Sanction on Writ

8/3/2019 Sanction on Writ

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STATE OF NEW MEXICOCOUNTY OF SIERRA

SEVENTH JUDICIAL DISTRICT

Kim Audette, an IndividualAppellant

v. Case No: D-0721-CV-200 9-132Judge: HON. KEVIN SWEAZEA

City of Truth or Consequences Commissioners:Lori Montgomery, Fred Torres, Evelyn Renfro,Jerry Stagner, and Steve Green

Appellees

MOTION FOR RELIEF FROM FOURTH DEGREE FELONY FRAUD

AND COERCIVE COLLECTION TACTICS

UNFAIR TRADE PRACTICES ACT

NOW COMES Appellant Kim Audette, representing herself, to submit this

Complaint to the District Court. District Court has jurisdiction because a Writ of

Execution was issued in District Court on Dec. 21, 2011 under this case number,

and the error is corrected by NMRA Rule 1-060(A). The fraudulent cause for

Application for the Writ is corrected by NMRA Rule 1-060(B)(3 and 6), fraud and

fraud on the Court.

The felonious seizure of Appellant's possessions is the substantial purpose

of the Application for Writ filed Dec. 21, 2011, with process of service on Jan. 6,

2012. NMSA 52-10-3 states: Unfair or deceptive trade practices and

unconscionable trade practices in the conduct of any trade or commerce are

Motion for Relief from Coercive Collection Tactics 1


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unlawful. As will be shown in below and in the Affidavit of Kim Audette (filed

concurrently), the Writ of Execution, issued Dec. 21, 2011, qualifies as a

Fraudulent Transaction of rights to unspecified assets belonging to Appellant

Audette. A Fraudulent Transaction (NMSA 30-16-6(A)) of $1,276.02 is a fourth

degree felony. NMSA 30-16-6(D)

The City Commissioners, represented by the Mayor, signed contracts.

Under those contracts, City Attorney and City employees participated in frauds on

the behalf of City Commissioners. The City Commissioners individually signed

written contracts called the Oath of Office. The City Commissioners therefore do

not have immunity, pursuant to NMSA 37-1-23, and are jointly and severally liable

for their actions and the actions of their appointed public officials.

NMSA 55-1-103(b) allows supplemental principles of law such as fraud

and coercion to invalidate City's cause of the Writ of Execution of Dec.

21, 2011. The loss of items of sentimental value would cause irrepairable harm.

Therefore Appellant prays for NMRA Rule 1-060 injunctive relief. A proposed

form of the order is attached.

NMSA 56-10-20(D) allows Appellant Audette to pray for relief from frauds

and coercive collection tactics conducted in violation of statutes by the City of

Truth or Consequences Commissioners (City), and several participants, named



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herein and in the Affidavit filed concurrently. The law of the case is

unreasoned, and without supporting evidence, making the orders arbitrary.

Appellant prays for the District Court to vacate the law of the case under NMRA

Rule 1-060 and NMSA 39-3-1.1(D) and the proposed form of the order is attached.

Law of the case doctrine is discretionary, and courts will not use the doctrinewhen the decision to be applied preclusively is clearly erroneous or when itwould result in manifest injustice. Trujillo v. City of Albuquerque, 1998-

NMSC-031, 41, 125 N.M. 721, 965 P.2d 305

The Affidavit of City, filed Dec. 21, 2011 at #3 and #5, swears under the

oath of City Attorney Jay Rubin, that a fraudulently obtained judgment of

$1,276.02 has justly indebted Appellant Audette to City. For reasons described

below, and in the Affidavit of Kim Audette (filed concurrently and incorporated

herein), the debt is unjust and fraudulent. Fraudulent and coercive conduct in

transactions and collections by entities is prohibited by the Unfair Trade Act, and

the penalties are statutory.

NMSA 49-2-1(G) allows Appellant Audette to cross-claim for treble and

punitive damages on the fraudulent and felonious transaction that resulted: the

Dec. 21, 2011 Writ of Execution for seizure of Appellant Audette's assets and

conversion for $1,276.02.



