Appeal-Foreclosure-Sale-Confirmation

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 COURT 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.
5120 San Francisco Road NE
Albuquerque, New Mexico 87109
(505) 858-3303

FOR THE DEFENDANT KAREN MARIE KLINE-APPELLANT
Karen Marie Kline, pro se
3255 Calle de Molina
Santa Fe, New Mexico 87507
(505) 471-2367

FOR DEFENDANT CONDOMINIUM UNIT OWNER’S ASSOCIATION-APPELLEE
Rodney Schlagel, Esq. & Sherrill Filter, Esq.
Post Office Box 3170
Albuquerque, New Mexico 87190
(505) 884-0777

FOR DEFENDANT EDWARD CROCKER, CROCKER LTD.-APPELLEE
Edward Crocker, pro se
82 Estrada Redondo
Santa Fe, New Mexico 87506
(505) 983-2991

FOR THE PURCHASER;
CROSS- and COUNTER-PETITIONER-IN-REDEMPTION-APPELLEE
John Hayes, Esq.
530 B. Harkle Road
Santa Fe, New Mexico 87505
(505) 989-1434

FOR THE PETITIONER IN REDEMPTION CATHERINE COOK-APPELLEE
Charles Purdy, Esq.
233 Johnson Street
Santa Fe, New Mexico 87501-1854
(505) 984-2999

           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.
5120 San Francisco Road NE
Albuquerque, New Mexico 87109
(505) 858-3303

FOR DEFENDANT CONDOMINIUM UNIT OWNER’S ASSOCIATION-APPELLEE
Rodney Schlagel, Esq. & Sherrill Filter, Esq.
Post Office Box 3170
Albuquerque, New Mexico 87190
(505) 884-0777

FOR DEFENDANT EDWARD CROCKER, CROCKER LTD.-APPELLEE
Edward Crocker, pro se
82 Estrada Redondo
Santa Fe, New Mexico 87506
(505) 983-2991

FOR THE PURCHASER;
CROSS- and COUNTER-PETITIONER-IN-REDEMPTION-APPELLEE
John Hayes, Esq.
530 B. Harkle Road
Santa Fe, New Mexico 87505
(505) 989-1434

FOR THE PETITIONER IN REDEMPTION CATHERINE COOK-APPELLEE
Charles Purdy, Esq.
233 Johnson Street
Santa Fe, New Mexico 87501-1854
(505) 984-2999

            Karen Marie Kline