Drive-By Hit and Run: Judge Ewing Werlein Jr Defies Courts’ Own Precedent to Absurdly Invent Jurisdiction

TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE AND ALL INTERESTED PARTIES:

In Bank One Texas, Nat. Assoc. v. U.S., 157 F.3d 397, 403 (5th Cir. 1998), the court emphasized that “granting summary judgment is an inappropriate way to effect a dismissal for lack of subject matter jurisdiction.”

This case involves a void lien and time-barred attempts at non-judicial foreclosure by Defendants, raising critical questions about this court’s jurisdiction—issues that have not been formally addressed despite their importance.

Plaintiff Joanna Burke has consistently brought these jurisdictional matters to the court’s attention, as evidenced by her “Motion to Strike PHH Mortgage Corporation’s Motion to Declare Her a Vexatious Litigant”

(Doc. 14, April 30, 2024; EXHIBIT DBVEXSTRIKE-DLOJ) and “RESPONSE to Opposed MOTION for Clarification” (Doc. 10, April 10, 2024  EXHIBIT DBREPLYCLARIFYDOC10-DLOJ).

Instead of addressing these fundamental jurisdictional concerns, the court has directed Defendants to file a Motion for Summary Judgment, failing to resolve the core question of jurisdiction, even discounting the Plaintiff raising jurisdiction once more in her “Verified REPLY to 10-Day Show Cause Order” (Doc. 22, June 27, 2024; EXHIBIT DBSHOWCAUSEDOC22-DLOJ).

Judge Werlein self-recused shortly thereafter.

This ongoing oversight necessitates this specific motion, as the court must first confront the critical issues of its authority in this matter.

CHECKING JURISDICTION: LEGAL AUTHORITIES

Under Fed. R. Civ. P. 12(b), defenses such as lack of subject-matter jurisdiction and personal jurisdiction must be raised in responsive pleadings or by motion.

Jurisdiction is assessed at the time of removal (Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 733).

If a court lacks subject-matter jurisdiction, it must dismiss the action (Kontrick v. Ryan, 540 U.S. 443, 455).

Courts cannot grant equitable exceptions to jurisdictional rules (Boechler v. Commissioner, 596 U.S. __, __) and jurisdictional objections may be raised at any time (Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. 17, __).

Furthermore, courts must enforce jurisdictional rules sua sponte, regardless of forfeiture or waiver by litigants (Santos-Zacaria v. Garland, No. 21-1436, at *7).

Renewing a jurisdictional objection necessitates a review of the case history and pleadings, alongside relevant court orders..

SUMMARY OF RELEVANT PROCEEDINGS

The following proceedings are listed for reference.

Burke v. PHH Mortgage Corporation (4:24-cv-00897), District Court, S.D. Texas, Judge Ewing Werlein, Jr / Judge Charles Eskridge – Snap Removed State Case in Violation of Automatic Stay by Hopkins for PHH (“Removed State Case”);

Joanna Burke (24-30885),United States Bankruptcy Court, S.D. Texas, Judge Jeffrey Norman, March 1, 2024 (“Burke BK II”);

Burke v. Deutsche Bank National Trust Company (24-03056), United States Bankruptcy Court, S.D. Texas, March 29, 2024 (“Burke BK II Adv.”).

GENERAL ORDERS RELEVANT TO PROCEEDINGS

2011-12, In the Matter of Bankruptcy Jurisdiction

“In the Matter of Bankruptcy Jurisdiction, General Order No. 2011-12”
GACP Fin. Co. v. Keystone Oilfield Fabrication (In re BJ Servs.),
No. 20-33627, at *4 (Bankr. S.D. Tex. Mar. 6, 2023)

2012-06, In Re: Order of Reference to Bankruptcy Judges

“The dispute has been referred to the Bankruptcy Court under General Order 2012-6.”
Zaza Energy LLC v. C&J Spec-Rent Servs. (In re CJ Holding Co.),
No. 16-33590, at *11 (Bankr. S.D. Tex. May 17, 2024)

2024-4, Amended Division of Work Order (Effective Apr. 22, 2024)

“22. Senior Judge Ewing Werlein, Jr. A. Retains the cases presently on his docket; B. Receives 3.11% of all cases filed in the Houston Division, except: (1) Bankruptcy Appeals (Nature of Suit 422); (2) Bankruptcy Withdrawal of Reference (Nature of Suit 423)…”.

