Motion for Default Judgment was not
served on her and she could not therefore address the problems –
Deutsche knew that Kline was disabled because Kline had filed her
Neuropsychological Evaluation with the bankruptcy court; Kline was
denied a meaningful opportunity to be heard when the Court failed to
have a hearing on Kline’s disability and her need for additional time;
Kline was denied a meaningful opportunity to be heard when there was
no hearing on the Motion for Default Judgment; Kline was denied a
meaningful opportunity to be heard when there was no notice to her of
the Foreclosure Judgment and Schedule of Sale; Kline was denied a
meaningful opportunity to be heard when the Hearing on Approval of
Sale was held less than 24 hours after the notice of hearing was delivered
to Kline; and Kline was denied a meaningful opportunity to be heard
when the Court denied her motion for a hearing on her disability and
then would not sign such an order thereby preventing it from being
entered into the record. Significantly Kline was denied a meaningful
opportunity to have her claims against the condominium association
heard, and at the same time the condominium association’s claims
against her in the form of unadjudicated liens were used by Rick Green
to redeem. Foreclosure judgment, default judgment, summary judgment,
stipulated judgment, approval of sale, and certificate of redemption
should be set aside as void for failure to provide a meaningful
opportunity to be heard and lack of due process.

Tennessee v. Lane, 541 U.S. 509 (2004), “ For these reasons, we
conclude that Title II, as it applies to the class of cases implicating the
fundamental right of access to the courts, constitutes a valid exercise of
Congress’ §5 authority to enforce the guarantees of the Fourteenth
Amendment. The judgment of the Court of Appeals is therefore
affirmed.”

Kline, as a disabled American therefore has a right to reasonable
accommodation and failing reasonable accommodation she has been
denied a meaningful opportunity to be heard and has been denied due
process and the orders and certificate should be set aside.

Contrary authority:
None known to appellant.

ISSUE FOUR: The trial court acted improperly in entering the orders
and appellant was not afforded due process. One day notice of a
trial/hearing is insufficient notice.

Supporting authority:

11 C. Wright & A. Miller, Federal Practice and Procedure § 2862
(1973) 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. … Taken from [8], In re Center Wholesale,
Inc., 759 F.2d 1448.

Winhoven v. United States, 201 F.2d 174, 175 (9th Circuit 1952). 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.

Kline was not provided reasonable accommodation and was denied a
meaningful opportunity to be heard in relation to the liens which were
ultimately used to redeem her property when she herself was denied any
possible opportunity to redeem since she was not notified of the
foreclosure judgment or sale and she therefore did not know about them
and could take no action. Further, not knowing about them she spent
nearly $5,000 on the property readying it for sale, when it had been sold
without notice to her.

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.

Kline was not served a valid amended complaint when such was served
upon other parties. Kline was therefore not afforded an opportunity to
object to the claims of the condominium association or of Crocker.
Ultimately, although Kline was not afforded an opportunity to object,
these liens were used to redeem Kline’s property when Kline herself was
afforded no opportunity to redeem because she was not given notice.
Kline received the notice of hearing less than 24 hours prior to the
hearing to approve sale. Such short notice would have given inadequate
for an able minded person to prepare for the hearing; it was grossly
inadequate notice to Kline who has a mental disability. The proceedings
should not be accorded finality.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct.
652, 94 L.Ed. 865 “[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.

Kline received notice on day before hearing. Notice came too late to
permit Kline who is mentally disabled to adequately prepare and present
her objections. See cites from Tennessee v. Lane, above.

Contrary authority:
None known to appellant.

ISSUE FIVE: The foreclosure sale held without notice to Kline violated
Kline’s due process rights.

