..
..
Third Party Complaint Filed in Foreclosures Brought on by Privy Pit.
I was in foreclosure because I believed the Association when they said they
would pay their share. Then they didn't. My mortgage payments weren't timely
and my credit was ruined before I knew it, because of
my disability. Then I
couldn't get an equity loan even though I have significant equity.
FIRST JUDICIAL DISTRICT COURT
COUNTY OF SANTA FE
STATE OF NEW MEXICO


Washington Mutual Bank, F.A.,
Successor by merger to Bank United,
Plaintiff,
v.
Karen M. Kline, Et. al.
Defendants.
                               No. D-101-CV-200400619
Karen M. Kline
Third Party Plaintiff
v.
City of Santa Fe, E. W. Sargent,
Manhattan Condominium Unit Owners’ Association,
Dorrie Deal, Robert Horestler, Robert Hunt, Linda Hunt,
Sole Two Crow, Ed Crocker, Accent Property Management,
Somers Law Firm, Shapiro and Meinhold, Wells Fargo,
Third Party Defendants,                                        








COMES NOW Defendant pro se, Karen Kline, as Third Party Plaintiff, and amends
the Complaint to read as follows:

1. Plaintiff, Karen Kline, is a resident of Santa Fe County.

2. Defendant, the City of Santa Fe, is in Santa Fe County.

3. Defendant, E.W. Sargent, does business in Santa Fe County as a Realtor and the
Broker of Santa Fe Properties.

4. Defendant, Manhattan Condominium Unit Owners’ Association, is organized in
Santa Fe County.

5. Defendant, Dorrie Deal, owns a condo at 729 W. Manhattan, Santa Fe, in Santa
Fe County.

6. Defendant, Robert Hoerstler, owns a condo together with his wife, Dorrie Deal,
at 729 W. Manhattan, Santa Fe, in Santa Fe County.

7. Defendant, Robert Hunt, is a resident of Durango, Colorado but owns a condo at
729 W. Manhattan in Santa Fe, Santa Fe County, in which he also resides.

8. Defendant, Linda Hunt is a resident of Durango, Colorado but owns with her
husband a condo at 729 W. Manhattan in Santa Fe, Santa Fe County, in which she
also resides.









9. Defendant, Sole Two Crow, owns two condos at 729 W. Manhattan, Santa Fe, in
Santa Fe County.

10. Defendant, Accent Property Management does business in Santa Fe County.

11. Defendant, Sommer Law firm is in Santa Fe County and has lawyers Karl
Sommer and Kurt Somer.

12. Third party defendants Manhattan Condominium Unit Owners’ Association,
Dorrie Deal, Robert Horestler, Robert Hunt, Linda Hunt, and Sole Two Crow, by
willfully and maliciously refusing to pay what they owe have caused this foreclosure
action.























































































































































































































































































































































































































































































































































































































































































































































































13. The nature of this case is that I have a case for damages because my home, a
condo, was permitted to be built over a privy pit that was not disclosed to me and
caused damage, and as a result I am in financial hardship.

14. My health has been damaged by toxic fumes caused by the privy pit.

15. All the condo owners own the lot where the privy pit was located.

16. The condo association has a duty to take care of the common area.

17. The association officers have a duty to fulfill their offices and their failure to do
so has hurt and damaged me.

18. Somer Law Firm attorneys re-wrote the bylaws so that I was denied any say in
my property, which has harmed and damaged me.

19. The property management business has agreed to take care of the common
areas, but it hasn’t, which is damaging me.

20. Ed Crocker said that the pier he installed was compromised due to where it was
placed.

21. Wells Fargo mismanaged my money in several transactions impacting this
foreclosure.

22. During my bankruptcy the Shapiro and Meinhold lawyer lied to me about
liability of her client, this lie has impacted my ability to fulfill my plan and attain the
financial security meant to be provided by chapter ll.

WHEREFORE damages should be awarded me to remedy the injuries and damages
I am suffering, and costs should be awarded to me.



Karen Marie Kline
Santa Fe, New Mexico  87507     

CERTIFICATE OF SERVICE:
I hereby certify that a true and correct copy of the foregoing was mailed on
September 23, 2004, to:
Sharon Hankla and Kelly J. McMullen @ Shapiro & Meinhold
13725 Struthers Road, CO 80921               
800/286-0013; 719/634-4868

Manhattan Condominium Unit Owner’s Association, 729 W. Manhattan Unit # 2,
Santa Fe, NM 87501
Address of Registered Agent, Robert Hunt        

