Federal Court Bailouts: The Troubling Connection Between PHH Mortgage Corp. and Judicial Corruption

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

The movants’ incompetent and unauthenticated Motion for Summary Judgment (“DMSJ,” Doc. 27, Aug. 5, 2024) presents disregarded legal arguments (p. 14, n. 3) and serves as a distraction from the critical fact that the order of foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) has expired, along with the power of sale, rendering the lien void under Texas law.

Defendants’ reliance on res judicata is misplaced; a void judgment does not invoke res judicata principles.

The DMSJ is frivolous and exemplifies ongoing harassment and elder abuse against an 85-year-old widow.

In this detailed response, nonmovant provides compelling legal arguments to support the denial of the DMSJ.

PRO SE PLEADING STANDARD

Courts must liberally construe the filings of pro se litigants, as established in Haines v. Kerner, 404 U.S. 519 (1972) and should be held to less stringent standards than those drafted by attorneys.

DEFENDANTS ATTEMPTS AT NON-JUDICIAL FORECLOSURE ARE ILLEGAL, UNTIMELY, WITHOUT AUTHORITY, AND VOID (DOC 1-4, P.467-470)

Nonmovant references the Plaintiff’s Operative and Verified Third Amended Complaint (“TAC”) at p. 470: “assuming that the non-judicial foreclosure sale could proceed despite the ongoing litigation in federal court and assuming the Order was not deficient, the Order of Foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) expired on Nov. 28, 2022.”

This is supported by Civil Practice and Remedies Code section 16.035.

In Porterfield v. JP Morgan Chase, N.A., No. 16-50215, at *5 (5th Cir. Mar. 16, 2017), the court stated that defendants have four years from the acceleration of the loan to complete nonjudicial foreclosure.

The Fifth Circuit clarifies that “Section 16.035(b) controls here because the Defendants pursued nonjudicial foreclosure pursuant to a deed of trust creating the lien” (at *4-5).

The same applies here, as demonstrated in EXHIBITS DB13-MSJ, DB16-MSJ at 8.

DEFENDANTS FAILURE TO PROSECUTE

Plaintiff is not responsible for Defendants failure to timely prosecute and execute the now expired judgment on behalf of DBNTCO; see In re Kingman Holdings, LLC, No. 13-21-00217-CV, at *12 (Tex. App. Sep. 22, 2021)

(“Kingman should not have to endure the time and expense of continuing to litigate a four-year-old case that is not being diligently prosecuted”),

see also; Bryant v. DiTech Fin., No. 23-10416, at *6 (5th Cir. Mar. 1, 2024) (TAC, p.472).

EIGHT (8) FINAL JUDGMENTS AND SETTLEMENT(S) IN RELATED CASES SUPPORT PLAINTIFF’S ARGUMENTS AND ADVERSE TO DEFENDANTS

Contradicting the movants DMSJ, Plaintiff provides a series of recent cases in support of her arguments, and where “defaulting” homeowners or current owners who purportedly “thwarted foreclosure” and their “contractual” obligations for years if not decades without paying a dime towards the disputed mortgage, taxes and insurance (DMSJ, p.12(25)) are receiving a “free home” after enjoying  extended “free living” (DMSJ, p.1, 12, 16, and 25), and they also include parties who are not the original owners or mortgagors;

1)      Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 (S.D. Tex. Sep. 23, 2024) (Doc. 29, $396,600 Lien Void and Stricken; EXHIBIT DBMORLOCK-MSJ);
2)      Deutsche Bank Nat’l Trust Co. v. Ketmayura, No. A-14-CV-00931-LY-ML (W.D. Tex. June 11, 2015) ($1M Void and Settled by Lien Release);
3)      Powell v. Cit Bank, N.A., No. 14-15-00949-CV (Tex. App. June 8, 2017, $273k Lien Void and All Remaining Claims on Remand in favor of Powell);
4)      Planet Home Lending, LLC v. Nunn, No. 04-20-00309-CV (Tex. App. Oct. 26, 2022, $247k  Void and Lien Released);
5)      U.S. ROF III Legal Title Tr. 2015-I v. Morlock, L.L.C., No. 14-18-00332-CV (Tex. App. Jan. 14, 2020, Void and Lien Released);
6)       Deutsche Bank Nat’l Tr. Co. v. Gonzalez, No. 01-24-00292-CV (Tex. App. Sep. 5, 2024) ($60k Secured Lien, discharged for failure to prosecute);
7)      Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV (Tex. App., filed Sep. 19, 2019) ($4M Judgment including millions in exemplary and mental anguish damages against Deutsche Bank and Ocwen (PHH) individually, Settled), and;
8)      Kafi, Inc. v. Fairgate Tr., Civil Action H-23-4217, at *7 (S.D. Tex. Aug. 15, 2024) (“Summary judgment is granted for Kafi on its claims for quiet title and for a declaratory judgment that foreclosure is barred by the statute of limitations.”).