Supporting authority:

Western Bank v. Fluid Assets Dev. Corp., 111 N.M. 458, 806 P.2d 1048
(1991), “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. No certificate of service was filed until
after Kline had filed something which showed she did not know of the
impending foreclosure sale. Kline did not receive any notice. Because
Kline’s mail was brought in to her by Michelle Duran, a state worker in
the Department of Adult Protective Services, Michelle Duran could have
been deposed and asked to testify in court that no envelope came from
Leverick with Leverick’s distinctive return address. Adequate time was
not afforded Kline to allow her to prepare and to show that Deutsche had
deliberated failed to serve her even though she was entitled to actual
notice.

Contrary authority:
None known to Appellant.

ISSUE SIX: The order approving foreclosure and foreclosure sale and
the Certificate of Redemption were entered in violation of Kline’s right to
reinstate her mortgage and she had timely wired the money pursuant to
paragraph 19 of her mortgage.

Supporting authority:
19. Borrower’s Right to Reinstate After Acceleration. If Borrower
meets certain conditions Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any time prior to
the earliest of: (a) five days before sale of the Property pursuant to any
power of sale contained in this Security Instrument; (b) such other period
as Applicable Law might specify for the termination of Borrower’s right
to reinstate; or (c) entry of judgment enforcing this Security Instrument.
Those conditions are that Borrower: (a) pays Lender all sums which then
would be due under this Security Instrument and the Note as if no
acceleration had occurred; (b) cures any default of any other covenant or
agreements; (c) pays all expenses incurred in enforcing this Security
Instrument, including, but not limited to, reasonable attorney’s fees,
property inspection and valuation fees, and other fees incurred for the
purpose of protecting Lender’s interest in the Property and rights under
this Security Instrument; and (d) takes such action as Lender may
reasonably require to assure that Lender’s interest in the Property and
rights under this Security Instrument, and Borrower’s obligation to pay
the sums secured by this Security Instrument, shall continue unchanged.

Art. I, §10, of the Constitution of the United States prohibits impairment
of contracts.

Beneficial Delaware, Inc. v. Lena Waples, Delware Superior Court,
July 3, 2006, “In taking an inflexible approach, Beneficial deprived
Waples of the right to reinstate, and it breached its obligations under
paragraphs 17 and 18.”

Kline provided the court with a copy of her wire instructions which gave
Deutsche Bank through Ocwen all of the money owed to it to include
costs. The wire instructions show that this was done more than five days
before the sale. Deutsche breached its obligations under paragraph 19
when it did not reinstate but rather had Leverick pursue approval of sale
which would make the sale a fact under New Mexico law.

Citicorp Savings v. First Chicago Trust Co., 269 Ill. App. 3d 293
(1995), On appeal, the reviewing court determined that it would have
been against the interests of justice for the trial court to have confirmed
the sale given that Citicorp had represented to the mortgagors that the
sale would be postponed and that the sale took place by mistake.

Kline was led to believe that Ocwen would accept the payment in full
which Kline wired to Ocwen. In fact Ocwen accepted the funds and held
them, further leading Kline to believe that reinstatement was
accomplished. Leverick, however, continued to press for approval of sale
and was successful against the interests of justice.

Contrary authority:
None known to Appellant.

ISSUE SEVEN: The Fenton case deprives Kline of her right to redeem
as provided in her mortgage at paragraph 24. Plaintiff failed to attach to
the complaint the page of the mortgage with the redemption right and
Kline’s signature.

Supporting authority:
24. Redemption Period. If this Security Instrument is foreclosed, the
redemption period after judicial sale shall be one month.

Art. I, §10, of the Constitution of the United States prohibits impairment
of contracts.

“The right of redemption is the mortgagor's valued and protected
equitable right to reclaim her estate in foreclosed property.” Deluxe
Motel, Inc. v. Patel, 770 So. 2d 283, 284 (Fla. 5th DCA 2000); Saidi v.
Wasko, 687 So. 2d 10, 11 (Fla. 5th DCA 1996); Action Realty & Invs.,
Inc. v. Grandison, 31 Fla. L. Weekly D786 (Fla. 4th DCA Mar. 15,
2006); Indian River Farms v. YBF Partners, 777 So. 2d 1096, 1099
(Fla. 4th DCA 2001).