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INTRODUCTION

1) City filed a pleading on Dec. 21, 2011styled an Affidavit and Application for

Writ of Execution. The pleading demonstrates unconscionable trade practices as

defined by NMSA 52-12-2(E)(1) for neglect to serve process as notice before

filing, lack of a contract validating a debt, lack of findings and conclusions

validating the claim that Appellant Audette is justly indebted, lack of a

reasonable time between demand and default, and no cause under NMSA

42-9-1 for a Writ to issue.

2) The Writ of Execution is a coercive collection tactic on a fraudulent debt

under the Unfair Practices Act as defined in NMSA 52-12-2(D)(1-15).

3) The Fraudulent Transactions Act applied when the Writ of Execution was

issued without valid cause. NMSA 56-10-20(D) states that a transfer is not made

until the debtor has acquired the right to the asset, such right being in the Writ

of Execution to collect assets belonging to Appellant Audette.

4) Applicable law is NMSA 55-1-103(b), NMSA 56-10-20(D), NMSA 42-9-1

and 42-9-5, NMSA 57-12-10, NMSA 57-12-2, NMSA 57-12-3, NMSA 30-16-6(A)

and (D) and NMSA 39-3-1.1(D).

5) Fraud is cause to reverse Ordinance 599 pursuant to NMSA 39-3-1.1(D).

The law of the case is voided by the frauds. Trujillo , 1998-NMSC-031, 41



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6) Appellant Audette respectfully moves the Court for Declaratory Judgment

under NMSA 44-6-4 and 44-6-13 to provide the collateral relief under NMRA Rule

1-060(A) from clerical error, NMRA Rule 1-060(B)(3) from fraud and NMRA

Rule 1-060(B)(6) for Fraud on the Court.

Grounds in support of this motion are:

DISCUSSION

NMSA 39-3-1.1(D) is the controlling law of the case.

1). A change of jurisdiction in a zoning appeal requires a written order. Smith

v. City of Santa Fe, 2007-NMSC-055, 15, 142 N.M. 786, 171 P.3d 300 stood for

the proposition that a change of jurisdiction in an appeal of an administrative

decision requires a written order. While the court may access any of its forms for

relief simultaneously, the Supreme Court cautioned in Smith that a written order

must distinguish the features of each. Distinguishment has not happened to date.

(Affidavit of Kim Audette filed concurrently #1-#3)

2). In 2009, District Court took jurisdiction under NMSA 39-3-1.1. District

Court has not issued any letters, orders, nor Findings and Conclusions, that

specifically changed that jurisdiction. NMRA Rule 1-052 Smith (Id)

3). It is continuously apparent that City neglected, while empowered to do so in

their quasi-judicial role, to give Ordinance 599 the factual and legal basis required



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to meet the City's needs.

4). City's Findings justified the zone change by stating that it met the City's

needs. Yet, the case continues to use the Court's time. If City's needs are not met

through Ord. 599, then no judiciary action can fix that. Ord. 599 simply must be

remanded for a legal and factual basis.

Williams v. Ashbaugh, 120 N.M. 731, 734, 906 P.2d 263, 266 (Ct. App.1986) it "is a situation which calls for legislative therapy and not judicial

therapy"

5). City has the responsibility of finding facts and creating the legal authority to

act (ordinances) while in the quasi-judicial role at the public hearing on zoning

Ordinance 599 pursuant to NMSA 3-21-1 et seq.

6). While creating a zoning ordinance, City has the authority to decide zoning

issues in accordance with NMSA 3-21-1 et seq and weight the factors of zoning in

accordance with NMSA 3-21-5, T or C Codes 11-2-3, 11-2-2(G)(1-7) and 11-7-2.

7). City Commissioners neglected to do so, and also did not authorize contracts,

did not find cause for denial of standing, did not find authority for sanctions, and

did not find authority for inventorying the laundry of zoning opponents. Appellant

Audette respectfully requests Judicial Notice that applicable law was not cited, that

relevant facts were not found, and the Cost bill was not served for review and there

is no Certificate of Service on the Judgment dated Feb. 25, 2011 nor on the County



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Clerk's filing of Feb. 28, 2011.