Dorrie Deal, 729 W. Manhattan Unit # 1,  Santa Fe, New Mexico 87501        

Robert Hoerstler, 729 W. Manhattan Unit # 1, Santa Fe, New Mexico 87501        

Robert Hunt, 729 W. Manhattan Unit # 2, Santa Fe, New Mexico 87501






Linda Hunt, 729 W. Manhattan Unit # 2, Santa Fe, New Mexico 87501        

Sole Two Crow, 729 W. Manhattan Units # 4 and 5, Santa Fe, New Mexico
87501        




Because I don’t have enough money for all of the service and copies until after I get
next month’s rent,
I hereby certify that a true and correct copy of the foregoing will be mailed on
October 4, 2004, to:

City of Santa Fe, 200 Lincoln Ave., Santa Fe, New Mexico 87501

E.W. Sargent, 1000 Paseo de Peralta, Santa Fe, New Mexico 87501

Ed Crocker, 227 E. Palace, Suite O, Santa Fe, New Mexico 87501                

Accent Property Management, 1050 Paseo de Peralta, Santa Fe, New Mexico 87501

Sommer Law Firm, 200 W. Marcy, Santa Fe, New Mexico 87501

Wells Fargo, Secretary of State for the State of New Mexico, 325 Don Gaspar,
Suite 300
..
..
A. I filed case number D-0101-CV-2003-01530 for injunctive relief on August
21, 2003; on or about that same time, Defendant Hunt threatened me saying,
“We’re going to get you.” Also, Defendants/Board of Directors refused to pay,
and still refuse, what they owe on the excavation of the privy pit located in the
Manhattan Condominium lot which is a common element owned by all
Manhattan Condominium owners.
Exhibit A.

B.  If the injunctive relief for which I petitioned had been granted and
Defendants had to seek Court approval to buy condominium common
elements’ things prior to paying privy pit costs,
Exhibits B – E, I would not be
in foreclosure nor have tinnitus from unbearable stress when PNM was going to
disconnect my electricity,
Exhibit F, because of my extreme poverty, which
poverty is a result of the Defendants’ lack of good faith and breach of their
duties which are clearly defined in the Condominium Act, Declaration filed
March 12, 1984, and Revised and Restated Bylaws of 2000.

C.  In relation to PNM: without electricity I don’t have balance because I need
light to have balance, so the chances of me falling at night were astronomically
high and scared me, and I was so scared that I got this tinnitus which has
returned with a vengeance each and every time I am under extreme stress.

D.  In defense of my narrative style: the object here is justice and while my
pleading may not be stated with the skill of an attorney, it does give facts and
explain what is needed and it should not be ignored. “The Rules of Civil
Procedure reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome; the purpose of pleadings is
to facilitate a proper decision on the merits.”
Hambaugh v. Peoples, 75 N.M.
144, 401 P.2d 777 (1963).






E.  By refusing to grant any restraining order for which I petitioned in August
2003, the Court allowed the Defendants to perfect their threat to “get” me. It
appears, however, from inspection of the Exhibits presented to the Court, that
Defendants misled the Court in relation to the location of the privy pit. On
“Defendant’s (sic) Exhibit A”, my
Exhibit Aa, an arrow is falsely drawn to
show that the excavation was entirely under my unit, whereas the truth is that it
was in the open common element area as well, as shown in my
Exhibit A,
labeled in red. It is also important to note that at that time the Court was
refusing to grant me special accommodation of my disability with the result that
I was not able to present my case and be heard in court. Because of that fact
and the fact that my disability is precisely such that without special
accommodation I do not have the ability to proceed and be heard, I will include
throughout this part of my Amended Complaint integral mentions of the
Americans with Disabilities Act, Title II, (“ADA, Title II”), which was passed
by Congress to protect all disabled Americans such as myself, and governing
case law referring to it.

F.  It is the case that I am suffering the extreme effects of Defendants’ threat as
they have daily “gotten me” by financial means: they have willfully and caused
my properties to go into foreclosure by willful dereliction of their legal duty as
set out in the Condominium Act, Declaration, and Revised and Restated
Bylaws. At the same time, and showing bad faith, they have spent on
extraneous common element things an amount of money several times that they
are required by law to pay to remedy the privy pit located in the Manhattan
Condominium lot, and I will show this.



1.  After the IRS put me out of business in 1994 by collecting penalties and
interest assessed on amounts I had paid, see
www.health-boundaries-bite.
com/1984Levy.html, my financial situation was tight. In 1995 I rented my
condo to an artist who was paying me excellent rent, the most I had ever
received. When he complained that Sole Two Crow, who owns two condos,
had a dog that barked all the time, I asked Sole to keep her dog from barking,
but she did nothing and at the same time Linda Wolff, who also owned two
condos (there are five in total), kept asking me if my tenant was gay, so




that I formed the opinion that she thought he was and objected. I wrote to Sole
and Linda and the association explaining my desperate situation and asking them
please to quiet the dog and not drive out my tenant who I absolutely needed for
income. They did nothing. My tenant left and left my condo a disaster so that it
took me over a month to clean – I could not afford to hire help. Later I sued
them for interference with contract, only I didn’t write the case, Dean Johnson
did – he was a man who told me he was an LLM tax attorney, when he wasn’t
an attorney; he found many unscrupulous ways to get money from me, like
writing cases which I paid him for and he then abandoned, and telling me cubic
zirconium was diamond so that I lent him significant money on his fraudulent
representations, on and on... he tried to get my property, too.

