Eight Reasons Why You Cannot Trust a Federal Judge to Follow Their Oath nor The Rule of Law

Burke v. Ocwen Loan Servicing, LLC

(4:21-cv-02591)

District Court, S.D. Texas, Judge Alfred Bennett

SEP 24, 2022 | REPUBLISHED BY LIT: SEP 25, 2022

Plaintiff, Joanna Burke provides below a timely legal response to the void court Order

[Doc.50, August 29, 2022].

For the record, this is not to be construed as “rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.

Simon v. United States,891 F.2d 1154, 1159 (5th Cir. 1990).”

Plaintiffs’ motion is an authoritatively accurate demand for legal correction of the ten-page Order and Judgment dismissing Plaintiffs case, due to the fact it’s completely erroneous in law and fact, intentionally avoids Plaintiffs arguments, fails to comply with even the basic tenets of Due Process and much more as detailed in this motion.

In order to allow the court to correctly vacate this Order, Plaintiff submits this formal “Rule 59(e) [Motion, which] “serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.”

Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004).

The following Rule 59(e) Motion [1] will confirm beyond a reasonable doubt, manifest errors of law or fact litter the void Order by Judge Bennett.

As admitted in the court’s Order, the sole purpose of the lawsuit is ‘to vacate void judgment(s) on the basis of fraud.’

Doc.50, p.4, p.8, and p.9.

Temporarily, setting aside the multiple legal errors detailed herein, Plaintiff summarizes three main reasons why this Order should be vacated;

(i) There are literally hundreds of precedential opinions in courts nationwide, stating that a void judgment can be heard in ‘any court’ and carries no legal effect at any time after it’s issued, no matter Plaintiffs’ procedural-attack, and based on the real facts in this lawsuit not considered in Judge Bennett’s Order.

In other words, by filing a new lawsuit in any court with general jurisdiction with the sole purpose of vacating the judgment(s) as void is sufficient and that is exactly what Plaintiffs’ have pursued by filing this lawsuit, and;

(ii) The “emphatic” warning to Plaintiffs’ by this court pertaining to the “Vexatious Litigants” motion focuses on everything except Plaintiffs’ lawsuits, blanks the majority of Plaintiff’s legal filings, contradicts itself, is erroneous in law and fact, failed to provide a detailed record that justifies a pre-filing order or warning, contravenes Due Process, is arbitrary and capricious, vague and overreaching.

Federal courts are abusing the All Writs Act to issue prefiling injunctions or warnings with threats of sanctions.

The standards for such Orders are not applied uniformly by Judges in federal courts in Texas, and nationwide.

In this case, the warning along with the statements maligning Plaintiffs’ as “vexatious and harassing”, should be vacated, as the record does not support such a warning nor statement, and;

(iii) Judge Bennett is too biased to be Constitutionally tolerable in this lawsuit.

Legal Err #1: Premature Motions for Judgment On the Pleadings Have Been Spuriously Relied Upon by this Court

First, the two premature [2] Motions for judgment on the pleadings (“JOTP”) should not have been accepted by this court as a legally valid reason to ‘sua sponte’ dismiss the action because the defendants admit to having no knowledge of the facts raised between Clerk Christina Gardner, the Fifth Circuit and Plaintiffs’, nor could they.

Defendants Admissions Extinguishes JOTP Motions

This court blanked Plaintiffs’ response, Doc.32, starting at p.2.

Its Plaintiff[s] v. the Fifth Circuit, Not the Defendants

In the court’s opening line on p.8, it states the Defendants have filed the 12(c) motions [3] arguing Plaintiffs don’t have a viable claim against them.

That is true.

Lawsuit to Stop Defendants Unjust Enrichment

As explained in Doc.32, p.24, the Fifth Circuit judgment is void and in order to stop the judgment taking effect, a new lawsuit was filed to nullify the void [4] judgment[s] and mandate[s] issued by the Fifth Circuit on Aug. 4, 2021. [5] If no action was taken, the Defendants would benefit from the void judgment,

Docs.32, p.30(g), p.33 (Fourth Amendment).

