STATE OF NEW MEXICO
COUNTY
OF BERNALILLO
SECOND
JUDICIAL DISTRICT COURT
BARRIE
LEE DERRINGER, No.
DM-12-0610
Petitioner, rel.
DV-12-234
v.
DAVID
BRIAN DERRINGER,
Respondent,
NOTICE
OF COMPLETION OF HEARING OF APRIL 3, 2013
AND
NOTICE OF LACK OF A PROPER WRITTEN ORDER
COMES
NOW, the Respondent David Derringer with notice to this court as stated above.
The Court record will clearly
substantiate that the Respondent is being illegally maneuvered by the court against all laws and
Constitution, including, but not limited to “blocking appeals”. This entire
matter is in the higher New Mexico
Court of Appeals under No. 32,587 and
that higher court has had jurisdiction of this matter since early in November,
2012. Despite that, the Petitioner, with such knowledge of appeal, yet a
“refusal” to legally enter the higher courts as “Appellee”, disregarded the
higher court’s jurisdiction and fraudulently claimed that the Respondent had
violated the Final Judgment of November 15, 2012; an Order that was contradictory
and incomprehensible, and containing “fraud” making it totally legally
unenforceable under NMRA Rule 1-060. The Petitioner filed a fraudulent “Motion
for Order to Show Cause” on November 26, 2012 in DM-12-610.
Despite the ongoing “jurisdiction”
of the NM Court of Appeals, Judge Hadfield held a hearing on February 8, 2013,
in which the Respondent legally argued not only that the Final Judgment was
fraudulent and incoherent, making it unenforceable under NMRA Rule 1-060, but that the Petitioner’s
“Motion” had been unlawfully presented to the trial court instead of the
Petitioner properly entering and proceeding in the NM Court of Appeals as
“Appellee”; a deliberate act to both mis use a trial court that has been shown
time after time in bias and prejudice to the Respondent, as well as an attempt
by the Petitioner to circumvent the jurisdiction of the higher court she
refuses to enter legally as “Appellee”. In the hearing of February 8, 2013, the
Respondent presented case laws and authorities for necessity of granting a
“stay pending appeal”, while the Petitioner continually sought to have the
trial court violate Oath and place an unconstitutional “injunction” against the
Respondent to keep the Respondent from any further use of due process in United
States Courts, as well as repeatedly asked Judge Hadfield to “block any further
appeals” by the Respondent.
In the hearing of February 8, 2013,
Judge Hadfield granted a “stay pending appeal”, and set a bond amount of
$22,000.00, with that arbitrary and capricious amount of some perceived book value
of a 2005 Chevy Silverado, by stating that such vehicle was “community
property” when in fact at least $15,000.00 is owed on such vehicle to Wells
Fargo Dealer Services, and wherein David Derringer has an investment of
$12,000.00 in “sole and separate inheritance funds” in such vehicle by the
Respondent’s initial down payment as “primary loan holder” of $7,000.00 and at
least 8 payments of $600.00 each; an amount that is not divisible with the
Petitioner in equal amounts as any equity that would be “community property”.
The Respondent was given until March
11, to comply with the bond, or hearing would be held on the Order to Show
Cause. The respondent found that Judge Hadfield had defrauded the Respondent, when
several bond companies called the court to issue a bond for the Respondent, and
found the court mandating that an amount had to be paid to the court registry
of the full $22,000.00 in “cash”, rendering the idea of any bond mute and
wherein the court itself had “lied” to the Respondent that a bond was
obtainable. Unser v. Unser,
86 NM 648, 526 P.2d 790 (1974) “fraud misrepresentation of fact”. This left the Respondent “illegally
maneuvered” into a hearing for “order to show cause” by fraud conditions, when
still the Final Judgment could not be enforced by its own contradictory and
incomprehensible and fraudulent writing. There could be no recovery allowed even without a supersedes bond when the issues
were not about only “money” as in this instance when the collateral “thing” was
a truck held by loan with a third party. Savage
v. Howell, 45 NM 527, 118 P.2d 1113 (1940). Suit or recovery by ramming
forth the Final Judgment with attending impropriety was abuse of discretion and
highly illegal of the court. Burroughs
v. US Fid. & Guar. Co., 74 Nm 618, 397 P.2d 10 (1964). In point of
fact, the hearing of April 3, 2013 was highly illegal after the “stay pending
appeal” had been issued by this very court on February 8, 2013, as the
inability to post a supersedes bond, by interference and illegal mandates of
the court to only accept a full amount of “cash”, thus having precluded the
Respondent from any ability to comply, did not deny the right to the stay. Mitchell v. City of Farmington Police
Department, 111 NM 746, 809 P.2d 1274 (1991). Even the pendency of
another suit, named and noticed to Judge Hadfield over torts of the Petitioner CV-12-10816,
purposefully not addressed as mandated by this court in a marital settlement
agreement, which contained items including infliction of a venereal disease of
“herpes” by the Petitioner against the Respondent, mandated this court to
abandon the Final Judgment due to issues not properly addressed legally by this
court. Judge Hadfield ignores and is in total discharge of duties under law and
in deciding or ignoring issues in what should be “reversible error” when
malicious acts by the judge prejudice and use of mistaken belief on the legal
effect against the Respondent without any justice whatsoever. The existence of
tort suit David Derringer v. Barrie
Crowe et al CV-12-10816 constitute “exceptional circumstances”
mandating this court to abandon the Final Judgment of November 15, 2012 which
is in legal provable error anyway. Foundation
Reserve Ins. Co. V. Martin, 79 NM 737, 449 p.2d 339 (Ct. App. 1968).
