Foreclosure Crisis Redux: 85-Year Old Widow Fights Against Criminal Theft of Property in Landmark Case

OUTLAW JUDGE TAMI CRAFT SELF-RECUSES AFTER VIOLATING EVERY TEXAS LAW, RULE AND CIVIL PROCEDURE

JAN 25, 2023

VERIFIED PETITION AND APPLICATION FOR EX-PARTE TEMPORARY RESTRAINING ORDER AND  PERMANENT INJUNCTION BY JOANNA BURKE

DEC 21, 2023 | REPUBLISHED BY LIT: DEC 21, 2023

Plaintiff  Joanna Burke, individually, files this petition and application for injunctive relief against Defendants.

Parties

Plaintiff, Joanna Burke (“Joanna”), is an individual resident of Kingwood,  Harris County, Texas.

Defendant, DEUTSCHE BANK NATIONAL TRUST COMPANY, (“DBNTCO”) is a non-resident company headquartered in California and doing business in the State of Texas. DBNTCO may be served c/o  Texas Secretary of State, PO Box 12079, Austin, Texas, 78711-2079, to be served on DBNTCO’s known place of business, pursuant to Sec. 17.091, Tex. Civ. Prac. And Rem. Code.

Defendant, PHH MORTGAGE CORPORATION, (“PHH”) is a non-resident company headquartered in New Jersey and doing business in the State of Texas. PHH may be served c/o Corporation Service Company dba CSC – Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas, 78701 or wherever else such registered agent may be found.

Defendant, AVT Title Services, LLC, (“AVT”) is a limited liability company doing business in the State of Texas. AVT may be served through its registered agent at 14160 N. Dallas Parkway, Suite 900, Dallas, Texas, 75254.

Defendant, Mackie Wolf Zientz & Mann, PC, (“Mackie Wolf”) is a Professional Corporation doing business as a law firm in the State of Texas. Mackie Wolf may be served through its registered agent at 14160 N. Dallas Parkway, Suite 900, Dallas, Texas, 75254.

Jurisdiction & Venue

The Court has jurisdiction over the parties because the actions complained of herein all occurred in Harris County, Texas. Also, the real property which is the subject of this lawsuit is located in Harris County, Texas. Venue is also proper in Harris County, Texas.

Rule 47 Statement

For the statements and arguments provided herein and in compliance with Tex. R. Civ. P. 47., Plaintiff, Joanna Burke, seeks affirmative relief in the form of a declaratory judgment, and injunctive relief to prevent the scheduled sale while related litigation is ongoing, as well as limited monetary damages less than $75,000, including statutory damages and court costs, as determined and allowed by this court.

Discovery Control Plan

Plaintiff respectfully requests this case be governed by Level 2, Texas Rules of Civil Procedure.

The narrative takes a dark turn as Joanna’s 85-year-old vulnerability is exploited. Mackie Wolf stand accused, put on notice for elder abuse, a felony under Texas law.
Joanna’s poignant letter exposes @DeutscheBank criminal intent behind the attempt to wrest her homestead away.

— lawsinusa (@lawsinusa) December 19, 2023

Facts

This petition is firmly grounded in Texas laws, with affirmative relief sought and no federal question(s) present. The defendants include Texas domiciled persons. Furthermore, the Plaintiff seeks a monetary award of less than $75,000. Hence, any attempts at removal would not dispose of the Plaintiff’s claims and application for injunctive relief.

Summary of the Complaint

1.    There is active litigation in federal court which prevents a nonjudicial foreclosure proceeding.

2.    Relevant here, the ongoing litigation includes a claim that the judgment issued by federal US District Judge Alfred Homer Bennett of S. D. Texas is void, a nullity.

3.    PHH Mortgage Corporation offered plaintiff a confidential settlement during the current federal proceedings. As such, it is clear and obvious;

a.    Defendants are fully aware of the ongoing litigation;

b.    The likelihood plaintiff will prevail on the merits, and;

c.     Warrants obtaining a TRO to prevent any nonjudicial foreclosure of the plaintiff’s homestead.