As admitted by this court, this is a lawsuit directed at the judicial machinery [6] itself , is a question of law for the court, and does not involve the Defendants.

Doc.32, p.10; Doc.12, p.69, Doc.50, p.4, p.8.

The Defendants lacked any knowledge [7] about the ClerkGate Scandal [8] and frivolous for Defendants to file these motions.

Legal Err #2: Judge Bennett’s Sua Sponte Order Violates 10-Day Notice Period and Conflicts with Prior Granted Medical Continuance on Constitutional Grounds

Second, the “sua sponte” Order was issued without the ten-day notice period required.

Judwin Props., Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 436-37 (5th Cir. 1992); Carroll v. Fort James Corp., 470 F.3d 1171, 1176-77 (5th Cir. 2006).

Exhibit A: Judge McBryde, N.D. Texas and Exhibit B: Chief Judge Rosenthal, S.D. Texas, 10-Day Notice[s]

The irrefutable evidence confirms Judge Bennett’s failure to provide the 10-day notice is fatal to the Order, which mandates it must be vacated.

Elder Abuse: A Constitutional Continuance for Medical Emergency Would be Granted, but the Second Continuance Would be Thwarted

First Continuance (4 Months): On March 24, 2022, Plaintiffs’ filed a motion (Doc.45) wherein Plaintiff laid out the facts with medical exhibits, granted by Judge Bennett on April 8, due to Joanna Burkes emergency medical needs.

Second Continuance (10 Months): A second motion was in the works but put on hold by Plaintiffs’ when the court sua sponte rescheduled to September 9, Doc. 52.

It’s the timeline of these court Orders which is “especially troubling” [9] to Plaintiff. It was a ruse, as the court issued the Order dismissing Plaintiffs’ case without the 10-day prior notice.

Due process was denied.

Plaintiffs’ never received this court Order.

This was a premeditated event, [10] Doc. 52 , as Joanna Burke’s medical treatment required a further 10-month continuance, as advised to

(i) the Defendants in this case

(ii) as well as the Defendants counsel in the ongoing Intervention in Florida,

and

(iii) the 11th Circuit in the continued appeal (21-12160).

Plaintiff asserts someone with knowledge of the proposed continuance “leaked” [11] that information to Judge Bennett’s chambers, as

(i) Plaintiff had advised Hopkins on 8/5/2022 of the planned continuance, and less than 48 hours later, on a Sunday, this court reset the Initial Conference to Sept 9,

and;

(ii) the planned motion was noticed to counsel for the defendants on Aug. 5, and submitted to the 11th Circuit docket on August 15.

The continuance expired on August 18.

The clerks would sit on this motion for an extraordinary amount of time.

The 11th Circuit released their Order the day after Judge Bennett’s Order, on 8/30/2022

(Exhibit E).

It was too perfectly timed, Doc 32, p. 46.

Legal Err #3: The Analysis for Attacking the Judgment is Legally Flawed, Blanks the Majority of Plaintiffs’ Complaint, Response and Legal Citations, Invalidating the Courts Restricted and Biased Conclusions

Third, the court relies upon its “3 procedures for attacking a judgment” to dismiss Plaintiffs’ complaint without reaching the gravamen [12] of the complaint.

By relying upon erroneous law and conclusions as outlined on page 8 of the Order, the court provided a clouded analysis of the “3 procedures for attacking a judgment”;

(i) Direct attack; Browning, 887 F.2d at 562;

(ii) Collateral attack…is incidental to the proceeding in which it is made.’;

(iii) An independent action may be brought to enjoin the enforcement of a judgment on equitable grounds in any court with subject matter jurisdiction.

First, the court rejects Plaintiffs’ ‘direct attack claim [13] ‘because this is not the court that rendered judgment’.

