Melissa Wright pro se debtor, plaintiff, respondent
1305 South Brown
Roswell, NM 88203
505-231-0968

                                        IN THE UNITED STATES BANKRUPTCY COURT
                                                  FOR THE DISTRICT OF NEW MEXICO

IN RE:                                                                                                        

MELISSA ANNE WRIGHT                              CASE NO. 09--10892-M7 CHAPTER 7                                                                       
PLAINTIFF, DEBTOR, RESPONDENT PRO SE            ADVERSARY NO: 09-1048M

MELISSA ANNE WRIGHT
PLAINTIFF DEBTOR PRO SE

VS.

VANDERBILT MORTGAGE AND FINANCE INC.
CRADDOCK DAVIS AND KRAUSE LLP, SUSAN 
CRAWFORD, MICHAEL J. CRADDOCK
DEFENDANTS

PLAINTIFF MELISSA WRIGHTS DEMAND FOR TRIAL BY JURY and response to motion to dismiss Plaintiff’s amended complaint for willful violation of the automatic stay by dEFENDANTS

TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE:

    Comes Now, Melissa Wright (Prose Debtor, Respondent, and Plaintiff) at all times pertinent to her Chapter 7 Bankruptcy No. 09-10892-M7 AND her adversary complaint No. 09-1048M, and files her demand for trial by jury.  This is a core proceeding under 28 U.S.C. §§ 157, over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334, and in support thereof, debtor would respectfully represent to the court as follows: 

