STATE OF NEW MEXICO

COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT

CHRISTOPHER CLEMENS and LANETTE K.

LOEKS,

Plaintiffs,

v. Case No. D-101-CV-2015-00856

Consolidated Case
BAC HOME LOANS SERVICING, LP F/K/A Case No. D-101-CV-2016-00561
COUNTRYWIDE HOME LOANS SERVICING
LP, BANK OF AMERICA, NATIONAL
ASSOCIATION, CHRISTIANA TRUST, IN ITS
CAPACITY AS TRUSTEE, OF AND FOR,
ARLP TRUST 5, AND UNKNOWN
DEFENDANTS 1-100,

Defendants.

LSF9 MASTER PARTICIPATION TRUST,

Plaintiff,

v.

CHRISTOPHER A. CLEMENS; LANETTE K.

LOEKS; JACOB LOGAN CLEMENS, and if
Married, JANE DOE CLEMENTS (true name
Unknown), his spouse,

Defendants.

RESPONSE TO MOTION TO INTERVENE

COME NOW Christopher A. Clemens and Lanette K. Loeks, by and through their undersigned

attorney, and in Response to the Motion to Intervene (the “Motion”) state:

LSF9 was never omitted from the First Case – a deceptive statement made by LSF9 in its

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Motion to Intervene. Intervention by LSF9 is not warranted because the Motion presents no evidence

indicating that LSF9 had an interest in the title of the property on April 10, 2015.  The title of the

property on that day is the subject matter of the First Case.  LSF9 has shown no title report that it had a

recorded interest on that date.  It has put forward no evidence it had an unrecorded claim of any kind

on that day.  The Motion is about an alleged claim of interest that did not arise until after the First Case

was filed and the related lis pendens recorded.

FACTS

1. Case No. D-101-CV-2015-00856, the Quiet Title action, (“First Case”) was filed on

April 10, 2015. The Complaint sought a determination of title to the subject property as of 4/10/15, the

date the First Case commenced. (Complaint, p 4, # 23). A lis pendens was recorded in the Santa Fe

County records on 4/14/2015. (Notice of Lis Pendens, filed 4/15/2015 in First Case).

2. The Defendants in the First Case are BAC Home Loans Servicing, LP F/K/A

Countrywide Home Loans Servicing LP ("BAC"), Bank of America, National Association ("BANA"),

Christiana Trust, in its capacity as Trustee of and for ARLP Trust 5 ("Trust") and Unknown Defendants

1-100.

3. The class of Unknown Defendants were unknown to Plaintiffs at the time the Complaint

was filed and had no recorded interest in Santa Fe County against the Property being quieted by the

First Case as of its commencement. (First Case, Complaint, ## 5, 16 and 20). Court ordered service by

publication was carried out in strict compliance with the court’s order as to Unknown Defendants. No

answer or response was ever filed by any person claiming status as an Unknown Defendant.

4. Case No. D-101-CV-2016-00561 (“Second Case”) was filed by its initial plaintiff

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(“Wilmington”) in February 2016, dismissed for lack of prosecution in September 2016, and reinstated

in October 2016. LSF9 became the named plaintiff when the Amended Complaint was filed in

October 2016. Plaintiffs in First Case were served as Defendant in Second Case for the first time after

the filing of the Amended Complaint.

5. By the Motion for Reinstatement (p 5) filed September 30, 2016, in the Second Case,

Wilmington’s attorney showed she had been keeping track of the First Case since it commenced.

(Motion to Reinstate, Exhibit 1, Affidavit of Lindsay Griffel, # 3). Her firm represents the Trust,

Wilmington and LSF9. This motion failed to advise the judge that the First Case sought a

determination of title to the same property that was the subject of her foreclosure action in the Second

Case and that Wilmington and/or LSF9 might be parties in the First Case within the class of unknown

defendants, i.e., defendants who claimed an interest in the property even though their name did not

appear in the land records as having an interest. This motion failed to advise the judge that neither

Wilmington nor LSF9 had a recorded interest in the property that was under either’s name when the

First Case was filed. The motion omitted that the unknown defendants were served by publication and

that the time to respond to that service expired in June 2015, long before they filed the Second Case,

and that neither Wilmington nor LSF9 filed an answer or response to that service.