“By the Debtor” Cases Halted by Federal District Judges During Automatic Stay

Assigned Judge Werlein, Jr. also rejected Defendants novel arguments in a similarly removed state case when he affirmed the automatic bankruptcy stay for then 88-year-old Greta Ketty Santos (deceased) in;

(1) Santos v. Cit Bank, N.A. (4:19-cv-01348), District Court, S.D. Texas, Dec 6, 2021 (Doc. 47);
(2) Schluter v. U.S. Bank Trust National Association (4:23-cv-00858) District Court, S.D. Texas, May 15, 2023;
(3) Wyatt v. PHH Mortgage Corporation (4:22-cv-02069) District Court, S.D. Texas, July 29, 2022;
(4) Loza v. Select Portfolio Servicing, Inc. (7:22-cv-00010) District Court, S.D. Texas, May 10, 2022;
(5) Conner v. PHH Mortgage Corporation (4:20-cv-02128)District Court, S.D. Texas, June 22, 2020;
(6) Baughman v. Idaho Housing and Finance Association (4:18-cv-02919) District Court, S.D. Texas, Oct 24, 2018;
(7) Lang v. Ocwen Loan Servicing, LLC (4:17-cv-02625) District Court, S.D. Texas, June 18, 2018;
(8) Johnson v. U.S. Bank National Association (1:17-cv-00950) District Court, W.D. Texas, Nov. 7, 2017 and:
(9) Grant v. Cornerstone Mortgage Company (4:16-cv-00223) District Court, N.D. Texas, Oct. 28, 2016.

ARGUMENT: DISTRICT COURT VS. BANKRUPTCY COURT JURISDICTION

In Texas, the usual process for removing a state court case to federal court—without any indication of bankruptcy—is to remove it to the federal district court. Examples include:.

Williams v. Fay Servicing, LLC (4:22-cv-02390) District Court, S.D. Texas where U.S. Bank Trust N.A. removed the case from the 269th Judicial District Court in Harris County, Texas (Shelley Hopkins, July 18, 2022);

Reagent Lonestar Group, LLC v. Nationstar Mortgage LLC. (5:24-cv-00947) District Court, W.D. Texas where Nationstar Mortgage removed the case (Shelley Hopkins, August 23, 2024).

However, when a case involves bankruptcy, it is typically removed directly to the bankruptcy court by either Plaintiff(s) or Defendant(s). For example:

7502 Harrisburg LLC v. Texas Funding Corporation (24-06004), United States Bankruptcy Court, S.D. Texas (January 24, 2024);

Choudhri v. National Bank of Kuwait, S.A.K.P., New York Branch (24-03120) United States Bankruptcy Court, S.D. Texas (June 7, 2024)”.

This is standard practice due to General Order 2012-06, which mandates the automatic transfer of such cases from district court to bankruptcy court in the Southern District of Texas.

General Order 2011-12 also details the authority of bankruptcy judges to issue final orders.

In this case, Defendants did not follow the standard process of removing to bankruptcy court as an adversary proceeding.

Instead, they removed it to federal district court—a clear example of forum shopping.

As noted in Doc. 9 (EXHIBIT DBREPLYDOC9-DLOJ),

“Forum shopping, also known as judge shopping, is a recognized issue in Texas courts.”

The district court should have immediately transferred the case to bankruptcy court per its own General Order 2012-06.

Instead, it retained the case, issuing a series of [void] orders asserting concurrent jurisdiction with the bankruptcy court, based on outdated legal references.

The Three Legal Authorities Cited in The Remand Order

In Judge Werlein’s Remand Order, three main cases were discussed based on the early pleadings; McMillan (cited by Defendants); In re Phillips, and; Sikes (cited by Plaintiff).

Defendants relied on McMillan (decided in 1993), which the district court adopted.