4.    Beyond the points mentioned earlier, and with a specific focus on the impending harassing and unlawful nonjudicial foreclosure scheduled for January 2, 2024, the defendants face several insurmountable issues. These issues warrant the issuance of a Temporary Restraining Order (TRO) to prevent this illegal act without delay;

a.    Plaintiff verifies she received no notice of default;

b.    Plaintiff verifies she received no notice of acceleration;

c.     Plaintiff has a right to cure, absent as a result of the failure to provide adequate notices;

d.    Plaintiff verifies the notice of foreclosure sale is deficient;

i.      The indebtedness in the notice is correctly set at zero dollars, so there is no reason to auction a home where no debt exists;

ii.      The correct mortgagee identified in the notice is disputed. Plaintiff contests DBNTCO as the current mortgagee. She avers PHH Mortgage Corporation, and/or another person currently owns the alleged debt.

iii.      The notice refers to the order of  judicial foreclosure, but upon inspection of the order it is deficient, and void, for example;

1.    No legal description of the property;

2.    No value of any alleged indebtedness;

iv.      In the alternative, there is no Writ of Execution.

v.      The substitute trustee is not a nominal party and defendant in this action.

5.    Plaintiff is seeking monetary damages  for TDCA and TFC violations.

6.    Plaintiff is seeking affirmative relief.

7.    Plaintiff is seeking a declaratory judgment.

8.    Plaintiff is seeking injunctive relief.

The Notice of Foreclosure Sale

On November 25, 2023, Plaintiff discovered a troubling issue with AVT’s notice of foreclosure sale, scheduled for January 2, 2023.

Defendant PHH Mortgage Corporation, a subsidiary of Ocwen Financial, has a history marred by more than $2.6 billion in fines since the 2008 financial crisis.

They assert themselves as the mortgage servicer for Plaintiff’s alleged HELOC loan on her homestead.

Adding to the complexity, defendant DBNTCO, claiming to be the mortgagee, has faced fines exceeding $20 billion since 2000.

Notably, a $7.2 billion settlement with the Department of Justice stemmed from the bank’s irresponsible lending practices and mortgage-related irregularities.

These actions contributed to a significant loss of citizens’ residential homes, a historical injustice.

The bank later reneged upon the settlement.

Defendant AVT, functioning as the appointed substitute trustee, shares its registered office address with Mackie Wolf, the law firm involved in this matter.

Defendant Mackie Wolf, known for its role as a foreclosure mill and creditor rights law firm, frequently changes its position based on the allocation of foreclosure cases.

This includes representing banks, trustees, mortgage servicers, and even acting as the substitute trustee.

Notably, their staff and lawyers also engage in non-lawyer activities and moonlight for title companies.

The presence of such a glaring conflict of interest by foreclosure mills like Mackie Wolf has been widely recognized since the financial crisis.

Despite the well-known principle that law firms should not assume multiple roles to avoid conflicts, they continue to operate with apparent impunity, remaining shielded from accountability.

An Active Dispute and Litigation Prevents Foreclosure

Joanna Burke is litigating a separate, distinct, and active civil suit against PHH Mortgage Corporation in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, currently under appeal to the 8th Circuit.

See; Deutsche Bank Nat’l Tr. Co. v. Cornish, No. 18-2429 (7th Cir. Feb. 6, 2019)

(Holding the “security interest in the underlying property” is ordinarily sufficient security “in appeals from mortgage foreclosure judgments”).

Despite this effectively tolling any foreclosure notice or sale, the defendants listed here have collectively defied the rule of law.

Brazenly, they have scheduled Plaintiff’s home for auction on January 2, 2024, disregarding the ongoing legal proceedings.

The Scheduled Sale Violates the Law

As recently as this month, a Texas Supreme Court case confirmed this in Sanders v. The Boeing Co., No. 23-0388, at *18 (Tex. Dec. 1, 2023)

(“when a party appeals a dismissal order, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends. We agree.”).