I.     INTRODUCTION
       1.  The Plaintiff Debtor Pro Se brings this demand for trial by jury for allegations and issues of fact contained in her Adversary Complaint for Damages for Willfull Violation of the Automatic 
Stay, and her Amendended Adversary Complaint to Enjoin and add Additional Parties and complaints.
In order to have factual allegations that are contained in Debtors Complaints decided by a jury which require and that constitute legal remedies which are afforded to Debtor under the Law and under the Seventh Amendment of the Constitution of the United States.  Debtors allegations of fact were erroneously dismissed in Fifth Judicial District Court and Summary Judgment decided foreclosure.  The facts to determine the actual indebtedness or validity therein to the Defendant by Debtor were never tried or included in the determination of Summary Judgment or its amount.
45-1-306. Jury trial. 
If demanded, in the manner provided by the Rules of Civil Procedure, a party is entitled to a trial by jury in a formal testacy proceeding and in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury. 
369 U.S. 469 (1962). If legal and equitable claims are joined, and the court erroneously dismisses the legal claims and decides common issues in the equitable action, the plaintiff cannot be collaterally estopped from relitigating those common issues in a jury trial. Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990) .
Summary judgment is only upheld when a review of the record in a light most favorable to the non-moving party reveals that there are no triable issues of material fact and that the moving party is entitled to judgment as a matter of law
NRCP 38(b), which requires that a party demand a trial by jury "at any time after the commencement of the action and not later than the time of the entry of the order first setting the case for trial in this case May 04, 2009, with scheduling conference to be held on June 26, 2009.
The Court is advised that the demand for jury trial -“as it has heretofore existed” - was authorized pursuant to Kearney Bill of Rights, Clause 5 in Pamphlet 3, and New Mexico Constitution, Article II, Section 12, and remains inviolate; New Mexico case law and court rules altering the integrity of the inviolate right - “as it has heretofore existed” - to the contrary, notwithstanding.
	 Article II, Sec. 12. Const. N.M. [Trial by jury], statute text:
The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.  In all cases triable in courts inferior to the district court the jury may consist of six.  The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.
	Phrase “as it has heretofore existed” refers to the right to jury trial as it existed in the territory of New Mexico immediately preceding adoption of the Constitution.  Bliss v. Greenwood, 63 N.M. 156, 315 P. 2d 223 (1957); Gutierrez v. Gover, 43 N.M. 146, 87P. 2d 437 (1939); Young v. Vail, 29 N.M. 324, 222 P.912 (1924); State v. Holloway, 19 N.M. 528, 146 P. 1066, 1915F L.R.A. 922 (1914).
	It was the purpose of the Constitution framers to retain the right of trial by jury, as it theretofore existed in the territory of New Mexico, except in special proceedings, for which express provision was made in the same instrument.  Seward v. Denver & R.G.R.R., 17 N.M.
557, 131 P. 980, 46 L.R.A. (n.s.) 242 (1913).
	 Procedure to be followed in securing right to jury. - The right to trial by jury as guaranteed by the Constitution is to be distinguished from the procedure to be followed in securing the right.  Reasonable regulatory provisions, although different in form and substance from those in effect at the adoption of the Constitution, do not abridge, limit or modify the right which is to remain inviolate.  Carlisle v. Continental Oil Co., 81 N.M. 484, 468 P. 2d 885 (Ct. App. 1970).  All New Mexico public officers, pursuant to the National and State Constitutions haven taken an oath to support and uphold said Constitutions and are required to honor that oath in the faithful performance of their duties and  in compliance with their responsibilities to the public trust.  As is clearly demonstrated, herein, the Constitution of the Republic of New Mexico guarantees the Right of jury trial and that Right remains inviolate, case law, court rules, procedures, statutes and other rules and regulations, to the contrary, not withstanding.
 Article II, Section One of the New Mexico Constitution states that the Constitution of the United States of America is the Supreme Law of the land.  The National Constitution supersedes and is superior to all other domestic laws, rules, regulations and procedures, whatsoever.  Neither Constitution authorizes or permits fees for jury.  The federal court system does not require the posting of a fee when a litigant files a demand for trial by jury.  That New Mexico does so, is a violation of equal protection under the law.  (See National Constitution, 14^th Amendment, Sec. 1; New Mexico Constitution, Art. II, Sec. 18.)  
The fundamental law of this Nation and this state is the National Constitution, which guarantees trial by jury  without fees and time qualifications for demand.  (See National Constitution, 7^th Amendment.)  “All laws which are repugnant to the Constitution are null and void.”  Marbury v. Madison 5 U.S. 137 at 174 and 176.
Further, neither Constitution limits time for demand for trial by jury.  Wright respectfully denies that she “waived” a trial by jury.  Debtor hereby claims all her Rights, secured for her in both Constitutions.  (See Miller v. U.S.)  