2.  Because the interference with contract case was based on the Condominium
Act, eventually the insurance company settled for the Defendants, paying me
the amount that was lost on my lease/contract.

3.  Thereafter Linda Wolff and Sole Two Crow appeared angry and rewrote the
Bylaws to keep me from participating or having grounds to sue them again if
they failed to perform in similar ways.

4.  I did not agree to the Revised and Restated Bylaws which were approved by
the Corporation Commission on February 12, 1999. The approval date was a
month and a half after December 25, 1998, when my vitamin B12 illness was
diagnosed and I was taught to give myself regular shots. The regular shots
helped, but did not totally restore my cognitive function, nor were they in time
to prevent serious cognitive dysfunction during the time I could have fought the
changes had I been able minded.

5.  Significantly, low B12 is known to cause nerve damage and permanent
nerve damage if it is not timely treated:
www.health-boundaries-bite.
com/Fingernails.html . I made B12 web pages because my cognitive
dysfunction could have been prevented at a cost of $14 a year for injectable
cobalamin and I want people to be aware. I tried to sue, but without
accommodation to my disability, it was impossible to prosecute.





6.  Had I received the therapy and compensation technique training in 1999 that
I have received since 2003, through the Department of Vocational
Rehabilitation, I believe I could have successfully demanded my rights in
relation to the Bylaws. But, I had not and therefore could not.

7.  It was clear to observers that I was not tracking in a competent manner. It is
also the case that the Condominium Act at 47-7A-12(A),(B)(2); 47-7A-12; and
47-7A-14 applied:












































Regarding punitive damages, the Revised and Restated Bylaws violate the
automatic stay, 11 USC §362 (a)(3)(4)(5)(6)(c)(1), that was in place in my
Chapter 11 bankruptcy, by requiring me to pay pre-bankruptcy debt to
participate in the Association. Damages are mandatory for willful violation of  
the automatic stay, 11 USC §362(h), to include punitive damages. I didn’t
recognize this violation at the time for reasons previously explained.





8.  I will incorporate at this point a recent event which is significant: the Court
on July 30, 2004, after denying me accommodations to my disability, said I
appeared incompetent and the Court initially ruled that because I was
incompetent I could not file any other suit ever again; that Order was not
entered, however, because I objected saying that the Court did not have
jurisdiction to supplant the ADA, Title II. I mention this because I want to make
clear that my disability is evident, particularly when I am without
accommodation. I had no accommodation when the Manhattan Condominium
Unit Owners Association was and is taking advantage of me in bad faith and in
violation of the Condominium Act, specifically 47-7A-12(B)(2) quoted above.

9.  Back to the rest of this pleading:

10.  Significantly, the first two people to sign the Revised and Restated Bylaws
were Linda Wolff and Jeff Lewis,
Exhibit 1, a creditor of mine who blamed his
attorney for his violations of the automatic stay that were so egregious, like
ignoring the Appeals Court, that I could see them; his attorney’s insurance
settled when Paul Fish facilitated the settlement conference arranged by Judge
McFeeley of the bankruptcy court.

11.  Following the Bylaws rewrite, Linda Wolff sold one of her condos to
Defendant Deal and the other to Defendant Hunt; officers and directors were
elected without notice to me of meetings or nominations and I had no
opportunity to participate.  At that time I was, as I have said, in Chapter 11 as a
result of IRS errors and interference with contract; I paid each and every post-
filing condo fee on time as part of my Chapter 11 obligations under a Drop
Dead Clause which scared me very much and I absolutely fulfilled.

12.  Each time that they failed to notice me of meetings or allow me to
participate because I had an unpaid lien, they were in violation of the automatic
stay. The automatic stay exists precisely to ensure that after filing bankruptcy
and having an accepted plan, I am restored, but when this type of violation
takes place, I cannot be restored because my situation has been illegally made
worse, as this case illustrates.





13.  In late 1999 or early 2000, Defendant Deal, who had been elected as a
Director and Treasurer, but without me being allowed to participate, failed to
notice me of property tax assessments. Because of severe roof problems, the
roof wood was rotted through, I did not believe that my condo was valued
correctly because it needed so much work that it was not at all the same value
as the other condos.

14.  I can’t attach the letters I wrote to Defendants Deal and the association
about the failure to pass on to me the assessments because my Mac computer
won’t stay on long enough for me to find them.

15.  Hoping to compensate for my malfunctioning computer, I called the
County Assessor’s office on September 8, 2004, and ascertained that the failure
to pass assessments on to me was before February 1, 2000, based on the fact
that on that date the condos were changed to individual assessment status.