Mega Financial Crisis Settlement for Investors But Zero Compensation for True Victims: The Homeowners – Laws In Texas https://t.co/zhk1KNIqYw

— lawsinusa (@lawsinusa) December 21, 2023

Unlawful Sale Proceedings Despite Notice and Acknowledgement

Tex. Fin. Code § 392.301(3) states; “representing or threatening to represent to any person other than the consumer that a consumer is wilfully refusing to pay a nondisputed consumer debt when the debt is in dispute and the consumer has notified in writing the debt collector of the dispute”.

PHH has willfully and maliciously instructed substitute trustee AVT Title Services, LLC, and counsel Mackie Wolf to conduct the sale, a person other than the consumer, claiming erroneously that Plaintiff is willfully refusing to pay.

Furthermore, Plaintiff is receiving letters, emails and text messages stating her home is slated for auction at a foreclosure sale in January by cold-calling marketers, real estate investors and bankruptcy lawyers, to name a few

(Exhibit DB5).

On December 3, 2023 Plaintiff sent a letter to AVT’s counsel advising them they were unlawfully scheduling the sale and requested a timely cancellation of the foreclosure sale.

Plaintiff provided this letter with a notice of lis pendens via email on December 4, 2023 to counsel for AVT.

(Exhibit DB4).

Attorney Mark Cronenwett responded for Mackie Wolf late in the evening of the same day, stating that the sale will proceed, despite being notified of the ongoing dispute and litigation in federal court as discussed above, in violation of consumer laws.

(Exhibit DB6).

Deficiencies in the Foreclosure Proceedings

The Notice of Foreclosure Sale, a critical document in the scheduled January 2, 2024 auction, stands on shaky ground, rendering the entire sale void and defective.

No Default and Acceleration Notices: Failure to provide notices of default or acceleration prior to the Notice of Foreclosure Sale.

Notice of Default: The notice of default is typically the initial notice sent to the borrower when they are in default on their mortgage payments.

It informs the borrower that they have failed to make the required mortgage payments, and it usually provides a specific period within which the borrower must cure the default by bringing the payments current.

The notice of default is a prerequisite to the foreclosure process and is meant to give the borrower an opportunity to address the default before further legal action is taken.

Notice of Acceleration:

The notice of acceleration is a separate notice that may follow the notice of default.

If the borrower does not cure the default within the specified timeframe, the lender may issue a notice of acceleration.

This notice informs the borrower that the entire outstanding loan amount is now due, not just the overdue payments. In other words, the lender is accelerating the maturity of the loan, making the entire loan balance payable immediately.

Legal Authority:

Mathis v. DCR Mortgage III Sub I, L.L.C., 389 S.W.3d 494, 508 (Tex. App. 2012)

(“Since DCR did not give proper notice of its intent to accelerate the debt, we hold that any attempted acceleration was ineffective. See Ogden, 640 S.W.2d at 234. ”).

Summary:

The Plaintiff has not received these notices and there is no proof  in the form of attachments to the Notice of Foreclosure Sale which provide copies of either notice.

There are known defects surrounding the Notice of Foreclosure Sale.

(Exhibit DB1).

The admitted zero dollars indebtedness raises questions about the legitimacy of the scheduled sale which is not signed or dated.

Inconsistencies in the identification of mortgagee entities and a deficient order by Judge David Hittner further muddy the waters

(Exhibit DB2).

Zero Dollars Indebtedness:

At the core of the defects lies the admission by defendants themselves.

Point no. 5 of the Notice explicitly states the indebtedness as $0 (zero dollars), revealing that Plaintiff owes nothing to the defendants. Joanna agrees.

Legal Authority:

This critical revelation aligns with legal precedent, as highlighted in Harwath v. Hudson, 654 S.W.2d 851, 852 (Tex. App. 1983), which emphasizes the importance of compliance with notice provisions.