A judgment cannot be sustained on appeal unless the conclusion uponwhich it is based finds support in the findings of fact. Worland v. Worland,89 N.M. 291, 551 P.2d 981 (1976)

8). City Attorney Rubin, acting on behalf of City Commissioners under

contract, worked a Fraud on the Court with his filing of Dec. 21, 2011, resulting in

the felony of a Writ of Execution for $1,276.02 without cause.

9). This action is still under NMSA 39-3-1.1 and is still a zoning appeal.

Appellant has in good faith acted in the public interest with public approval,

through volunteer efforts to require a viable zoning ordinance from the

Commissioner-Manager form of municipal government. District Court is

authorized by law to remand under NMSA 39-3-1.1(D), and now 4th degree felony

fraud can be added to the many flaws of Ordinance 599. With every additional

unauthorized action in violation of administrative law by the District Court and

City Commission, zoning Ord. 599 becomes more and more arbitrary.

The district court should reverse the Commission's decision on thegrounds that it was arbitrary and capricious, and was not supported bysubstantial evidencePaule v. Santa Fe Co. Commissioners, 2005-NMSC-

021, 138 N.M. 82, 117 P.3d 240 26

10). Appellees did not move the Court for a change of jurisdiction and so their

Post Trial Motion for Rule 11 Sanctions was outside of the jurisdiction of District



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Court. The grant of the sanction was a significant error that reaches for new depths

of error. Appellant Audette therefore moves the Court for a change of jurisdiction

to the Declaratory Judgment Act to correct the errors of the Court.

11). Even if jurisdiction is changed to that of the Declaratory Judgment Act, the

Record Below stands as the sole source of evidence. (Smith, 2007-NMSC-055, Id)

District Court cannot find facts that City did not find. If the facts are not in the

Record, then District Court can only remand to obtain factual basis that City

neglected to find. Paule 2005-NMSC-021 26 Zamora v. Vill. of Ruidoso Downs,

120 N.M. 778 at 782-85, 907 P.2d at 186-89 (1995) describing district court's scope

of review when reviewing final agency decision.

12). City did not find a statute or contract. There is still no evidence of a statute

or contract to enforce in the Record on Appeal that gives weight to the order

granting the Motion for Rule 11 Sanctions.

Summit Properties, Inc. v Public Service Co. of NM., 2005-NMCA-090, 138N.M. 208, 118 P.3d 716 "In the absence of such statutory or contractualauthority, a party to a lawsuit is not entitled to recover attorney fees from anopposing party."

13). A timely Motion for NMRA Rule 1-052 Court's Findings and Conclusions

was made on March 4, 201. District Court did not file a statement of relevant fact

and applicable law in this case in violation of NMRA Rule 1-052(A), where the use



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of the word shall does not allow avoidance of Findings and Conclusions.

14). Without the relevant fact and applicable law that can only be provided by the

Court's Findings and Conclusions, the Feb. 25, 2011 order and judgment has no

weight. A judgment without reason is arbitrary and unenforcable.

15). The Dec. 21, 2011 claim of justly indebted is required under the Writs

statutes by the use of the word SHALL (NMSA 42-9-5). Even if it was not

specifically used, the Writ was applied for, so the Application is required by law to

have a cause that involves a just debt. Yet, the Feb. 25, 2011 judgment

enforcing a non-existent contract is unjust --it is has no weight of Findings and

Conclusions, making it arbitrary, unreasoned, unreasonable and outside of the

Court's authority. The Dec. 21, 2011 Application for Writ relies upon an unjust

judgment, swearing it is just. The Application is therefore fraudulent.

16). By submitting the Application for Writ of Execution of Dec. 21, 2011,

Appellees once again asked this Court to exceed its authority by finding facts that

would validate a non-existent contract. District Court is still forbidden from

finding facts by NMSA 39-3-1.1. City is the fact finder when in the quasi-judicial

role at the public hearing.