It may not be the court that affirmed and rendered judgment, but it’s the lower court where the judgment(s) were originally rendered. And this is the court where the Fifth Circuit sent them for execution, as shown on the docket(s). As stated, these void judgments/mandates were issued when jurisdiction was absent at the Fifth Circuit, but would have been relied upon by Defendants, unless contested by this lawsuit.

Second, the court also rejects the collateral attack, because plaintiffs are not making a collateral attack on judgment that is ‘incidental to this proceeding’.

Not Applicable, see below.

Third, the court focuses on Plaintiffs minimal use of the words ‘equitable action’ and ‘independent, equity lawsuit’ to erroneously assert the only option to Plaintiffs is the equitable action.

The court claims that argument collapses because Plaintiffs already litigated their complaint directly with the Fifth Circuit and did not move for reconsideration or file a petition for certiorari [14] , hence ‘these issues cannot be relitigated in an independent action before this court’.

These conclusions are manifestly inaccurate.

Plaintiffs’ terminology for an ‘equitable action/independent, equity lawsuit’ is because Plaintiffs chose to file their lawsuit in the court where the void judgment(s) and mandate(s) from the Fifth Circuit were to be executed.

Thus, it was ‘fair[ness]’ (equitable/[equity]) to file it in the lower court, despite the law prescribing that Plaintiffs’ could file ‘in any court’ as stated in Doc.32, p. 22, as the court admitted in (iii) above.

But even assuming it was an ‘independent action’, Plaintiffs’ case mirrors;

“Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of “injustices which, in certain instances, are deemed sufficiently gross to demand a departure” from rigid adherence to the doctrine of res judicata.

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944). [15]

Such a case was Marshall v. Holmes, 141 U.S. 589 (1891),

in which plaintiff alleged that judgment had been taken against her in the underlying action as a result of a forged document.

United States v. Beggerly, 524 U.S. 38, 46-47 (1998).

Here, the underlying action of Clerk Gardner, along with the absence of jurisdiction when the 3-Panel at the Fifth Circuit relied upon her fraudulent (“forged”) motion, mirrors the gross injustice when applied to Plaintiffs’ case.

Turner v. Pleasant, No. 11-30129 (5th Cir. Nov. 23, 2011).

What is “especially troubling” is the blatant whiteout of Plaintiffs’ key arguments, which nullify the courts’ untenable position.

Appellate Jurisdiction Lost

This includes the question of jurisdiction lost by the Fifth Circuit after the fraudulent filing by Clerk Christina Gardner, who seized Plaintiffs’ document and then impersonated Plaintiffs’ to file a fraudulent duplicative motion [16] for reconsideration which was unlawfully backdated [17].

The 3-panel, unethically including Chief Judge Owen, Judge Dennis and Davis (Doc.12, p.38-44, Exhibit G) subsequently relied upon this void document to enter final judgment(s) and issue the mandate(s) to the lower court by denying the fraudulent Motion, Doc.12, Exhibit A.

Appellate jurisdiction, or lack thereof is not mentioned in the Order, in defiance of the law.

Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987);

It is clear and well-established law that a void order can be challenged in any court” [18]

Old Wayne Mut. L. Assoc. v. Mcdonough, 204 U. S. 8, 27 S. Ct. 236 (1907), and;

“Lack of standing means lack of jurisdiction. And lack of jurisdiction means lack of judicial power.”

Yarls v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018).

Incidental Proceedings Does Not Apply

The incidental argument is legally unsound. A void judgment can be challenged ‘in any court’ and especially a judgment which has been procured by ‘[collateral] fraud’ and by a court which did not have jurisdiction over the subject matter nor Plaintiffs’.

Fehlhaber v. Fehlhaber, 669 F.2d 990, 995 (5th Cir. 1982), Doc.32, footnote 26, p.29.

Due Process of Law Violated

Furthermore, the judgment rendered was void for the want of the due process of law required by the Fourteenth Amendment.