However, McMillan is outdated and no longer applicable to modern court rules and orders.

The case is nearly 30 years old and pre-dates current general orders, including General Order 2012-06, which mandates automatic transfer to bankruptcy court in relevant cases.

Had the general order been followed, the case would have been transferred to bankruptcy court, where Deutsche Bank National Trust Company had already appeared in Plaintiff’s voluntary Chapter 13 proceedings.

The Fifth Circuit has recognized that such appearances, in a bankruptcy context, are akin to debt collection activities,

(Matter of Continental Airlines, 928 F.2d 127, 129 (5th Cir. 1991) “The filing of a proof of claim is analogous to filing a complaint in a civil action, with the debtor’s objection acting as the answer.”).

This analogy reflects the typical process followed in bankruptcy courts, if rules and orders were properly applied—unlike in this case.

Plaintiff also cited In re Phillips and Sikes.

However, upon further inspection the Texas Supreme Court has disavowed the Fifth Circuit’s decision in Sikes, which held that certain actions were voidable.

The Texas Supreme Court clarified that such actions would be void, not voidable, casting doubt on the validity of the Sikes opinion.

Plaintiff Asserts Violation of Automatic Stay

In the Remand Order, Judge Werlein referenced two early pleadings filed by Plaintiff.

The cases of In re Phillips and Sikes were initially cited in her Emergency Motion to Remand (Doc. 5).

Defendants later introduced a novel argument, claiming that removal was permissible because the state case had been filed “by the debtor” (Plaintiff) rather than “against the debtor” (proceedings initiated by Defendants).

In response, Plaintiff clarified the application of these cases in her reply (Doc. 9; EXHIBIT DBREPLYDOC9-DLOJ), asserting that the automatic stay still applied.

“Related to” Jurisdiction

In the Remand Order, Judge Werlein makes an extended effort to separate claims and parties to support the argument that this division grants the district court “related to” jurisdiction over the State Removed Case.

This reasoning typically applies when determining subject matter jurisdiction at the time of removal.

As the Fifth Circuit noted in  LNY 5003, LLC v. Zurich Am. Ins. Co., No. 22-20573, at *5 (5th Cir. Oct. 11, 2023)

(“The existence of subject matter jurisdiction is determined at the time of removal. This includes consideration of “the claims in the state court petition as they existed at the time of removal.””).

However, Judge Werlein’s approach to splitting claims and parties undermines the cohesive nature of the case and distorts the proper jurisdictional analysis.

The Conflict:  Jurisdictional Assessments

As discussed below, the district court’s analysis was rejected by former Chief Bankruptcy Judge David Jones in a case cited by Plaintiff in her reply:

Satterwhite v. Guerrero (In re Guerrero), CASE NO: 12-35341, at *5 (Bankr. S.D. Tex. Dec. 20, 2013)

issued after General Order 2012-06.

Notably, the Remand Order relies on outdated cases from decades past to apply “related to” jurisdiction, which necessitates “splitting” the removed case.

This reliance on obsolete precedent undermines the relevance and applicability of the jurisdictional assessment.

Ex Parte Communications

It is important to note that this extensive theory necessitated ex parte communications via email between the judge and Defendants’ counsel.

This was disclosed to Plaintiff by Defendants’ counsel in an email on May 30, 2024, after the fact.

However, the disclosure did not include the documents provided by Defendants’ counsel to the judge or clarify whether this communication was supported by telephonic discussions.

Judge Werlein Relies Upon Arnold and Querner

In Judge Werlein’s Remand Order, he discusses  Arnold v. Garlock, Inc., 278 F.3d 426 (5th Cir. 2001) (Doc. 18, p. 3-4) and; Matter of Querner, 7 F.3d 1199, 1201 (5th Cir. 1993) (Doc. 18, p. 5) to support the proposition of “related to” jurisdiction.

However, both cases are redundant given the superseding General Order issued in 2012.

Judge Werlein appears to use these cases to determine

(i) when Plaintiff filed for bankruptcy (March 1, 2024),

and

(ii) to confirm that the second complaint was the operative complaint at the time of bankruptcy.