The Petitioner has simply brought this action of “order to show cause” in
retaliation, retribution, and revenge of CV-12-10816 in an act of “malicious
prosecution” that has to be addressed by this court. Poorbough v. Mullen, 99 NM 11, 653 P.2d 511 (Ct. App. 1982).
Hearing was held by the trial court
on April 3, 2013, outside of the jurisdiction of the NM Court of Appeals,
and wherein the “stay pending appeal” precluded such hearing, and the “stay”
had to be enforced by Judge Hadfield despite no bond being able to be secured
due to the underlying fraud of the court itself, all in an error of NMRA
12-503. Segal v. Goodman, 115
NM 349, 851 P.2d 471 (1993). Under NMRA
1-062 a supersedes bond is not mandatory and can only be considered in an
amount of money owed, which in this case the Respondent did not owe the
Petitioner the full book value or conceived book value of the 2005 Chevy
Silverado, wherein at least $15,000.00 of that amount of $22,000.00 was still
owed to the “owner” of the truck; Wells Fargo Dealer Services, the loan holder
of the vehicle; and the Respondent time after time had testified and been
sustained by the additional testimony of the Petitioner that “sole and separate
inheritance” Respondent funds held equity in the amount above the loan pay off
of the vehicle. The Court continued to deny and defraud the Respondent’s
“inheritance” monies, with “knowledge” and orchestrated her decisions to gain
“unjust enrichment” and “profit” for the Petitioner, by enabling the Petitioner
to “split” such inheritance monies when legally unable to do so. Bayer v.
Bayer, 800 P.2d 216, 110 NM 782, cert denied 799 P.2d 1121, 110 NM 749
“Where separate character of property is established, it maintains that
character until contrary has been made to appear by direct and positive
evidence.” Jurisprudence dictated that the court take control over its own
order for justice to be served, which involved both vacating the Final Judgment
as allowing the stay pending appeal to properly hold. Desjardin v. Albuquerque National Bank, 93 NM 89, 596 P.2d
858 (1979). ; Parsons v. Keil,
106 NM 91, 739 P.2d 505 (1987). Even the NMSA 40-4-20 1978 renders ability to
reopen this matter at a later time to seek modification of the proper division
of the property that is not being followed according to law by this court. Mendoza v. Mendoza, 103 NM 327, 706 P.2d 869 Ct. App.
(1985). This makes the abuse of discretion of this court even more severe to
all involved, including the forced future litigation to correct errors of this
court that will take the time and expenses of all involved, when this court is
simply in a discharge of duties to “obey the law”, when this court could and
should change the Order to follow statutory, Constitution and former case laws
as mandated under Canon. English v.
English, 118 NM 170 879 p.2d 802 (Ct. App. 1994). Canon 3 (B)(2): A
judge shall be faithful to the law and maintain professional competence in it. Canon:
“Law” “denotes court rules as well as statutes, constitutional provisions, and
decisional law.”