Scott v. McNeal, 154 U. S. 34, 154 U. S. 46.

Both The Fifth Circuit and District Court Judgments are Void

The Fifth Circuit was absent jurisdiction [19] and this court did not provide the ten-day notice required to sua sponte [20] dismiss this lawsuit, rendering both court judgments void ab initio.

A Premeditated Act: Judge Bennett’s Whiteout Order

Assuming arguendo the Defendants could survive filing the two premature [21] JOTP motions, despite having no knowledge [22] of the key facts of Plaintiffs case, the courts analysis and application of the 3-procedures for attacking a judgment is flawed, based on the compelling facts presented by Plaintiffs’ but malevolently snubbed by this court.

Ignoring Plaintiffs Complaint and Filings Invalidates the Order

By applying erroneous conclusions in law, this allowed the court to discount [23]

(i) Plaintiffs’ detailed arguments pertaining to the ‘Clerkgate Scandal’

(ii) the critical Affidavits [24] of John and Joanna Burke, Doc.12, Exhibit I-J

(iii) the Constitutional arguments

(iv) Exhibits (Doc.12, List of Exhibits);

Complaint [Doc.12] and Responses, Docs.23, 32.

Plaintiffs’ assert, it’s a calculated Order to dismiss the lawsuit unlawfully, as the heart of the complaint is against Judge Bennett’s colleagues [25] at the appellate court as well as the federal judiciary.

Importantly, it’s a case where immunity is not available to the Judges or Clerks, Doc.32, p.16.

Legal Err #4: Based on the Court’s Own [erroneous] Conclusions and Order, it Lacks Jurisdiction. As such, the Court Should Have Dismissed the Case Without Prejudice

Fourth, the Order does not discuss the courts’ own jurisdiction.

Joyce v. U.S. 474 2D 215.

Plaintiff avers this was to allow the court to improperly dismiss the lawsuit asserting [relitigation] res judicata. [26]

Eubanks v. F.D.I.C, 977 F.2d 166, 173 (5th Cir. 1992).

Here, Plaintiff is not relitigating with those in privity with them, rather Plaintiff is attacking the void order and the “judicial machinery itself”, as admitted by this court and Defendants.

That said, this lawsuit has been erroneously dismissed with prejudice, and without leave to amend [27] . However, the Order contradicts itself; Doc.50, p.9.

Judge Bennett’s Misguided Reliance On Citing Sinesterra Only Affirms Plaintiffs Argument

Reviewing Sinesterra cited by Judge Bennett, the Order fails to consider the conclusion by the Fifth Circuit;

“We affirm the district court’s dismissal of Sinesterra’s complaint on the basis that the district court lacked jurisdiction to consider Sinesterra’s unauthorized independent action in equity.”

Sinesterra v. Roy, 347 F. App’x 9, 10 (5th Cir. 2009).

The only judgment this court could correctly enter: dismiss the lawsuit without prejudice, due to lack of jurisdiction.

The District Court Still Has Jurisdiction Over this Lawsuit, Despite Judge Bennett’s Acute Errors in Reading the Law

The fourth legal err discusses the polluted reasoning behind Judge Bennett’s Order, but the second legal err controls, namely the Appellate court lost jurisdiction because of Clerk Christina Gardner’s fraudulent and unlawful acts, aided by her co-conspirators [28] and endorsed by the 3-Panel.

This court does have jurisdiction [29].

EXHIBIT F

Legal Err #5: The Background and Conclusions Pertaining to Plaintiffs’ Motion to Correct is Another Whiteout

Fifth, Plaintiffs’ filed a 24-page Motion to Correct. However, reading the courts’ four-point Background, Doc.50, p.4, it’s not an accurate representation of Plaintiffs’ motion.

It’s another of Plaintiffs’ filings which has been stripped down to a selective and incomplete abstract by this court.

The Motion to Correct is the vehicle which this court most relied upon (Doc.50, p.9) to dismiss the Burkes’ lawsuit with prejudice, by falsely relying upon res judicata as a bar to relitigating in this court.