A foreclosure sale lacking validity due to non-compliance becomes evident, especially when the claimed debt is nonexistent.

PHH’s Confidential Settlement Offer:

Furthermore, the inconsistencies multiply. Despite asserting Deutsche Bank National Trust Company (DBNTCO) as the “real party in interest” and current mortgagee, recent correspondence from PHH Mortgage Corporation and counsel Shelley Hopkins presented a confidential settlement offer

(Exhibit DB3).

This offer stands in stark contrast to the foreclosure proceedings, raising questions about the true entities involved and the validity of the claims against Plaintiff.

Judge David Hittner’s Deficient Order:

The deficiencies continue with point no. 6 – Order to Foreclosure, referencing the order by United States District Court Judge David Hittner.

Deutsche Bank’s counsel, whilst at the Fifth Circuit, attempted to inject new arguments about indebtedness and proposed orders.

The Burke’s objection was grounded in the fact that these arguments were introduced for the first time on appeal, and Hopkins was requesting the appellate court to perform a judicial act beyond its authority and jurisdiction.

Judge Hittner’s order, while addressing the remanded issues, falls short of meeting Texas law standards required for inducing a sale of Plaintiff’s homestead.

The deficiency extends to crucial details such as the value of alleged indebtedness and the legal description of the property subject to foreclosure.

Legal Authority:

Drawing parallels with Gutierrez v. City of Laredo, No. 07-14-00270-CV, at *7 (Tex. App. Aug. 3, 2015), it becomes evident that a deficient property description renders the judgment void.

No Writ of Execution:  Nor is there a writ allowing foreclosure.

Legal Authority: Andrews v. Roadway, 473 F.3d 565 (5th Cir. 2006)

(Noting that no authority existed to supplant the state law process for the enforcement of a writ of execution).

Summary: As the layers of deficiency unravel, the foreclosure proceedings appear as a house of cards, built on shaky ground.

The critical examination of both the Notice and Judge Hittner’s order reveals not only legal inadequacies but raises serious doubts about the entire process’s legitimacy.

In the face of these revelations, Joanna’s fight for her homestead gains a new dimension—one that questions the very foundations of the foreclosure proceedings and demands a closer scrutiny of the entities involved.

Facing the Turncoats. An Incredible True Story Exclusively on LIT https://t.co/YgLpbY1Uix pic.twitter.com/94So6FvxTw

— lawsinusa (@lawsinusa) December 21, 2023

The Substitute Trustee, Defendant AVT is not a Nominal Party

Legal Authority:

As far back as 1885, Texas courts have opined “The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust.”

In Thayer v. Life Association, 112 U.S. 717, 719 (1885).[1]

As discussed above and in Harwath v. Hudson, Texas case law provides many strict compliance authorities, such as the “court further noted that [strict] compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale”.

Summary:

Here, the substitute trustee did not strictly comply as the indebtedness marked on the notice of foreclosure sale is zero dollars, as well as the other arguments presented herein.

The Malicious Targeting of Joanna and Her Homestead

At the forefront of this legal labyrinth is creditor rights law firm Mackie Wolf, defender of creditor rights.

Their extensive history and experience in real estate law is prominently displayed in cases before state and federal courts underscore Mackie Wolf’s significance.

However, a paradox emerges as fallacious claims and erroneous acts persist, seemingly driven by undisclosed incentives.

The intricate dance between these foreclosure mills, substitute trustees, mortgage servicers, and bank trustees, despite conflicts of interest and aged Texas laws, raises questions of organized collusion.

The narrative takes a dark turn as Joanna’s 85-year-old vulnerability is exploited, marked by attempts to seize her retirement home.

Mackie Wolf stand accused, put on notice for elder abuse, a felony under Texas law.

Joanna’s poignant letter (Exhibit DB4) serves as a legal battleground, exposing the criminal intent behind the attempt to wrest her homestead away.

The footnote becomes a testament to the gravity of the situation, citing elder abuse as both a criminal act and a felony.

