This Article is a follow-up to the initial appointment of Judge James Ho to the Fifth Circuit, where we found some conflicts of interest, namely his spouse.

You see, in the legal industry, it is generally known that lawyers marry lawyers so secrets can be kept and immunity relied upon (yes, I share my bed with you but I don’t discuss my day at work, ever). In a time of increasing questions over the ethics of the judiciary and lawyers, this article probes a little more into the cases that Judge Ho has been involved with which his wife defends on a daily basis – for the corporate banking industry. This begs the question- are these cases not so related that he should volunteer to recuse?

You can read the initial LIT Article HERE.

C) Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned

Canon 3C.  Recusal considerations applicable to a judge’s spouse should also be considered with respect to a person other than a spouse with whom the judge maintains both a household and an intimate relationship.

In relation to Judge Ho’s wife, Allyson N. Ho, she works for a Dallas law firm and is very active in courts nationwide defending financial institutions like Deutsche Bank National Trust Co., and MERSCORP, the much maligned digital title recording service that’s self regulated and totally corrupted. So when we noted that her husband was on the 3-Panel for a Deutsche Bank National Trust Co., case, our heads turned.

Canon 3C(1)(d)(ii). The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. However, if “the judge’s impartiality might reasonably be questioned” under Canon 3C(1), or the relative is known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under Canon 3C(1)(d)(iii), the judge’s disqualification is required.

The Financial Banking Mortgage-MBS Related Cases Judge Jim Ho has sat on since his Appointment

REAVLEY, THOMAS M.

GRAVES, JAMES E. (JR)

HO, JAMES C.

Dennis Kirchner v. Deutsche Bank Natl Trust (5th Cir. 2018)

… Western District of Texas Before REAVLEY, GRAVES, and HO, Circuit Judges. PER CURIAM: In 2007, Plaintiff-Appellant…

A featured case, Judge Ho sat on Deutsche Bank National Trust Co., where the panel affirmed for the German-Owned Bank, who had failed the stress test (2018) and agreed to a $7.4 billion dollar settlement with the US Government (which they soon after flipped off). In our opinion Jim Ho was well out of line sitting on this case.  As we remind you, his wife defends Deutsche Bank and MERSCORP.

JOLLY, E. GRADY

COSTA, GREGG J.

HO, JAMES C.

John Priester, Jr. v. JP Morgan Chase Bank (5th Cir. 2019)

… Eastern District of Texas Before JOLLY, COSTA, and HO, Circuit Judges. GREGG COSTA, Circuit Judge:

The Fifth Circuit got it all wrong on Priester, when they ruled based on a bad erie guess, which they invoke regularly. You can read our LIT Article about the Priester decision and it’s ramifications HERE.

SMITH, JERRY E.

BARKSDALE, RHESA H.

HO, JAMES C.

Jatera Corporation v. US Bank National Asso (5th Cir. 2019)

… District of Texas Before SMITH, BARKSDALE, and HO, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit…

The Bank wins in this “accelerate” whenever ruling.

At issue in this diversity action is whether Texas law provides a detrimental-reliance exception to a lender’s right to unilaterally withdraw a notice of acceleration; and, if so, whether Jatera Corporation and Esther Randle Moore detrimentally relied on the notice of acceleration by U.S. Bank National Association (Bank) and Select Portfolio Servicing, Inc. (SPS). Appellants challenge the district court’s, on cross-motions for summary judgment, denying Appellants’ motion and granting Appellees’.  AFFIRMED.

Note: In November 2003, Fairbanks Capital Corp. and Fairbanks Capital Holding Corp. agreed to pay $40 million to settle with the FTC and the U.S. Department of Housing and Urban Development (HUD), which charged them with engaging in a number of unfair, deceptive, and illegal practices in the servicing of subprime mortgage loans. The Commission distributed the $40 million as redress to affected consumers. The settlement also imposed a number of specific limitations on Fairbanks’s ability to charge fees and engage in certain practices when servicing mortgage loans. In early 2004, Fairbanks changed its name to Select Portfolio Servicing, Inc. and SPS Holding Corp.

Patrick Collins v. Steven Mnuchin, Secretary (5th Cir. 2018)

… SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. …

Ho decided he didn’t need to recuse himself for the Steven Mnuchin (“Foreclosure King” in his role as US Secretary of the Treasury) en banc vote  and where Patrick Collins are very peeved and disgruntled mortgage back security (MBS) Investors. That’s quite a decision to throw yourself into such a huge Wall Street banking case. And we say, a wrong decision. The next opinion is still pending, as the en banc court approved the rehearing, but for those in the dark, here’s a quick recap of the case and where it stands today:

What happened before Ho’s En Banc Vote? The Fifth Held that the FHFA is Unconstitutional

A divided panel of the U.S. Court of Appeals for the Fifth Circuit concludes that the Federal Housing Finance Agency violates the separation of powers.

The U.S. Court of Appeals for the Fifth Circuit issued its opinion in Collins v. Mnuchin, in which a divided panel, in a per curiam opinion, concluded that the Federal Housing Finance Agency (FHFA) is unconstitutional.

Read more in the LIT Article HERE

And in early July, 2019, guess what happened; the FHFA Reverses Position (Again) on its Constitutionality

In an interesting twist, the FHFA has informed the Fifth Circuit in Collins v. Mnuchin, that despite having previously advised the en banc court that it would not defend the FHFA’s constitutionality, it has reconsidered its position under the leadership of its new Director and will take the position going forward that the agency’s structure is constitutional. The en banc court held oral argument in the case in January 2019.