6. Plaintiffs of the First Case moved for default judgment against the Unknown Defendants

several times. Twice the Clerk certified the state of the record and non-appearance. No admissible

evidence was ever introduced establishing that service was not exactly as the court ordered for the

Unknown Defendants and no person appeared claiming to be a member of this class of defendants.

Even with no evidence and no person appearing as or for an Unknown Defendant claiming failed

service, and no mention of any technical glitch with the service by publication, Judge Ortiz ruled by

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order entered December 18, 2017 that the entire class of unknown defendants had never been served

(Order, # 4). Plaintiffs are entitled to a default judgment so this will be revisited before long.

7. November 11, 2017, at the hearing in the First Case involving the move to default the

Unknown Defendants, LSF9’s attorney, Lindsay Griffel, became an unsworn fact witness. She told

the court that Wilmington and LSF9 were not members of the unknown defendants because the

plaintiffs knew of Wilmington and LSF9 and that each claimed an interest in the Property before the

First Case was filed. The judge adopted her story and ruled that neither LSF9 nor Wilmington would

be considered Unknown Defendants. (Order, Id. # 2).

8. Plaintiffs’ second discovery request was issued to LSF9 in October 2018. (Certificate of

Service, entered October 9, 2018, Second Case). The discovery, among other things, asked for

explanation of Ms. Griffel’s testimony about the Unknown Defendant matter and requested whatever

evidence was available to back up what she told the court. This discovery also requested

documentation establishing that Wilmington and/or LSF9 had recorded interests in the Property before

April 10, 2015. LSF9’s response was uniform; it refused to produce any documents establishing that

Plaintiffs had any knowledge that Wilmington or LSF9 claimed an interest in the Property before the

First Case was filed.

9. LSF9 has been an active participant in all First Case matters since consolidation of the

First Case and Second Case in March 2017. (Order Granting Motion to Consolidate and Reassigning

Case to Division III, entered March 1, 2017).

10. The attorney for Wilmington and LSF9 is still the attorney for Christiana Trust

(“Trust”) in the First Case.

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 11. Neither Wilmington nor LSF9 previously moved to intervene in the First Case.

12. Neither has shown evidentiary support establishing that they are not already parties

to the First Case as Unknown Defendants who were properly served and who intentionally chose

not to answer since they knew about service of the Unknown Defendants. That would, of course,

require proof of an interest as of April 10, 2015, which has never been presented by either.

13. Wilmington or LSF9 could have moved to intervened at any time after the filing of the

First Case. They could have responded as an Unknown Defendant in 2015 or they could have

intervened to argue that they were not in the unknown class but that they had a justiciable claim to the

title that was being determined in the First Case, but neither did.

ARGUMENT

The Motion is not persuasive. It cites no statutory law requiring its intervention for purposes of

Rule 1-024(A)(1) NMRA, that is, the Motion demonstrates no statutory legal basis for LSF9’s claim of

right to intervene. Having waited five years to intervene in a case that LSF9 has been monitoring from

the 2015 filing is definitely not a “timely application” under this Rule. LSF9 has been a regular

participant in motion practice in the First Case for years beginning in 2017 as demonstrated by the

orders resulting from hearings in the First Case.

LSF9 participated in creating the Second Case by deception in not disclosing to the

reinstatement judge for the Second Case the complete circumstances of the First Case which made and

continue to make the Second Case irrelevant. The First Case will determine the title owner of the

Property as of April 2015. The Second Case was filed long afterwards. The Motion is admission that

the Second Case has no merit.

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 LSF9 has no evidence that it held a recorded interest in the Property before the First Case and

the related lis pendens were filed and recorded, respectfully in April 2015. LSF9 has no admissible

evidence that Plaintiffs knew of it or Wilmington or that either claimed an interest in the Property when

the quiet title action was filed in 2015. The Motion sets out no evidence that LSF9’s claim in the

Property was existent before the First Case was filed. The only parties to the First Case should be and

at this time are all persons who actually asserted or may have asserted unrecorded claims to the

Property as of April 10, 2015.