Amidst ongoing legal battles, the defendants frustration reaches a tipping point, leading to scandalous and unlawful acts, which were reaffirmed by the fraudulent removal of Joanna’s recent intervention as described in her last filing docketed Dec. 19, 2023;

“Verified Emergency Motion to Retain Jurisdiction with Exhibits by Intervenor-Plaintiff Joanne [sic] Burke”, 202359141 – SAMUELS, JEFF vs. AVT TITLE SERVICES (Court 234).

In their desperate pursuit, the risk to Joanna is not only the impending theft, but the past, present and future infliction of irreparable harm and emotional distress resulting from the ongoing traumatic defense of the foreclosure sale.[2]

The narrative suggests a sinister motive—silencing Plaintiff permanently through the weight of emotional and physical stresses.

As justice unravels, the struggle for Joanna’s home becomes a broader tale of legal complexity, abuse, and the resilience of one woman against an unjust system.

Causes of Action

Declaratory Judgment

Purpose:

The purpose of a declaratory judgment is to clarify legal rights and relationships before any actual harm occurs.

It allows parties to seek a binding determination from the court on the interpretation of a contract, statute, or other legal document.

Statutory Basis:

Texas law provides for declaratory judgments under the Texas Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code § 37.002.

This statute allows a party to seek a declaration of their rights and legal relations.

It is to be liberally construed and administered.

Requirements:

To seek a declaratory judgment in Texas, Plaintiff must demonstrate that there is an actual controversy or uncertainty that needs resolution.

As discussed, Plaintiff meets this requirement.

Discretion of the Court:

The court may consider factors such as whether the judgment would effectively and conclusively settle the legal issues at hand.

Here, the judgment would settle the issue, the unlawful foreclosure sale.

Legal Authority:

The Declaratory Judgment Act provides that “[a] person interested under a deed… may have determined any question of construction or validity arising under the instrument.”

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a).

Scope of Relief:

Plaintiff seeks a declaratory judgment which states;

(i) when a party appeals a dismissal order as Joanna Burke has timely initiated in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends,

and

(ii) that Joanna Burke’s current and active appeal at the Court of Appeals for the Eighth Circuit, case no. 23-3593,  prevents defendants from conducting the scheduled foreclosure sale of her home at 46 Kingwood Greens Drive, Kingwood, Texas, 77339 on January 2, 2023,

and

(iii) a Temporary Restraining Order (“TRO”) and/or Permanent Injunction is granted to prevent defendants from proceeding with the scheduled sale on January 2, 2023, which shall remain in effect until such times as the current litigation in the District of Minnesota and at the Court of Appeals for the Eighth Circuit is at a formal end.

TDCA  and Texas Finance Code

Damages:

As per the TDCA (Tex. Fin. Code § 392.403(a)(2)), “A person may sue for: actual damages sustained as a result of a violation of this chapter,” as cited from McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015).

Plaintiff can establish damages, including mental anguish resulting from this latest legal conspiracy and targeted harassment, leading to the unwarranted threat of foreclosure and planned eviction.

Plaintiff seeks an award of less than $75,000 in damages, including any statutory damages, and reimbursable costs as allowed in law.

Violation:

As highlighted in McCaig, mortgage servicer PHH Mortgage Corporation violates the Texas Finance Code by asserting legal rights it does not possess, concluding that because Wells Fargo (the loan servicer) did not have a right to foreclose, then its threat of initiating foreclosure proceedings was actionable under the TDCA.

Legal Authority:

Plaintiff has met the necessary burden of proof, see; Williams v. Lakeview Load (sic) Servicing, LLC, Civil Action 4:20-CV-1900, at *49 (S.D. Tex. Aug. 14, 2023)

(“Proof of an actual injury is a liability element of Plaintiffs’ TDCA claims).