Rowley v. Murray, 106 N.M. 676, 679, 748 P.2d 973, 976 (Ct. App. 1987)(noting "[t]his standard reflects a respect for the governing body's legislativefunction "); Paule 2005-NMSC-021 16



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17). The serious errors involving City Attorney's frauds on the Court have

resulted in actions that are in excess of the District Court's authority. NMRA 1-

060(B)(3, 5 and 6) allows the Court to vacate actions based in fraud.

18). Filing a fraudulent judgment on Feb. 25, 2011, without support of the

Court's Findings and Conclusions, is not an authorized action of the District Court.

Appellate courts may vacate or remand sanctions that lack the support of

specific evidence in the record. Rivera v. Brazos Lodge Corp, 111 N.M.at 671, 808 P.2d at 956. NMRA Rule 1-052(A)

19). Issuing a fraudulent Writ of Execution on Dec. 21, 2011, a fourth degree

felony, is not an authorized action of the District Court. NMRA Rule 1-060(A)

allows the District Court to vacate the clerk's error. (Id)

How the Felonious Frauds came about.

1). On October 20, 2010, City Commissioners by and through their City

Attorney, Jay Rubin, fraudulently applied to this court for sanctions for

enforcement of a non-existent contract. The authority cited was common law on

contracts. False allegations were made of the existence of contracts by City

Attorney. (Affidavit of Kim Audette, filed concurrently, #3, #13-#15) See Motion

for Sanctions filed October 20, 2010, Exhibit A.

2). Appellant Audette is an individual who has not signed a contract. NMSA



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55-1-103(b). Therefore the law applied by City was not applicable law, because

there is no contract to which to apply the common law of contracts.

DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, 20, 134 N.M. 630, 81 P.3d 573 ("In the absence of evidence in therecord of a meeting of the minds, the trial court could not find thatthere was mutual assent.").

[T]here was not any evidence of such a promise. See State v.Boergadine, 2005-NMCA-028, 37, 137 N.M. 92, 107 P.3d 532(stating that counsel's arguments are not evidence and are insufficientto support proposed facts). Therefore, we hold that there was

insufficient evidence City of Sunland Park v. Harris News, Inc.,2005-NMCA-128, 138 N.M. 588, 124 P.3d 566 at 32

3). As an officer of the court, Jay Rubin is forbidden from deception.

Lawyers are officers of the court and are always under an obligationto be truthful to the court. Woodson v. Phillips Petroleoum Co., 102

N.M. 333, 339, 695 P.2d 483, 489 (1985);

Candor and honest are a lawyer's stock and trade. Truth is not a

matter of convenience. In the Matter of Stein, 2008-NMSC-013,143 N.M. 462, 177 P.3d 513;

NMRA Rule 16-303, under committee Commentary states that amisstatement or omission of fact by the City Attorney, followed by aruling in the attorney's favor undermines the integrity of theadjudicative process.

4). Jay F. Rubin fraudulently represented that a contract with Appellant Audette

existed, in his motion of Oct. 20, 2010 and in the hearings of Feb. 16, 2011

(Hearing log 2:35:32). Jay Rubin never produced relevant fact and substantial

evidence of a contract.

A district court abuses its discretion when it misapprehends the law or if the

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decision is not supported by substantial evidence. SeeN.M. Right toChoose/NARAL v. Johnson, 1999-NMSC-028, 6-7, 17 127 N.M. 654,

986 P.2d 450 (emphasis added)

5). The City Attorney could only offer statements, and statements of attorneys

are not evidence.

State v. Boergadine, 2005-NMCA-028, 37, 137 N.M. 92, 107 P.3d 532stating that counsel's arguments are not evidence and are insufficient tosupport proposed facts.

6). Without citation to statute or contract, and without the support of the Court's

Findings and Conclusions, Jay F. Rubin, an officer of the Court and a public

official appointed under T or C Code 2-141, fraudulently obtained grant of the

sanction and judgment for $1,276.02 on Feb. 25, 2011. The Feb. 25, 2011 order

granting sanctions to enforce a non-existent contract is abitrary for lack of contract

to enforce. Rivera, 111 N.M. at 671

7). Mr. Rubin worked a fraud on the court, which can only be done by an officer

of the court. City has never been able to produce a contract that placed Appellant

Audette, an individual, in violation of contract law. The fraud was not apparent

until January 6, 2012, when City served process that is clear and convincing

evidence of fraud.