THE DEFENDANTS WERE FULLY AWARE THE FORECLOSURE JUDGMENT AND POWER OF SALE HAS EXPIRED, AS COUNSEL IN THE LANDMARK PNC CASE

“This case is before us for a second time” Texas Supreme Court Chief Justice Hecht stated in PNC Mortgage v. Howard, 668 S.W.3d 644 (Tex. 2023), where it is undisputed that PNC did not initiate foreclosure until the statute of limitations had expired on its lien.

The Howards ceased payments in 2008.

Recently, the lower court indicated a judgment in favor of the Howards, but the Plaintiff anticipates that involvement from PNC and their counsel, Mark and Shelley Hopkins, may lead to further appeals, reflecting their 15 years of aggressive litigation against the Howards.

Joanna Burke will illustrate how this pattern of unfounded litigation is their modus operandi in her case.

DISSECTING THE STATE COURT COMPLAINT AND CAUSES OF ACTION

The Plaintiff, Joanna Burke’s TAC identifies with specificity the timeline of the Harris County District Court proceedings, detailing numerous and willfully persistent breaches of Plaintiff’s

(i) consumer protections pertaining to her homestead,

and;

(ii) her civil, legal and constitutional rights, including but not limited to access to the courts and a fair, impartial trial after Defendants initiated nonjudicial foreclosure proceedings, appointing and relying upon Co-Conspirators to assist in their premeditated fraudulent scheme to auction and sell Plaintiff’s homestead, admittedly and knowingly relying upon an expired judgment and time-barred power of sale,

(iii) causing extreme and severe emotional distress and mental anguish.

THE MUTUAL CONSPIRACY: TWO ATTEMPTS TO ILLEGALLY FORECLOSE

Joanna Burke filed her lawsuit after learning her homestead was set for illegal auction on January 2, 2024.

After contacting Mackie Wolf Zientz Mann (“Mackie Wolf”) to cancel the foreclosure, they refused, leading to a timeline that evidences escalating harassment by Defendants, including multiple illegal foreclosure attempts (Acts One through Seven, TAC pp. 396-399).

Notably, in March 2024, Plaintiff discovered these foreclosure attempts were time-barred, a fact Defendants were aware of when issuing the first illegal notice of foreclosure

(Exhibits DB1, p.502-504; DB1-MSJ; Deutsche Bank Nat’l Trust Co. v. Ketmayura, No. A-14-CV-00931-LY-ML, W.D. Tex. June 11, 2015; this time-barred case resulted in DBNTCO releasing the $1M lien).

Defendants calculated that Plaintiff’s bankruptcy filing (DMSJ, EXHIBIT G) would prevent awareness of their actions, prompting a second foreclosure attempt (DMSJ, EXHIBIT H) when the first bankruptcy concluded.

Plaintiff indicated in her Second Verified Amended Complaint (Feb. 23, 2024) that she had not received the second foreclosure notice (TAC p. 442) and filed a second bankruptcy on March 1, 2024, unaware the power of sale had expired (Exhibit DB2, DB2-MSJ).

She only became aware of this around March 4, 2024, when filing her Third Verified Amended Complaint, followed by a “Motion for Partial Summary Judgment” on March 11, 2024.

PHH Mortgage Corporation (“PHH”) filed an answer on March 3, 2024, and unlawfully removed the case to federal court on March 12, 2024.

The Plaintiff’s complaint amendments were necessitated by Defendants’ legal violations.

Initially, the Original Verified Petition (“OTAC”) named Deutsche Bank National Trust Company, PHH, AVT Title Services LLC, and Mackie Wolf Zientz & Mann PC.

Subsequent amendments added judges and additional parties based on harms suffered during state court proceedings, expanding causes of action.

The substantive STAC included violations of the Texas Constitution, abuse of process, conspiracy, fraud, emotional distress, mental anguish, TDCA, and injunctive relief.

The TAC further included a Quiet Title claim.