16.  Prior to the status change, Defendant Deal had been telling me that I had
not set up the property taxation accounts properly. However, in my several
recent readings of the Condominium Act I see that I had done it properly in
terms of the original election:


















The operative word is “elect”. Defendant Deal wanted to change the election,
which is fine. But to tell me I did it wrong, was false and abusive; the fact is
that she had failed in her duty to know the value of my unit, contest the
inaccurate higher valuation and promptly notify me as the unit owner.





17.  A year later, in 2001, I was fulfilling my Chapter 11 Plan, which plan I had
because the bankruptcy judge, Mark McFeeley, organized both a settlement
hearing and a disinterested lawyer, Paul Fish, to facilitate the various
settlements. One of the opposing attorneys, Daniel Behles, wrote up the plan
because I had been unable to do it: each time I had tried it was just very
confused. Part of the agreed plan was to refinance my condo and use the
proceeds to pay creditors. So I refinanced, but when I went to closing on April
26, 2001, the amount I got was not what I had been counting on because
$923.20 had been taken out to pay city sewer and garbage,
Exhibit 2 (consisting
of 2 pages). I feared that this was a result of the City retaliating because I had
filed and won a violation of automatic stay proceeding against it. I called
Defendant Deal and left several messages, but Defendant Deal did not call me
back which is typical of how she has consistently treated me.

18.  The fact was revealed that Defendant Deal, a Director and Treasurer, had
neglected and failed to pay City sewer and garbage for ten months in dereliction
of her duty, see 4/30/01 bank statement,
Exhibit 3, and City of Santa Fe
Receipt of May 17, 2001,
Exhibit 2a. The receipt shows that an amount totaling
$923.20, was paid by Manhattan Condo Assoc., presumably Defendant Deal,
on May 17, 2001.

19.  After the problem with the $923.20 and before I got my money, I didn’t
feel a cord due to impaired sensation: living in the condo with the hydrogen
sulfide from the hidden privy pit:
www.health-boundaries-bite.com/Old-
Outhouse-Pit.html, my feet often went numb from the hydrogen sulfide
affecting my nerves which were already impaired from extended low B12 (since
I moved from my condo, the numbness happens less frequently) and I fell and
hit my head. When I saw the
x-ray records from my fall in my medical file it was as if someone had
fabricated them because I have no memory of going and having the x-rays.

20.  After Defendant Deal paid the long overdue bills on May 17, 2001, and I
got my $923.20 back, I told her that she had caused me serious problems which
were made worse by the fact I lost my job on July 14, 2001, as a result of my
injury. Subsequently, 9/11 happened and I couldn’t get another job.





21.  Defendant Deal together with Defendant Hunt who was also a Director and
who had been elected President without notice to me so that I could participate,
said the problem was that I had not been paying my condo fees and so of
course the title company would take that money out.

22.  That was completely false. I had been faithfully paying every single month.
Only after the failure of Defendant Deal to pay the sewer and garbage out of
my and the other paid condo fees, and after my fall, brain injury and loss of my
job, did I not have the money to continue to pay the condo fees.

23.  So, I asked Defendants Deal and Hunt, Treasurer and President
respectively, as well as Directors, for consideration given the failure to pay city
sewer and garbage which Deal, as Treasurer, should have been paying. They
responded by putting a lien on my property for the condo fees and by
continuing to falsely maintain that the reason the $923.20 had been taken from
my closing was my failure to pay my fees.

24.  The facts related above show a pattern of dereliction of duty.

25.  In relation to the current dereliction of duty regarding the privy pit located
in the Condominium lot which is a common element, the proportions are so
dramatic that my well being has been not only threatened, but had been
destroyed in large part. I hope I can make this clear.

26.  I live below poverty level as a result of the failure of unit owners who are
association directors to pay their share of common element costs.

27.  Defendants to whom this amendment to complaint applies have not paid
one single penny of their share of the common element costs related to the
privy pit.

28.  My poverty is such that after I pay essential bills each month, I have about
$11 a week left. I am not eligible for food stamps because I own property.
Spaghetti at 50 cents a lb. is the cheapest thing to eat. I am constantly hungry
because I can’t afford what my body needs, like protein. No matter how much
spaghetti I eat, my body is not less hungry and I gain weight. It is for that
reason that I need to gather fruit from local apricot trees, which the owners
themselves do not collect but





rather let fall to the sidewalk, and from grape vines that are equally unpicked by
the owners. I had frozen much of this fruit to use in the winter, but then my
fridge stopped working and I was afraid it would stop again, so I began eating
the fruit, day by day. So now, I don’t have the winter supply I had worked so
hard to have, because I didn’t have the money to have my fridge mended, and I
couldn’t take the chance that it would permanently fail, rather than continuing
to periodically fail, with the result that I would lose all the fruit because it would
no longer be preserved by freezing.

