COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs Joanna & John Burke (“Plaintiffs”) file this complaint, an equitable action with one purpose; to vacate void judgment[s] on the basis of fraud.

PARTIES

Plaintiffs, John Burke and Joanna Burke are residents in Harris County, Texas, and as such reside in the Southern District of Texas.

Defendant Ocwen Loan Servicing, LLC (“Ocwen”) is a Texas Foreign Limited-Liability Company (LLC). Ocwen can be served with process by making service upon its registered agent, Corporation Service Company dba CSC – Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701-3218.

Defendant Hopkins Law, PLLC is a Texas professional limited liability company having its principal place of business in Austin, Texas and may be served with process by serving its registered agent, Mark D Hopkins, Registered Agent Address is; 3809 Juniper Trace, Suite 101, Austin, TX 78738 USA.  Mark D Hopkins is a member and director and has his domicile in Austin, Texas. The company’s tax filing status is listed as In Existence and its File Number is 32057539499.

Defendant Mark Daniel Hopkins is an individual having his domicile in Austin, Texas and may be served at his business address, 3 Lakeway Centre Ct., Suite 110, Austin, Texas 78734-2692, or his place of residence, 3 THE HILLS DR, THE HILLS, TX 78738-1537  or wherever he may be found.

Defendant Shelley Luan Hopkins is an individual having her domicile in Austin, Texas and may be served at her business address, 3 Lakeway Centre Ct., Suite 110, Austin, Texas 78734-2692, or her place of residence, 3 THE HILLS DR, THE HILLS, TX 78738-1537 or wherever she may be found.

JURISDICTION & VENUE

The Court has original jurisdiction over this action pursuant to 28 U.S.C. §1331 because it involves questions of federal law and secondly because it is the correct court which may resolve this complaint when fraud is involved. See Gleason v. Jandrucko, 860 F.2d 556, 558 (2nd Cir. 1988); “Relief from a final judgment may also be obtained at any time by way of an independent action to set aside a judgment for `fraud upon the court .'” ; Chewning v. Ford Motor Co., 35 F. Supp. 2d 487, 491 (D.S.C. 1998) “Furthermore, the proper forum in which to assert that a party has perpetrated a “fraud on the court ” is the court which allegedly was a victim of that fraud.”; Rozier v. Ford Motor Co., 573 F.2d 1332, 1337-38 (5th Cir. 1978). “A fraud-on-the-court claim is “not subject to any time limitation.””.

PREAMBLE

This preamble provides readers with a condensed summary of the complaint and key issues. On August 4, 2021, the Court of Appeals for the Fifth Circuit unlawfully disposed of the Plaintiffs now consolidated appeals, namely; Burke v. Ocwen, Civil Action H-18-4544 (S.D. Tex.) and Burke v. Hopkins, Civil Action H-18-4543 (S.D. Tex.). The Plaintiffs complain the judgment(s) and mandate issued (Exhibit A) in relation to the Appeal and the two District Court cases  are fraudulent and void.

Critical to that conclusion is the actions of the Clerk’s at the Fifth Circuit. The dispute arose after the Fifth Circuit Clerk’s office refused a Proposed Sufficient Petition for Rehearing En Banc timely submitted by the Plaintiffs.[1]

Three Clerks (co-conspirators) would be embroiled in the unconscionable scheme which would subsequently play out, namely (a) Jann Wynne (“Wynne”), who refused to accept the Plaintiffs now Proposed Sufficient Petition and instead, added a new deficiency – the missing ‘Statement of Facts’. The Plaintiffs objected. This would turn out to be the second time the Plaintiffs were reminded in 2021 of Fed. R. Civ. P. 7 by the Clerks at the Fifth Circuit. After a few emails, on April 22, 2021 at 3:49 pm, Wynne refused to discuss the dispute regarding the ‘Statement of Facts” any further with Plaintiff Joanna Burke and responded as per the email screenshot below, in relevant part, stating a motion would be required ‘to accept it in present form…” The Burkes responded via Motion.2

And (b) Rebecca Leto (“Leto”), who entered later in the proceedings with her letter (Exhibit C) stating that the Plaintiffs Petition was accepted as Proposed Sufficient, had been ‘uploaded’ as a result, and all that was required was the March 30, 2021, original Opinion of the Court (Exhibit B) in the consolidated appeal; and (c) Christina Gardner (“Gardner”). The main co-conspirator is Christina Gardner, with knowledge and in bad faith, entered her own fraudulent Motion[3] upon which the Fifth Circuit entered its judgment, one procured by  the co-conspirators, the Clerks and 3-Panel of assigned Judges, who implemented this unconscionable scheme while acting as officers for the court.