PHH’s counsel contended the amendments were fabricated to harass, a claim the Plaintiff rejects, supported by a confidential settlement offer (TAC p.405(3), Exhibit DB3, TAC, p.508; EXHIBIT DB3-MSJ) made just prior to the initiation of the first foreclosure.

This offer warrants in camera review to uphold due process rights.

The Defendants’ willingness to offer a settlement (EXHIBIT DB3-MSJ) strongly refutes the baseless arguments presented in this motion, including the recent barrage of court decisions and settlements outlined herein, which unequivocally support the Plaintiff’s legal position:

specifically, that the movants have no legal right to foreclose and that this motion should be DENIED.

Additionally, it is well-established that a Plaintiff controls their own complaint (2013 Hous. Sunnyside St. v. Duvernay, Civil Action 4:24-CV-0687, S.D. Tex. May 21, 2024), and any failure by Defendants to properly prosecute affects the case’s outcome.

The court should note that only one Defendant, PHH, remains in the federal proceedings, which materially impacts the causes of action in the TAC.

RES JUDICATA: Does NOT Apply to these Proceedings

Movants assert that res judicata bars the Plaintiff’s TAC entirely; however, this argument is flawed and warrants a detailed response.

Notably, in United States ex rel. Eichner v. Ocwen Loan Servicing, LLC, Civil Action 4:19-CV-524 (E.D. Tex. Sep. 16, 2024) (Doc. 163; EXHIBIT DBUSAEICHNER-MSJ), the USA filed a motion stating,

“The United States’ dismissal is not intended to prevent Relators from pursuing in this action alleged FCA violations of any named Defendant that accrued after February 17, 2017.”

Movants also agree with the USA in Eichner at DMSJ, p.39, regarding res judicata and the limitation of a cause of action to events occurring before a specified date.

This aligns with the assertion that the attempts at nonjudicial foreclosure occurred after the four-year statute of limitations had expired per Tex. Civ. Prac. & Rem. Code §16.035(b), thus voiding the Defendants’ power of sale.

As established in Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 at *16 (S.D. Tex. Sep. 23, 2024) (Doc. 29),

“When the lender failed to foreclose within the four-year period, it ‘void[ed] the lien and the power of sale.’”

A final judgment was entered on Sep. 27, 2024 ((Doc. 31) declaring all liens VOID and STRICKEN; EXHIBIT DBMORLOCK-MSJ.

The general rule states that issue preclusion applies only when an issue is litigated and determined by a valid judgment

(Arizona v. California, 530 U.S. 392, 395 (2000)).

A judgment void on its face is effectively no judgment and does not constitute res judicata

(Jackson v. Vance, 179 F.2d 154, 158 (10th Cir. 1950)).

Furthermore, res judicata does not bar litigation when a second claim could not have been raised in previous litigation

(Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex.App.—Houston [1st Dist.] 2012, pet. denied);

Whallon v. City of Houston, 462 S.W.3d 146, 155–56 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)).

DAMAGES

The Plaintiff had to file for bankruptcy twice (DMSJ, EXHIBIT G-H) to prevent illegal foreclosures by the movants, significantly damaging her credit rating (EXHIBIT DBCREDITKARMA-MSJ) and affecting her modest fixed income.

She incurred unnecessary court costs and related expenses (EXHIBIT DBHCDCCOURTCOSTS-MSJ), including travel and postage, as well as mental anguish due to severe stress, fear of losing her home, and anxiety about eviction

(McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 482 (5th Cir. 2015)).

The barrage of unsolicited foreclosure notices (EXHIBIT DB5-MSJ) exacerbated her anxiety, particularly during a challenging seasonal period with limited vendor availability and court hours.

Since November 2023, Plaintiff has experienced substantial disruption to her daily routine due to Defendants’ extreme conduct.

She filed for bankruptcy in two cases:

(i) Joanna Burke (23-35083), Doc. 1, Fee Amount $313 (DMcKinnieRichardson, Entered: 12/28/2023);

and

(ii) Joanna Burke (24-30885), Doc. 1, Fee Amount $313 (ShannonHolden, Entered: 03/01/2024).

Verified evidence of damages has been provided, with more testimony expected once she recovers from heat-stroke

(See; “Plaintiff’s Reply to Response to Motion, Doc. 32, Sep. 25, 2024).

Plaintiff is also entitled to statutory damages.