29.  Anxiety is a part of my daily life because of the extreme poverty into which
I have been forced by the Defendants refusing to pay their share of the
common element costs related to the privy pit excavation.

30.  The Defendants have willfully and maliciously caused my poverty,
foreclosures, extreme distress and anxiety and other damages because without
question they have a legal duty to pay for the excavation and repairs
necessitated by the privy pit in the condominium lot which by definition is a
common element and not a limited common element: 47-7A-3(D) and (P), and
47-7B-2(B) and (D) of the Condominium Act:
























Since the condominium lot is not listed among the possible limited common
elements, it is by




definition not a limited common element based on the rule of statute
construction whereby the expression of one thing excludes others. In this case,
the list of limited common elements does not include the lot, and therefore the
lot is excluded from being a limited common element.

31.  Because The Condominium Act at 47-7B-2 also says, “Except as provided
by the declaration:” I will copy here the relevant portion of the Declaration filed
on March 12, 1984:

Declaration Section 2.3. “Unit Boundaries. Each Unit consists of the space
within the following boundaries: ... (2)
Lower Boundary: the horizontal plane
of the top surface of the undecorated floor.”

32.  The above language from the Declaration shows that I alone did not own
the privy pit that was located in the lot under my bedroom and in the common
area adjacent to the driveway.

33.  Without question the Defendants are in dereliction of their duty and are
therefore willfully and maliciously causing damage which could have been
prevented but that they threatened to harm me and now they are doing just
what they threatened to do, that is harming me by refusing to pay what they
owe while at the same time they spend huge amounts on pleasurable
improvements for themselves, some of which are shown in Exhibits B-D, for
which in many cases they assess me.

34.  The Condominium Act clearly deals with maintenance:















The Condominium Declaration for Manhattan Condominium filed March 12,
1984, states:

Section 2.4. “
Maintenance Responsibilities.
Notwithstanding the ownership of various portions of the Common Elements
and the Units by virtue of the foregoing boundary description, the provisions of
the Bylaws shall govern the division of maintenance and repair responsibilities
between the Unit Owner and the Association.”

The Revised and Restated Bylaws of 1999, state:






Article V, Section 5. Maintenance, Repair, Replacement, and Other Common
Expenses.

a. By the Board of Directors.

The Board of Directors shall be responsible for the maintenance, repair, and
replacement (unless, if in the opinion of not less than two-thirds (2/3) of the
Board of Directors such expense was necessitated by the negligence, misuse, or
neglect of a Unit Owner) of all of the Common Elements, but not the Limited
Common Elements, as defined herein or in the Declaration, the cost of repair of
the Common Elements shall be charged to all Unit Owners as a Common
Expense;
provided, however, that Unit Owner shall perform all repair, replacement, and
maintenance on the Limited Common Elements appurtenant to this Unit and
any portion of the remaining Common Elements which the Board of Directors
pursuant to the rules and Regulations has given him permission to utilize,
including, without limitation, the items enumerated in subsection b. hereof.

The Declaration does not specifically define Limited Common Elements, but
rather states:
Section 1.2. Defined Terms. Terms not otherwise defined herein or in the plats,
plans, or Bylaws
shall have the meanings specified in Section 2 of the
Condominium Act.

35.  As a matter of fact, my clean out was used for quarterly to bi-annual Roto-
Rooting to keep the sewer from backing up into all the units until it no longer
connected to the city sewer. After its repair in conjunction with the privy pit
excavation, I wrote on September 16, 2003, that to use it they must pay their
shares,
Exhibit 4; They decided to get a new sewer pipe at a cost of $6,000+/-
instead of paying their shares.,
Exhibit 5 & Exhibit 6; which shows extreme
prejudice and malicious intent.

36.         In relation to the legal aspects of this, the Condominium Act says”












































































































































37.  The foregoing portions of the Condominium Act are not discussed
individually because I do not have enough time to complete that part of this
task. In order to do that I would need another week or two. However, if I were
to have to appeal this, I would not be able to mention anything I haven’t
presented to the trial court, so I believe I need to mention these things in case
they turn out to be important.

38.  Significantly, the Defendants have caused me to lose an entire year’s rent
from my larger rental because when they failed and refused to pay their share
of the common element costs of the





privy pit excavation, I did not have the money to pay sewer and garbage on my
rental and the City threatened to turn off the water which caused me tenants to
tell me they had to move as a result. Later my tenants said they moved for
other reasons, but I could not rent my rental when it was without water. The
amount I have lost in rent, to today’s date of September 22, 2004, is $16,200.

39.  At the same time, the Defendants refused to contact the insurance
company about a possible second privy pit under the door to my bedroom in
my condo, where the bricks began to sink. Whether because of more toxic
fumes, or because of the Defendants’ toxic attitude and behaviour toward me, I
became very sick at the condo and eventually my doctor told me I had to move
away from the toxins, at which point I moved into my rental where the water
had to be turned on again because my doctor wrote the water company a note
dated 10/30/03,
Exhibit 7, regarding the necessity.