Kline was disallowed by the court clerks on February 27, 2006, from
depositing her cashier’s check for $128,250 which would have satisfied
all liens and paid interest and costs on same, despite the fact the court
had refused to have a hearing on the sum actually due on the liens. Kline
had no knowledge of the foreclosure judgment or sale until long after it
was held. Kline had paid on the property for nearly two decades and had
remedied the privy pit over a part of which her condo bedroom had been
built. Kline spent nearly $5,000 completing remediation and readying the
property for sale, not knowing that a Certificate as to the State of the
Record had been filed or a default judgment requested and entered. Kline
has a mental disability and had asked for accommodation.

This equity of redemption is an estate in land. Deluxe Motel, Inc., 770
So. 2d at 284; Saidi, 687 So. 2d at 12; Indian River Farms, 777 So. 2d
at 1099; John Stepp, Inc. v. First Fed. Sav. & Loan Ass’n of Miami,
379 So. 2d 384, 386 (Fla. 4th DCA 1980).

Kline, an American with a disability, had counted on the money from her
condo to take care of herself in her old age. Kline is in her sixties and had
paid on the condo for nearly two decades. The fact of the privy pit over
a part of which her bedroom had been built and which caused her sewer
pipe to break thereby causing raw sewage to pool in the cavities
produced by the continually subsiding raw excrement of the privy pit,
with the result that hydrogen sulfide was in her unit and caused her to
lose feeling and have nerve damage, as recorded in her journal at the
time. Hydrogen sulfide is a known toxin. Kline was afforded no
opportunity to counterclaim against the condominium association that
refused to pay its share of the remediation costs, as required under the
Condominium Act, because the amended complaint which added the
condominium association was never validly served on Kline. Copy
served during bankruptcy was void.

“[T]he right of redemption is an incident of all mortgages and cannot be
extinguished except by due process of law.” Indian River Farms, 777
So. 2d at 1099; John Stepp, Inc., 379 So. 2d at 386; VOSR Indus., Inc.
v. Martin Properties, Inc., 919 So. 2d 554, 556 (Fla. 4th DCA 2005)

Kline was not afforded an opportunity to counterclaim or cross claim
against the condominium association; she was disallowed by the court
clerks from depositing her $128,250 cashier’s check on February 27,
2006, and she was beaten out in the race to redeem by the condominium
association giving their leins to the condominium association’s director’s
real estate agent, Green, who was also the highest bidder at the
foreclosure sale about which Kline had no knowledge. This was not due
process of law.

Craft v. Storey is a 1997 Colorado Court of Appeals decision resting
on Plute and Osborn Hardware. Craft holds that an owner (or his or her
agent) may satisfy liens encumbering the property to eliminate the
redemption rights of junior lienholders. Craft also addresses the
additional question of when the owner's ability to satisfy junior liens
terminates, concluding that owners may defeat the redemption rights of
lienholders by satisfying liens even after the lienor has tendered
redemption funds, as long as the lien is satisfied before expiration of that
lienor's redemption period.
Kline was not allowed to deposit her cashier’s check for $128,250 on
February 27, 2006. Kline’s deposit would have paid all liens
encumbering the property.

Ware v. Schintz, 190 Ill. 189, 193, 60 N. E. 67, 69: 'Under the repeated
rulings of this court a mortgagee, as against the mortgagor, is held, as in
England, in law, to be the owner of the fee, having the jus in re as well
as ad rem, and entitled to all the rights and remedies which the law gives
to such owner, and may, after condition broken, maintain ejectment
against the mortgagor. The mortgagor or his assignee, however, is the
legal owner of the mortgaged estate as against all persons, excepting the
mortgagee or his assignees. Delahay v. Clement, 4 Ill. 201; Vansant v.
Allmon, 23 Ill. 30; Carroll v. Ballance, 26 Ill. 9, 79 Am. Dec. 354;
Oldham v. Pfleger, 84 Ill. 102; Fountain v. Bookstaver, 141 Ill. 461, 31
N. E. 17; Esker v. Hefferman, 159 Ill. 38, 41 N. E. 1113.