Already the court has illegally
defied both NM statutory laws and case laws to have allowed the Petitioner to
have stolen “community property” and “community income” to unlawfully take
money from bank accounts and keep “community income” for only herself prior to
any conceived “divorce”, and mis-uses the bias, power and prejudice now to
steal Respondent’s “inheritance”. The Respondent presented law and necessity to
vacate the Final Judgment with meritorious defense as well as the “jurisdictional
issue” of the matter already on appeal, and was denied and ignored by Judge
Hadfield. Barnes v. Shoemaker,
117, NM 59, 868 P.2d 1284 (Ct. App. 1993). The Respondent then made proper
legal “motion” to set aside the property settlement of the Final Judgment of
November 15, 2012 as “unenforceable” with the right under equity to attack the
validity of the judgment and right to seek injunction of its enforcement. Sanders v. Estate of Sanders,
1996 NMCA 102, 122 NM 468, 927 P.2d 23; Hort
v. General Electric Company, 92 NM 359, 588 P.2d 560 (Ct. App. 1978)
cert denied 92 NM 353, 588 P.2d 554 (1979). Judge Hadfield denied the motion,
disregarding as in this entire matter of DM-12-610 all case laws, statutes,
Constitution, and authorities. The court was mandated not only to enforce its
own “stay” but to be liberal in the defense of the unenforceable order as good,
and enable the NM Court of Appeals to rule and remand back to the court any
jurisdiction necessary to continue with any “order to show cause”; instead of
mis-use and abuse of discretion to rule against law and in bias to the
Respondent. Franco v. Federal Bldg.
Serv. Inc., 98 Nm 333, 648 P.2d 791 (1982). There is a necessity of
relief for not only good cause shown, but for justice to be served, and a
collateral attack on the bogus Final Judgment contradictory to itself was not
only allowed, but necessary. Martin
v. Leonard Motor El Paso, 75 NM 219, 402 P.2d 954 (1965); Desjardin v. Albuq. Nat’l Bank, 93 NM 89, 596 P.2d 858
(1979); Barela v. Lopez, 76
NM 632, 417 P.2d 441 (1966). Included in the outrageous acts in hearing of
April 3, 2013 were both Constitutional deprivations constituting jurisdictional
error, and the Respondent clarified for the court record for further appeal
that the Respondent was continually forced before a biased and prejudiced judge
Hadfield who again in this hearing muzzled and controlled the testimony of
David Derringer to prevent due process, equal protection and proper opportunity
to be heard, as the Respondent made clear for the record on the witness stand. Wisdom v. Kopel, 95 NM 513, 623
P.2d 1027 (Ct. App. 1981). ; In re Doe, 519 P.2d 133,
86 N.M. 37 “N.M. App. 1974 Failure to hear one party’s evidence, when offered,
establishes a presumption of prejudice.”; In
re A.tl Robins Co. Inc., 97 BR 525 ED.Va 1995 “Bias” is condition of
mind, which sways judgement and renders judge unable to exercise his functions
impartially in particular case.”
The hearing was held on this matter,
despite being illegal, with the full intent of forcing compliance with the
Final Judgment of November 15, 2012, but with a total lack of evidence or any
standard of proof of Petitioner’s claims to “missing items” of personal
property, when the court is well aware of 12 persons taking possessions of both
parties that are not accounted for, and wherein Barrie testified as to not
being able to “watch” 12 persons or what they took on February 4, and 25th,
2012 when the Derringer storage was ravaged by such persons at Barrie’s own
directive. Barrie presented no photographs of missing items, no receipts to
even prove acquisition or ownership, and Barrie admitted on the witness stand
under oath that Barrie “lies”. Without any standard of evidence, or proof
whatsoever, Judge Hadfield awards Barrie all unproven value of every item
claimed missing by Barrie, while at the same time denies and ignores the
$55,000.00 worth of David Derringer personal property and tens of thousands of
community income and sole and separate inheritance of David Derringer. These
actions constitute “grand larceny” against the Respondent David Derringer. In
the process, Judge Hadfield awards the 2005 Chevy Silverado to Barrie, only the
co-signer of the loan, disregards David Derringer’s inheritance in the vehicle
so as to give Barrie a “profit” from the court upon division and awards Barrie
$2,000.00 in judgment against David Derringer that will also be taken from the
sale of the 2005 Chevy Silverado.
Despite all of the outrageous acts,
criminal larceny and fraud conducted by the court in deprivation of due process
and Constitutional deprivations, verbal Order mandated that David Derringer did
immediately relinquish both control and legal and physical possession of the
2005 Chevy Silverado in the hearing of April 3, 2013. David Derringer totally
complied upon court demand and divulged the location of the truck and that gave
total control, legal possession and physical possession on April 3, 2013 of the truck to Barrie Crowe
aka Barrie Derringer as ordered by the court. Despite the total cooperation of
the Respondent with no defiance of the court, Judge Hadfield made slanderous,
defamatory and personal insult remarks against the Respondent totally outside
of both jurisdiction and the judicial code of ethics to state; “David
may be playing games with the court”. This outrageous act of personal insult and
defamation exemplifies the hatred, bias, prejudice and personal animosity that
Judge Hadfield has for the Respondent, yet David Derringer is continually
forced before this Judge without redress for multiple motions to “recuse for
cause”. DB v. Ocean Tp. Bd. of
Education, 985 F. Supp. 457, affirmed 159 F.3d 1350 DNJ 1997 “If
through obduracy, honest mistake, or simply inability to attain self knowledge
judge fails to acknowledge disqualifying predisposition or circumstance,
appellate court must order recusal no matter what the source; litigants ought
not have to face judge with respect to whom there is reasonable question as to
impartiality.”; Frates v. Weinshienk,
882 F.2d 1502 cert. denied 110 S. Ct. 1297, 494 US 1004, 108 L.Ed.2d 474
“Recusal motion should be permitted at any time it becomes apparent that judge
is biased or suffers from appearance of bias.”