40.  Another damage is that Defendants’ failure and refusal to pay what they
owe caused my credit to be ruined thereby prohibiting me from refinancing at
the very favorable rates which were at 20 and 30 year lows. The difference
between 8.25 percent interest and 5.25 percent interest which but for the
destruction of my credit I could have had, is a difference of about $200 a
month, which over 30 years is a damage of  about $72,000 on the Wells Fargo
mortgage, and about $24,000 on the Washington Mutual mortgage.

41.  The destruction of my credit which had just been rehabilitated, has cost me
several thousands of dollars in other similar but different ways.



1.  The ADA, Title II, provides that “no qualified individual with a disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. §12132.

2.  As a person with brain damage who meets the essential eligibility
requirements of the Department of Vocational Rehabilitation and the Traumatic
Brain Injury Program, I am qualified under the ADA and rely on the ADA, Title
II, in its provisions.






3.  My reliance in court on the ADA, Title II, was supported by the United
States Supreme Court’s Opinion in
Tennessee v. Lane, handed down on May
17, 2004.

4.  In
Tennessee v. Lane, the Supreme Court talks about discrimination in
courts, saying that Congress’s “appointed task force heard numerous examples
of the exclusion of persons with disabilities from state judicial services and
programs, including exclusion of persons with visual impairments and hearing
impairments from jury service, failure of state and local governments to provide
interpretive services for the hearing impaired, failure to permit the testimony of
adults with developmental disabilities in abuse cases, and failure to make
courtrooms accessible to witnesses with physical disabilities.”

5.  Because of my disability, I require and am entitled to special
accommodations by the court, to include hearings being set when my case
manager can accompany me to court, more time to respond, a slower pace in
court which includes setting hearings that are longer in order to allow me the
extra time I need, clearly identified questions/topics as on notices of hearing,
and clearly identified procedures which includes not changing which rules will
be followed when other than the obvious rules may pertain, or, alternatively,
identifying to me what other than the obvious rules are going to be used,
allowing me to read what I have prepared because I cannot just say what I need
to say and I have a right to be heard, and additional time to respond due to my
measured impairments in processing speed, as well as the tapes of the hearings
being provided to me free of charge as a reasonable and special accommodation.

6.  “Title II, §§12131-12134, prohibits any public entity from discriminating
against “qualified” persons with disabilities in the provision or operation of
public services, programs, or activities. The Act defines the term “public entity”
to include state and local governments, as well as their agencies and
instrumentalities. §12131(1). A disabled person is considered ‘qualified’ if that
person ‘meets the essential eligibility requirements’ for the receipt of the entity’s
services or participation in the entity’s programs, ‘with or without reasonable
modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and





services.’ §12131(2). Title II’s enforcement provision incorporates by reference
§505 of the Rehabilitation Act of 1973, 92 Stat. 2982, as added, 29 U. S. C.
§794a, which authorizes private citizens to bring suits for money damages. 42
U. S. C. §12133.”
Tennessee v. Lane, 124 SCt 1978 (2004).

7.  “The ADA’s findings make clear that Congress believed it was attacking
‘discrimination’ in all areas of public services, as well as the ‘discriminatory
effect’ of ‘architectural, transportation, and communication barriers.’ §§121011
(a)(3), (a)(5),”
Ibid.; “Central to the Act’s primary objective, Congress
extended the statute’s range to reach all government activities, §12132 (Title II),
and required “reasonable modifications to [public actors’] rules, policies, or
practices,” §§12131(2)-12132 (Title II). See also §12112(b)(5) (defining
discrimination to include the failure to provide “reasonable accommodations”)
(Title I),”
Ibid.; Justice Ginsburg, with whom Justice Souter and Justice
Breyer
joined, concurring, wrote in Tennessee v. Lane, “Legislation calling upon
all government actors to respect the dignity of individuals with disabilities is
entirely compatible with our Constitution's commitment to federalism, properly
conceived.” (I added the bold to support the propriety of filing my ADA case
complaining about denial of due process: the U.S. Supreme Court ruled in
Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 that the Eleventh
Amendment bars private money damages actions for state violations of ADA
Title I, which prohibits employment discrimination against the disabled. The en
banc Sixth Circuit then issued its
Popovich decision, in which it interpreted
Garrett to bar private ADA suits against States based on equal protection
principles, but not those relying on due process, and therefore permitted a Title
II damages action to proceed despite the State's immunity claim..)

8.  The U.S. Supreme Court ruled on May 17, 2004, in
Tennessee v. Lane, “In
sum, Title II requires, on pain of money damages, special accommodations for
disabled persons in virtually every interaction they have with the State.”

