D Motion To Show Cause and Sanction P Draft
D Motion To Show Cause and Sanction P Draft
D Motion To Show Cause and Sanction P Draft
COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT
No. D-101-CV-2016-00249
Plaintiff,
vs.
MARK F. COBLE,
Defendant.
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
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
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,
Notably Plaintiff did not produce MERS Milestones, Attorney-in-fact documents, Trust
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.
Plaintiff concerning the discovery responses. We have allowed ample time to resolve this matter,
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
case on 01/03/2018.
LEGAL STANDARD
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-
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
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
[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:
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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
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
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
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.
“ 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.
revised request in a complete manner. “The failure to immediately raise and object to
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
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
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
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.