The subsequent Remand Order, issued on June 17, 2024 (Doc. 18, pp. 3-5), noted the presence of new parties and a third amended complaint, along with Plaintiff’s motion for partial summary judgment by the time the case was removed on March 12, 2024.

The court claimed this situation provided “related to” jurisdiction, but this legal theory raises both doubt and confusion.

The explanation of “related to” jurisdiction and its application to this “split-the-pleadings” theory seems incomplete in the Remand Order, leaving one to question its legal value or persuasive authority.

In reality, it lacks both.

Outdated Legal Authorities

The court’s argument relies on two ancient legal authorities, Arnold and Querner, which pre-date and undermine its own General Order 2012-06.

This order mandates that all cases are automatically transferred to the bankruptcy court, and it clearly states exceptions apply only to civil actions pending “before” a related bankruptcy petition is filed.

This exception does not apply in the current proceedings.

Plaintiff’s Argument

In her reply (Doc. 9; EXHIBIT DBREPLYDOC9-DLOJ), Plaintiff provided her own “related to” argument, referencing a removed state court case before former Chief Bankruptcy Judge David Jones (not the district court), which also addressed a similar scenario of “splitting” causes or pleadings during removal.

Judge Jones rejected this approach vehemently in Satterwhite v. Guerrero (In re Guerrero), CASE NO: 12-35341, at *5 (Bankr. S.D. Tex. Dec. 20, 2013):

“Orion draws a distinction between the removal of causes of action and the removal of entire cases. Orion has been generally disfavored by reviewing courts. This Court finds Orion’s reasoning to be illogical.”.

Questionably, in Judge Werlein’s Remand Order (Doc. 9; EXHIBIT DBREPLYDOC9-DLOJ) was left to a footnote which disregarded  Satterwhite and at the same time absurdly suggested “Plaintiff does not dispute this court’s jurisdiction over her claims against Defendants”.

“In summary, Plaintiff contends that the “related to” jurisdiction is intended for bankruptcy courts to utilize when addressing cases similar to those presented in Satterwhite.

The Third Circuit reinforced this view in Vertiv, Inc. v. Wayne Burt PTE, Ltd., 92 F.4th 169, 179 (3d Cir. 2024):

“Congress established ‘related to’ jurisdiction to grant bankruptcy courts comprehensive jurisdiction so they could deal efficiently and expeditiously with matters connected with the bankruptcy estate.”

Moreover, as noted in In re Resorts International, 372 F.3d 163, the “related to” jurisdiction reflects the broader universe of all proceedings sufficiently connected to the bankruptcy proceeding such that they would benefit from a bankruptcy judge’s expertise.

The Framework of Bankruptcy Jurisdiction

Bankruptcy courts have subject matter jurisdiction through 28 U.S.C. § 1334, which grants federal district courts jurisdiction over “all civil proceedings… related to” bankruptcy cases.

A proceeding relates to a bankruptcy case if “the outcome of that proceeding could conceivably have any effect” on the debtor’s estate (Bass v. Denney, 171 F.3d 1016, 1022 (5th Cir. 1999) (quotations omitted)).

“Related-to jurisdiction” includes “any litigation” that “could alter the debtor’s rights, liabilities, options, or freedom of action or could influence the administration of the bankrupt estate” (Collins v. Sidharthan (In re KSRP, Ltd.), 809 F.3d 263, 266 (5th Cir. 2015)).

Notably, Collins is a post-2012 case that discusses related-to jurisdiction and the proper procedures for establishing it. In Collins, the bankruptcy judge lacked the parties’ consent to render a final judgment in the related proceeding as required by Stern v. Marshall, prompting the issuance of a report and recommendation to the district court.

In that report, the bankruptcy court founded its “related to” jurisdiction on cross-claims for indemnity and contribution.

Confusion in the Remand Order

The Remand Order’s reasoning creates significant uncertainty regarding the district court’s authority to oversee bankruptcy cases.

Judge Werlein’s interpretation defies the General Order of this court, in turn the rule of orderliness.