End of Amendment in relation to Defendants in the Title of this pleading.
AMENDED THIRD PARTY COMPLAINT IN RELATION TO
DEFENDANTS MANHATTAN CONDOMINIUM UNIT OWNERS’
ASSOCIATION, DORRIE DEAL, ROBERT HOERSTLER, ROBERT HUNT,
LINDA HUNT AND SOLE TWO CROW
47-7A-12.  Unconscionable agreement or term of
contract.
                
A.     The court, upon finding as a matter of law that a contract or
contract clause was unconscionable at the time the contract was
made, may refuse to enforce the contract, enforce the remainder of
the contract without the unconscionable clause or limit the application
of any unconscionable clause in order to avoid an unconscionable
result.                    

B.     Whenever it is claimed, or appears to the court, that a contract
or any contract clause is or may be unconscionable, the parties, in
order to aid the court in making the determination, shall be afforded a
reasonable opportunity to present evidence as to unconscionability,
including:                    

(1)     the commercial setting of the negotiations;                    

(2)     
whether a party has knowingly taken advantage of the
inability of the other party reasonably to protect his interests by
reason of physical or mental infirmity,
illiteracy or inability to
understand the language of the agreement or similar factors; and
(emphasis added)                   

(3)     the effect and purpose of the contract or clause.                    

47-7A-13.  Obligation of good faith.                 

Every contract or duty governed by the Condominium Act [47-7A-1
to 47-7D-20 NMSA 1978] imposes an obligation of good faith in its
performance or enforcement.                   

47-7A-14.  Remedies to be liberally administered.

A.     The remedies provided by the Condominium Act [47-7A-1 to
47-7D-20 NMSA 1978] shall be liberally administered in order that
the aggrieved party is placed in as good a position as if the other party
had fully performed. However, consequential, special or
punitive
damages shall not be awarded except as specifically provided in
the Condominium Act or by other law.
                   

B.     Any right or obligation declared by the Condominium Act is
enforceable by judicial proceeding.
47-7A-5.  Taxation.                 

A.     The association of unit owners shall elect whether:                    

(1)     the entire property shall be deemed a single parcel for the
purposes of assessment and taxation, in which event the association
shall promptly notify the unit owners of the payment of the taxes. For
purposes of assessment or valuation and taxation under this
paragraph, the association shall be deemed to be the owner as defined
in Section 7-35-2 NMSA 1978; or                  

(2)     each unit and its percentage of undivided interest in the
common elements shall be deemed to be a parcel and shall be subject
to separate assessment and taxation by each assessing unit and special
district for all types of taxes authorized by law, including ad valorem
levies and special assessments.  
47-7A-3(D). "common elements" means all portions of a
condominium other than the units;

47-7A-3(P).   "limited common element" means a portion of the
common elements allocated by the declaration or by operation of
Subsections B and D of Section 14 [47-7B-2 NMSA 1978] of the
Condominium Act for the exclusive use of one or more but fewer
than all of the units;

47-7B-2 says:

(B).  if any chute, flue, duct, wire, conduit, bearing wall, bearing
column or any other fixture lies partially within and partially outside
the designated boundaries of a unit, any portion thereof serving only
that unit is a limited common element allocated solely to that unit, and
any portion thereof serving more than one unit or any portion of the
common elements is a part of the common elements;

(D).  any shutters, awnings, window boxes, doorsteps or stoops and
all exterior doors and windows or other fixtures designed to serve a
single unit, but located outside the unit's boundaries, are limited
common elements allocated exclusively to that unit;
..
47-7C-7.  Upkeep of condominium.

A.     Except to the extent provided by the declaration, Subsection B
of this section or Section 46 [47-7C-13 NMSA 1978] of the
Condominium Act, the association is responsible for maintenance,
repair and replacement of the common elements,
and each unit owner is responsible for maintenance, repair and
replacement of his unit. Each unit owner shall afford to the
association and the other unit owners, and to their agents or
employees, access through his unit reasonably necessary for those
purposes. If damage is inflicted on the common elements or on any
unit through which access is taken, the unit owner responsible for the
damage, or the association if it is responsible, is liable for the prompt
repair thereof.  
47-7A-8.  Supplemental general principles of law
applicable.
            
Except to the extent inconsistent with the Condominium Act [47-7A-1
to 47-7D-20 NMSA 1978], the principles of law and equity, including
the law of corporations, the law of real property and the law relative
to capacity to contract, principal and agent, eminent domain, estoppel,
fraud, misrepresentation, duress, coercion, mistake, receivership,
substantial performance or other validating or invalidating cause
supplement the provisions of that act.

47-7A-14.  Remedies to be liberally administered.

A.     The remedies provided by the Condominium Act [47-7A-1 to
47-7D-20 NMSA 1978] shall be liberally administered in order that
the aggrieved party is placed in as good a position as if the other party
had fully performed. However, consequential, special or punitive
damages shall not be awarded except as specifically provided in the
Condominium Act or by other law.                    