This allowed Judge Bennett to avoid all arguments pertaining to what actually transpired during Plaintiff’s two appeals.

Notwithstanding, the Order is flawed as the Fifth Circuit lost its jurisdiction, but never addressed in the Order.

Plaintiffs’ remind the court of Rollins v. Home Depot U.S., Inc., 8 F.4th 393, 398 (5th Cir. 2021).

Returning to the Order, Plaintiff wishes to address more contradictions and errors;

Motion to Clarify Submitted by the Burkes’ “Relabeled” Motion for Reconsideration by Clerk Christina A. Gardner [“Clerk Gardner]

The court admits, the events critical to this suit is the actions of Clerk Gardner.

The first questionable synopsis is the use of the word ‘relabel’ on page 3 of the order.

First, there is no such word in FRAP or FRCP, or the local rules for both the Federal Court(s) or the Appellate Court.

That is because a Clerk cannot ‘alter or amend’ a motion or rename or ‘relabel’ it prior to submission to the 3-Panel.

A Panel who would rely upon said fraudulent motion to dismiss the rehearing, pending motions and issue the mandate(s) to the lower court.

What is “especially troubling” is that the 3-Panel denied Clerk Gardner’s fraudulent motion as duplicative (Doc.12, Exhibit A), and despite Plaintiffs’ detailing this in their briefings, this court ignored the facts.

Secondly, this court ignored the critical fact that Clerk Gardner’s ‘relabeling’ of the Burkes ‘Motion to Clarify’ to a ‘Motion for Reconsideration’ and submitting that fraudulent motion to the 3-panel would never be allowed by the Clerks, see Doc.12, p.46(9).

Plaintiffs’ filed a Renewed Motion for Reconsideration, which the Clerks would take no action on, see Doc.12, p.46(10).

What’s critical is the Court stated in their Order that the Fifth Circuit denied “multiple motions for reconsideration of said denial”, Doc.50, p.3 but they blanked Plaintiffs’ detailed docket list, which affirms Clerk Gardner would ordinarily refuse to take action on a motion previously denied “multiple” times.

It’s well-known and admitted the 3-panel accepted Clerk Gardner’s motion, and it became the sole basis to strike Plaintiffs’ petition, dismiss some pending motions correctly

and others incorrectly (Doc.12, p.72 [Motion to Stay]),

and dispose of the appeal by issuing the judgment[s] and mandate[s], posted on the lower court dockets on the same day.

Clerk Gardner did not submit a renewed Motion for Reconsideration, she submitted a fraudulent Motion for Reconsideration, a motion which had been denied by the 3-panel previously.

The Order of this court crudely attempts to assert that Clerk Gardner ‘relabeled’ the Motion to Clarify.

That creative textual wording is not part of any federal or appellate laws, nor local rules or IOP’s.

It’s not allowed,

Doc.32, p.13-14;

United States v. Huerta, No. 17-10242 (5th Cir. Jan. 9, 2018).

Clerical misprisions are not an excuse for a void judgment.

Doc.32, p.15.

Legal Err #6: The Order Failed to Acknowledge or Address Plaintiffs Complaint re Fourth, Fifth and Due Process

Sixth, the atrocious court Order does not address the Fourth, Fifth and Fourteenth Amendment arguments, including Due Process [30].

Vexatious Pro Se Lawyer Larry Klayman Represents American Golfer Patrick Reed in Defamation Lawsuit https://t.co/aIGZ21OBcT @PReedGolf @ThePGA @LIVGolfInv @GolfChannel @chambleebrandel @justicekenwise @judgewise @uscourts @NathanLHecht @statebaroftexas #appellatetwitter #txlege

— lawsinusa (@lawsinusa) September 19, 2022

Legal Err #7: The Order re “Vexatious Litigants” is Shambolic

Seventh, the Order cites Carroll and Baum, are inapposite,

Doc.23, p.39-41.