See; Cadle Co. v. Moore (In re Moore), 739 F.3d 724, 733 n.15 (5th Cir. 2014) (“In short, the decisive factor in Fierro for our analysis of fraud on the court was the imputation of knowledge (and resultant bad faith), not simply whether a nondisclosure was at issue.”).

Christina A. Gardner, Fifth Circuit Case Management Clerk

Christina Gardner is an experienced clerk. Certainly, the Plaintiffs recognize her from their prior appeals and past correspondence from the Fifth Circuit, starting from around the year 2015. For nefarious reasons she can only explain herself, Gardner would file an “Opposed Motion for Reconsideration”, in a docket text entry (Exhibit D), under her own volition. In other words, without a valid submitted motion from the Appellants in the case, the Burkes, and as prescribed in law, per Fed. R. Civ. P. 7.

This is even more bizarre, because during the course of the appeal(s), the Burkes were in fact confronted with Fed. R. Civ. P. 7 by Gardner herself in an email addressed to Mrs. Joanna Burke, date-stamped January 8, 2021 at 8:05 AM; “A motion seeking leave to be exempt from submitting papers is required. We cannot process an email request. Please submit a motion in CM/ECF.”

The rule is clear, only litigants can file Motions, nobody else. Gardner vetoed that rule and in doing so, abused her authority. That, however, does not end the conversation regarding the purpose of the Motion.

Restating, the Plaintiffs have explained Gardner filed a void Motion (Exhibit D), but even assuming the Plaintiffs had filed the same Motion, it would ordinarily have been rejected (no action taken) by the Clerk’s office.

This is because the Motion she backdated to July 8 (from July 9, 2021) (Exhibit D) would quizzically be a “repeat” Motion – one which had already been Reconsidered and previously denied by the 3-panel of judges, on June 21, 2021. The Fifth Circuit’s own copy of FRAP and IOP (Internal Operating Procedures)[4] do not allow for repetitive Motions for Reconsideration by a 3-panel;

So, either way, Gardner’s Motion (Exhibit D) is corruptly void and the Plaintiffs painstakingly detailed this to the Court in subsequent legal Motion(s) as detailed herein.

However, on August 4, 2021, the Fifth Circuit 3-panel ‘denied’ Gardner’s Motion (Exhibit D) and by so doing, tendered to the Plaintiffs and this District Court, to whom it expeditiously transmitted the judgment(s), that the appellate judges and court were completely satisfied that Gardner’s void Motion was both legal and appropriate to end the Plaintiffs now consolidated appeal by issuing a final order,  judgment(s) and  accompanying mandate (Exhibit A);

That notion is erroneous in law. Clearly, the judgment(s) issued on the back of Gardner’s controlling Motion (Exhibit D) are void and this Court must set aside the judgment(s).

That aside, it makes a mockery of the law, the judiciary and is indicative of the continuous acts of fraud and unconscionable schemes perpetrated by officers of the court, markedly channeled at these law-abiding elder citizens and Plaintiffs.

FACTS

Plaintiffs are facing a wrongful foreclosure in a legal dispute which has, as appellate Judge Jolly would say, become an “unrelenting battle”.[5]

A Fraud Perpetrated by Officers of the Court

The significant and distressing difference, however, is that the Burkes battle is not just with the opposing parties, but with the judicial machinery itself and the personalities therein.

See; Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989); “The narrow concept should “embrace only the species of fraud which does or attempts to, defile the court itself , or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.”Kerwit Medical Products, 616 F.2d at 837 (quoting 7 Moore, Federal Practice ¶ 60.33 at 511 (1971 ed.)).”

The Two Underlying Lawsuits Which Were Consolidated on Appeal

In order to prevent a miscarriage of justice and stop foreclosure, the Plaintiffs brought two independent lawsuits before the state court, who assigned the cases to two separate state judges.

These cases would be unlawfully removed to the federal District Court, Houston Division by the opposing parties counsel, who avoided service for the firm and disregarded email[s] from the Plaintiffs in order that the lawyer[s] at Hopkins Law, PLLC, could; (i) remove the cases to federal court, and; (ii) represent themselves pro se.