Robertson v. Carmel Builders Real Estate 135 NM 641 2004-NMCA-056 Anomission as well as an act may constitute fraud.; Wirth, 96 N.M. at 346, 630P.2d at 298.

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8). An order and judgment which are granted without substantial evidence and

applicable law have no weight. The order and judgment are therefore arbitrary and

unreasoned and should be vacated. NMRA Rule 1-060. Summit, 2005-NMCA-

090;NARAL, 1999-NMSC-028, 6-7, 17;Rivera v. Brazos Lodge Corp, 111

N.M. at 671;Robertson 2004-NMCA-056; Wirth, 96 N.M. at 346, 630 P.2d at 298.

9). Following the grant of the motion and award of the arbitrary judgment on

Feb. 25, 2011, City neglected service of process of the judgment. Appellant

Audette is an individual who is not under the Uniform Commercial Code, so that

notice is controlled only by the process of service described in NMRA Rule

LR7-004 and Rule 1-004. Process of service on the judgment filed Feb. 25, 2011

did not occur until January 6, 2012. NMSA 37-1-13 states that the judgment does

not commence until served.

[D]ue process requires notice Mills v. N.M. State Bd. of PsychologistExam'rs, 1997-NMSC-028, 14, 123 N.M. 421, 941 P.2d 502

10). Appellant Audette objected on March 4, 2011, and requested the Court's

Findings of Fact and Conclusions of Law pusuant to NMRA Rule 1-052(A).

11). The first step in the fraud, arbitrary grant of a judgment for $1,276.02 was a

fraud not fully ripe. An award of attorney fees cannot be collected until there are

Findings and Conclusions in support thereof. Summit, 2005-NMCA-090,supra As



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long as City did not attempt collection, there was no damage.

12). The second step of the fraud, issuance of the Writ of Execution on Dec. 21,

2011, is knowing and willful violation of the NM Constitution preclusion against

acts in excess of authority, Article 3, Sec. 1. Particularly since this step is a Court

error that participates in a fraudulent conversion of property, a fourth degree felony

in a coercive collection action of $1,276.02. NMSA 30-16-6(A) and (D) and

NMSA 39-3-1.1(D)

The Unfair Practices Act

1). Prior to January 6,2012, Appellant Audette, a law-abiding citizen, is not

legally allowed to validate an illegitimate bill, which is not just, has no due

date, no default date and was not served. The NM Supeme Court has

discussed the Unfair Practices Act (UPA) at length in Salazar v. DWBH, Inc., 2008-

NMSC-054, 144 N.M. 828, 192 P.3d 1205 24.

The UPA makes it unlawful, in the conduct ofany trade or commerce, toengage in unfair or deceptive trade practices and unconscionable trade

practices. Section 57-12-3. An unfair or deceptive trade practice is definedin the UPA as

any false or misleading oral or written statement, visual description orother representation of any kind knowingly made in connection with thesale, lease, rental or loan of goods or services or in the extension of creditorin the collection of debts by any person in the regular course of his [orher] trade or commerce, which may, tends to or does deceive or mislead

any person. (emphasis added)



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2). On Dec. 21, 2011, Appellees' counsel, Jay Rubin, filed an Affidavit on

behalf of City. At #1, #3, #4, and #6, City swore through Mr. Rubin's oath four

times that the judgment was due and in default.

3). A judgment that was served for the first time on Jan. 6, 2012 cannot be

due and in default on Dec. 21, 2011. In this first context, #1, #3, #4, and #6

are frauds.

4). A judgment without a due date on its face cannot be in default until well

after it is demanded. NMSA 56-5-3 (#19 Affidavit of Kim Audette filed

concurrently) In this second context, #1, #3, #4, and #6 are frauds.

