LIT COMMENTARY

The Burkes filed their Petition for Rehearing en banc to allow all the active judges who are not recused and able to participate, an opportunity to cast their Vote and see if they will stand up and correct a manifest injustice, or continue with their ochlocracy. LIT will be watching, monitoring and of course, commentating on this case.

We also wanted to share a bit of information about Chief Judge Priscilla Owen and her zodiac star sign  – because we’re wondering why the Chief decided to go completely rogue and become an Outlaw in a Robe by injecting herself into the Burkes 2 cases on appeal.

First, she fired the 6 judges already assigned to the cases (3 judges sit on each panel/case, traditionally on appeals courts).

Then she ignored the fact that the Burkes Ocwen appeal had been percolatin’ for 2 years while the All American case (another fiasco) was yet to be decided. It is currently stayed because the Selia Law case recently decided at SCOTUS never answered the whole question (a common issue with court opinions).

It gets more complicated, so hang tight as we try and lay down the basics.

The Fifth Circuit also had the Collins (FHFA) case(s) in their circuit with similar issues. This case is currently pending a decision at SCOTUS which should be issued this term and provide the missing answers.

This in turn will allow the 5th Cir. to sit en banc and decide the appeal for both Collins and All American. Now there’s a lot of judicial politics with the Collins and All American cases which we won’t detail here, but the fact is that the judges at the 5th Circuit all hold different positions on these high profile cases.

The Burkes case should have been one of those cases that would be decided at that time, but that won’t happen now. That’s because the Chief barreled into the Burkes cases, and she was like….that ain’t happenin’..coz there ain’t no free lunches around here… So what happened next? She preceded to assign two elder judges who would join her Outlaw in a Robe decision-making and issue the most ridiculous opinion we’ve ever seen.

It is absolutely diabolical.

Now y’all have the background, let’s review her star sign.  Ya see, she’s a Libra and we know the following summary is actually pretty darn spot on from YourTango.com (Hat tip).

Now you have Owen’s personality traits, let’s return to the Burkes appeal(s).  Below is their filing for en banc in this now consolidated appeal in response to the 5th’s original opinion from the 3 Outlaws in Robes.

As always, comment, like, share, donate and be a voice. Y’all are amazin’, have a great day.

I.                              Statement Regarding Necessity of En Banc

A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of life, liberty, or property by the government except as authorized by law.

Authored by this court’s newest Judge in a concurring opinion comprising panel Judges Southwick and Jolly, Wilson remarked; “A litigant has the fundamental right to fairness in every proceeding. Fairness is upheld by avoiding even the appearance of partiality. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s actions stand at odds with these basic notions, we must act or suffer the loss of public confidence in our judicial system. “[J]ustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).” – Miller v. Sam Hous. State Univ., No. 19-20752 (5th Cir. Jan. 29, 2021).

Judge Wilson goes on to discuss the pre-judgment and bias by Senior Judge Hughes. The final decision would be reversal and reassignment of the case(s). It’s  eerily similar to the Burkes case(s) but with a material difference on appeal: the decision.

The rule of law (ROA.1118, footnote 9) requires the law to be clear and to be correctly applied. Inconsistent judgments which purport to create or apply legal standards breach both requirements, as patently the case here.

The Burkes contend if the rules, laws and actual facts had not been manipulated or omitted from this court’s restrictive consolidated opinion, it commands a completely different conclusion and opinion, one in favor of the Burkes.

I.                              Statement of issues warranting en banc revew

“Today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”0F[1]

Whether the dissolution of the two assigned, separate panels and the Chief Judge’s appointment of a new panel (for the consolidated appeal), and which includes the Chief Judge – who negatively prejudged the Burkes cases while dismissing the judicial complaint re Judge Hittner – supports a finding of an appearance of prejudice and unfairness, as validated by the adverse panel opinion?

If a scheduling conference before a magistrate judge, which turns out to be solely for the purpose of an administrative act and which specifically bans the far-traveled parties from the opportunity to discuss the case or pending motions violates due process when considering the role of a judge and the guide for magistrates1F[1]?

Where there’s two civil cases and the Ocwen case is denied the right to amend a complaint before the judge issues its order on a motion for summary judgment masked as a motion to dismiss but conversely the judge allows the Burkes to amend their Hopkins complaint before ruling, does that violate the rule of law’s “clear and correct” standard of consistency?