A recent opinion from Judge Kenneth Hoyt appears to have significantly influenced the Remand Order.

In Carnero G&P, LLC v. SN EF Maverick, LLC, 657 B.R. 202, 211 (S.D. Tex. 2024), Judge Hoyt emphasized:

A. Jurisdiction: “Jurisdiction is always first.” (Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021)).

Because this Court’s jurisdiction relies on the bankruptcy court’s, the Court must first verify that the bankruptcy court had jurisdiction. A federal court may not rule on the merits of a case without first determining its jurisdiction.

However, the Remand Order does not adequately address how it overcomes the issue of “concurrent” jurisdiction—an inherently flawed proposition.

Instead, it claims that Plaintiff did not dispute jurisdiction, stopping at Doc. 9 (EXHIBIT DBREPLYDOC9-DLOJ ) and disregarding the legal arguments presented in all of Plaintiff’s subsequent pleadings prior to the issuance of the Remand Order.

Even if the court ignores Plaintiff’s pleadings, it is required to assert its own jurisdiction spontaneously.

A “federal court may not rule on the merits of a case without first determining its jurisdiction.”

Daves v. Dallas County, 64 F.4th 616, 623 (5th Cir. 2023) (en banc).

However, Judge Werlein’s Remand Order fails for the reasons provided herein and in supporting pleadings and exhibits which the court disregarded, which is

“nothing more than a drive-by jurisdictional ruling with no binding effect”;

as stated during a public exchange involving a Fifth Circuit panel consisting of Judges Haynes (dissenting), Willett, and Oldham, the majority asserted that jurisdiction requires clear examination in J.A. Masters Invs. v. Beltramini, No. 23-20292, at *5 (5th Cir. Sep. 9, 2024):

“We do not couch significant jurisdictional rulings in such oblique ways, and even if we did, our order granting the motion would amount to nothing more than a ‘drive-by jurisdictional ruling’ with no binding effect.”

Ultimately, after careful review of the Remand Order, Plaintiff maintains that the court’s reasoning is not just unreasonable; it has no binding effect in these proceedings.

The district court lacks subject matter jurisdiction to (i) retain the case and (ii) issue void orders.

The Impact of the District Court Retaining Removed Case

The question of whether a district court should retain a case that has been removed from state court extends beyond procedural considerations; it touches on fundamental principles of jurisdiction and the effective administration of justice.

The decision to retain jurisdiction, as articulated by Judge Werlein, contradicts the court’s own General Order 2012-06, which is based on outdated legal authorities.

This inconsistency highlights the significant challenges faced by pro se litigants in the Houston Division, as this order likely would not have been issued or even entertained had experienced law firm’s bankruptcy counsel been involved.

Both the governing law and the court’s own active General Order support Plaintiff’s argument.

Given these circumstances, this case should immediately be dismissed and remanded back to state court.

Judge Ewing Werlein’s Void Orders Sidestep Blackletter Law including Mandatory Court Rules and Procedures

In these proceedings, Judge Werlein’s five orders violated established legal authorities, as he lacked jurisdiction to enter them.

Consequently, these orders are void—a nullity in law. In support of this assertion, Plaintiff revisits the limited docket, which includes the full state court docket at the time of removal.

Plaintiff’s Federal Cases: Analyzing the Dockets & Legal Arguments

“The shotgun approach has its problems. Most obvious are preclusion and concurrent jurisdiction – what business does this Court have interfering with another District’s bankruptcy court managing its own case?”

–  Camshaft Capital Mgmt. v. Apex Fund Servs. (Indiana), 1:24-cv-00713-JRS-MG, at *1 (S.D. Ind. Apr. 25, 2024)

When the state case was removed on March 12, 2024 Defendants submitted a civil docket sheet along with their removal notice and exhibits, incorporating all state court pleadings and filings at the time of removal.

This occurred 12 days after Plaintiff filed for bankruptcy, which she maintains violated the automatic stay (“Burke BKII”).

One day after the snap removal, on March 13, 2024 Plaintiff’s first action would be to file an “Emergency” Motion to Remand (Doc. 5), arguing only that the removal violated the automatic bankruptcy stay, while reserving her rights (docket date Mar. 19, 2024).