Kline was the mortgagor and owner of the mortgaged condo as against all
persons except the mortgagee or his assignees.

Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143, the statute objected to
gave the mortgagor twelve months to redeem after the sale, and Mr.
Chief Justice Taney said:
'It declares that, although the mortgaged premises should be sold under
the decree of the court of chancery, yet that the equitable estate of the
mortgagor shall not be extinguished, but shall continue for twelve months
after the sale; and it moreover gives a new and like estate, which before
had no existence, to the judgment creditor, to continue for fifteen
months. If such rights may be added to the original contract by
subsequent legislation, it would be difficult to say at what point they must
stop . . . . Any such modification of a contract by subsequent legislation,
against the consent of one of the parties, unquestionably impairs its
obligations, and is prohibited by the Constitution.'
Kline as mortgagor had equitable estate not extinguished until the end of
her redemption period; to modify Kline’s contract by allowing Green, the
reputed real estate agent of the condominium association’s director,
when the association had refused to pay its share of remediation costs of
the privy pit which was in the common element, to redeem on the basis
of liens filed by the condominium association and which were not
judgment liens nor were ever adjudicated by the court despite Kline
repeatedly asking that a valid sum be determined by the court for the
liens, and against Kline’s consent, unquestionably impairs the contractual
obligations Kline relied upon, and is prohibited by the Constitution.

In Barnitz v. Beverly, 163 U.S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep.
1042, it was held that a state statute which authorized redemption of
property sold in foreclosure of a mortgage, where no such right
previously existed, or extended the period of redemption beyond the time
previously allowed, could not apply to a sale under a mortgage executed
before its passage, and Mr. Justice Shiras, referring to Brine v. Hartford
F. Ins. Co. 96 U.S. 627, 637, 24 S. L. ed. 858, 862, said:
'But this court held, through Mr. Justice Miller, that all the laws of a state
existing at the time a mortgage or any other contract is made, which
affect the rights of the parties to the contract, enter into and become a
part of it, and are obligatory on all courts which assume to give a remedy
on such contracts, . . . that it is therefore said that these laws enter into
and become a part of the contract'-and that 'the remedy subsisting in a
state when and where a contract is made and is to be performed is a part
of the obligation.' . . .

At the time Kline’s mortgage contract was made she had a right to
redemption after foreclosure sale and that right was obligatory on all
courts which assume to give a remedy on such contracts; the remedy at
the time the contract was made is a part of the obligation. Disallowing
Kline’s redemption right takes her property without due process.

Contrary authority:
Fenton case

ISSUE EIGHT: There is an appearance of partiality given by the First
Judicial District Court in this case which may relate to Kline suing the
First Judicial District Court in Federal Court for discrimination under the
ADA, Title II.

Supporting authority:
U.S.C. Title 28, Part I, Chapter 21 § 455. Disqualification of justice,
judge, or magistrate judge. (a) Any justice, judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned. (b) He shall also disqualify
himself in the following circumstances: (1) Where he has a personal bias
or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.

Because the Honorable Michael Vigil ruled against each due process
violation which Kline presented, to include ones which were supported in
her favor by U.S. Supreme Court cases, his impartiality might reasonably
be questioned given that Kline sued the First Judicial District Court for
violations of the ADA, Title II, and the Honorable Michael Vigil is a
judge in the First Judicial District. The Honorable Daniel Sanchez who
entered the default foreclosure judgment against Kline without hearing on
the foreclosure or on Kline’s disability, might also have his impartiality
reasonably questioned for the same reasons. Kline was told that Darci
Burson, Green’s broker, had said she had called Judge Vigil and asked
him about the case, and had been told , there is no way Kline would get
the condo back. There was no opportunity to depose Burson or the
informant, or call for phone records. The Honorable Michael Vigil denied
he had spoken to Burson. Such a denial would be de rigueur.