Do panel judges admit and correct mistakes, even where they may dislike the party or personally disagree with the majority’s opinion? In other words, are substantial panel misrepresentations and omissions, which, if corrected would reverse the conclusions and opinion in an erroneously decided panel opinion, reason to vacate the judgment in favor of full panel rehearing?

II.                           Statement of issues warranting en banc revew

“Today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”0F[1]

Whether the dissolution of the two assigned, separate panels and the Chief Judge’s appointment of a new panel (for the consolidated appeal), and which includes the Chief Judge – who negatively prejudged the Burkes cases while dismissing the judicial complaint re Judge Hittner – supports a finding of an appearance of prejudice and unfairness, as validated by the adverse panel opinion?

If a scheduling conference before a magistrate judge, which turns out to be solely for the purpose of an administrative act and which specifically bans the far-traveled parties from the opportunity to discuss the case or pending motions violates due process when considering the role of a judge and the guide for magistrates1F[2]?

Where there’s two civil cases and the Ocwen case is denied the right to amend a complaint before the judge issues its order on a motion for summary judgment masked as a motion to dismiss but conversely the judge allows the Burkes to amend their Hopkins complaint before ruling, does that violate the rule of law’s “clear and correct” standard of consistency?

Do panel judges admit and correct mistakes, even where they may dislike the party or personally disagree with the majority’s opinion? In other words, are substantial panel misrepresentations and omissions, which, if corrected would reverse the conclusions and opinion in an erroneously decided panel opinion, reason to vacate the judgment in favor of full panel rehearing?

III.                       Statement of Proceedings

This matter involves two cases, Burke v Ocwen (19-20267) and Burke v Hopkins (20-20209), which started life in Harris County assigned to two state judges. Both civil cases were filed shortly after a disputed judgment of foreclosure was authorized by this court in case no. 18-20026, published on September 10, 2018.

The judgment, however, did not end the attorneys for Deutsche Bank’s quest to amend the judgment, $615,000 being the total amount Deutsche Bank had requested repeatedly during case filings. (ROA.535, ROA.546-557). This late request was raised first time on appeal (ROA.544-545) by Deutsche Bank and objected to by the Burkes. This court correctly denied the untimely request.

Removed on federal question jurisdiction, opposing counsel received service for Ocwen Loan Servicing, LLC (“Ocwen”) and Hopkins Law, PLLC, (“Hopkins”) but only accepted service for attorney’s Mark and Shelley Hopkins. They would represent Ocwen and proceed pro se in the Hopkins case. The company was never served. The case was [re]assigned to  Judge Hittner (“Hittner”) while the ink was still drying in the Deutsche Bank case, along with novice Magistrate Judge (“MJ”) Bray, the replacement for honest and Honorable Stephen Wm. Smith.2F[3]

Shortly after filing the state cases, the Burkes sought to intervene in three relevant cases. The Kansas intervention to gather attorney immunity evidence for the Hopkins case, the Chicago and Florida interventions to gain information in support of the Ocwen litigation and where relevant, the Hopkins case. The parties in both lawsuits requested the court take judicial notice. All interventions would be denied. However, the Florida intervention materially harmed the Burkes Texas litigation due to legal and judicial misconduct.3F[4]

Returning to S.D. Texas, opposing counsel would hurriedly submit premature motions to dismiss only seven days after removing both cases. The Burkes responded, filing a motion to remand and at the same time motion to stay, asking the court to suspend replying to the premature motion(s) until ruling on the Burkes remand motion(s).   Concerned with the [re]assignment of both cases to Hittner, the Burkes motioned the court to ensure at least the cases remained separate and furnished the court with their case management plan.

Next, the Burkes attended the Scheduling Conference before novice MJ Bray (same date/time for both cases, ROA.3), which turned into a 3-minute ‘proof-of-life’ calendar event. Incomprehensibly, the parties were barred from discussing the pending motions, the case management plan or providing the court with any documents or files relevant to the cases (ROA.587) and the Burkes would later provide the court with affidavits detailing the disconcerting events of that conference[5] (ROA.572-618), which denied the parties due process and which aided the court in negatively deciding the Burkes case(s).