THE LATEST HANDS-OFF APPROACH TO CRIMES AGAINST WE THE PEOPLE

Criminal acts are now being endorsed by the US Government @USAGov @USAGovEspanol and the most dangerous branch – the judiciary @uscourts – to steal homes from law-abiding elder citizens. #TWO https://t.co/8np4bmmTOQ pic.twitter.com/zRq2Wz4mek

— lawsinusa (@lawsinusa) December 15, 2023

Injunctive Relief

Application for Ex-Parte Temporary Restraining Order and Temporary Injunction

For the reasons provided, Plaintiff, Joanna Burke is seeking an ex-parte temporary restraining order in the sum of $100 (one hundred US Dollars) and a temporary injunction preventing the defendants from foreclosing on the property and evicting plaintiff from the property which is the subject of this lawsuit.

Legal Authority:

Considering the unconscionable and illegal acts by defendants in this matter, the request to set the bond at $100 (one hundred US Dollars) is more than reasonable, and in light of other bond amounts set at $100 in this district court.

By way of example; in Jeff Samuels litigation history in this court, he has sued his lender/mortgage servicing company and/or substitute trustee on at least four occasions, in 2012[3], 2013[4], 2014[5], and 2023[6].

In the most recent case, bond was set at $100

(Exhibit DB7).

Additionally, a review of his other cases strongly indicates bond was waived,  and the court personally assisted Jeff Samuels in his lawsuit by advising him to extend the date for a temporary injunction hearing by obtaining an order extending his no-bond TRO

(Exhibit DB8).

Summary:

It is In the event this Court does not grant Joanna Burke’s Application for Ex-Parte Temporary Restraining Order, she will suffer irreparable harm because the real estate which is the subject of this lawsuit is unique in character and cannot be replaced with money damages only.

Plaintiff has no other adequate remedy at law.

The Ex-Parte TRO Hearing

Plaintiff, Joanna Burke respectfully requests the court provides the date and time for a hearing.

The Plaintiff is hard of hearing and would respectfully request the court invoke constitutional due process by allowing the emergency hearing to be remote, as zoom allows for real-time closed captioning which complies with ADA guidelines.

Verification, Prayer & Relief

In closing, I, Joanna Burke, as Plaintiff with due authority and competency, resident of Kingwood in the livable forest of Harris County, Texas, born on November 25, 1938 (85 years old), in Lenzie, Scotland, United Kingdom, and currently holding U.S. Citizenship, a valid State of Texas Driver License (last 3 digits are 738), and a Social Security Card (last 3 digits are 874), do solemnly declare under penalty of perjury that the foregoing statements are true and correct.

This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).

Accordingly, plaintiff Joanna Burke respectfully requests that she receives declaratory judgment in her favor, a temporary injunction and other relief requested above, that she recovers recover costs as allowed by this court and in law, and that Joanna Burke have and recover all other and further relief to which she may be entitled to prevent defendants from unlawfully selling her homestead, in violation of Texas laws.

RESPECTFULLY submitted this 21st day of December, 2023.

LEGAL ANARCHY
Judicial Deceit Rages On
After homeowner’s complaints with first judge ended with her self-recusing, the second MN judge appointed worked as counsel for defendant PHH Mortgage Corp. His first act; recommend dismissal of homeowner’s complaint. https://t.co/yAcKzwyVD0 pic.twitter.com/to78TTVH5N

— lawsinusa (@lawsinusa) September 7, 2023

Burke v. Deutsche Bank, et al

DEC 21, 2023 | REPUBLISHED BY LIT: DEC 21, 2023

In re Joanna Burke

DEC 28, 2023 | REPUBLISHED BY LIT: DEC 29, 2023

MACKIE WOLF AND THE CATHOLIC BANDITS
Two years ago, SDTX BK Judge Isgur labeled the bandits at the Foreclosure Wolves as despicable for a proof of claim which was late, false and despicable. Despite this, Mackie Wolf’s still free to commit these abhorrent crimes and abuses. #TWO pic.twitter.com/IoinFhRmB9

— lawsinusa (@lawsinusa) December 24, 2023