The subsequent District Court and Appellate Court judgment[s], as issued on August 4, 2021, are those which Plaintiffs seek to correct with this independent, equity lawsuit.

This Complaint Revolves Around a Question of Law[lessness]

One of the arguments in law upon which Plaintiffs’ rely; “The judgment against [the Burkes] can be said to be procured by fraud only if fraud can be defined to include corrupt abuse of the judicial process.” See Browning v. Navarro, 826 F.2d 335, 342-43 (5th Cir. 1987).

The judgment[s] and mandate issued and dated August 4, 2021[6] in the consolidated appeal discussed herein by the Court of Appeals for the Fifth Circuit, along with the two copies of the said judgment submitted and entered in this District Court in the two related lawsuits, namely case numbers 4:18-cv-4543/4544  were procured by fraud.

The lawless judgment[s] and mandate issued on August 4 (Exhibit A) and now available on all court dockets are void and should be vacated forthwith as they carry no legal substance.

Qualifying as Both Intrinsic and Extrinsic in Nature, This Complaint is a Direct Attack

“Hazel-Atlas allows a judgment to be attacked on the basis of intrinsic fraud that results from corrupt conduct by officers of the court. In any event, it is clear to us from these cases that in this…proceeding, the genre of fraud alleged here, that is, the corrupt abuse of the judicial process, can serve as a basis to collaterally attack the …court judgment.” See Browning v. Navarro, 826 F.2d 335, 344-45 (5th Cir. 1987).

It is prudent to mention the legal approach behind this pro se lawsuit. Extract from; The Value of The Distinction Between Direct and Collateral Attacks on Judgments, The Yale Law Journal, Vol. 66: 526 (https://2dobermans.com/woof/3k)

“The criteria which courts have evolved for identifying direct and collateral attacks have led to unsound results. Under existing law, the ability of a party to question defects in a prior judgment depends upon the skill [of his lawyer] in following illogical procedural steps.”

“…if the complaining party initially brings an independent action to set aside the prior judgment and later brings a separate suit [to quiet title to the property], his action will fit within the definition of a direct attack and he will avoid the limitations which would be applicable to the other methods of proceeding. See; Moyes v. Moyes, 60 Idaho 601, 94 P.2d 7K (1939)(citing *at  610, 94 P.2d at 786).

This lawsuit is a direct attack to set aside the judgment[s] as described above related to the two independent lawsuits which the Plaintiffs brought before this District Court.

BURKE V. OCWEN LOAN SERVICING, LLC

Plaintiffs sued Ocwen in state court and the case would be removed to S.D. Federal Court, Houston Division over the objections of the Plaintiffs.  The case would be parachuted into Senior United States District Judge Hittner’s chambers once more, despite the claimed ‘blind draw’ system employed by the court. Judge Hittner’s new Magistrate Judge was former public defender Peter Bray.

In the Fifth Circuit’s March 2021 void Opinion, Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021), they summarized the case as; Plaintiffs charged Ocwen with claims for breach of contract, breach of the duty of good faith and fair dealing, fraud, negligence, negligent misrepresentation, unfair competition, and violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) (collectively, the “Collection Claims”). The Burkes also alleged that Ocwen violated the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (“RESPA”).

Ocwen moved to dismiss the Burkes’ Collection Claims on res judicata grounds and to dismiss the RESPA claim for failure to state a claim.

Ruling on the motions before it, the district court granted Ocwen’s motion to dismiss the Collection Claims, concluding that the predicates for application of res judicata were satisfied.  Deutsche Bank, as the loan holder, and Ocwen, as the loan servicer, were in privity for purposes of res judicata, the court found.  Further, the Collection Claims against Ocwen arose out of the same nucleus of operative facts as the earlier litigation against Deutsche Bank because both concern the loan and foreclosure on the Plaintiffs home.

The court also concluded that the Burkes did not adequately plead a claim under RESPA. Subsequently, the court invoked Federal Rule of Civil Procedure 41(b) and dismissed the cause without prejudice for want of prosecution. The court also denied the Burkes motion to remand.

The Plaintiffs dispute these facts altogether, as transcribed above from the Fifth Circuit’s subsequent consolidated opinion of March 30, 2021 (Exhibit B). See; Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021).