 2.  The Defendants Vanderbilt Mortgage, and Craddock Davis and Krause LLP, Susan Crawford, and Michael J. Craddock filed an answer to Plaintiffs Adversary complaint for Willfull Violations of the Stay in conjunction and convoluted with their Motion to Dismiss on May 05, 2009.  
3.  Plaintiff Debtor Pro Se filed her response to Defendants Motion to Dismiss and Answer to complaint for damages for willful violation of automatic stay on June 02, 2009.
4.  Defendants file an answer to Plaintiffs amended adversary complaint on June 16, 2009.
5.  Defendants also file a motion to dismiss Plaintiffs amended complaint on June 16, 2009.
  FACTS DETERMINING A WILLFULL VIOLATION OF THE AUTOMATICE STAY BY VANDERBILT AND THEIR ATTORNYS
 6.   Defendant was on constructive notice of bankruptcy filing of Plaintiff as of March 05, 2009.    
 7.   Even if Defendants did not receive written notice of Debtors bankruptcy petition until March 12,   
  2009 as they claim, They have not provided evidence supporting this fact.  The district court filing by  
  Vanderbilt and their attorneys on March 11, 2009 
  and March 16, 2009 are evidence and admission to a willfull violation of the automatic stay. 
  8.   Vanderbilt and its attorneys admit to willfully violating the stay by stating they attempted   
 debtors foreclosure sale on March 09, 2009 (REF. Defendants motion to dismiss and answer to  
 complaint for damages for willful violation of the automatic stay, paragraph 3) Subsequently, 
 providing a reciept for lunch in their motion to dismiss amended complaint for willfull 
 violation of the automatic stay (REF: Defendants motion to dismiss plaintiffs amended complaint...  
 paragraph 4) “Attached hereto as Exhibit B is a true and correct copy of an American express receipt 
 for lunch in Roswell on march 09,2009, Susan P. Crawford as special master drove from santa fe to  
 Roswell on March 9, 2009 and conducted the sale….” 
 This statement is an admission to a willfull violation of the automatic stay. 
Defendants then file a Motion to Vacate Order of confirmation of sale in Fifth Judicial District Court on June 15, 2009.  This action would also be an admission of a willfull violation of the Automatic Stay As it would prove that a sale was not ATTEMPTED as stated by Defendants but OCCURRED. Debtor will again respectfully state here  that the March 11^th ^2009 filing in district court of the special master report of sale, and the special master’s announcements at foreclosure sale, and the March 16, 2009 filing of order of confirmation are facts that undeniably determine that a willful violation of the automatic stay occurred. This willful and malicious attempt to ignore Judicial Justice and undermine the Judicial system and attempts by Defendants to cover up and shroud the truth by their actions and their statements contained in pleadings should also be construed as fraud and fraud unlawful NMSA 30-16-6 a,f,  NMSA 58-21-21 a,b.
In addition to any and all remedies afforded to Debtor under Section 362 K of the Bankruptcy code including actual damages, including costs and attorneys fees, and punitive, Debtor is also entitled to  treble damages under NM State statute 36-2-17.  Actual damages could be the entire indebtedness that Defendants purport Debtor owes them and or what Debtor has lost out of pocket paying a monthly mortgage payment of 1, 296.96 over the course of 8 years, if by a jury or fact finder the Mortgage in question is deemed to be void by any of the material facts brought to the courts attention by Debtor. See, e.g., In re Goodman, 991 F.2d 613, 618 (9th Cir. 1993); In re Smith, 170 B.R. 111, 117 (Banker. N.D. Ohio 1994) (§ 362(h) sanctions are not precluded by "good faith" reliance on counsel's advice); In re Xavier's of Belville, Inc., 172 B.R. 667 (Bankr. M.D. Fla. 1994) (a violation of the stay only requires the act be deliberate; no specific intent to violate the stay is necessary); In re Brockington, 129 B.R. 68, 70 (Bankr. D. S.C. 1991) (a willful violation does not require specific intent; rather, a finding that defendant knew of automatic stay and that defendant's actions were intentional is sufficient); see also In re Just Brakes Sys., Inc., 175 B.R. 288, 291 (Bankr. E.D. Mo. 1994) ("A violation of the automatic stay is willful if a creditor acts deliberately with knowledge of the Bankruptcy petition").  Section 105(a) provides that a bankruptcy court "may issue any order . . .necessary or appropriate to carry out the provisions of this title," and § 106(a)(1) waives sovereign immunity with respect to § 105. 
Debtor has suffered damages also by this malicious violation in that Defendants in their actions sought to deceive and hamper debtor’s ability to seek Judicial Justice in the US Bankruptcy Court with the respect to “jumping the gun” and not allowing Debtor Basic Human Rights to claim, recover, debtors primary residence, only asset, and homestead. 
All of Debtors allegations and question of fact are not subject to the statues of limitations as conditions and evidentiary were not made known to Debtor until litigation began with Defendants in 2006.  Time began then with her awarness of the facts.  The issues and allegation and question of fact are not subject to res judicata waiver, estoppel and laches as the issues of fact were never tried or used in the determination of  forclosure in Fifth Judicial district Court. 