The second unlawful foreclosure attempt continued this pattern of harassment, including Mackie Wolf falsely claiming on their website that Plaintiff’s home had been sold, necessitating her to send another demand, this time for rescission (EXHIBIT DBVOID-MSJ).

This caused further emotional distress and additional costs related to understanding complex state and federal laws.

The Defendants’ actions have not only disrupted Plaintiff’s daily life but are also regarded as atrocious elder abuse targeting a medically challenged widow.

They are fully aware of their wrongful acts, as acknowledged in their documented motion.

COUNT I: Texas Constitution

Despite movants assertions otherwise, the Texas Constitution is implicated and does apply in these proceedings.

See; TAC, p.476, including the statement “Joanna Burke, a confirmed victim of a predatory loan, is being illegally foreclosed and will be forcefully evicted in violation of her constitutional rights”).

It was uniquely extended by the judiciary to specifically protect homeowners from predatory lenders such as Defendants.  Article XVI, section 50 of the Texas Constitution pertains to “Protection of homestead from forced or unauthorized sale; exceptions; requirements for mortgage loans and other obligations secured by homestead.”

Tex. Const. art. XVI, §50 it applies to these proceedings and it is not barred by res judicata for the facts and reasons provided generally in this response and applicable here.

In support, the Jones case (EXHIBIT DBJONES-MSJ) provides the perfect real-life example of the Texas Constitution protecting distressed and maligned homeowners, with supporting facts as to the predatory and abusive history of the Defendants (at 7-11) when assessing financial damages and discharging the void lien.

See; “The Jones fall Victim to the Bank Defendants’ Misconduct” (headline at p.5(13)).

In light of this, Plaintiff’s Count I should be allowed to proceed against PHH.

COUNT II: Malicious Use of Process / Abuse of Process

Overview:

Defendants argue that Plaintiff’s claim related to the foreclosure is barred by res judicata, citing Hammervold v. Blank, 3 F.4th 803 (5th Cir. 2021).

However, res judicata does not apply here.

Misinterpretation of Parties:

The Defendants refer to “PHH predecessors seeking foreclosure judgment.”

Since 2011, the Defendants have consistently identified DBNTCO as the trustee and Ocwen Loan Servicing, LLC, and PHH Mortgage Corporation as the mortgage servicers.

The expired judgment was in favor of DBNTCO, with no predecessor involved.

No Post-Judgment Claims:

Plaintiff is not conjuring new claims; instead, she asserts that DBNTCO’s foreclosure judgment is time-barred under the four-year statute of limitations, rendering any subsequent actions void.

Relevant Timeline:

PHH initiated non-judicial foreclosure while Plaintiff’s appeal was pending (TAC, p.405; DMSJ, Exhibit E).

Attorney Mark Cronenwett confirmed instructions to issue a foreclosure notice for January 2, 2024 (EXHIBIT DB1-MSJ; TAC, p.412).

Despite being formally notified (EXHIBIT DB4-MSJ) that the statute of limitations had expired, Cronenwett refused to cancel the sale (EXHIBIT DB6-MSJ).

This refusal is supported by Deutsche Bank Nat’l Trust Co. v. Ketmayura No. A-14-CV-00931-LY-ML (W.D. Tex. June 11, 2015), where a time-barred mortgage was released (EXHIBIT DB1MRELEASE-MSJ).

Legal Basis

Improper Use of Process:

Defendants knowingly pursued foreclosures based on a time-barred judgment.

Their long experience in foreclosure law suggests they should be aware of these legal limitations (EXHIBIT DB1MRELEASE-MSJ).

Ulterior Motive:

Defendants’ foreclosure actions continued despite ongoing litigation in federal court and formal objections from Plaintiff (TAC, p.405; DMSJ, Exhibit E).

This indicates a planned scheme to foreclose illegally.

Damages:

The timing of the foreclosure notice was intentionally harmful, targeting Plaintiff during the holiday season (EXHIBIT DB1-MSJ). Plaintiff incurred significant time and costs defending against the foreclosures, ultimately leading to personal bankruptcy filings (DMSJ, EXHIBIT G and H).

The damages awarded in the Jones case further substantiates the criminality of the Defendants behavior (EXHIBIT DBJONES-MSJ p.33 at 57-59) and necessitates a separate DAMAGES section included in this response as incorporated herein.

Conclusion:

The Defendants’ actions constitute an illegal and improper use of legal process, as they relied on a time-barred deficient judgment to initiate foreclosure proceedings.

