Justice Gorsuch: “In this world, real people are injured by actions taken without lawful authority.”

MOTION TO STAY

Burke v Ocwen and Hopkins, 19-20267 c/w 20-20209

JUN 28, 2021

Appellants, Joanna Burke and John Burke (“Burkes”), now file a motion to stay based on the events of last week at the US Supreme Court.

BACKGROUND & ARGUMENT

This court sua sponte decided to appoint a new 3-panel and consolidate the Burkes two appeals, namely Burke v Ocwen and Burke v Hopkins.[1]  The panel included the Chief Judge, Priscilla Owen along with Judges’ Dennis and Davis. The opinion was issued prematurely on March 30 of this year (See Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021). This replaced the 3-panel of Judges Higginbotham, Southwick and Willett in the Ocwen appeal and Judges Clement, Elrod and Higginson in the Hopkins appeal.

The reason the Burkes argue it was issued prematurely is the fact that this court had stayed the appeals of CFPB v All American Check Cashing, No. 18-60302  and more recently in Collins v Mnuchin, No. 17-20364 (now Collins v Yellen), pending the US Supreme Court decisions. The Burkes had filed a motion to stay their appeals as well (see detailed motions and Burkes arguments on the docket(s)) which were routinely denied, however, the timeline of the appeals and the periods of time where there has been little or no activity, strongly suggests that a stay was ‘unofficially’ provided in the Burkes cases.

Crucially, in both cases, the Supreme Court has failed to reach the questions pertinent to the granting of stays. The ratification question in the CFPB case was remanded and  there is not only a new circuit split, RD Legal Funding has submitted a new Petition at the US Supreme Court (See; https://2dobermans.com/woof/2t), which effectively returns this court in the same position it was at the start of the stay.

In respect of the Collins case(s), the Burkes fully concur with Justice Gorsuch’s dissent and specifically injury[2], which the Burkes restate has occurred in the cases they brought to this court and for which they have been denied, to date, any meaningful relief.

That stated, the “retroactive constitutional relief” argument remains in the Collins case(s). As a result, this court has issued two letters to counsel in the CFPB and Collins Fifth Circuit appeals on June 24, 2021 asking for an answer to the question, “what’s next?”.

Similarly, the Burkes echo that question. In Justice Alito’s opinion for the Court, he states and the Burkes rely upon;

“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).” https://t.co/39UBrK6w3I@politico @Telegraph @guardian @thesundaytimes pic.twitter.com/XwHKbkX6xG

— LawsInTexas (@lawsintexasusa) June 25, 2021

“As we have explained on many prior occasions, the separation of powers is designed to preserve the liberty of all the people.”

Collins v. Yellen, No. 19-422, at *26 (June 23, 2021)

“So whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge.”

See, e.g., Seila Law, supra, at ___ (slip op., at 10)” Collins v. Yellen, No. 19-422, at *26 (June 23, 2021)

“Nearly half our hallmark removal cases have been brought by aggrieved private parties.”

See Seila  Law, 591 U. S., at ___-___ (slip op., at 6-7)

“Here, the right asserted is not one that is distinctive to shareholders of Fannie Mae and Freddie Mac; it is a right shared by everyone in this country. ”

Collins v. Yellen, No. 19-422, at *27 (June 23, 2021)

RELIEF REQUESTED

The Burkes request (a) The court stay the consolidated case until the above cases are resolved and (b) The Burkes are given the same legal courtesy as provided to the above counsel and allowed to supplement the case after the court resolves the CFPB and Collins appeals, but before they decide the Burkes Petition for Rehearing En Banc.

CONCLUSION

Appellants Joanna & John Burke civilly request the relief requested herein.

DATED:      June 28, 2021

Respectfully submitted,