STATE OF NEW MEXICO

COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT

No. D-101-CV-2016-00249

U.S. BANK NATIONAL ASSOCIATION,

not in its individual capacity, but solely as trustee
for the RMAC Trust, Series 2016-CTT,

Plaintiff,
vs.
MARK F. COBLE,

Defendant.

DEFENDANT’S MOTION TO SHOW CAUSE AND REQUEST FOR SANCTIONS

COMES NOW, Mark F. Coble, Defendant, by and through his attorney, N. Ana Garner,

Attorney at law, and hereby moves the Court for an Order to Show Cause why Plaintiff should

not be sanctioned for failure to comply with an Order of the Court.

Plaintiff has violated the Order entered by the Court on 11/20/2017. Specifically, they

have not responded to requests for documents and continued to use general objections.

“Plaintiff’s Reply to Defendant’s Revised discovery dated 12/18/2017”, see Exhibit 3, “Review

of Plaintiff’s Response to Discovery”, see Exhibit 4.

Plaintiff produced 2,038 pages, of which 500 plus pages were blank or completely

redacted and 500 plus pages of various duplicates of alleged “copies” of the Note, Mortgage,

AOM, loan application and closing docs.

Notably Plaintiff did not produce MERS Milestones, Attorney-in-fact documents, Trust

documents, Corporate Resolutions, Custodial Agreements, receipts, records of indorsements or

Attorney-Client agreement demonstrating who their client truly is. Now new attorneys have

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substituted in as the third Plaintiff counsel in this case. Due to this changeover in attorneys,

much time has elapsed to address the original good faith letter sent by Defendant to prior

counsel. Unfortunately, this has been the pattern and practice in this and the previous

foreclosure case.

Attached as Exhibit XX is email correspondence between counsel for Defendant and

Plaintiff concerning the discovery responses. We have allowed ample time to resolve this matter,

and the willful refusal to provide critical information is apparent.

FACTS AND PROCEDURAL BACKGROUND

On June 21, 2017, the Defendant, pursuant to NMRA 1-033, properly served Plaintiff

with Defendant’s Request for First Set of Admissions and Production of Documents.

Plaintiff did not properly answer discovery. Defendant previously filed a Motion to

compel Discovery on Plaintiff 08/24/2017. This Honorable Court agreed with Defendant and

issued an “Order Concerning Motion to Compel Discovery” filed 11/01/2017. Defendant filed

Revised Discovery upon Plaintiff 11/20/2017 and Plaintiff replied 12/18/2017 with 2038 pages

of document production. Subsequently, Plaintiff’s Attorneys substituted other counsel in the

case on 01/03/2018.

LEGAL STANDARD

Pursuant to NMRA 1-037(D), sanctions of dismissal are appropriate for:

“Failure of party to attend at own deposition or serve answers to interrogatories or

respond to request for inspection. If a party or an officer, director or managing agent of a party or

a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a

party fails:

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 …(2) to serve answers or objections to interrogatories submitted under Rule 1-

033, after proper service of the interrogatories;…”

The choice of sanctions for abuse of the discovery process falls within the sound

discretion of the trial court and will be reversed only for abuse of discretion. Couch v. Williams,

2015, 365 P.3d 45, on remand 2016 WL 6024491. Standard of review for discovery orders is

abuse of discretion; to the extent a trial court's discretionary decision is premised on the

construction of a privilege, however, review of that decision presents a question of law, subject

to de novo review. Pincheira v. Allstate Insurance Co., 2007, 142 N.M. 283, 164 P.3d 982,

certiorari granted 142 N.M. 330, 165 P.3d 327, affirmed on other grounds 144 N.M. 601, 190

P.3d 322, rehearing denied.

ARGUMENTS AND AUTHORITIES

It is well established in New Mexico that failure to respond to an interrogatory by a party can

be used to support sanctions and the court does not need to order a party to respond first. In

Enriquez v. Cochran the court stated:

[w]e have considered, and we reject, BSA's position that its failure to respond to
interrogatory 12 cannot be used to support sanctions because it was never ordered
to respond. BSA's argument fundamentally misperceives the nature of a litigant's
obligation to respond to discovery requests and the court's discretionary power to
enforce those obligations. It was BSA's responsibility to respond to interrogatories
served on it, or to object to them. See Rule 1-033(A) NMRA 1998. BSA did
neither as to interrogatory 12. Rule 1-037(D)(2) NMRA 1998 provides:

D. Failure of party to attend at own deposition or serve answers to

interrogatories or respond to request for inspection. If a party or an
officer, director or managing agent of a party or a person
designated under Rule 1-030 or 1-031 to testify on behalf of a
party fails:
....

