FIRST JUDICIAL DISTRICT COURT

STATE OF NEW MEXICO

SANTA FE COUNTY
WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE HARBORVIEW MORTGAGE LOAN TRUST
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2007-1,
Plaintiff,
vs.

D-101-CV-2013-00904

MARCELINA Y MARTINEZ, et al.,

Defendants.
MOTION TO VACATE ORDERS FILED
MARCH 30, 2015 AND REQUEST FOR REHEARING
COME NOW Martinez, Marcelina, hereinafter Martinez, and Romero,
Gilbert, hereinafter Romero, Real Parties in Interest in this matter,
collectively hereinafter Parties, making a special appearance in this action
without waiving any rights, remedies or defenses, statutory or procedural, to
move this Court to vacate the Orders filed on 3/30/15 and to request a
rehearing on Parties Motion to Dismiss, Motion to Take Judicial Notice, and
Motion to Strike Scandalous and Irrelevant Portions of Carl J. Martinezs
Cross Claim. In support of their Motion Parties provide the following.
A. INTRODUCTION
1. Plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE HARBORVIEW MORTGAGE LOAN TRUST MORTGAGE LOAN
PASS-THROUGH CERTIFICATES, SERIES 2007-1 filed its action for foreclosure
on March 29, 2013.

2. Parties filed a Motion to Dismiss and Motion to Take Judicial Notice on June
19, 2014.
3. Defendant Carl J. Martinez entered appearance, through counsel Karl
Sommer, hereinafter Sommer, on August 19, 2014 via an Answer and
Cross Claim against Martinez on 8/19/14 mailing it to Parties through First
Class Mail on 8/29/14, according to its certificate of service.
4. Martinez filed a Motion to Strike Scandalous and Irrelevant Portions of Carl J.
Martinezs Cross Claim on 9/29/14.
5. A hearing on Parties motions with Honorable Jennifer Attrep was held on
12/2/14.
6. During the hearing Judge Attrep allowed Sommer to respond to Parties
motion to dismiss and to take judicial notice despite Carl not having entered
appearance in this action for two months after the filing of those motions
and despite failing to file a written response to those motions.
7. In his oral response Sommer accused Martinez of having assistance of an
undisclosed attorney and having her pleadings ghostwritten. Sommer
offered this testimony as fact but failed to provide any evidence that this
was plausible and went so far as to ask the court to deny Martinez her right
to be heard, asking that she not be allowed to file pleadings into this action.
8. As a result of Sommers argument Judge Attrep required Martinez to defend
herself and disclose that she had in fact drafted her own documents despite
this disclosure not being a requirement of pro se litigants but actually a
requirement of candor in the code of professional conduct for attorneys.
9. In response to both motions Sommer argued on behalf of the plaintiff first by
asking the Court to order Martinez to pay the plaintiffs attorneys fees,
second by testifying that the copy of the alleged original note in possession
of the plaintiffs counsel was a true and correct copy and identical to that
2

attached to the initial complaint, and third, by asking the Court to deny
Martinezs motion to dismiss despite this being to the detriment of his own
client.
10.
Judge Attrep denied both the motion to dismiss and the motion to
strike portions of Carl J. Martinezs Cross Claim and denied in part the
motion to take judicial notice.
11.
Due to Judge Attreps temporary tenure as an assigned judge she
asked Martinez to expedite her review of the orders because she would be
exiting office within a week of the hearing. Although Martinez agreed at the
hearing, upon review of the rules she discovered that this was a violation of
due process based on the time requirements of the rules relating to the
filing of orders.
12.
Martinez asked Judge Attrep to recuse herself for the appearance of
bias at the hearing, which did not occur likely because Judge Attrep was
already exiting the office.
13.
At some point toward the end of December 2014 Judge Attrep
vacated the office and Honorable David Thompson was assigned to this
action.
14.
Judge David Thompson was sworn in as judge on December 19, 2014.
See attached certified copy of his oath of office, Ex. A.
15.
The Orders on the Motion to Dismiss, Motion to Take Judicial Notice
and Motion to Strike were signed by Judge Thompson and filed on March 30,
2015.
16.
Parties file this motion to seek review of Judge Thompsons jurisdiction
over the motions given that he had not yet taken office at the time of the
hearing and did not obtain jurisdiction until 12/19/2014. Review of the issue
of Judge Thompsons jurisdiction is proper so as to prevent or preclude any
3