A.               District Court Rulings

I.                   Ocwen

This case was expedited by Hittner.  First, “the district court granted Ocwen’s motion to dismiss the Collection Claims…for res judicata.”

Response: This order (ROA.972) was issued without (a) considering the Burkes pending motions or after allowing the Burkes to amend their complaint for the first time5F[6] (unlike the Hopkins case) prior to ruling and where the Burkes specifically requested such relief. Note: The court denied the motion to remand without explanation. (b) Hittner, longtime co-author of a Summary Judgment Guide6F[7] which is in the hands of nearly every practicing Texas lawyer, knowingly accepted a motion to dismiss which, in essence, is a motion for summary judgment – despite the court’s warning this is highly inappropriate[8]  and (c) Incorrectly applied res judicata in law (ROA.991).

Second, “The court also concluded that the Burkes did not adequately plead a claim under RESPA but granted the Burkes twenty-one days to address their pleading deficiency. Failure to file an amended complaint within that time period, the district court cautioned, would result in dismissal.”

Response: This, despite no intentional delay,  the Burkes responding with a motion to clarify, (ROA.981) an omnibus of motions (ROA.530) and  a request for interlocutory appeal (ROA.1046) if they were denied the relief sought.

“The court…dismissed the cause without prejudice…”.

Response: Fifth Circuit precedent says without prejudice is actually with prejudice and too harsh a sanction.[9]

II.                Hopkins

This case would be referred to MJ Bray (ROA.1007) as soon as the Burkes filed a Request for Admissions (“RFA”) for Mark Hopkins ROA949-1006.

“After the Burkes filed an amended complaint, the [pro se] Attorney Defendants moved to dismiss…The Burkes then requested leave to file a second amended complaint…The magistrate judge  denied the Burkes’s motion…The magistrate judge issued a report recommending that the district judge dismiss the Burkes’s complaint for failure to state a claim.”

Response: The MJ snubbed the majority of the Burkes filings and then went beyond the pleadings to dismiss the complaint, including erie guesses.

“The district court adopted the magistrate’s report and dismissed the case with prejudice.”

Response: The order and judgment issued (a) with Hopkins Law, PLLC still listed as a defendant and despite being unserved, (b) without ‘de novo’ review (ROA.1116: the Burkes specifically asked for de novo review in footnote 1) and (c) the ministerial act of issuing the judgment  was executed in violation of Gov. Abbott’s executive order (Pandemic). Hittner had cancelled a scheduled pretrial conference (ROA.1097), an ultra vires act.

B.                Panel Decision

The six judges randomly assigned by PANLOG to the two cases were inexplicably replaced with a new panel, comprising Chief Judge Owen, active Judge Dennis and Senior Judge Davis, who recently participated in the 2018 panel decision in Deutsche Bank II. There is no justification in terminating all judges from the assigned panels.

In a per curiam opinion (consolidated), the panel affirmed.[10]

Questionably, the Panel incorrectly labeled the Deutsche I and Deutsche II appeals as Burke I and Burke II, reversing the plaintiff and defendant status from the prior case before this court. The case summary did not fare any better, it is completely misleading. The panel inaccurately decided the cases.

1.     Ocwen

The Burkes appealed on 22 Apr 2019.  The original 3-panel comprising Judges Higginbotham, Southwick and Willett were actively responding to motions via court orders during briefing which was fully briefed by 11 Oct. 2019.

The Burkes had sought to stay the case due to the question regarding the constitutionality of the CFPB and Director. The motions were denied. As such, the case was primed for a timely opinion.

This court’s historical data7F[11] confirms from Notice of Appeal to final disposition (average for all appeals) is 9.1 Months. This case should have been disposed on or around January 2020. However, this court did not decide the case, rather it percolated at the court until issuing its opinion on 30 March, 2021, some 23 months later.

The panel now concludes: (i) The Burkes motion to remand was correctly denied on federal question jurisdiction. (ii) The Burkes contentions that res judicata does not bar their Collection Claims against Ocwen on appeal were forfeited as the Burkes “failed entirely to file any response to Ocwen’s motion to dismiss”.

Response: This is  inaccurate, unsupported and misleading.

And lastly (iii) “the Burkes challenges to the district court’s dismissal without prejudice of their case against Ocwen fail…because the Burkes did not file an amended complaint within that timeframe, so the district court dismissed the action without prejudice.