BURKE V. MARK HOPKINS, SHELLEY HOPKINS & HOPKINS LAW, PLLC

Similar to the Ocwen case, Plaintiffs sued Hopkins  in state court (different judges were assigned in the state court, unlike the federal court) and the case would be removed to S.D. Federal Court, Houston Division over the objections of the Plaintiffs.  The case would be parachuted into Senior United States District Judge Hittner’s (“Hittner”) chambers once more, despite the claimed ‘blind draw’ system employed by the court. Hittner’s new Magistrate Judge was former public defender Peter Bray (“Bray”).

Again, reciting from the Fifth Circuit Opinion, Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021); Contemporaneous with the filing of their suit against Ocwen, the Plaintiffs, proceeding pro se, sued the Attorney Defendants in Texas state court. The Attorney Defendants removed the case to federal court, and the Plaintiffs filed a motion to remand, which the district court denied. The Plaintiffs claimed that the Attorney Defendants’ conduct during the foreclosure litigation constituted fraud, civil conspiracy, unjust enrichment, and violated the Texas Debt Collection Act, Tex. Fin. Code § 392.001 et seq. (“TDCA”), and the FDCPA.  The magistrate judge issued a report recommending that the district judge dismiss the Plaintiffs complaint for failure to state a claim.  The district court adopted the magistrate’s report and dismissed the case with prejudice.

The plaintiffs dispute these facts altogether, as transcribed above from the Fifth Circuit’s subsequent consolidated opinion of March 30, 2021 (Exhibit B).

FIFTH CIRCUIT APPEALS

The two cases would be appealed.  Ocwen was first, with a notice of appeal recorded by the Fifth circuit on April 22, 2019 followed  approximately a year later by the Plaintiffs appeal re Hopkins. The notice of appeal recorded by the Fifth Circuit on April 17, 2020.

In each appeal, separate and independent 3-panels were assigned. The Ocwen panel comprised of judges Higginbotham (motion judge), Southwick and Willett. The Hopkins 3-panel comprised of judges Clement (motion judge), Higginson and Elrod.

However, as part of the unconscionable scheme by the judicial machinery installed at the Fifth Circuit, these panels would be unlawfully disbanded and replaced by a hand-selected panel by Chief Judge Priscilla R. Owen (“Owen”) of the Court of Appeals for the Fifth Circuit. The new panel comprised of judges Owen, Dennis (motion judge) and Davis.

Relevant to this case and the unconscionable scheme and fraud by the officers of the court, would be the judicial complaint (Exhibit E) against Senior United States District Judge David Hittner, Houston Division, S.D. Tex., filed with the current Chief Judge [Owen] by the Plaintiffs.[7]

On 10 November, 2020, Owen dismissed the Plaintiffs judicial complaint (Exhibit F). That would not have been a remarkable event, however, but for the pugnacious nature of the dismissal, which is very relevant to this complaint. First, Owen’s summary of the complaint in her order, dated Sunday, November 8, 2021 (Exhibit F), dismissing the judicial complaint against Hittner (Exhibit E) was factually erroneous and materially so. At the time of this lawsuit, she has refused to correct the summary.  Second, Owen threatened the Plaintiffs.

Third, reading the snippet screenshot above, she did not believe the Burkes arguments calling the complaint “conclusory” and “frivolous” – and which is actually soaked in verifiable, factual events during the District Court proceedings –  so how could she possibly be impartial on the Burkes consolidated appeal panel, or appear to be so? The Plaintiffs maintain the position she is biased, could not be impartial, and should not have been part of the newly constructed 3-panel. And the Plaintiffs are not alone in that view – see attorney Tom Goldstein, a SCOTUS goliath, in his own words; Extract from Exhibit G;

“Plainly, a rule that expressly permitted judges to call dibs on class action cases, or ask the clerk’s office for preferential assignment to antitrust cases, would be intolerable.” To “perform its high function in the best way ‘justice must satisfy the appearance of justice.’” In re Murchison, 349 U.S. 133, 136 (1955). An essential part of the public perception and reality of judicial impartiality arises from the fact that judges are assigned, rather than allowed to select, their cases. The public may reasonably suspect “judges [who] sometimes gain access to a panel” do so “in order to affect the outcome of a case.” J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037, 1066 (2000). Indeed, the public would be justified in assuming that a judge who selects a particular case based on its subject matter will often bring to the case an atypically strong set of preconceived views about the proper disposition of the case. See; Motorola Mobility LLC v. AU Optronics Corporation, 14-1122 (Pet. Denied) https://2dobermans.com/woof/2y.”