Thus, everything was settled by
Order of the court in the hearing on April 3, 2013, and there was no issue
reserved for contemplation or taken under “advisement”. During both the
February 8, 2013 hearing and in this hearing, the Petitioner and her unethical
attorney Alain Jackson asked repeatedly Judge Hadfield to “block David
Derringer’s appeals”. In this matter, all Orders of the court were
established in the hearing of April 3, 2013, with then a mandated “written
order” to be forthcoming on April 3, 2013 or within a short time frame
thereafter of the next day to be filed properly with the court record. There is
no availability of Judge Hadfield to delay or maliciously impair proper court
procedure to not file the order of all things that are not under “advisement”
or deliberation”. Instead, no Order from the hearing of April 3, 2013 has ever
been filed with the court record. Hedrick
v. Perry, 102 F.2d 802 “Evidence is sufficient to establish a
conspiracy to cheat and defraud if the facts and circumstances pieced together
and considered as a whole convince the judicial mind that the parties united in
an understanding way to accomplish the fraudulent scheme.” This has the “practical
application” that Barrie Crowe, aka Barrie Derringer has already taken
legal and physical possession of the 2005 Chevy, been granted a judgment so as
to take even more money from the sale of the truck, been awarded everything
Barrie asked for in this court, but David Derringer has been maliciously and
deliberately denied and “obstructed” in any appeal, by the pre-meditated idea
that the Respondent cannot file any “motion for reconsideration” or any “notice
of appeal” without a written order being of court record, so as to “block
appeals” just as Barrie Derringer and attorney Alain Jackson repeatedly
requested of Judge Hadfield many times past. This “manipulation” of the rules,
mis-use of power and “obstruction of justice” to deny and block David
Derringer’s appeals by subversion of the court processes is a “willful act” of
working in concert of Barrie Derringer and Judge Hadfield knowing and orchestrated
results and with ex-parte communication or actions knowingly meant to keep
David Derringer from moving forward and denying due process and equal
protection. NMRA Rule 1-054.1 does not apply here, as the written order was
mandated to be filed long before this date, and there is no legal justification
of a wait of 60 days under rule, wherein Judge Hadfield hopes and expects the
legal appeal by that time of NM Ct. App. No. 32,587 will be resolved and thus
David Derringer would have been prevented from further appeal. These acts by a
judge are “criminal”.
Under US Code Title 42 Section 1981,
and under the provisions of the 4th, 5th, 13th
and 14th Amendments, Respondent David Derringer cannot be blocked
from further appeal, and has a right undeniably to due process and equal
protection of the laws. Title 18 Section 1505-Obstruction of proceedings before
departments, agencies, and committees Title 18 U.S.C. Section 1505 “Whoever,
with intent. corruptly, or by threats of
force, or by any ..communication influences, obstructs, or impedes or endeavors
to influence, obstruct or impede the due and proper administration of the law
under which any pending proceeding is being had...shall be fined..or
imprisoned.” US v. Guest, US
Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239 “This section (Title 18
Section 241) pertaining to conspiracy against rights of citizens encompasses
due process and equal protection clauses of USCA Constitution Amendment 14 and
is not unconstitutionally vague.”
WHEREFORE the Respondent
respectfully requests that a written order describing the verbal orders of the
hearing of April 3, 2013 be filed with the court, so that the Respondent has
his rights under law for a motion for reconsideration and rights to appeal to a
higher court of law.
Respectfully
submitted by ____________________________________________
Respondent
David Derringer, Box 7431, Albuquerque, New Mexico 87194
CERTIFICATE
OF SERVICE April
17, 2013
I
hereby certify that I hand delivered a copy of this pleading to the Second
Judicial District Court on 400 Lomas NW, Albuquerque, New Mexico.
This
date, I mailed a copy of this pleading to:
Petitioner=s attorney
Alain
Jackson, 423 6th St. NW
Albuquerque,
New Mexico 87102
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