On March 29, 2024 Defendants violated the automatic stay again by filing an Opposed Motion to Clarify and/or Motion for Extension of Time in the district court case in response to Plaintiff’s Motion for Partial Summary Judgment, which had been filed in state court prior to removal (March 9, 2024).

On Apr. 5, 2024, Defendants’ response addressed Plaintiff’s single argument and introduced a novel theory for the first time: that the automatic stay did not apply to lawsuits commenced “by the debtor” but only to proceedings “against the debtor.”

Defendants also incorporated a reservation of rights and requested supplementary briefing as necessary in footnote 4, Doc. 8.

Two days later, in her reply brief dated Apr. 7, 2024, the Plaintiff challenged this novel theory while again reserving her rights for additional briefing based on the removal and additional jurisdictional arguments.

On the same day, Apr. 7, 2024, Plaintiff also responded to Defendants’ Opposed Motion to Clarify and/or Motion for Extension of Time.

By April 10, 2024, the remand motion was fully briefed and ripe for the court’s consideration.

The Five Void Orders (Jun 17, 2024)

On June 17, 2024, Judge Werlein issued his first of five Orders, denying remand (the “Remand Order”).

This Order was released three months after Plaintiff presented her emergency motion seeking remand, partially due to a scheduled hearing on her motion for partial summary judgment in state court, set for Monday, April 15, 2024.

This delay contradicts Judge Werlein’s assurances in another proceeding before his court, where he stated,

“The undersigned judge* to whom this case was randomly assigned presently has no backlog of cases to be tried.” – Roy v. The Fay Law Group, P.A., 4:23-cv-03139, District Court, S.D. Texas, Doc. 22 (Feb. 21, 2024).

*Judge Werlein took Senior status over 18 years ago, which allows for a reduced docket (3.11%) and case selection.

Notably, excluding bankruptcy-related matters; See; General Order 2024-4 : Amended Division of Work Order (Effective Apr. 22, 2024) at No. 22., p. 5.

In his Remand Order, Judge Werlein asserted that this district court has jurisdiction over these proceedings, contradicting established legal principles and the court’s own General Orders.

Furthermore, the Order cherry-picked Plaintiff’s pleadings to her detriment.

Despite collecting motions and responses for three months and issuing five Orders on the same day, the court completely ignored Plaintiff’s renewed concerns regarding this court’s jurisdiction.

Specifically, the Remand Order only cites two of Plaintiff’s pleadings: the Emergency Motion to Remand (Doc. 5, docketed Mar. 19, 2024) and Plaintiff’s Reply to Response to Emergency Motion to Remand (Doc. 9, docketed Apr. 10, 2024; EXHIBIT DBREPLYDOC9-DLOJ).

It is important to remember that “Jurisdiction can be raised at any time….“.

See; Vita Equipose Equity Partners, LLC v. Tig Romspen U.S. Master Mortg., Civil Action 3:21-cv-00358, at *2 n.1 (S.D. Tex. Aug. 12, 2024)

Vita is precisely the checks and balance Plaintiff sought to do during the three months of silence from the court.

For example, on April 30, 2024, Plaintiff submitted two motions to the district court, the first being Plaintiff’s Motion to Strike PHH Mortgage Corporation’s Motion to Declare Plaintiff Joanna Burke a Vexatious Litigant (Doc. 14; EXHIBIT DBVEXSTRIKE-DLOJ), and MOTION for Extension of Time to respond to PHH Mortgage Corporation’s motion to declare plaintiff Joanna Burke as a vexatious litigant (Doc. 13).

As illustrated above, both motions begin by challenging this court’s jurisdiction. Specifically, Plaintiff’s Motion for an Extension of Time stated:

“Plaintiff avers this court lacks jurisdiction and/or the case should be remanded.”

“Subject-matter jurisdiction cannot be created by waiver or consent.”

(Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001)).

A federal court has a duty to ensure proper subject matter jurisdiction at any stage of proceedings.

Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)

(“Subject-matter delineations must be policed by the courts on their own initiative even at the highest level.”).” – Doc. 13, p. 3., and;

McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005)

(A “federal court may raise subject matter jurisdiction sua sponte.”).  – Doc. 13, p. 4.

Plaintiff’s Motion to Strike PHH Mortgage Corporation’s Motion to Declare Plaintiff a Vexatious Litigant (Doc. 14; EXHIBIT DBVEXSTRIKE-DLOJ) also presents compelling arguments, including:

Federal Judges and Automatic Stay:

Citing numerous cases where federal judges applied an automatic stay in cases initiated “by the debtor.”

Statute of Limitations:

Reasserting that the foreclosure judgment is time-barred and the power of sale has expired, supported by relevant legal authorities.

Although these pleadings were submitted well before the issuance of five judicial orders, none of Plaintiff’s well-researched arguments were considered in the Remand Order or related orders.

Plaintiff respectfully contends that, upon reviewing these motions, the newly assigned court (Judge Eskridge/Magistrate Judge Bryan) should recognize that the legal arguments presented invalidate all five orders issued by Judge Werlein, as they were rendered without proper subject matter jurisdiction.

These orders, issued by a judge who later recused himself, have caused significant harm.

In further support, Judge Werlein contradicted his own order in Santos, where he stayed a foreclosure case initiated “by the debtor,” which directly conflicts with his Remand Order (Doc. 18, p. 6-8).

In Santos v. Cit Bank, N.A., Judge Werlein upheld the automatic bankruptcy stay for 88-year-old Greta Ketty Santos (deceased)

(Santos v. Cit Bank, N.A. (4:19-cv-01348), District Court, S.D. Texas, Dec 6, 2021 (Doc. 47)).

Plaintiff also provided several other examples of federal district judges staying cases filed by debtors

(Doc. 14, p. 2; EXHIBIT DBVEXSTRIKE-DLOJ; and relisted in this response).

Concurrent Proceedings

Pro se Plaintiff Joanna Burke asserts that the state court proceedings were unlawfully removed to federal district court on March 12, 2024, by Defendants’ counsel, Mark and Shelley Hopkins of Hopkins Law, PLLC.

This removal was procedurally incorrect.

First, the removal violated the automatic stay imposed by bankruptcy law.

This violation was later converted into a formal complaint in Plaintiff’s adversary proceedings, providing this court with the full case history and supporting legal arguments, as outlined in Burke BK II Adv.

Second, even if removal was proper, the case should have been removed to the bankruptcy court as an adversary proceeding related to Joanna Burke’s bankruptcy, filed on March 1, 2024.

Notably, Deutsche Bank National Trust Company was already represented in the bankruptcy case by attorney Kathryn Dahlin of Codilis & Moody, who appeared on March 8, 2024 (Doc. 13, Burke BKII).

Ms. Dahlin had previously represented both Deutsche Bank and PHH Mortgage Corporation in similar proceedings

(Veronica Saenz (22-20164)).

Per General Order 2012-06, listed on this court’s website, this district court should have automatically transferred the case to the bankruptcy court.

Transfer in such situations is standard practice, as illustrated by

Diogu v. Lakeland W. Capital 41, LLC (Civil Action 4:22-CV-3299, S.D. Tex. May 23, 2023),

where claims related to bankruptcy were transferred to the bankruptcy court pursuant to General Order 2012-06.

Additionally, in In re Odonata Ltd. (22-10946 MEW, Bankr. S.D.N.Y. Feb. 22, 2024), the SDNY district court followed a similar standing order, underscoring the frequency of such transfers nationwide.

Given these precedents, the district court should have transferred the improperly removed case to the bankruptcy court as required.

Violations of the Automatic Bankruptcy Stay

The proper procedure for addressing violations of the automatic stay is through an adversary proceeding in bankruptcy court, making it mandatory for this case to be transferred to bankruptcy court.