The plaintiffs, shareholders of two of the housing government services enterprises (GSEs), are seeking to invalidate an amendment to a preferred stock agreement between the Treasury Department and the FHFA as conservator for the GSEs. A Fifth Circuit panel found that the FHFA is unconstitutionally structured because it is excessively insulated from Executive Branch oversight but determined that the appropriate remedy for the constitutional violation was to sever the provision of the Housing and Economic Recovery Act of 2008 (HERA) that only allows the President to remove the FHFA Director “for cause” while “leav[ing] intact the remainder of HERA and the FHFA’s past actions.” The plaintiffs sought a rehearing en banc to overturn the panel’s rulings that the FHFA acted within its statutory authority in entering into the amendment and that the FHFA’s unconstitutional structure did not impact the amendment’s validity. The FHFA also sought a rehearing en banc, principally seeking to overturn the panel’s determination that the plaintiffs had Article III standing to bring a constitutional challenge but also arguing that the panel’s constitutionality ruling was incorrect.

Following the appointment of Joseph Otting as Acting Director, however, the FHFA announced that it would not defend its constitutionality to the en banc court. In a supplemental brief filed before the oral argument, the FHFA stated that Mr. Otting had “reconsidered the issues presented in this case.” While continuing to take the position that the plaintiffs’ lack of standing made it unnecessary for the en banc court to reach the constitutionality issue, the FHFA indicated that to the extent the court found it necessary to do so, it would not defend the constitutionality of the HERA’s for cause removal provision and agreed with the Treasury Department’s position that the provision was unconstitutional because it infringes on the President’s exercise of executive authority.

In its letter informing the Fifth Circuit of its latest change in position, the FHFA indicated that Mark Calabria had become FHFA Director in April 2019 and “respectfully requests that, to the extent the Court finds it necessary to reach the constitutional issue, the Court uphold FHFA’s structure and otherwise affirm the judgment below as to the Third Amendment.”

In March 2019, a Fifth Circuit panel heard oral argument in All American Check Cashing’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality. At the oral argument, both parties were asked whether the panel should hold its decision until the en banc court issued its decision in Collins v. Mnuchin.

The CFPB, which defended its constitutionality in All American Check Cashing, may be unable to do so in the U.S. Supreme Court should the court grant the petition for a writ of certiorari filed by Seila Law seeking review of the Ninth Circuit’s ruling that the CFPB’s structure is constitutional. While the DOJ opposed the certiorari petition filed last year by State National Bank of Big Spring (SNB) that also asked the Supreme Court to decide whether the CFPB’s structure is constitutional, it did so despite agreeing with SNB that the CFPB’s structure is unconstitutional. Its opposition was based on its view that the case was “a poor vehicle to consider the [constitutionality] question.”

Pursuant to Dodd-Frank Section 1054(e), the CFPB would need the DOJ’s consent to represent itself in the Supreme Court in Seila Law. The DOJ’s position regarding SNB’s certiorari petition makes it seem unlikely that the DOJ will oppose Seila Law’s petition. The more likely scenario would seem to be that the DOJ will agree with Seila Law that the Supreme Court should grant the petition and rule that the CFPB’s structure is unconstitutional. As a result, should the Supreme Court grant Seila Law’s petition, it may be necessary for the Supreme Court to appoint an amicus curiae to defend the Ninth Circuit’s judgment, an action that is part of the Supreme Court’s usual practice when no party is defending the circuit court’s judgment.

Nomination of James Ho to the  U.S. Court of Appeals for the Fifth Circuit Questions for the Record

Please describe how the Second Amendment is “the ultimate guarantor of all the other liberties enjoyed by Americans.”

The amicus brief filed by 38 states in McDonald relies upon the decision of the U.S. Supreme Court in Heller, among other authorities, for the proposition that an “indispensable” “safeguard[] of liberty . . . under the Constitution” is “a man’s ‘right to bear arms for the defense of himself and family and his homestead.’” District of Columbia v. Heller, 554 U.S. 570, 616 (2008).

If you learn of any such donations, will you commit to call for any such undisclosed donors to make their donations public so that if you are confirmed you can have full information when you make decisions about recusal in cases that these donors may have an interest in?

Ho: As a pending federal judicial nominee, I would not presume to comment on the political aspects of the confirmation process. If I am so fortunate as to be confirmed to be a federal judge, I would fully comply with all governing recusal and disqualification requirements.

In a 2016 op-ed you wrote in a San Antonio newspaper, you praised Jeff Mateer’s appointment as the first assistant Attorney General of Texas, writing that Mateer “firmly believes in the profound and abiding importance of protecting and enforcing the legal rights and civil liberties of every Texan.” Since that time, Mr. Mateer has been nominated to be a judge on the Eastern District of Texas, and it has come to light that he once referred to transgender children as evidence of “Satan’s plan.”

Do you stand by your support of Mr. Mateer?

I was not aware of these comments at the time I wrote the 2016 op-ed. As a pending judicial nominee, I would defer to the President and members of the United States Senate on who should be nominated and confirmed to the federal bench. It is my understanding that Mr. Mateer is widely regarded as a strong and effective First Assistant Attorney General.

Do you agree with Mr. Mateer’s views on transgender children?

I believe that every child is a child of God.

Sizzlin’ Bacon Tweets Is Not Where Judge Don Willett’s Heart Is, He Claimed. How’s He Doin’ Nearly 3 Years Into His Life Tenure?https://t.co/FBg4jZ38PU @tedcruz @SenatorLeahy @thenation @gov_justice @SenSasse @senatemajldr @SenFeinstein @SheldonforRI @SCOTUSblog @ReutersLegal pic.twitter.com/v8cbMZeMz2

— LawsInTexas (@lawsintexasusa) August 8, 2020