The Order incorrectly finds that the Burkes ‘have a

“history of litigation” that includes “vexatious, harassing, or duplicative lawsuits [31] ” that put substantial burdens on the courts, defendants and even entirely unrelated parties.

Carroll, 850F.3d at 815.’

The Order summarizes the case with its own ‘Background’, Doc.50, p.2-5, but the Background and subsequent court conclusions p.5-7 ignores most of Plaintiffs’ arguments and response, detailed in Docs.12 and 23.

The Order maliciously asserts on p.6 that Plaintiffs have filed 4 district court cases.

The court falsely assigns the Deutsche Bank v Burke case (2011-2018) as (Burke I), once again blanking Plaintiffs filings and Exhibit E, p.1; Exhibit G, p.7, footnote 10.

The Order assigns this lawsuit to the Plaintiffs’ and the blame for 7-years of litigation, which is absurd.

The Order also dishonorably asserts on p.6 Plaintiffs have filed 3 Fifth Circuit Appeals which is patently false.

The Burkes have only appealed two cases filed in 2018 against PHH/Hopkins and these two cases would be consolidated on appeal.

Contrary to this court’s tainted legal conclusions, new lawsuit[s] challenging Deutsche Bank’s wrongful foreclosure decision is endorsed and anticipated by the Fifth Circuit;

Burciaga v. Deutsche Bank Nat’l Trust Co., 871 F.3d 380, 383-84 (5th Cir. 2017).

The Order attacks Plaintiffs’ reasoning for filing 3 Motions to Intervene, finding them “especially troubling”.

It further states “the Plaintiffs’ have not cited any legal authority” [32] as to why the Plaintiffs Motions should be disregarded as the Plaintiffs are Not a Party or Plaintiff.

This is nonsensical.

For example, focusing on the Florida Motion and Renewed Motion, read Exhibit G, p.9.

The second appeal at the Eleventh Circuit is currently pending a petition for rehearing, continued for the same reasons as here, due to Joanna Burke’s emergency medical needs.

For the record, Plaintiffs’ prevailed on this appeal and Judge Marra was found to have abused his authority by denying the Burkes’ Motion.

Consumer Fin. Prot. Bureau v. Ocwen Fin. Corp. (In re Burke), No. 21-12160, at *3 (11th Cir. Mar. 1, 2022).

Responding to the absurd ‘legal authority’ remark, the court should know without prompting, that only non-parties [33] can file a Motion to Intervene.

Lawson v. U.S. Dep’t of Justice, No. 19-11150, at *3 (5th Cir. Sep. 1, 2020).

This appeal, along with the other Motions to Intervene should not be “especially troubling” to this court nor be considered as “vexatious, harassing or duplicative lawsuits”, inappropriately citing Carroll.

Plaintiff takes issue with the Order including out-of-state ‘motions’, not lawsuits as part of the Vexatious Litigant assessment and with the Order’s statement at Doc.17 at 7”.

It’s wildly inaccurate.

The screenshot shows full para. 7 of Doc.17, wherein Hopkins falsely accuse the Burkes of maintaining website ‘lawsintexas.com’; Doc.23, p.42.

Plaintiffs have only filed separate complaints with the State Bar of Texas against lawyers Mark and Shelley Hopkins.

Bar complaints and/or Judicial complaints are separate from lawsuits and should not be included in any Vexatious Litigant Order.

It’s axiomatic that federal courts under their own inherent authority issue sanctions, suspend attorneys and generally control their own court, separate from the State Bar or Texas Supreme Court.

In re Snyder, 472 U.S. 634, 645 n.6 (1985).

Next, the court attacks Plaintiffs’ ‘red herring’ argument (dismissing Defendants claims of “attorney immunity”) and citing to Burke v. Hopkins incorrectly as (‘Burke III’).

In this instance the court finally figures it out correctly (Doc.50, p.7) but is incorrect in stating Plaintiffs provided no explanation.