As a result, the Plaintiffs would file a Motion to Disqualify[8] Owen (Exhibit G), accepted on July 3, 2021, (and which explains the events described here in detail) and while the Petition for Rehearing En Banc dispute was still ongoing. In short, Owen could not possibly be an impartial judge after her scathing opinion in the Hittner complaint, a complaint which revolved around the now consolidated appeal at the Fifth Circuit.  Furthermore, she disbanded the existing PANLOG panels, assigned herself to the new panel and as such, the ‘appearance of impropriety’ should have resulted in automatic recusal. Alas that did not happen.

Judicial immunity allows judges to judge themselves, and on July 7, 2021, she would swiftly deny the Motion in a one sentence response.[1]

On August 4, 2021 a void judgment and mandate (Exhibit A) was released, cementing the original Opinion of the Court (Exhibit B) which was issued on March 30  (and then held in abeyance while the Plaintiffs Petition was being processed).

The Plaintiffs reserved their rights when the court released its initial opinion, as it was completely error-laden and inaccurate. The Plaintiffs timely filed a Petition for Rehearing En Banc on April 13, 2021.[2]

This Petition would become a mini case of its own due to the Court Clerk’s and Motion Judge’s improper orders. The events, docket entries and timeline are summarized as follows;

On April 13, 2021, the Burkes’ filed a Petition for Rehearing En Banc.

On April 13, 2021, the Court notified the Burkes that the Petition was insufficient and needed to be corrected.

On April 23, 2021, the Burkes then filed a Motion for Other Relief requesting the Court accept the Petition as filed without the Statement of Facts or alternatively requesting an extension of time to amend the Petition and waive the paper copies requirement.

On May 5, 2021, the Court ordered that the Burkes’ request to omit the Statement of Facts in the Petition was denied, the extension of time to submit a sufficient Petition was granted (until May 15, 2021), and the Burkes’ request to waive the paper copy requirement was denied as unnecessary.

On May 12, 2021, the Burkes filed a motion to extend the time for rehearing until May 26, 2021.

On May 14, 2021, the Court took no action on the Burkes filing, on the motion for reconsideration of single judge’s order, claiming the motion is premature, as the extension motion is still pending with the court.

On May 17, 2021 the Court advised no action will be taken at this time on the Proposed Sufficient Rehearing En Banc received from Appellants Ms. Joanna Burke and Mr. John Burke in 19-20267 because it is a duplicative filing, as the rehearing should be emailed, not re-filed. Additionally, it still remains insufficent as it does not have a copy of the court’s opinion.

On May 28, 2021, the Court released an Order denying Motion to extend the time to file a petition for rehearing.

On May 28, 2021, the Burkes filed a Motion for Reconsideration of the May 5, 2021Court Order denying Motion for authorization to omit the Statement of Facts requirement for their Petition for Rehearing En Banc.

On June 8, 2021, the Burkes then filed a Renewed Motion for Reconsideration, after which the Court notified the parties that it would take no action on the Renewed Motion as there was already a Motion for Reconsideration pending.

On June 21, 2021, the Court denied the Burkes Motion for Reconsideration.

On June 29, 2021, Clerk Rebecca L. Leto sent a letter[11] and also made a court docket entry, which has been ‘backdated’ by the Court to April 13, 2021, and includes the following docket text;  “PETITION for rehearing en banc [9549894-2] Number of Copies:0. Since it could not be determined that the filing on 05/17/2021 was not emailed, Clerk’s Office has filed the document as proposed sufficient rehearing. However, document remains insufficient for lack of copy of the Court’s opinion. Sufficient Rehearing due on 07/09/2021 for Appellants Joanna Burke and John Burke. Date of Service: 05/14/2021 [19-20267, 20-20209] .

On July 3, 2021, the Burkes filed a Motion to Disqualify Chief Judge Priscilla Owen (Exhibit G).

On July 7, 2021, Judge Owen denies the Motion to Disqualify.

On July 8, 2021, the Burkes filed a Motion to Clarify the Order issued 29 June, 2021, ‘backdated’ to 13 April, 2021 with Proposed Sufficient Brief ‘uploaded’. Only the Order of 30 march, 2021 was required to be emailed by the Burkes to the Fifth Circuit Clerk in order to make the Proposed Brief Sufficient (void of any deficiencies).