Contrary authority:
None known to appellant.

ISSUE NINE: Lawyer, Tami Schnieder, hired by Kline after Kline was
not allowed enough time to prepare for the Hearing on Approval of Sale,
which was particularly prejudicial because of Kline’s disability and the
complexity, falsely wrote that Kline had not been served the amended
complaint during her bankruptcy and that Kline was “incompetent”,
Schneider would not return Kline’s phone calls, Schneider filed a jury
case against Sotheby’s which Kline did not know about, and Schneider
cried and quit in the middle of a continued hearing. Schneider’s conduct
fell below a reasonable level of professional conduct such that the
defendant, Kline, was unfairly prejudiced.

Supporting authority:
Strickland v. Washington, 466 U.S. 668 (1984) To uphold a claim of
ineffective assistance of counsel, the court must find that counsel’s
performance was seriously deficient and that the ineffective performance
resulted in prejudice to the defendant.

Kline has lost half of her processing speed and working memory, none of
her previous level of education; Kline is disabled and not incompetent.
Schneider’s inability/failure to make the legal distinction between
incompetent and disabled rendered her unable to identify the problems in
this case deriving from Kline not being afforded adequate time to prepare
to present at the hearing on approval of sale, or answer before the
Certificate as to the State of the Record was filed. This resulted in
serious prejudice to Kline. Further, it was seriously deficient for
Schneider to write that Kline had not been served the amended complaint
during her bankruptcy when the record clearly shows that the amended
complaint had been served after Kline filed Chapter 13 and before the
stay was lifted. Service of the amended complaint during Kline’s
bankruptcy rendered it void. To say the opposite, as Schneider did,
resulted in prejudice to Kline.

Contrary authority:
None known to appellant.

STATEMENT IF THE PROCEEDINGS WERE TAPE RECORDED

The proceedings before the trial court were recorded on CD. There is a
record proper.

  REFERENCE TO RELATED OR PRIOR APPEALS

There are no related or prior appeals.

WHERE APPROPRIATE ORDER APPOINTING APELLATE
COUNSEL

On appeal the appellant is pro se. Appellant was pro se at the time of the
proceedings before the district court, with the exception of the hearing on
May 5, 2006, where counsel was significantly confused and in
misapprehension.
Respectfully submitted,

Karen Marie Kline

Santa Fe, New Mexico 87507
(505)

CERTIFICATE OF SERVICE

Pursuant to SCRA Rule 12-202(D)(3), I, Karen Marie Kline, hereby
certify that on September 5, 2006, a true copy of the Docketing
Statement was sent by U.S. mail to the following:

FOR THE PLAINTIFF-APPELLEE
Richard Leverick, Esq.
Albuquerque, New Mexico 87109

FOR DEFENDANT CONDOMINIUM UNIT OWNER’S
ASSOCIATION-APPELLEE
Rodney Schlagel, Esq. & Sherrill Filter, Esq.
Post Office Box 3170
Albuquerque, New Mexico 87190

FOR DEFENDANT EDWARD CROCKER, CROCKER LTD.-
APPELLEE
Edward Crocker, pro se
Santa Fe, New Mexico 87506

FOR THE PURCHASER;
CROSS- and COUNTER-PETITIONER-IN-REDEMPTION-
APPELLEE
John Hayes, Esq.
Santa Fe, New Mexico 87505

FOR THE PETITIONER IN REDEMPTION CATHERINE COOK-
APPELLEE
Charles Purdy, Esq.
Santa Fe, New Mexico 87501-1854

        Karen Marie Kline

M y Appeal
was denied