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 (2) to serve answers or objections to interrogatories submitted
under Rule 1-033, after proper service of the interrogatories; . . .the
court in which the action is pending on motion may make such
orders in regard to the failure as are just, and among others it may
take any action authorized under Subparagraphs (a), (b) and (c) of
Subparagraph (2) of Paragraph B of this rule.

The trial courts have the power to impose a sanction without first ordering

Compliance under Rule 1-037 (A). However, the Court did Order Plaintiff to answer the

discovery. After Defendant revised discovery requests that were deemed “vague”,

Plaintiff still refused to provide essential documents that test the truthfulness of their

allegations, as well as provide support for defenses.

The documents requested, such as the MERS Summary, Audit, and Milestones

show the entries made into the databank concerning transfer of the mortgage, and will

provide evidence as to who has held the mortgage since its inception. It provides one of

the best chain of title tracking systems. The Trust agreement and documents relating to

authority of US Bank to bring this action are needed, because Defendant’s research

indicates that US Bank, NA as Trustee, does not institute foreclosure lawsuits. See,

Exhibit 1. And yet, we have seen them as Plaintiffs in hundreds of cases. Who is pulling

the strings here? Only the Attorney Client agreement would show that, which we

requested (while giving permission to redact the precise financial details, not the identity

of their client). Attorney client fee agreements are not privileged.

This is also important in light of a recent Attorney General opinion in which a

foreclosure defense attorney, Joshua Simms, was recently suspended from the practice of

law August 2016. One of the issues facing Mr. Simms was the disclosure that he was not

meeting with his clients and was not taking his instructions from the client. Are attorneys

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representing alleged Trusts exempt from the same standard as Mr. Simms?

(https://www.ladailypost.com/content/ag-obtains-restraining-order-protect-homeowners)

Defendant has averred that Plaintiff Attorney is not being directed by nor meeting

with the alleged “Trust”.

906 F.2d 1485 31 Fed. R. Evid. Serv. 149 In re GRAND JURY SUBPOENAS. UNITED STATES of
America, Plaintiff-Appellee, Scott M. ANDERSON, James G. Walker, John Echols, Tex
McConathy, and Stanley Moore, Defendants-Appellants-Relators.

No. 89-5199.United States Court of Appeals, Tenth Circuit. July 2, 1990.

“ It is well recognized in every circuit, including our own, that the identity of an attorney's

client and the source of payment for legal fees are not normally protected by the attorney-client privilege.

United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir.1974); In re Grand Jury Subpoenas, 803 F.2d

493, 496-98 (9th Cir.1986); In re Shargel, 742 F.2d 61, 62 (2d Cir.1984); In re Grand Jury Investigation,

723 F.2d 447, 451 (6th Cir.1983); 84 A.L.R.Fed. 852, 859 (1987)” ID Page 3 ¶1.

Plaintiff now demonstrates a lack of good faith by not responding to Defendant’s

revised request in a complete manner. “The failure to immediately raise and object to

interrogatories is itself evidence of a lack of good faith.” United Nuclear Corp. v.

General Atomic Co., N.M. 155, 629 P.2d 231 (1980). Enriquez v. Cochran, 1998-

NMCA-157, ¶ 41-42 & 48, 126 N.M. 196, 209, 967 P.2d 1136, 1149. See Sandoval v.

Martinez, 109 N.M. 5, 11, 780 P.2d 1152, 1158 (Ct.App.1989) (the imposition of

sanctions should be guided by the extent to which the purpose of discovery to aid in the

preparation for trial has been obstructed).

The trial Court has the power to sanction Plaintiff by dismissing the Complaint with

prejudice. In this present case it is highly appropriate. In determining the nature of the sanctions

to be imposed, the trial court must balance the nature of the offense, the potential prejudice to the

parties, the effectiveness of the sanction, and the imperative that the integrity of the judicial

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process be protected. See Enriquez v. Cochran, 1998-NMCA-157, ¶ 48, 126 N.M. 196, 209, 967

P.2d 1136, 1149 (stating same.)

CONCLUSION

The Defendant prays the Court to dismiss this case, with prejudice, as a sanction

against third named Plaintiff U.S. BANK NATIONAL ASSOCIATION, not in its individual

capacity, but solely as trustee for the RMAC Trust, Series 2016-CTT, for Plaintiff’s failure to

answer, in good faith and under Court Order, the Defendant’s Revised Discovery requests in

full.

Respectfully Submitted,
Garner Law Firm

S/ N. Ana Garner Electronically signed

N. Ana Garner, Attorney for Defendant Coble
1000 Cordova Place #644
Santa Fe, NM 87505
505-235-3302 (T)
505-888-507-0410 (F)
Garnerlaw@yahoo.com

CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of March, 2018, I filed the following with the Tyler
Technology Electronic File and Serve, and caused service to be made on all contacts of record,
according to the electronic system.

__N. Ana Garner__________________________

N. Ana Garner