5). Even if the Dec. 21, 2011 attachment to the affidavit, Exhibit A, is

considered the demand for payment of the debt, it was delivered by process

of service on Jan. 6, 2012. The debt could not be demanded until process of

service.

(A). The demand could not be in default until after a reasonable amount

of time had expired after process of service. NMSA 56-5-3 For the time to be

reasonable, it must be communicated in some way. There has not been a phone

call, a letter, an email or a person, who has communicated a statement of a

reasonable time before default. The reasonable time required by statute on a



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demand, between notice and default, never occurred. In this third context, #1,

#4, #3 and #6 are frauds.

6). As discuss under How The Felonious Frauds Came About, the judgment

of Feb. 25, 2011 could not be a just debt until validated by the Court's

Findings and Conclusions (NMRA Rule 1-052(A). Filing on Feb. 28, 2011 simply

transferred the record of the unjust debt to the County Records. It was vexatious

conduct, but not a felony, until the Writ was issued. In this fourth context, #1, #2,

#3, #4, #5 and #6 of the Dec. 21 2011 filing are frauds. (Affidavit of Kim Audette

filed concurrently #4-#16).

In order to sanction under its inherent power, a district court must makespecific findings that were not made in this case. Seipert v. Johnson, 2003-

NMCA-119, 134 N.M. 394, 77 P.3d 298; NMRA Rule 1-052(A)

7). A Writ for seizure cannot be issued unless the Affiant alleges one of the

conditions under NMSA 42-9-1. None of the conditions under NMSA 42-9-1 were

alleged, and none apply. In this fifth context, the Dec. 21, 2011Application for

Writ of Execution is fraudulent on its face.

8). Delivery of a demand is a generous description of the Affidavit of City filed

Dec. 21, 2011 and delivered Jan. 6, 2012. Even under generous interpretation, it is a

fraudulent cause, in five different ways, for filing the Application to the District

Court to issue a Writ of Execution to sieze assets belonging to Appellant Audette



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based upon City's own neglect to notice in a timely manner.

9). The Dec. 21, 2011 claim of a judgment, debt, default, delivery and

cause is therefore fraudulent under the statutory requirements for a Writ of

Execution or debt collection (NMSA 56-5-3), violating NMSA 49-2-5 and NMSA

49-2-1. The judgment was not due nor in default as it is unjustly indebted

for lack of the Court's Findings and Conclusions, and had not yet been served.

(Affidavit of Kim Audette filed concurrently, #17-#28).Robertson 2004-NMCA-

056; Wirth, 96 N.M. at 346, 630 P.2d at 298.

10). City then further escalated the violation of the Unfair Practices Act. A District

Court Clerk issued the Writ of Seizure to the Sheriff on Dec. 21, 2011. Working a

fraud on the Court for issuance of a Writ of Execution is very serious.

11). Appellant Audette has the right to sue for attachment as a Creditor for the

damages of the fraud of claiming a non-existent contract as a debt under NMSA 42-

9-1(G).

12). Treble and Punitive damages are authorized by NMSA 57-12-10. Appellant

Audette therefore moves the Court for attachment for treble and punative damages

against the several and joint assets of each of the participants who were under

contract with each other in the frauds and coercive collection tactics: Jay Rubin,

Lori Montgomery, Fred Torres, Evelyn Renfro, Frances Sanchez-Luna, Steve



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Green, Ken Reidermann, Whitehead Auto Towing, and Maliza Apodaca.

13). Without the relevant fact and applicable law that in the Court's Findings of

Fact and Conclusions of Law, never filed, a violation of NMRA Rule 1-052, there

is no weight to the orders composed and submitted by Jay Rubin. All of the

District Courts orders in this case are arbitrary for lack of the weight of District

Court's Findings and Conclusions.

In order to sanction under its inherent power, a district court must makespecific findings that were not made in this case. Seipert v. Johnson, 2003-

NMCA-119, 134 N.M. 394, 77 P.3d 298

14). Completely lacking in factual or legal basis, City's Affidavit of Dec. 21,

2011 swears the proposed fact that Appellant is justly indebted at #3 and #5.