On July 9, 2021 Clerk Christina Gardner called John Burke re Motion to Clarify (8 July) and later that day entered an “Opposed Motion for Reconsideration” herself, (Exhibit D) which is incontestably void.[12] Note; Gardner’s unlawful entry on 9 July is ‘backdated’ to 8 July, the date of the Burkes Motion to Clarify. Filing this ‘textual (docket entry only) Motion for the Burkes is not only bizarre, it’s corruptly unlawful.[13]

On July 8, 2021 the Burkes file a Motion for Extension of Time to file Rehearing on the basis of the Motion to Clarify.

On July 8, 2021, the Burkes file a Motion for Sanctions against Mark and Shelley Hopkins; “The Burkes seek ‘non-monetary’ sanctions as pro se litigants. They civilly ask this court to refer both Mr. and Mrs. Hopkins to the State Bar of Texas for their continued and repetitive [mis]conduct and suspend these attorneys from appearing before this court for a period of one year. See; S. v. Garza-Espinoza, C.R. No. M-08-4986M, at *1 (S.D. Tex. Aug. 20, 2008).”

On July 18, 2021, the Burkes file a Motion to Correct Opinion, wherein the Fifth Circuit had previously denied the Burkes Waiver of the Statement of Facts – in light of Clerk Leto’s Proposed Sufficient Brief Letter (Exhibit C) (accepting the Petition without the Statement of Facts).

On July 19, 2021, Hopkins objects to Burkes Motion for Sanctions.

On July 19, 2021, Hopkins objects to Fifth Circuit Clerk Christina Gardner’s “Opposed Motion for Reconsideration” (Exhibit D), an unlawful and void document with no legal validity.

On July 28, 2021 the Burkes file a Motion to Strike Hopkins Response to Burkes Motion for Sanctions and Other Relief.

On July 28, 2021 the Burkes file a Motion to Strike Hopkins response to “Opposed Motion for Reconsideration” (Exhibit D) (Christina Gardner’s entry) as Void ab Initio.

On August 4, 2021 the court would issue its bizarre, yet unequivocally unlawful and void Judgment with associated Mandate (Exhibit A), by relying upon an illegal “Opposed Motion for Reconsideration”

and without allowing the Plaintiffs to file their Petition for Rehearing En Banc by improperly striking the same.

Violation of Due Process

This is a clear and unambiguous violation of due process, which both the Fifth and the Fourteenth Amendments of the United States Constitution demands.

The Burkes hold a Legally Protectable Interest in their Property  Liberty and Freedom which has been unlawfully infringed upon

The above applies to their personal residence; “In Texas, homestead rights are sacrosanct.” See; Matter of McDaniel, 70 F.3d 841 (5th Cir. 1995).

The Fraud Clearly Includes Corrupt Abuse of the Judicial Process

Judicially, the backdating and manipulation of motions and orders cannot prevail, it is an abuse and unconstitutional; See Goode v. Winkler, 252 F.3d 242, 245-46 (2d Cir. 2001) “Finally, it is worth noting that Fed.R.Civ.P. 79(a) mandates that “[a]ll papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action.” (emphasis added). “Chronological” is defined as “arranged in or according to the order of time.” See Webster’s Collegiate Dictionary 204 (10th ed. 1995). In this case, and apparently in all other similar cases, the district court “arranged” the notice of appeal and extension motion not in the “order of time,” but rather, “back-dated” the extension motion. A district court’s violation of binding Rules of Civil Procedure can also constitute an abuse of discretion. See, e.g., Long Island Lighting Co. v. Barbash, 779 F.2d 793, 795 (2d Cir. 1985) (finding that district court abused its discretion when it “unduly limited” discovery allowed by the Federal Rules of Civil Procedure).”

As a result, this lawsuit is critical, in order that the Court may set aside the void judgment and mandate (Exhibit A) as the law conclusively demands.

THE FOURTH AMENDMENT

Judge James Ho recently wrote for the panel in Glen v. Am. Airlines, Inc., 20-10903, at *1 (5th Cir. Aug. 2, 2021) (“”The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.'” Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (quoting Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851)). ”)  The Plaintiffs firmly believe the Fifth Circuit are the antithesis of this statement.