Response: The panel stops too short in their summary  because the Burkes filed a motion to clarify along with an omnibus of motions and supporting evidence (ROA.530-1067).

Without prejudice in this case equals with prejudice as res judicata prevents refiling the same claims.[12]

2.     Hopkins

Second, The panel now concludes (i) The Burkes motion to remand was correctly denied on federal question jurisdiction.

p.19, Burkes Reply Brief

Response: This court misrepresented and/or excluded the Burkes written words and evaded acknowledging or answering (a), (b) and (c).

(ii) The Burkes challenges to the district court’s dismissal of claims based on the attorney immunity doctrine fail specifically because (a) the attorney’s acts were conducted during representation of Deutsche Bank at all times; (b) Shelley Hopkins is entitled to attorney immunity because the Burkes do not contend that any of Shelley Hopkins’s challenged conduct occurred at a time other than when she was acting in her capacity as an attorney in the foreclosure case.

Response: The Burkes attorney immunity arguments are misstated or completely discounted. The Burkes provided plausible reasons why Shelley Hopkins was, for lengthy periods, not protected by immunity “at all times”. The panels conclusory conclusions in (a) and (b) are repelled by the Burkes filings which show she wasn’t even counsel of record until Deutsche II and her role in the period prior was undetermined.

The Burkes pointed to case law where attorneys performing non-attorney work did not have immunity. See ROA.745, ROA.752-755 As such this courts summary is erroneous.

Nothing on the record indicates opposing counsel disproving the Burkes claims and hence it should have continued with discovery.

See Jaffer v. Davis & Assoc., 4:19-cv-00860-RWS-KPJ, Doc 37, 7/27/20, E.D. Texas8F[13], “The Court finds discovery is necessary as to Defendant’s attorney immunity defense”. The magistrate judge’s ruling was based on discovery to help determine whether attorneys are debt collectors (the cited cases therein are self-explanatory).

This conflicts with this case, where the MJ and the appeal panel rejected discovery, per footnote3 of the opinion.

(c) Mark Hopkins is also protected by the doctrine – in particular regarding a statement he made in a court proceeding concerning the Burkes’s mortgage loan file being intentionally withheld from the Burkes, as the Burkes “do not point to anywhere in their operative complaint where they actually alleged that Mark Hopkins wrongfully withheld the file”.

Crime Scene Coverup: It’s a whiteout and wall of silence from both courts.

Response: Mark Hopkins is not protected. The operative complaint rejects the panels falsehoods. See ROA.578-579, ROA.585-586, ROA.589, ROA.599-607. Furthermore, the Burkes have consistently stated in filings that the mortgage file is not protected or privileged by the doctrine, which has never been acknowledged or answered.

(d) In footnote4, the court states; “The Burkes make the conclusory assertion that their claim for unjust enrichment is “valid” but do not set forth any further argument challenging the district court’s determination that their claim is barred by the attorney-immunity doctrine. Thus, this issue is forfeited” and

Response: (d) The unjust enrichment claim is “valid”.  The Burkes clearly responded sufficiently to defeat this false accusation of non-compliance. See ROA.1127 & ROA.762. In the Burkes objections (ROA.1116) to MJ Bray’s M&R (ROA.1098) they detailed sound reasons why the court should view the MJ’s encapsulated claims – which included unjust enrichment (ROA.1127) – holistically as the Supreme Court demands.

(e) in the same footnote the court states the Burkes also failed to state a claim under the FDCA or the TDCA and as such it was forfeited on appeal and,

Response: The Burkes identified that this was novice MJ Bray’s first M&R in these complex areas of law and statutes. He erroneously applied the incorrect standards for review and unlawfully skipped over the majority of the Burkes arguments in their court filings (Visual Aid; ROA.1212-1214).

Administratively, the Burkes noted in briefing, that the lower court documents and responses were integral to the Burkes appeal and argument. Thus, all issues submitted on appeal are preserved, not forfeited.  The Burkes met the appellate standard required by cross-referencing the lower court files. E.g. “The Burkes have articulated…” Doc:00515533682  p.55

Falsely applying a terminal sanction on the Burkes claim(s) is denial of due process (e) As with (d) the  Burkes clearly state claims under the FDCA or the TDCA and as such it was never forfeited on appeal. See ROA.764-777, ROA.1194, ROA1206.