FACTS THAT ARE INHERENT TO THE SUBJECT MATTER OF THE WILLFUL VIOLATION OF THE AUTOMATIC STAY
9.   Defendants state that they are without sufficient knowledge to admit or deny allegations as to problems with the original mortgage.  Defendants state they did not become holder of note until 2002.  This is the same year that Debtors Principal balance increased by 99,855.00.  There were no decisions made by district court regarding this increase or lack of documentation thereof. “Computer error was stated by Defendants as an explanation” Ref. Mathews 184 B.R. 594,598 A mistake or computer error is not an excuse when problems continue for 2 years. There are no good faith defenses allowed to explain Vanderbilt’s conduct, under 11 USC 362 (h)(k). 
 The disputed issue of material fact remains.
 10.   The Defendants further stating that Debtor is negligent in waiting 10 years to pursue legal action and continue paying her monthly mortgage is ludicrous and could be construed as a defamation of Debtors Character. The action of paying ones mortgage is one that is honorable and necessary in order to maintain family, and in doing so should not be viewed as detrimental to ones case. Statue of limitation does not apply in any of Debtors Allegations, as time begins when one is made aware of problems in their actuality.  Most of Debtors issues were not made “real” to her until the forclosure litigation began with the Defendant in June of 2006.  Documents and evidence were not made available to Debtor until that time which in turn made her “ideas” come to life and become fact.  The irregularities, forgery, fraud and other allegations were not addressed by district court in determining Defendants right to foreclosure of Debtors Home and property.  These issues of Material fact still exsist and remain and are not barred as time did not start until 2006. 
Debtor claims assert private, not public rights. 492 U.S. at 55-56. In addition, the
Bankruptcy Court is an adjudicative body which can use a jury for fact-finding. See 28
U.S.C. § 157(e) (1998).
11.   Defendants further admit to providing two different truth in lending statements to two different State regulation offices, with different dollar amounts.  This is a fact which was not used in determining summary judgment against Debtor.  (REF: Defendants answer to amended adversary proceeding complaint for damages…paragraph 14,15) 
12.   Defendants state that debtor’s payment fluctuated and changed due to escrow insurance taxes.
But have not ever during litigation produced such documents to support this claim.  This is a fact which was not used in determings summary judgment against Debtor.  (REF: Defendants answer to amended adversary proceeding complaint. Paragraph 17.)
13.   The facts of forgery by Defendant of Debtors name and information on applications for Title and Certificate of Title in the State of N.M. were not decided nor used as fact to determine summary judgement and still remain as disputed fact.  
14.    Defendants blatanly lie with regards to the HUD statements.  Debtor has provided them as evidentiary and these documents were not used in district court as fact to determine summary judgment and still exsist and remain.  Documents were dated and prepared on the same date, and cannot be denied.  Defendants state that the statements were prepared on two different dates.  (REF. Defendants answer to amended adversary proceeding complaint. Paragraph 19) Attached also hereto as Exhibit A, A-1) and are vivid violation of USC 18-1001-1010 and one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct,artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.” Wendell Corporation, Trustee v. Thurston,239 Conn. 109, 113-114 (Conn. 1996) (quoting 76 Am. Jur. 2d, Trusts § 221) (emphasis supplied). Accordingly, a Seventh Amendment right to trial by jury exist.
Plaintiff is entitled to recover damages for fraud even if the claim on note has not yet been determined.  Debtor sustained actual injury when she incurred said legal obligation on the note.  Damages for fraud are measured at the time of the transaction.  See Indus.  Supply Co. V. Goen, 58 N.M. 738, 741, 276 P.2d 509, 511, (1954) (explaining that New Mexico adopts the general rule that the defrauded purchaser may recover the difference between the real and represented values of  the property at the time of the transaction, 37 AM. Jur. 2d Fraud and Deceit 275. The unresolved claim on the note does not in any way preclude Plaintiffs instant recovery of damages for fraud.
15.   With regard to the Defendants claim against debtor for valid mortgage of 164, 861.09,  All of Debtors allegations are necessary and vital as an inclusion to this claim to prove and determine that this is not true, and issues of fact will prove that Debtors note is invalid and void since inception.
16.   The environmental issues have been an ongoing issue for Debtor, however, not until litigation began with Vanderbilt in 2006 were documents attained and made available to debtor which would validate, concur, and become evidentiary proof for Debtor that conditions existed and prompted violations from all aspect with regards to her note and mortgage and the validity thereof, and that Vanderbilt was with knowledge and a willing party to these violations including but not limited to deceit, collusion, fraud, and forgery.  These facts remain as disputed and are indispensable facts to be presented to a jury in order to determine the liability of debtor to Vanderbilt, if any exists and to prove Defendants willfully participation in the illegal formulation of Debtors note and indebtedness. Determination of the facts were not decided in the inclusion of determining , or made a part of final summary judgment order.
17.   All the facts and allegations of debtor which have not been heard or determined in the relation of the Santa fe property with the current indebtedness and subject of the Willful violation of the Automatic Stay and the foreclosure are inherently commingled. The undetermined facts involving the complex process of attaining and closing a valid mortgage note including documents and documentation after debtor closed are crucial and subject to a trial by jury at Debtors Demand, as violations within and surrounding these facts would constitute legal remedy in favor of debtor including but not limited to the entire amount of indebtness to Defendant, Monetary loss by Debtor by paying on presumed note for 8 years, in excess of 124,000.00, Monetary loss by Debtor in this pursuit of Judicial Justice, by loss of time, enjoyment of life, costs incurred for research, production, mailing costs etc. Damages, Punitive, 
"A jury trial on the issue of damages is a factual hearing, and, as such, the right to a jury trial is as of right upon demand by 'any party.'" Id. at 447, 364 N.E.2d at 147 (quoting T.R. 38). 