Therefore, Plaintiff’s claim should survive, and the lien should be formally voided from Harris County real property records (EXHIBIT DBMORLOCK-MSJ).

The record reflects systemic abuse by Defendants, evidenced by substantial fines in the past, highlighting an ongoing pattern of illegal tactics in their foreclosure practices, and continuing here.

COUNT III: Conspiracy

Defendants’ arguments at 37 (DMSJ) consist of ad hominem attacks and unfounded claims that disregard relevant case law, including the time-barred PNC case involving Defendants counsel.

At 39, Defendants claim that (i) Plaintiff’s conspiracy claim is barred by res judicata and (ii) the TAC lacks substantive arguments. Both assertions fail for the reasons stated in Counts II and IV. Specifically:

Two or More Persons:

This element is satisfied by the listed Defendants/Co-Conspirators: DBNTO, PHH, AVT, Mackie Wolf, Judge Craft, Judge Palmer, Prince, Mark. Hopkins, Shelley Hopkins, Hopkins Law, PLLC, John Doe, and Jane Doe (including Cronenwett and Frame of Mackie Wolf for AVT).

Object to Be Accomplished:

The conspiracy’s aim was to illegally foreclose on Joanna Plaintiff’s home, with the objective of making her a tenant-in-sufferance or evicting her.

Meeting of Minds:

Documented in the TAC, the conspiracy’s evolution began with the first foreclosure initiated after a rejected private settlement offer (EXHIBIT DB3-MSJ).

This includes actions such as the denial of a TRO by conflicted Judge Craft, the refusal of Clerk Prince to accommodate Plaintiff’s disability, and Cronenwett’s refusal to cancel the foreclosure despite knowing the judgment had expired (EXHIBIT DB6-MSJ).

Unlawful, Overt Acts:

The Defendants attempted to illegally foreclose not just once, but twice.

Even if the judicial order (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) were valid, the first notice of foreclosure (EXHIBIT DB1-MSJ) was deficient, indicating $0.00 owed. When this was highlighted to Cronenwett (EXHIBIT DB4-MSJ), he still refused to halt the sale (EXHIBIT DB6-MSJ).

Damages as a Proximate Result:

Refer to the “Damages” section above, which is incorporated herein..

COUNT IV: Fraud

Defendants assert at 41 that Plaintiff (i) “fails to point to any ‘misrepresentation’ made by PHH”; (ii) “Burke’s fraud claim is clearly barred by res judicata”; and (iii) “the fraud claim fails to meet the standards of the Federal Rules and is barred by the economic loss doctrine,” expanding on these arguments at 42-44.

Response to (i): Actionable fraud requires:

1. Material Misrepresentation:

The Defendants initiated nonjudicial foreclosures that were time-barred and based on a deficient foreclosure order (DMSJ, Exhibit B; EXHIBIT DB2-MSJ), failing to provide proper notice (EXHIBIT DB1-MSJ), as detailed in the TAC (p.396).

2. Knowledge of Falsehood:

Defendants’ agent, Mark Cronenwett, understood that the nonjudicial foreclosures were untimely and illegal based on his experience (Ketmayura: EXHIBIT DB1M-RELEASE-MSJ). Despite this knowledge, he and the other Defendants maintained false assertions (EXHIBIT DB6-MSJ) when confronted by Joanna Burke (EXHIBIT DB4-MSJ).

3. Intent to Induce Action:

The Defendants intended for Joanna to act on their misrepresentations. Joanna’s documented actions in the TAC (p.396-399; p.405+) show that she halted each of the two illegal foreclosures, incurring unnecessary costs and expenses (first at p.408+; second at p.442+).

4. Justifiable Reliance and Injury:

Joanna justifiably relied on the misrepresentations and suffered injuries as a result, as demonstrated in the TAC. See the “Damages” section above, incorporated herein.

Response to (ii): Res Judicata Does Not Apply: As detailed in the Res Judicata section, it does not apply to the fraud claim. Plaintiff first became aware of the initial attempt to illegally sell her home in November 2023, well within the four-year statute of limitations for fraud claims per TEX. CIV. PRAC. & REM. CODE §16.004(a)(4).

Response to (iii):

Federal Rules Standards:

Plaintiff has met the standards of “the who, what, when, and where” as established in Williams v. WMX Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997). The relevant details are as follows:

The First Fraudulent Attempt to Foreclose (the January 2, 2024 Sale)

Who:

Mark Cronenwett, attorney for Mackie Wolf, representing AVT Title Services, LLC, the substitute trustee appointed by the movants.