The violation of NMSA 49-2-5 is in the lack of the Court's Findings and

Conclusions, as required by NMRA Rule 1-052, Appellant Audette's March 4,

2011 request for Findings and Conclusions, the Unfair Practices Act, the

Fraudulent Transactions Act and common law. NMRA Rule 1-052.

Atlixco Coalition v. Maggiore, 1998-NMCA-134, 24 23, 125 N.M. 786,965 P.2d 370 noting that an agency acts arbitrarily and capriciously when it"entirely omits consideration of relevant factors or important aspects of the

problem at hand"

15). City Commissioners, by and through their attorney, violated the Unfair

Practices Act, controlling fraudulent collections. Four times, the Affidavit on



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behalf of City fraudulently swore the illegitimate debt was just and in

default.

16). City Commissioners, by and through their attorney, Jay F. Rubin violated the

statutes controlling Writs (NMSA Chapter 42). The fraudulent affidavit was used

to obtain a fraudulent Writ of Execution from the District Court Clerk, Maliza

Apodaca, by fraudulently claiming a debt that cannot exist until the District

Court files the Court's Findings and Conclusions and Appellant Audette receives

process of service. (Affidavit of Kim Audette, filed concurrently #32) Seipert

2003-NMCA-119 NMRA Rule 1-052

17). City's fraudulent writ of seizure is a malicious abuse of color of law for

coercive collection. "[W]ith an improper purpose to intimidate and frighten"

Valles v Silverman 2004-NMCA-019. 135 N.M. 91. 84 P.3d 1056 A form of

arbitrary is tyranny. (Affidavit of Kim Audette, filed concurrently and

incorporated herein, #3, #33-38, #41)

18). City, by and through the City Attorney, violated the Unfair Practices Act by

swearing it was not neglectful of the law, but was neglectful:

(A). Neglecting the Court's Findings and Conclusions in violation of

NMRA Rule 1-052,

(B). Neglecting process of service of the judgment in violation of



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NMRA Rule LR7-004 and NMRA Rule 1-004,

(C). Neglecting to serve a demand for payment of a justly indebted

judgment,

(D). Neglecting to communicate a due date for a justly indebted

judgment, and

(E). Neglecting to communicate a reasonable amount of time after

which the justly indebted judgment goes into default.

(F). #5 of the Affidavit of Dec. 21, 2011 simply says that the unjustly

indebted judgment, still awaiting the Court's Findings and Conclusions,

is now due and #1,#, #4, and #6 say it is in default.

(G). The neglect of a governing body resulting in damages is subject to

Tort Law (Chapter 41). NMSA 44-4-4(D)(2) specifies that City must

pay for the damages to property or rights caused by City's neglegence.

NMSA 52-12-10(D) allows for the additional penalties of Tort Law. This

filing is also notice of Tort violations that will be dealt with separately in

due time.

19). The fraudulent claim of default on Dec. 21, 2011 by City on the Record at

#1, #3, #4, #5 and #6 of the Affidavit created evidence of Unfair Practices.

20). Abusive Collection Tactics followed in the City's prayer for a Writ of



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Execution for $1,276.02, based upon fraudulent claims at the last paragraph on

page 2 of the Dec. 21, 2011 filing.

21). NMSA 30-16-6 (A) and (D) describe the fraudulent Writ of Execution for

$1,276.02 as a fourth degree felony. Each person under the Uniform Commerical

Code who participates in the perpetration of a fourth degree felony fraud is subject

to suit for damages severally and jointly.

22). Appellant Audette's prayer for relief under the remedies provided by the

Unfair Practices Act is supported by the evidence of

(A). fraudulently obtained judgment filed Feb. 25, 2011 in District

Court and Feb. 28, 2011 in the County Clerk's Office;

(B). fraudulent claim of justly indebted; and

(C). fraudulent Writ filed in District Court on Dec. 21, 2011.

(D). NMSA Section 55-1-103(b) allows the statutory application of law

to the fraudulent transactions,

(E). NMSA Section 57-12-2, NMSA 52-12-10 and NMSA Section 57-

12-3 provide for the statutory penalites in the prayer for relief below.