(f) “The Burkes contested the district court’s dismissal of their case with prejudice, however, after providing the Burkes the opportunity to amend their complaint once, we cannot say the court abused its discretion in denying their request for leave to amend their complaint a second time where their motion did not explain what new facts they would allege nor attach a proposed amended complaint”.

Response: (f) See ROA.1186-1188.

The court ignored the Burkes claims that (i) Hopkins as a debt collector or as an agent is disbarred from replying to QWR’s which the law firm did repeatedly – only Ocwen are allowed to respond per the statute.

In part; “Common sense tells you if you send a QWR to the named invisible doe and the debt collector responds, in violation of the statute, the debt collector is attempting to collect a debt they own.” The plausibility standard dictates this statement is legally sufficient to proceed to discovery and defeat the motion to dismiss. Why? Because despite the many requests by the Burkes, no evidence has been presented by Hopkins to refute the Burkes claims.

Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976)

IV.                        Argument & Authorities

This court should grant this petition and rehear the case en banc. The issues requiring the full Court’s resolution concern the Fifth and Fourteenth  Amendments and a fair and impartial judiciary.

Review by the full Court is “necessary to secure or maintain uniformity of the Court’s decisions.” Fed. R. App. P. 35(a)(1). The questions are also of “exceptional importance.” Fed. R. App. P. 35(a)(2).

A.               The Burkes Preserved All Their Claims for Appeal

The panel insincerely accuse the Burkes of failing  to properly preserve their claims for appeal. These accusations are unfounded on revisiting the Burkes comprehensive and well-cited motions and briefings.

As a result of civil conspiracies (preserved, ROA.760) with his attorney wife, the Hopkins duo and their ‘unserved’ corporate ego committed fraud (preserved, ROA.757, ROA.1119) to obtain a false reversal from this court, twice, and in the process they violated the TDCA/FDCPA (preserved, See ROA.764-777, ROA.1194, ROA1206). As a result, they were unjustly enriched (preserved, ROA.1127 & ROA.762) for their civil and criminal acts.

These facts are discounted by the panel, who claim the Burkes waived the majority of their causes on appeal, a fraudulence to avoid reaching the Burkes meritorious claims and arguments.

B.                Non-Random Assignment of Cases Questions Neutrality

It sheds darkness over justice, the right to a fair hearing and impartial judge(s). Here, both cases were immediately [re]assigned to Hittner.

When the Burkes filed a judicial complaint against Hittner, Chief Judge Owen dismissed the complaint and in a factually inaccurate memorandum, threatened the Burkes in the process with a [disputed] warning. Civility was not considered.

Shortly thereafter, and unbeknownst to the Burkes, she dissolved the panels as Chief Judge and then proceeded to assign herself onto the new panel in order to rule on the now consolidated cases.

Thus, the “appearance of bias” changed immediately to “known bias”. When assignments from the both courts involving the same case(s) are not random and panels are replaced without good reason, “justice does not satisfy the appearance of justice”.

C.               This Panels Review is Undermined Due to Material Misrepresentations and Omissions

Doc 27, Amended Complaint, Disclaimer on footnote 1, ROA.533.

What is most noticeable and disingenuous is the panel excluded all the Burkes mitigating reasoning or evidence presented in their one-sided summary, which would have resulted in a completely different opinion, one in favor of the Burkes.

Disclaimer: The Burkes reserve their legal rights[14]. The errors and omissions are so many, it’s impossible to reach them all in 3,900 words. The Burkes have provided a summary of the most severe violations of due process.

D.               The Panel Excluded the Plausibility Standard including “Twiqbal”

The “The plausibility standard “does not give district courts license to look behind [a complaint’s] allegations and independently assess the likelihood that the plaintiff will be able to prove them at trial.”” and “Rule 12(b)(6) does not require the United States to present its best case or even a particularly good case, only to state a plausible case.” United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 260, 263 (5th Cir. 2014).  The ‘Twiqbal” standard for review has been cited by the Chief Judge when she sat on prior and recent foreclosure panel(s) including Davis v. Ocwen Loan Servicing, L.L.C., No. 20-10547 (5th Cir. Mar. 31, 2021) and when she was on the panel which granted panel rehearing and then reversed and remanded; Hale v. King, 642 F.3d 492, 499 n.12 (5th Cir. 2011).