What:

A deficient Notice of Foreclosure Sale (see Exhibit DB1, TAC, p.502-504; EXHIBIT DB1-MSJ). Further details are provided in the TAC starting at p.411, under the headline “Unlawful Sale Proceedings Despite Notice and Acknowledgment.”

When:

Plaintiff sent a letter to Cronenwett on December 3, 2023, requesting the cancellation of the nonjudicial foreclosure scheduled for January 2, 2024. She also emailed a copy of this letter along with her lis pendens (EXHIBIT DB4, TAC, p.509-514; EXHIBIT DB4-MSJ) to AVT’s counsel. That evening, Cronenwett identified himself in an email response (EXHIBIT DB6, TAC, p.519; EXHIBIT DB6-MSJ), refusing to cancel the scheduled illegal sale (see TAC, p.412).

Where:

Harris County, Texas, USA..

The Second Fraudulent Attempt to Foreclose (the March 5, 2024 Sale)

Who:

Mark Cronenwett, then lawyer for Mackie Wolf representing AVT Title Services, LLC, substitute trustee appointed by movants;

What:

The March Foreclosure Sale, see; TAC, p.442-444, starting at headline; “The Second Illegal Notice of Foreclosure Sale”;

When:

Tuesday, March 5, 2024 (stopped by filing second bankruptcy petition on March 1, 2024, see TAC p.442; DMSJ, EXHIBIT H);

Where:

Harris County, Texas, USA.

Finally,  Plaintiff is not “barred by the economic loss doctrine”, expanding this argument at 42-44.

This has been answered with particularity below, in Count V and incorporated herein.

COUNT V: Infliction of Emotional Distress

The Defendants outline the claim requirements at 45 and assert at 46 that “the right to foreclose” precludes this count, concluding that “Burke’s fraud claim is barred by these standards.”

They fail to address the landmark case involving the same Defendants (DBNTCO and Ocwen (“PHH”)), which resulted in a judgment for Quiet Title to Property, approximately $600k for mental anguish, $2.5M in exemplary damages, and $400k in legal fees.

Defendants argue that “Though Burke attempts to circumvent the economic loss rule by alleging exemplary damages, the Fifth Circuit has found that pleading mental anguish and other non-economic damages is ‘generally insufficient to avoid the economic loss rule.’

Colbert v. Wells Fargo Bank, N.A., 850 F. App’x 870, 876 (5th Cir. 2021).”

However, this misinterprets the term “generally,” indicating that the economic loss rule does not apply uniformly in all cases, as seen in Sam v. Wells Fargo Bank, N.A., Civil Action 4:15-cv-03194, at *22-23 (S.D. Tex. July 15, 2016).

Moreover, the Plaintiff asserts that the Colbert decision predates the Consuelo Jones and Gabriela Jones case (Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV, Tex. App., filed Sep. 19, 2019) (EXHIBIT DBJONES-MSJ).

This case provides supporting evidence, including the lower court’s amended judgment and findings against Ocwen (PHH), et al.

The case settled around Apr. 18, 2024, and appeal dismissed by mandate on June 26, 2024.

Texas courts have recognized that claims from wrongful or time-barred foreclosure and fraud can proceed despite the economic loss rule.

While this rule limits recovery for purely economic losses in contractual relationships, Plaintiff’s claims of time-barred foreclosure involve tortious conduct, specifically fraud, allowing for damages beyond mere economic losses, thus highlighting the inadequacy of Defendants’ argument.

COUNT VI:  Mental Anguish

Defendants claim the Plaintiff mislabeling her mental anguish damages as a separate cause of action is erroneous.

This should instead be viewed as a sub-heading under the Infliction of Emotional Distress.

Their argument that the Plaintiff should be barred from recovering damages for mental anguish is unfounded.

In Miguel v. McLane, No. 22-10517, at *8 (5th Cir. Feb. 23, 2024), the court held that pro se complaints must be liberally construed, allowing consideration of amendments to the original complaint.

Thus, the mislabeling does not preclude Plaintiff from seeking damages for mental anguish, as her intent to assert a claim for emotional distress is clear.

COUNT VII: Texas Debt Collection Act

The Movants present three defenses: 48 res judicata, 49 right to foreclose, and 50 damages, all of which lack merit given Plaintiff’s claims under the Texas Debt Collection Act (TDCA).

