STATE OF NEW MEXICO COUNTY OF SIERRA SEVENTH JUDICIAL DISTRICT Kim Audette, an Individual Appellant v.

Case No: D-0721-CV-2009-132 Judge: 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
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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 doctrine when the decision to be applied preclusively is clearly erroneous or when it would result in manifest injustice. Trujillo v. City of Albuquerque, 1998NMSC-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.

Motion for Relief from Coercive Collection Tactics

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 upon which 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 the grounds that it was arbitrary and capricious, and was not supported by substantial evidence Paule v. Santa Fe Co. Commissioners, 2005-NMSC021, 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

Motion for Relief from Coercive Collection Tactics

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, 138 N.M. 208, 118 P.3d 716 "In the absence of such statutory or contractual authority, a party to a lawsuit is not entitled to recover attorney fees from an opposing 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 legislative function "); 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 1060(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 the record of a meeting of the minds, the trial court could not find that there 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 insufficient to 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 obligation to 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 a misstatement or omission of fact by the City Attorney, followed by a ruling in the attorney's favor undermines the integrity of the adjudicative 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
Motion for Relief from Coercive Collection Tactics 11

decision is not supported by substantial evidence. See N.M. Right to Choose/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 532 stating that counsel's arguments are not evidence and are insufficient to support 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. 7). Rivera, 111 N.M. at 671

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 An omission as well as an act may constitute fraud.; Wirth, 96 N.M. at 346, 630 P.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-NMCA090; 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 Psychologist Exam'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., 2008NMSC-054, 144 N.M. 828, 192 P.3d 1205 24. The UPA makes it unlawful, in the conduct of any trade or commerce, to engage in unfair or deceptive trade practices and unconscionable trade practices. Section 57-12-3. An unfair or deceptive trade practice is defined in the UPA as any false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by any person in the regular course of his [or her] 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 make specific findings that were not made in this case. Seipert v. Johnson, 2003NMCA-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-NMCA056; 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 429-1(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 make specific findings that were not made in this case. Seipert v. Johnson, 2003NMCA-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
19

Motion for Relief from Coercive Collection Tactics

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). (C). (D). fraudulent claim of justly indebted; and fraudulent Writ filed in District Court on Dec. 21, 2011. 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 5212-2(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
Motion for Relief from Coercive Collection Tactics 23

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 Audette Representing herself 618 Van Patten Truth or Consequences, NM 87901 Telephone: 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 TRADE PRACTICES 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 Main Truth or Consequences, NM 87901 _________________________ Kim Audette Representing herself 618 Van Patten Truth or Consequences, NM 87901 Telephone: 575-740-1988
Motion for Relief from Coercive Collection Tactics 24