B.     Any right or obligation declared by the Condominium Act is
enforceable by judicial proceeding.  

47-7C-3.  Executive board members and officers.

A.     Except as provided in the declaration, the bylaws or other
provisions of the Condominium Act [47-7A-1 to 47-7D-20 NMSA
1978], the executive board may act in all instances on behalf of the
association. In the performance of their duties, the




officers and members of the executive board are required to exercise,
if appointed by the declarant, the care required of fiduciaries of the
unit owners and, if elected by the unit owners, ordinary and
reasonable care.  

B.     The executive board shall not act on behalf of the association to
amend the declaration, to terminate the condominium or to elect
members of the executive board or determine the qualifications,
powers and duties or terms of office of executive board members, but
the executive board shall fill vacancies in its membership for the
unexpired portion of any term.

C.     Within thirty days after adoption of any proposed budget for the
condominium, the executive board shall provide a summary of the
budget to all the unit owners, and shall set a date for a meeting of the
unit owners to consider ratification of the budget not less than
fourteen nor more than thirty days after mailing of the summary.
Unless at that meeting a majority of all the unit owners or any larger
vote specified in the declaration reject the budget, the budget is
ratified, whether or not a quorum is present. In the event the
proposed budget is rejected, the periodic budget last ratified by the
unit owners shall be continued until such time as the unit owners
ratify a subsequent budget proposed by the executive board.   

47-7C-8.  Meetings.

A meeting of the association shall be held at least once each year.
Special meetings of the association may be called by the president, a
majority of the executive board or by unit owners having twenty
percent, or any lower percentage specified in the bylaws, of the votes
in the association. Not less than ten days nor more than sixty days in
advance of any meeting, the secretary or other officer specified in the
bylaws shall cause notice to be hand-delivered or sent prepaid by
United States mail to the mailing address of each unit or to any other
mailing address designated in writing by the unit owner. The notice of
any meeting shall state the time and place of the meeting and the
items on the agenda, including the general nature of any proposed
amendment to the declaration or bylaws, any budget changes and any
proposal to remove a director or officer.                    

47-7C-11.  Tort and contract liability.

Neither the association nor any unit owner except the declarant
is liable for that declarant's torts in connection with any part of
the condominium which that declarant has the responsibility to
maintain.
Otherwise, any action alleging a wrong done by the
association shall be brought against the association and not
against any unit owner.
If the wrong occurred during any period
of declarant control and the association gives the declarant
reasonable notice of and an opportunity to defend against the
action, the declarant who then controlled the association shall
indemnify the association or any unit owner other than an
affiliate of the declarant for all judgments paid which are not
covered by insurance, which judgments resulted from a breach of
control or other wrongful act or omission on the part of the
declarant. Whenever the declarant is liable under this section, the
declarant is also liable for all litigation expenses, including
reasonable attorney's fees.
Any statute of limitation affecting the  
association's right of indemnification under this section is tolled until
the period of declarant control terminates. A unit owner is not
precluded from bringing an action contemplated by this section
because he is a unit owner or a member or officer of the association.
Liens resulting from judgments against the association are governed
by Section 50 [47-7C-17 NMSA 1978] of the Condominium
Act.                    

147-7C-15.  Assessments for common expenses.     






B.     Except for assessments under Subsections C, D and E of this
section, all common expenses shall be assessed against all the units in
accordance with the allocations set forth in the declaration pursuant to
Subsection A of Section 19 [47-7B-7 NMSA 1978] of the
Condominium Act. Any past-due common expense assessment or
installment thereof bears interest at the rate established by the
association not exceeding eighteen percent per year.                    

C.     To the extent required by the declaration:    (Governed by
ByLaws per Declaration; comment added)                

(1)     any common expense associated with the maintenance, repair
or replacement of a limited common element shall be assessed against
the units to which that limited common element is assigned, equally,
or in any other proportion that the declaration provides;                    

(2)     any common expense or portion thereof benefiting fewer than all of the units shall be assessed exclusively
against the units benefited;
and                                                                                                                                                
(3)     the costs of insurance shall be assessed in proportion to risk
and the costs of utilities shall be assessed in proportion to
usage.                    

D.     Assessments to pay a judgment against the association shall be
made only against the units in the condominium at the time the
judgment was entered, in proportion to their common expense
liabilities.                    

E.     If any common expense is caused by the misconduct of any unit
owner, the association may assess that expense exclusively against his
unit.                    
Background
Background: The ADA, Title II
Karen Marie Kline
Karen Marie Kline
Karen Marie Kline
I didn't feel
good while I
was working on
this, but I had
no idea I had
tetanus.

I got the first
muscle
contraction/
seizure in my
back on Sept.
30, 2004. That
was 6 days
after filing.



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