The Fifth Circuit in McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015), found that threatening foreclosure without the right to do so is actionable under the TDCA.

Here, Defendants lacked the right to foreclose due to the statute of limitations and the expired judgment discussed throughout this response.

Contrary to the assertion at 49 that “Burke cites to no specific provision of the TDCA allegedly violated,” Plaintiff identifies two provisions in her TAC:

Tex. Fin. Code §392.301(3) (threat of foreclosure involving AVT/Mackie Wolf/Mark Cronenwett, p.411-422) and Tex. Fin. Code §392.403(a)(2) (damages, p.488).

This aligns with Verdin v. Fed. Nat. Mortg. Ass’n, 540 Fed. Appx. 253 (5th Cir. 2013), which states that a misrepresentation under the TDCA requires a false or misleading affirmative statement.

Defendants’ reference to Rucker v. Bank of Am., N.A., 806 F.3d 828, 831 (5th Cir. 2015), is irrelevant here, as the purported mortgage is effectively expunged, rendering the lien void.

In late 2023, while Defendants attempted unlawful non-judicial foreclosures via AVT Title Services, the Consumer Financial Protection Bureau (CFPB) released an advisory opinion clarifying the TDCA’s protections against illegal actions by non-banks and foreclosure mills.

Plaintiff’s TAC at p.404 ensures her causes of action are rooted in Texas law, as confirmed in Tex. Health & Human Servs. Comm’n v. Kadia, No. 03-23-00100-CV, at *18-19 (Tex. App. June 28, 2024).

Although the FDCPA is not part of Plaintiff’s complaint, the CFPB’s opinion supports the unlawful nature of PHH Mortgage Corporation’s actions in attempting foreclosure despite a void judgment and expired power of sale.

Defendants’ reliance on Rucker is misplaced, as it pertains to defaults, not time-barred foreclosures.

Therefore, Plaintiff’s TDCA cause of action, aimed at protecting consumers from abusive practices, is actionable in either venue (see CFPB 12 CFR Part 1006, Regulation F; EXHIBIT DBCFPBTIMEBARRED-MSJ).

Additionally, in relation to 50, damages, see DAMAGES section incorporated herein.

COUNT VIII: Quiet Title: Trespass to Try Title

In Count VIII of Plaintiff’s TAC (p.489, Doc. 1-4), she asserts claims for quiet title and trespass to try title, with legal authority discussed from p.489-491.

The specific claim is detailed further in TAC (p.470-473) and expanded upon in her Verified Partial Motion for Summary Judgment (“PMSJ,” p.565-588; EXHIBIT DBPMSJ-MSJ).

“Summary judgment must favor the non-movant; the movant must prove entitlement to judgment as a matter of law.” Hardaway v. Nixon, 544 S.W.3d 402, 410 (Tex. App.-San Antonio 2017, pet. denied).

Movants argue Plaintiff has made only a “superior title” claim (at 52(2)), neglecting her time-barred statute of limitations claim (at 52(3)).

They only mention adverse possession in passing and fail to address “abandonment” (at 52(4)), thereby waiving rebuttal on these points.

As established, “a party is not entitled to a final summary judgment on the entire case if it fails to address claims in an amended petition. ”

Silver Gryphon, LLC v. Bank of N.Y. Mellon, 529 S.W.3d 595, 598 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

Movants cite Brumley (at 52), where the Texas Supreme Court emphasized substance over form in quiet title and trespass to try title actions. Here, Plaintiff has “sufficiently pleaded a trespass-to-try-title action by adverse possession” – Brumley v. McDuff, 616 S.W.3d 826, 836 (Tex. 2021).

The elements include:

·         Plaintiff has exclusively occupied the property since 2001.

·         Deutsche Bank National Trust Company claims a right to the property through foreclosure.

·         Plaintiff has continuously possessed and enjoyed the property without adverse claims since 2001 (TAC p.470, Exhibit DB15, p.544-546; EXHIBIT DB15-MSJ).

·         Plaintiff has visibly appropriated the property, claiming it as her own, hostile to all others’ claims, including Deutsche Bank’s.

·         Deutsche Bank has had actual notice of Plaintiff’s claim since at least 2011.

·         Plaintiff’s possession predates this action by over ten years.

Moreover, Plaintiff has a separate claim for quiet title, acknowledged by Defendants (54).