      “Under Rule 1-024(A)(2), an applicant seeking to intervene as a matter of right

must file a timely application, see United Airlines, Inc. v. McDonald, 432 U.S. 385, 97
S.Ct. 2464, 53 L.Ed.2d 423 (1977), and satisfy a three-part test showing that (1) the
applicant has an interest in the subject matter of the action; (2) protection of the applicant's
interest may be impaired or impeded by disposition of the action; and (3) the interest
sought to be protected is not adequately represented by existing parties. See In re Marcia
L., 109 N.M. 420, 785 P.2d 1039 (Ct.App.1989); McCormick v. Smith, 793 P.2d 1042
(Alaska 1990); see also 7C Charles A. Wright et al., Federal Practice and Procedure: Civil
2d Sec. 1908, at 262 (1986); see generally Howard J. Alperin, Construction of Federal
Civil Procedure Rule 24(a)(2), as Amended in 1966, Insofar as Dealing With Prerequisites
of Intervention as a Matter of Right, 5 A.L.R.Fed. 518 (1970).”   Chino Mines Company v.
Del Curto, 1992-NMCA-108, 842 P.2d 738, 740.

LSF9 fails to meet the Chino requirements as it does not even have the capability of satisfying

the first prong, “(1) the applicant has an interest in the subject matter of the action.” LSF9 has not

demonstrated an interest in the property that is subject to the First Case as of 4/10/2015, therefore

failing to establish an interest in the subject matter of the First Case.

Unless LSF9 has a recorded interest in the Property predating April 10, 2015, its intervention is

a waste of the court’s time since that is the date title will be quieted under the First Case. The Motion

provides no title report evidencing that LSF9 or its predecessor Wilmington held recorded interests in

the Property when the quiet title and related lis pendens were filed. There is NO rationale or legal

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authority for letting a person with no evidence of an interest in the Property as of April 10, 2015

intervene in a quiet title action that is already five years old and that was being monitored by LSF9 all

those five years. Denying the Motion as untimely would be appropriate even if LSF9 now chooses to

show a recorded interest in its name, which it has never done nor offered to do.

The Motion provides no evidence that LSF9 is not already a member of the class of Unknown

Defendants in the First Case. The record proper has no evidence that LSF9 had an unrecorded claim

against the Property on April 10, 2015, and the Motion provides no such evidence. If it is not an

Unknown Defendant, whatever judgment befalls that class in the First Case is no consequence to LSF9.

If, as Ms. Griffel told the court in 2017, LSF9 is not an ‘unknown’ because Plaintiffs knew of it

and its claimed interest before April 10, 2015, where is the proof? Where is the proof of the

unrecorded interest held by LSF9 on the quiet title date? Where is the proof that Plaintiffs were aware

of its claim before filing the First Case on April 10, 2015? Ms. Griffel presented no evidence to back

her story during that November 2017 hearing and LSF9 refused to show evidence in discovery

propounded against it afterwards. A claim today of this unsupported theory must fall on deaf ears.,

especially since the Motion provides no evidence establishing that LSF9 had an unrecord interest in the

Property on or before April 10, 2015. The fact that LSF9 was monitoring and participating in the First

Case from its inception definitely fails to satisfy the ‘timely application’ required by Rule 1-024(A).

WHEREFORE, Christopher A. Clemens and Lanette K. Loeks respectfully request that

the Motion to Intervene be denied, that the Second Case be dismissed or stayed pending a

determination in the First Case of title ownership as of April 10, 2015, and for such other and further

relief as the Court deems just and proper.

Respectfully submitted by:

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 RACHEL O. WOODS, ESQ.

By: __/s/ Rachel O. Woods______

Rachel O. Woods
P.O. Box 66503
Albuquerque, NM 87193
(505) 610-8284
rachel.o.woods@gmail.com

I hereby certify that the foregoing pleading was electronically filed this 12 day of June, 2020,
and emailed to all parties entitled to notice.

__/s/ Rachel O. Woods___

Rachel O. Woods