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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 N. Ana Garner, Attorney of

record in the above captioned case, to hereby request the Court demands Plaintiff to Show Cause

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

Plaintiff has violated the Order. Specifically, they have not responded to requests for

documents and continued to use general objections. See Exhibit A. “Plaintiff’s Reply to

Defendant’s Revised discovery dated 12/18/2017” and Exhibit B. “Review of Plaintiff’s Response

to Discovery.”

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Plaintiff produced 500 plus pages that were blank or completely redacted and 500 plus

pages of various “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 documents, receipts, records of indorsments or

Plaintiff-Client agreement and now new plaintiff attorneys have joined the third Plaintiff in this

case.

RULES

In New Mexico, 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:
…(2) to serve answers or objections to interrogatories submitted under Rule 1-
033, after proper service of the interrogatories;…”

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 motioned Court to compel Discovery on

Plaintiff, 08/24/2017. 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. Plaintiff

Attorneys then removed themselves from the case and were replaced with yet another firm.

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LEGAL STANDARD

In New Mexico, 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:
....
(2) to serve answers or objections to interrogatories submitted
under Rule 1-033, after proper service of the interrogatories; . . .the

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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).

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

request in a complete and timely 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 dismiss as a sanction and in this present case it is

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 process must 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.

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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 XXXX day of January, 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