Recently, Judge Drew Tipton voided a similar lien in Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 (S.D. Tex. Sep. 23, 2024) (EXHIBIT DBMORLOCK-MSJ).

This case parallels Plaintiff’s claims, highlighting that “the nature of Morlock’s claim is one to quiet title” based on the invalidity of the defendant’s claim. Movants’ contentions lack legal foundation.

Applying Judge Tipton’s elements to this case:

·         Plaintiff has an interest in 46 Kingwood Greens Dr., Kingwood, Texas (Doc 1-4, p.545).

·         Title is affected by Deutsche Bank’s time-barred foreclosure attempts.

·         The claim is invalid because the judgment of foreclosure was issued over four years ago (Nov. 29, 2018), making it time-barred and the power of sale expired (Doc 1-4, Exhibit DB2, p.505-507; EXHIBIT DB2-MSJ).

Additionally, the foreclosure order is invalid for reasons outlined in the TAC and this response.

The first notice of foreclosure (EXHIBIT DB1-MSJ) was deficient, lacking a legal description of the property and value of any alleged indebtedness (TAC, p.406).

Other cases support Plaintiff’s claims:

·         Bryant v. DiTech Fin., No. 23-10416, at *6 (5th Cir. Mar. 1, 2024): “What it [Defendants] cannot do is win… without ever protecting its rights” (Doc 1-4, p. 472).

·         Kafi, Inc. v. Fairgate Tr., Civil Action H-23-4217, at *7 (S.D. Tex. Aug. 15, 2024): “Summary judgment is granted for Kafi on its claims for quiet title.”

·         Cross v. The Bank of N.Y. Mellon, No. 21-20384, at *3 n.3 (5th Cir. Apr. 8, 2022): Emphasized the absence of a legal impediment preventing the lender from preserving its foreclosure remedy.

In conclusion, Defendants’ motion for summary judgment should be DENIED.

They have not adequately addressed Plaintiff’s claims, failing to meet Rule 56(a) standards.

There are genuine disputes of material fact, and they are not entitled to judgment as a matter of law.

As stated in Ayala v. Aransas Cnty., CIVIL ACTION No. 2:15-CV-335, at *20 (S.D. Tex. Nov. 9, 2016), “Defendants failed to specifically address Plaintiff’s claims in their motion for summary judgment,” further supporting the need for denial of the motion.

INJUNCTIVE AND DECLARATORY RELIEF

Declaratory relief is available in these proceedings. The TAC (p.498-499) notes that DBNTCO specifically sought similar relief in 2011 (EXHIBIT DB16-MSJ at 8). Supporting this, declaratory relief was awarded to Gabriella and Consuelo Jones (EXHIBIT DBJONES-MSJ).

Contrary to the Bank Defendants’ arguments, declaratory relief is available to assess the validity of notes and liens under the Texas Constitution, even if it implicates property title (Cadle Co. v. Ortiz, 227 S.W.3d 831, 837–38 (Tex. App.—Corpus Christi—Edinburg 2007, pet. denied)).

Homeowners can seek declaratory relief regarding the invalidity of a lien (Schmidt v. Crawford, 584 S.W.3d 61:10, 656 (Tex. App.—Houston [1st Dist.] 2019, no pet.)).

Section 37.004 of the TDJA permits “a person interested under a deed” to seek a determination of any question of construction or validity arising under the instrument (Porterfield v. Deutsche Bank Nat’l Tr. Co., No. SA:16-CV-105-DAE, 2016 WL 5017344, at *7 (W.D. Tex. Sept. 19, 2016)).

See also EXHIBIT DBMORLOCK-MSJ.

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

The order of foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) and power of sale has expired and the lien is void. The movants Motion for Summary Judgment should be DENIED.

RESPECTFULLY submitted this 3rd day of October, 2024.

CERTIFICATE OF WORD COUNT

I, Joanna Burke, hereby certify that this RESPONSE TO PHH MORTGAGE CORPORATION’S MOTION FOR SUMMARY JUDGMENT, submitted on October 3, 2024, complies with the 5,000 word limit set by the Court. The document contains a total of 4,992 words, as calculated by Microsoft Word.

Notably; Defendants oversized and unauthenticated motion for summary judgment does not comply, supersized at 7,330 words (147%). There is no leave to file an oversized brief present on the docket, nor a certificate of word count in Defendants deficient motion, see Court Procedures, Hon. Charles R. Eskridge III, 18c.