CONCLUSION 

Allegations for which relief for the willfull violation of the Automatic Stay against Debtor may be granted to Debtor are contained in Debtors Adversary complaints and responses in entirety. At the risk of being repetitive, Debtor has presented facts herein as well, due to the fact that Defendants for a second time filed a motion to dismiss Plaintiffs Complaint and additional answers.  
WHEREFORE, Defendant, Wright Prays that the Courts Grant her demand , in support of her Right to a jury trial on all remaining allegations which contain issues of fact to determine the total amount of indebtedness and validity of “note” in Defendants claimed value against Debtor,  and to avoid any litigation trickery which may being exercised because she is a litigant Pro Se. 
1.  That the Courts adjudge and decree that the Defendants have engaged in the conduct contained herin. 
2.  That the Court adjudge that the conduct is unlawful and in violations of  NM 36-2-17, USC 11 362, Chapter 30 article 42 NMSA “racketeering Act”.(4-6), NMSA 30-16-6, NMSA 58-21-21 (a-b), NMSA 30-28-2, USC 18 1001-1010, NMSA 57-12-1 (a,d),11,14,E (1,2), NMSA 58-21-23 2 (1,2),B,  USC 12-2607 (a), USC 12-2608, NMSA 30-16-18 (a,f,) fraud and fraud unlawful NMSA 30-16-6 (a,f),  NMSA 58-21-21 (a,b). 
3.  That the Court order the Defendants forfeit to Plaintiffs treble damages in the amount of 372,000.00 three times the amount that Plaintiff has paid by way of her monthly payments into a fraudulent and falsified void mortgage  over the course of 8 years. The total amount of indebtedness or “value” of Defendants Claim has not been heard or established through any Court by findings of fact.   
4.  That the court award compensatory damages under 11 USC 362.  
5.  That the Court award Debtor damages for fraud in the amount of 60.500.00 as Damages for fraud are measured at the time of the transaction.  See Indus.  Supply Co. V. Goen, 58 N.M. 738, 741, 276 P.2d 509, 511, (1954) (explaining that New Mexico adopts the general rule that the defrauded purchaser may recover the difference between the real and represented values of  the property at the time of the transaction, 37 AM. Jur. 2d Fraud and Deceit 275. The unresolved claim on the note does not in any way preclude Plaintiffs instant recovery of damages for fraud. (The dollar amount of the unlawful property in SF is still the amount securing the note) The property was without any value to Debtor as property was not permitted for human inhabitants.  
6.  That the courts allow Debtor her constitutional right to a trial by jury to hear and decide the unresolved facts which comprise the entire indebtedness that Defendant claims the Debtor owes constituting the “note”.
7.  That the Courts Deny the Defendants Motion to Dismiss Debtors Amended Complaint for willful violation of the automatic stay.  In the culmination of the facts aquired by Debtor through Defendants Answers to her complaints all allegations of the willfull violation of the Plaintiffs Automatic Stay have been properly addressed and proven by the Debtor herin and in her response (filed June 2009) to defendants first motion to dismiss filed on May 06, 2009. that a willfull violation of the Automatic stay did occurred,

Respectfully Submitted,

Melissa Wright Debtor. Respondent, Plantiff Pro Se
1305 South Brown
Roswell, NM  88203
505-231-0968 575-637-1596