need for a Writ of Mandamus or Quo Warranto. Parties further request

consideration for rehearing to prevent any potential conflict regarding their
assertion that the actions of Judge Attrep gave the appearance of bias,
which could possibly subject the present judge to disqualification or, at a
minimum, liable for the actions of another judge. Parties request findings of
fact and conclusions pursuant to the ruling on this motion.
B. ARGUMENT
The term of office of every state, county or district officer, except those
elected at the first election held under this constitution, and those elected to
fill vacancies, shall commence on the first day of January next after his
election. N.M. Const. Art XX Sec. 3. Every person elected or appointed to
any office shall, before entering upon his duties, take and subscribe to an
oath or affirmation that he will support the constitution of the United States
and the constitution and laws of this state, and that he will faithfully and
impartially discharge the duties of his office to the best of his ability. N.M.
Const. Art XX Sec. 1. See also BOWMAN BANK & TRUST CO. V. FIRST NAT'L
BANK, 1914-NMSC-014, 18 N.M. 589, 139 P. 148 (S. Ct. 1914). In the present
case Honorable David Thompson executed his Oath of Office on December
19, 2014 and, according to the New Mexico Constitution, began his term on
January 1 of this year. The hearing from which the orders filed on March 30,
2015 and signed by Judge Thompson occurred prior to Judge Thompson
entering office.
According to Rule 21-207, A judge shall hear and decide matters
assigned to the judge, except when disqualification is required by Rule 214

211 NMRA, the constitution, or other law. In the present action there is no
evidence or reason otherwise for the disqualification of Judge Thompson and
therefore it would stand to reason that he should be the judge to hear the
Motions upon which he signed the orders. According to this rule it would
appear that the current judge should hear the motions himself. See Gerety v.
Demers, 92 N.M. 396, 589 P.2d 180 (1978).
Besides 21-207 there is no other clear rule or guidance as to whether or
not the same judge who heard a motion(s) is also required to sign the
corresponding order(s) or vice versa. A review of the record in the action
might render the orders of a different judge valid; however in this case the
judge who signed the orders was not yet sworn in as a judge and therefore
he had not yet obtained jurisdiction over any action. Further, the requirement
of Rule 21-207 seems to conflict with his ability to sign the order from a
hearing over which he was not the presiding judge. This discrepancy, namely
regarding the fact that the present judge had not yet been sworn in at the
time of the hearing, could be a potentially fatal jurisdictional defect that, at a
minimum, requires review.
The New Mexico Supreme Court has, on several occasions, recognized
that

mandamus

is

an

appropriate

means

to

prohibit

unlawful

or

unconstitutional official action. State Ex Rel. Clark v. Johnson, 904 P. 2d 11

(1995) citing Stanley v. Raton Bd. of Educ., 117 N.M. 717, 718, 876 P.2d 232,
233 (1994); State ex rel. Bird, 91 N.M. at 282, 573 P.2d at 216; State ex rel.
Sego, 86 N.M. at 363, 524 P.2d at 979; State ex rel. State Bd. of Educ. v.

Montoya, 73 N.M. 162, 170, 386 P.2d 252, 258 (1963). Parties provide this
motion in an effort to prevent taking such extreme measures to ensure that
the orders filed were done so with authority. Such review of these
requirements would not prejudice the other parties in this action and would
in fact be done in the interest of time and justice. Should this action proceed
to trial and result in an appeal, the present question could result in the
necessity of an entirely new trial causing severe delays and effort for all
parties involved.
Additionally, Martinez raised issues that could be considered the
appearance of bias by the hearing judge that have not been adjudicated and
could be raised on appeal if necessary. Such issues could cause undue
liability to the present judge and, again, cause undue delay in the event that
there is an appeal. Vacating the orders filed on March 30, 2015 and a rehearing on the motions could put to rest any question of judicial authority or
bias and would prevent any unnecessary delay or effort should these issues
require review by a higher court.
C. Conclusion
Based on the foregoing, Parties feel that good cause has been shown for
the orders to be vacated and a re-hearing scheduled to ensure that the
currently assigned judge has jurisdiction over the motions, to prevent the
need for a Writ of Mandamus or Quo Warranto as required by law, and to
ensure that the current judge not be held liable for any actions of the
previously assigned judge. Parties respectfully request that this Court vacate

the orders filed on March 30, 2015, schedule a re-hearing on the motions
subject to the orders, and provide findings of fact and conclusions regarding
this motion.
Respectfully Submitted,

_________________________________
_________________________________
Marcelina Martinez, Real Party in Interest
Gilbert Romero, Real Party in
Interest
c/o PO Box 2077
c/o PO Box 2077
Santa Cruz, New Mexico
Santa Cruz, New Mexico
505.672.8497

505.672.8497

CERTIFICATE OF SERVICE
I certify that on ___________________, a copy of the foregoing Motion to Vacate
Orders Filed March 30, 2015 and Request for Rehearing was served on the
following parties:
Karl Sommer
Attorney for Defendant Carl J. Martinez
PO BOX 2476
Santa Fe, New Mexico 87504-2476
LITTLE, BRADLEY & NESBITT, P.A.
Sandra Brown
Attorney for Plaintiff
P.O. Box 3509
Albuquerque, NM 87190-3509
Holland & Hart, LLP
Larry J. Montano
Jordan L. Kessler
Attorneys for Plaintiff
110 N. Guadalupe, Suite 1
Santa Fe, New Mexico 87505