Seizure of Papers

 The Fifth Circuit violated the Fourth Amendment when it seized the Plaintiffs personal legal papers, specifically the Motion to Clarify and without authority in law, determined the said Motion to be moot. Soldal v. Cook County, 506 U.S. 56, 62 (1992).

Seizure of Persons

Immediately thereafter, the Fifth Circuit Clerk Christina A. Gardner continued to violate the Fourth Amendment when she submitted a text only docket entry, labeling it as an “Opposed Motion for Reconsideration” (Exhibit D), in effect seizing the Plaintiffs personas unlawfully to submit a Motion which the Plaintiffs never authorized nor could they authorize, see Fed. R. Civ. P. 7, and to which they immediately objected. Soldal v. Cook County, 506 U.S. 56, 62 (1992).

Seizure of Property

Relying upon this unlawful, text only docket entry labeled “Opposed Motion for Reconsideration” and over the objections submitted by formal motion, see Fed. R. Civ. P. 7,[14]  the Fifth Circuit issued a judgment and mandate (Exhibit A), which, if left unchallenged, allows for the unlawful search and seizure of the Plaintiffs main residence at 46 Kingwood Greens Dr., Kingwood, Texas, 77339 and any personal property, papers and effects therein by local sheriff[s] and related agencies and private entities, trustees, and/or their agents. Soldal v. Cook County, 506 U.S. 56, 62 (1992) (“The [Fourth] Amendment protects the people from unreasonable searches and seizures of “their persons, houses, papers, and effects.” ”).

THE FOURTEENTH & FIFTH AMENDMENT

The Plaintiffs have been denied a ‘fair process’ and the ‘heightened protection’ that due process of law should afford citizens like the Burkes as a direct result of the August 4, 2021, void judgment by the Fifth Circuit (Exhibit A).

See Littlefield v. Forney Independent School Dist, 268 F.3d 275, 287-88 (5th Cir. 2001); The Fourteenth Amendment prohibits States from depriving persons “of life, liberty, or property, without due process of law.” See U.S. CONST. amend. XIV, § 1. As the Supreme Court recently reaffirmed: “We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, `guarantees more than fair process .’ The Clause also includes a substantive component that `provides heightened protection against government interference with certain fundamental rights and liberty interests.'” Troxel v. Granville,530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (quoting Washington v. Glucksberg,521 U.S. 702, 719, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)).

COUNT I:

THE FIFTH CIRCUIT JUDGMENT AND MANDATE IS VOID

The Fifth Circuit released their original opinion and mandate on March 30, 2021 (Exhibit B). The Burkes timely filed for a Motion for Rehearing En Banc which recalled the mandate. On August 4, 2021, the court released a final order, judgment(s) and mandate (Exhibit A), which are clearly void.

As detailed, the appellate court relied upon an “Opposed Motion for Reconsideration” as documented (text only) on the court docket by Fifth Circuit Clerk Christina A. Gardner (Exhibit D). That is quite simply, prohibited, unauthorized and unlawful.[1] This was raised with the court by the Plaintiffs in motion filings which are not itemized in the court’s Aug. 4, 2021 order because they know it’s void.

See Ex Parte Seidel, 39 S.W.3d 221, 225 (Tex.Crim.App. 2001); ” Tipton v. Thaler, 354 F. App’x 138, 142 (5th Cir. 2009).“ “A void judgment is a nullity from the beginning  and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights.”

The Court Has Not Correctly Disposed of the Pending Motion(s)

Secondly, in the Courts Order, dated 4 August, 2021, they state;

The Plaintiffs never filed a motion to stay for the reasons denied. The actual reasons for the stay, verbatim; “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.” Thus, the court has not disposed of the ‘expressly’ stated motion(s).

COUNT II:

THE DISTRICT  COURT JUDGMENT IN HOPKINS IS VOID

In addition to Count I, Plaintiffs had already reserved their rights after the Fifth Circuits’ discriminatory March 30 Order (Exhibit B), wherein the court knowingly did not mention key arguments presented by the Burkes which  were both timely and meritorious.