The Order cites Doc.32, p.26, 32 but fails to acknowledge p.25, restatement of judgments; p.33, which questions Hopkins ‘standing’, frivolous filings and affirmative defenses.

The court deceitfully edits out these arguments.

The complaint (Doc. 12) and responses (Docs.23, 32) have repeatedly stated the complaint is not against the Defendants, but the ‘judicial machinery itself’.

Common sense informs the reader that no ‘attorney immunity’ could possibly apply.

This Order completely violates the legal standards applied to Vexatious Litigants;

O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) and this court has failed to satisfy guidelines 1-3;

Benedith v. Dep’t of Med., 5:21-CV-250-BO, at *1 (E.D.N.C. Jan. 25, 2022).

This court has not even been able to correctly provide the number of cases Plaintiffs’ have filed in this court, which is the only benchmark for the All Writs Act (“AWA”).

Appeals, Motions to intervene, State Bar of Texas complaints and Judicial complaints are not new lawsuits and inapplicable.

The actual AWA standard and arithmetic to be applied confirms Plaintiffs’ filed two simultaneous lawsuits in 2018 in state court, challenging for the first time, the Deutsche Bank v Burke decision by the Fifth Circuit.

These cases would be snap removed to this court and both cases “randomly assigned” to Judge David Hittner [34], who Plaintiff complains about their filings and exhibits [35].

The current case challenges the “judicial machinery itself”.

The number of lawsuits does not reach the numerosity criteria;

De Long, 912 F.2d at 1147 (citing cases in which litigants had filed 35 related complaints, Wood, more than 50 frivolous cases, Oliver, and more than 600 complaints, Green – Czajkowski v. Reed Elsevier, Inc., No. 07 CV 2383 JM (LSP), at *12 (S.D. Cal. Mar. 20, 2008); Doc. 32, Exhibit G, p.10.

Texas federal courts lack uniformity about Vexatious Litigant standards, as shown recently by this ‘hybrid’ solution;

Hudnall v. Texas, No. EP-22-CV-36-KC-RFC, at *5 (W.D. Tex. July 21, 2022).

Nationwide, it’s the same.

The Chief Judge in Alabama declared a pro se with a decade-long history of repetitive litigation, as vexatious.

She violated Due Process by issuing an injunction without notice and a hearing;

Thomason v. Deutsche Bank, Civil Action 2:22-cv-52-ECM (WO) (M.D. Ala. Sep. 21, 2022).

In this case, the court admits that the Burkes have never been labeled vexatious or harassing in any prior litigation and declines to impose a pre-filing injunction.

Yet, the Order states, in part,

“…there are many indications of harassment in the record…”.

The Order concludes with an “emphatic” and baseless threat against any future litigation, which would be deemed in bad faith and warrant sanctions and pre-filing injunctions.

This judicial statement is deficient, lacking sufficient detail to warrant any type of warning;

Riffin v. County, 190 Md. App. 11, 33 (Md. Ct. Spec. App. 2010);

compare this 10-page order with Chief Judge Rosenthal’s recent 24-page order;

Nix v. Baseball, Civil Action H-21-4180 (S.D. Tex. June 13, 2022), which details with specificity.

Judge Bennett Did Not Conduct a Hearing re the Vexatious Motion – in Violation of Statute

“However, we agree with the unanimous holdings of federal and state authorities that due process requires notice to the alleged frivolous or vexatious litigant and an opportunity for him to be heard before the issuance of a pre-filing order.”

Riffin v. County, 190 Md. App. 11, 14 (Md. Ct. Spec. App. 2010).

State: “Sec. 11.053. HEARING (a) [36]

Federal: AWA;

“The court cannot sua sponte impose a prefiling injunction as to future lawsuits against these defendants without notice and a hearing.”

Qureshi v. United States, 600 F.3d 523, 526 (5th Cir. 2010).