However, despite the Burke’s specifically citing[15] and detailing over two pages of their initial brief the ‘Twiqbal’ standard, it was totally disregarded in the opinion.

E.                The Magistrate’s Offensive Rebuke of the Elder Burkes

At his one and only in-person hearing,  MJ Bray horribly botched his audition, including picking sides without assessment of the abhorrent lies directed at the Burkes.  MJ Bray immediately aligned with pro se and self-admitted lying attorney Hopkins, who falsely accused the Burkes of “wanting certain judges to be shot”. While clearly enraged, he demanded to know if the law-abiding Burkes were criminals. He continued his threatening and abusive manner stating this was  “way more serious than a counterclaim…”  to these perplexed elder citizens.

Despite voluminous filings complaining about the events, from the conversion of a status conference to a motion hearing without notice, to  the elder abuse, the judiciary has remained silent, in violation of their oath, canons and legal responsibilities.  ROA.1010-1017, ROA.1044, ROA.1076,  ROA.1089, ROA.1116, Initial brief, Doc:00515533682 p.44.

In conclusion, the MJ discounted the Burkes subsequent filings in the majority, and his inaugural Memorandum and Recommendation (ROA.1116) would be a litany of lies, erie guesses and omissions, but in the end his opening M&R carries no legal consequence.

F.                No ‘De Novo’ Review

Terminally, Hittner did not perform a ‘De Novo’ review. (ROA.1157, ROA.1185) This panel did not address the question. See Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355 (5th Cir. 1980).

G.               The Cancelled Pretrial Conference

This would be followed by the Burkes timely objections and  Hittner’s final order (ROA.1157) and judgment (ROA.1158), a complete perversion of justice and an ultra vires act rendered during the height of the pandemic (ROA.1171, ROA.1186). The judgment is void and this court’s opinion moot for lack of jurisdiction.

H.               Hopkins is a Rogue Debt Collector

Critically, this court never once addressed or discussed this unlicensed, unbonded, rogue “debt collector” in its opinion.

I.                  Fraud Annuls Attorney Immunity

The Fraud claim was incorrectly dismissed in the opinion as “unavailing”. This court relies upon immunity that is “unavailable” to fraudsters like Hopkins. The district court approved the Burkes request to supplement the PNC case (Initial brief, Doc:00515533682, p.42), another foreclosure matter where Hopkins would perpetrate the same system of fraud (ROA.1119).  The Burkes went into great detail including citations as to why immunity is not provided for fraudulent acts by rogue, unbonded, debt collecting lawyers. It is summarized concisely in ROA.1184. Note: Once again, this court falsely claims this is ‘forfeited’ in dismissive footnote3 and despite it being correctly cited on appeal.

J.                 The Evasion of Service & Motion to Substitute Service

The termination of the motion by Hittner, sua sponte, was raised on appeal and blanked by the panel.

K.               The Unserved Party

Hopkins Law, PLLC is part of the dismissal with prejudice which cannot stand when the party was never served per precedent. p.23, reply brief, Doc: 00515630386, Citing: Coleman v. Gillespie, 424 F. App’x 267 (5th Cir. 2011).

L.                The Mortgage File is All That’s Needed

The Burkes require only one key document to prevail in the lawsuit(s), the mortgage loan file.  The Burkes sought to recover a verified copy of the mortgage file which would prove lender application fraud and allow this case to be finally  ratified and resolved. Nonetheless, despite Hopkins own admission on the record that he unlawfully and unethically withheld the file specifically from the Burkes, they could not obtain the file from Hopkins in the lower court. The bold-faced court was not acting as truth seeker but truth blocker. To do so, it would not acknowledge nor discuss the piercing of immunity arguments raised by the Burkes, namely that attorney privilege/immunity does not apply to the mortgage file or engagement letters.  This court refused as well.

V.                           Conclusion

For a panel to be considered legitimate, due process, fairness and impartiality should always be present. The Constitution demands it. Based on the foregoing reasons, the Burkes civilly requests that this Court grant rehearing en banc.

– END –

DATED:        April 13, 2021

McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554 (5th Cir. 1981)

Burkes Omnibus Response.