On appeal, this included the [still] unanswered facts (i) Senior Judge Hittner did not perform a ‘de novo’ review of the magistrate judge’s M&R and; (ii) cancelled a scheduled pre-trial hearing and entered final judgment without the opportunity to be heard, during the pandemic, an ultra vires act. Both these facts make the lower court judgment in the Hopkins case void ab initio. (Note; The Plaintiffs merely wish to restate the issues on appeal, this is not a new claim.) See Moore v. Dempsey, 261 U.S. 86; Frank v. Mangum, 237 US 309. – Tumey v. Ohio, 273 US 510, 511 (1927); “When a state deprives  a person of liberty or  property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law.”

COUNT III:

 THE DISTRICT COURT JUDGMENT IN OCWEN IS VOID

In addition to Count I,  Plaintiffs in Burke v. Ocwen, Civil Action H-18-4544 (S.D. Tex.) had already reserved their rights after the Fifth Circuits’ discriminatory March 30 Order (Exhibit B), wherein the court knowingly did not mention key arguments presented by the Burkes which  were both timely and meritorious. The result is the judgment is void. (Note; The Plaintiffs merely wish to restate the issues on appeal, this is not a new claim.)

COUNT IV:

JUDICIAL CORRUPTION REQUIRES THIS NEW CASE

“Evidence of judicial corruption requires reversal regardless of the other facts of the particular case. The denial of the petitioner’s right to an impartial judge or judges is a constitutional error which affects the integrity of the judicial process. A new trial is the only remedy. See Bobo, 814 S.W.2d at 358.” State v. Benson, 973 S.W.2d 202, 207 (Tenn. 1998).

In the instant cases both at the District Court[16] and on appeal, the Plaintiffs have been subjected to judicial corruption and fraud by officers of the court, an unconscionable scheme[17] resulting in mental anguish, pain, suffering and financial hardship to the elder and infirm Burkes.  It also puts their residential homestead in complete jeopardy and requires the Plaintiffs to file this new lawsuit.

REQUEST FOR EQUITABLE RELIEF & PRAYER

Plaintiffs, John Burke and Joanna Burke, prays for the following relief;

(1) the Court of Appeals for the Fifth Circuit Judgment as issued on 4 August, 2021, in the now consolidated case; Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021) is set aside, is deemed null and void and not binding on the parties; and

(2) the Fifth Circuit Judgment as transmitted to the Clerk of the District Court at the Southern District of Texas, Houston Division, in the case styled; Burke v. Ocwen, Civil Action H-18-4544 (S.D. Tex.) is vacated and set aside, deemed null and void and not binding on the parties, and;

(3) the Fifth Circuit Judgment as transmitted to the Clerk of the District Court at the Southern District of Texas, Houston Division, in the case styled; Burke v. Hopkins, Civil Action H-18-4543 (S.D. Tex.) is vacated and set aside, deemed null and void and not binding on the parties, and;

(4) This request for equitable relief is made subject to and without waiver of the Plaintiffs rights, and;

(5) The Plaintiffs are allowed, as necessary, to Amend their Complaint freely and without discrimination, and;

(6) The Plaintiffs are allowed to file by CM/ECF during these proceedings as pro se litigants who are competently trained in  court e-filing and this request should also be granted due to the pandemic, and;

(7) The Rule 16 Initial Pretrial Conference is for the purposes of discussing the case, including any pending motions and the Joint Discovery/Case Management Plan, rather than a ‘proof of life’ attendance and calendar event, as required by the rules and in law, and;

(8) The court will invoke the ‘blind draw’ system and not hand-select the assigned Judge or return the complaint to Judge Hittner, and;

(9) Plaintiffs further request all such other and further relief, at law or in equity, to which they are justly entitled.

RESPECTFULLY submitted this 9^th day of August, 2021.

CERTIFICATE OF SERVICE

We, Joanna Burke and John Burke hereby certify that on August 9, 2021, a true and correct copy of the foregoing Complaint was served to the Southern District Court, Houston division, via email to Houston_Operations@txs.uscourts.gov in compliance with the Southern District Court website and which is the listed email for Houston cases during a pandemic. And we also served copies to the following parties via  the emails listed below, who are legal counsel and/or parties for Ocwen Loan Servicing, LLC, Hopkins Law, PLLC, Mark D. Hopkins and Shelley L. Hopkins.

Mr. Mark Hopkins; mark@hopkinslawtexas.com
Mrs. Shelley Hopkins, shelley@hopkinslawtexas.com

Attorneys/Defendants
Hopkins Law PLLC
3 Lakeway Centre Ct.,
Suite 110, Austin,
Texas 78734