23). NMRA Rule 1-011 is intolerant of harmful violations of the Rules of Civil

Procedure. City's neglect is a violation of NMRA Rule 1-011. City and City

Attorney are under the Uniform Commercial Code as organizations who have



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signed contracts with each other and another contract called the Oath of Office

City intends fraudulent conversion of Appellant Audette's property; therefore, City

and participants in the fraud are subject to Rule 11 sanctions for fraudulent filings

causing harm. NMSA 52-12-10(D) allows for the additional penalties of NMRA

Rule 1-011 that results in unconscionable trade practices as defined by NMSA 52-

12-2(E)(1). Appellant Audette herein moves the Court for sanction of Appellees

under NMRA Rule 1-011 for damages.

WHEREFORE Appellant Audette prays for relief as follows:

1. The frauds require orders affirming Ordinance 599 be VACATED.

2. REMAND of Ordinance 599 to City for a legal and factual basis. (NMSA

39-3-1.1(D)

3. The Order granting Sanction be VACATED.

4. The judgment for $1,276.02 be VACATED.

5. Attached is a proposed Order granting INJUNCTIVE RELIEF from the

Abusive Practices and Writ of Execution, enjoining the Sheriff from

executing seizure of Audette's possessions and enjoining City from further

coercive collection practices.

6. TREBLE THE DAMAGE of the judgment of $1,276.02, for a total of

$3,828.06, assessed jointly and severally as a liability on City



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Commissioners and other participants in the Unfair Practices: Jay Rubin,

Lori Montgomery, Fred Torres, Evelyn Renfro, Frances Sanchez-Luna,

Steve Green, Ken Reidermann, and Whitehead Auto Towing, LLC.

7. Additional PUNITIVE DAMAGES caused by the threat of home invasion

under color of law, the loss of possessions of sentimental value, the physical

harm caused by stress and the loss of time at work, all a part of defending

one's possessions from fraudulent seizure (Affidavit of Kim Audette#3, #29,

#30, #33, #38, and #41, filed concurrently). Punitive damages of $1,276.02

severally assessed against each participant in the abusive collection tactics

and frauds under the Uniform Commercial Code: Jay Rubin, Lori

Montgomery, Fred Torres, Evelyn Renfro, Frances Sanchez-Luna, Steve

Green, Ken Reidermann, and Whitehead Auto Towing, LLC.

8. The order vacating and enjoining the judgment of $1,276.02 to be filed at the

County Clerks office relating to the Book 117, Page 2674-5 filing.

9. Referral to the District Attorney for QUO WARRANTO INVESTIGATION

OF THE MALICIOUS ABUSE OF COLOR OF LAW and FOURTH

DEGREE FELONY FRAUDULENT COLLECTIONS, which is the

substantial purpose of the Writ issued Dec. 21, 2011. The perpetrators of the

fraudulent collection tactics for $1,276.02 are: Jay Rubin, Lori



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Montgomery, Fred Torres, Evelyn Renfro, Frances Sanchez-Luna, and Steve

Green. Other participants are Ken Reidermann, Whitehead Auto Towing,

LLC and some of the District Court staff, whose names are not known.

Respectfully submitted,

Kim AudetteRepresenting herself

618 Van Patten

Truth or Consequences, NM 87901Telephone: 575-740-1988

AFFIRMATION OF DELIVERY

By my signature below I affirm that a copy of the foregoing: MOTION FOR RELIEF FROM FOURTH DEGREE FELONY FRAUD

UNDER THE UNIFORM COMMERCIAL CODE AND UNFAIR TRADEPRACTICES ACT,

AFFIDAVIT OF KIM AUDETTE, APPELLANT'S PROPOSED FINDINGS AND CONCLUSIONS

and ORDER of INJUNCTION

was delivered by hand to:Jay Rubin

Attorney for the City of Truth or Consequences Commissioners

314 MainTruth or Consequences, NM 87901

_________________________Kim Audette

Representing herself

618 Van PattenTruth or Consequences, NM 87901Telephone: 575-740-1988


Sanction on Writ

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