Vexatious Warning Lacks Standing as there is No Justiciable Case or Controversy

The ‘future’ case sanction and threat of use of the All Writs Act, 28 U.S.C. § 1651, is unconstitutional.

The court has no jurisdiction nor standing to assert a warning, pre-filing restriction or other threat against a hypothetical future event, as there is no justiciable case or controversy, e.g.,

“the act authorizes writs in aid of jurisdiction, but does not in itself create any federal subject-matter jurisdiction.”

The Order Blanked the Appropriate Texas Standard

“TEX. CIV. PRAC. & REM. CODE § 11.054 statute is appropriate in relation to the number of filings over a 7-year period re “plaintiff” filings.”,

Doc.23, p.9.

The court blanked the Burkes argument and proceeded to list cases, such as out-of-state Motions to Intervene which do not fall under 11.054.

As admitted by this Court, the subsets of this section of the statute, namely, 1(B-C), 2(A-B) and (3) do not apply.

Yet this Court’s Order contradicts itself as outlined above.

It’s clear and obvious from researching court dockets, the standard applied to the Burkes is not the same as applied generally to other litigants where they have been faced with vexatious motions and/or pre-filing injunctions and where no future ‘warnings’ have been issued.

Legal Err #8: Judge Bennett is Acting Maliciously and Corruptly, but is too Biased to be Constitutionally Tolerable in this Lawsuit to Claim Judicial Immunity

Eighth, Judge Bennett is not impartial and is relying upon judicial immunity to allow him to act corruptly.

Chief Judge Lee Rosenthal recently purred;

“Judicial immunity is not overcome by allegation of bad faith or malice and ‘applies even when the judge is accused of acting maliciously and corruptly.’” [37]

Morello v. Supreme Court of Tex., Civil Action H-22-2666 (S.D. Tex. Aug. 17, 2022).

It’s true, Judge Bennett is acting maliciously and corruptly in this lawsuit, as detailed with specificity herein, and filings on this docket;

Judge Bennett completely stripped-out Plaintiffs compelling legal arguments from the complaint and responses to allow for this crooked Order.

Exhibit G; Emergency Email/Letter to Judge Bennett’s case manager, Lisa Edwards, dated August 17, 2022 regarding e-filing permissions, remote hearings rather than in-person and finally, the eighth point, questioning why Judge Bennett did not self-recuse [38].

CM/ECF filing permissions would be granted by order of this court on March 26, 2022 (over 7 months later), with a completely unfounded ‘abuse of filing permissions’ warning to the elder, law-abiding citizens, Exhibit H;

all scheduled conferences arranged by the court remained in-person and;

Judge Bennett did not self-recuse, Exhibit G(8).

Furthermore, in Doc.32, the question of Judge Bennett’s impartiality was raised again, p.45-48, discussing the timing of Defendants Hopkins continuance and time granted by the court, which allowed them to submit the 3 premature, baseless motions to the court,

Crockett v. United States, 234 F.2d 560, 562 (5th Cir. 1956), (footnote 39),

and that no hearing[s] on these motions would take place.

Page 48 highlights the corrupt practices of Judge Bennett, who allowed a forged and perjured affidavit to be submitted by Shelley Hopkins, a Defendant as well as PHH’s counsel in this case, and which was never acted upon.

Exhibits G and H, combined with this motion is sufficient to show constitutionally, recusal or reassignment is necessary.

Wesbrook v. Thaler, 585 F.3d 245, 256 (5th Cir. 2009).

Such self-dealing has caused Judge Bennett to enter judgment against Plaintiffs’.

The judgment should not be enforced because equity will not enforce judgments procured by fraud.

Restatement (Second) of Judgments § 70 (1982).”

Turner v. Pleasant, No. 11-30129, at *8 (5th Cir. Nov. 23, 2011).

Conclusion

The court’s Order should be vacated. The motion should be granted. I declare under penalty of perjury that the foregoing is true and correct.

RESPECTFULLY submitted this 24th day of September, 2022.