In Rojas v. Gomez (In re Rojas), No. 18-31127-MVL13 (Bankr. N.D. Tex. June 5, 2024), the court outlined the requirements for a debtor to bring an action under Section 362(k) for violating the automatic stay. The debtor must prove:

1.      The defendant knew of the existence of the stay;

2.      The defendant’s actions were intentional; and

3.      The defendant’s actions violated the stay (In re Chesnut, 422 F.3d 298, 302 (5th Cir. 2005)).

In Joanna Burke’s case, all three elements are met, as she filed an adversary proceeding in bankruptcy court (Burke BK II Adv.) to address the violation.

This Court Does Not Have Jurisdiction Over these Proceedings

Jurisdiction can be raised at any time.

As stated in United States v. Willis, 76 F.4th 467, 479 (5th Cir. 2023):

“Jurisdiction is the power to say what the law is… Acting without jurisdiction is, by definition, ultra vires.”

(cited in Plaintiff’s Motion to Reconsider, Doc. 10, Jun. 24, 2024, Burke v. Deutsche Bank National Trust Company, 24-03056, United States Bankruptcy Court, S.D. Texas).

Further, “A federal court must presume it lacks jurisdiction unless proven otherwise,” with the burden of proof on the party asserting jurisdiction

(Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377).

Plaintiff asserts this court lacks jurisdiction, as outlined in this motion and prior pleadings. Plaintiff requests that the court take judicial notice of the already-submitted documents and objections, which are supported by clear legal authority.

As noted in Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003):

“Judges are not required to hunt for hidden arguments.”

Here, no hunting is needed, as the pleadings are concise.

As Judge Charles Eskridge has stated:

“Many cases aren’t complex and don’t present large amounts in dispute.”

(Eskridge Court Procedures, p.7-8).

This case is one such example, and the jurisdictional issues are straightforward.

The Judgment of Foreclosure and the Power of Sale Has Expired

Defendants had four years from the entry of judgment by Judge David Hittner, issued on November 29, 2018 (Exhibit: DB2-MSJ), to initiate foreclosure.

They relied on this judgment in the substitute trustees’ notices of foreclosure sale.

However, by the time they filed their first non-judicial foreclosure and scheduled it for auction on January 2, 2024, the judgment had already expired

(Exhibit: DB1-MSJ).

As detailed in docket entry Doc. 22, June 27, 2024, titled

“Verified Reply to Show Cause Order” (EXHIBIT DBSHOWCAUSEDOC22-DLOJ),

the Order is void—a nullity in law.

In the July 11 Order, the District Judge refused to address jurisdiction (pages 3, 4, and 6) nor the contested void judgment, which was raised repeatedly in this single filing, in violation of the law.

Following this, the judge promptly recused himself, resulting in reassignment of the case.

At 85 years old, and with disabilities that significantly impact her daily life, Joanna Burke is enduring a prolonged and unnecessary legal battle.

Given the straightforward nature of this case and her limited life expectancy, it is profoundly unjust and inhumane to subject her to such relentless litigation.

Joanna, a law-abiding citizen who has peacefully called her home of over twenty years, deserves to live out her remaining years without facing further intimidation or threats.

It is essential that the court recognize her right to tranquility and safety in her own home, free from the undue stress of pre-filing injunctions and the looming threat of unlawful foreclosure.

Plaintiff concludes with this recent reminder in Van Deelen v. Jones, 4:23-CV-03729-AM, at *36 (S.D. Tex. Aug. 16, 2024):

“…he [Van Deelen] suffered injustice in [Chief Bankruptcy Judge David R.] Jones’s courtroom…Time and time again, the most powerful players in the bankruptcy system dismissed him as another crazed, vexatious litigant….

But this time, he was right…

Had the anonymous letter arrived in anyone else’s mailbox, perhaps Jones would still be on the bench, awarding millions of dollars to Kirkland and Jackson Walker….

The Court will not punish the Plaintiff for seeking to redress his grievances in a forum in which, for once, the deck is not stacked against him.”

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. § 1746.”, I hereby provide my unsworn declaration. My name is Joanna Burke.., and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

In light of the above, the Plaintiff’s verified motion should be GRANTED. A proposed order is provided.

RESPECTFULLY submitted this 3rd day of October, 2024.