LIT COMMENTARY
JULY 28, 2021
The Burkes file a motion to strike Hopkins Law’s response. In the majority, Hopkins reply has nothing to do with the issue at hand as Mark D. Hopkins and Shelley L. Hopkins return to their usual attack on opposing parties. Their unethical behavior escalates due to the brazen protection afforded by the courts to these outrageous Texas lawyers. The motion sums all this up in just over 3,600 compelling words. Enjoy.
DOES FRAP 46 APPLY TO HOPKINS?
As stated above, Hopkins admit they are experienced attorneys at State and Federal courts and know the laws and rules inside out. Thus, the Burkes question their omission of Federal Rule of Appellate Procedure 46 (FRAP46) in their rambling reply. Does failure to reply to several requests to confer fall under the discipline listed in FRAP 46? The Burkes suggest it clearly does;
(c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.
APPELLANTS’ MOTION TO STRIKE HOPKINS SCANDALOUS MATERIAL IN RESPONSE TO SANCTIONS OR STRIKE MOTION ENTIRELY AND REQUEST HOPKINS REFILE WITHOUT SCANDALOUS CONTENT & RENEWED REQUEST TO GRANT THE PENDING SANCTIONS MOTION
Appellants, Joanna Burke and John Burke (“Burkes”) filed their Motion for Sanctions pursuant to Rule 38 of the Federal Rules of Appellate Procedure on July 7 and Hopkins objected in a reply dated July 19, 2021. The Burkes now timely request Hopkins response be stricken and in support thereof would show the Court as follows:
I. BURKE’s MOTION TO STRIKE IS THE CORRECT VEHICLE TO OBJECT TO HOPKINS SANCTIONABLE RESPONSE
Holding that, absent timely motion to strike, Hopkins non-compliance with procedural rules would be waived; see Auto Drive-Away Co. of Hialeah, Inc. v. I.C.C, 360 F.2d 446, 448-49 (5th Cir. 1966); U.S. v. Martinez, 962 F.2d 1161, 1165-66 (5th Cir. 1992), finding “In order to preserve a claim of error for appellate review, a party must timely object or move to strike the objectionable evidence, stating the specific ground of the objection.”
II. THE REASONS FOR STRIKING HOPKINS RESPONSE
A. SCANDALOUS, IRRELEVANT, AND FACTUALLY ERRONEOUS STATEMENTS
The Burkes Motion for Sanctions is directly related to the [now] consolidated cases on appeal. Instead of responding to the direct allegations therein, Hopkins decides to shroud their non-compliance with the local rules of this court by attacking the opposing parties in this case. This is Hopkins standard approach when the facts presented by the Burkes are true and cannot be rebutted by Hopkins. Indeed, the Burkes refer and cite Hopkins Motions to Strike filed on July 14 and again on July 31, 2021 wherein Hopkins is now guilty of the allegations he made against the Burkes in these filings, including;
Hopkins response contains a multitude of images with embedded links to twitter posts and a plethora of links to articles on an external and independently operated non-profit blog which focuses on civil rights, law and access to justice. These links do not form any part of the appellate record and are improper as part of Hopkins response.
The rule consistently applied in all federal appellate courts, including this Court, is that “[m]aterial that was not presented in the district court and is not a part of the record on appeal is not considered.” U.S. v. Crawford, 205 F.3d 1337, 1999 WL 1338370, *2 (5th Cir. Dec. 20, 1999) (emphasis added);
See also U.S. v. Salinas, 701 F.3d 41 (5th Cir 1983) (affidavit filed with the court of appeals to support a petition for rehearing, averring matters contrary to statements made in the record, would not be considered because it was both untimely and not properly part of the record on appeal).
Fed. R. App. P. 10(a) defines the appellate record as consisting of the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the district clerk. The information in the links embedded in Hopkins response is clearly not in the appellate record and was included in Hopkins response with the sole purpose of harassing the Burkes for presenting to this court Hopkins continual disdain and violation of the rules and procedures to which they should adhere.
In the alternative, the accusations that these external links and “B. The Burkes’ Repeated Attacks of the Judiciary and Counsel in the Media”, the Burkes would state that these links and any allegation Hopkins wrongly assigns to the Burkes to be unsupportable in law, see United States v. Pratt, 807 F.3d 641 (5th Cir. 2015); where Chief Judge Priscilla Owen opined, in part;
“Pratt then filed a motion for a new trial, citing revelations that a prosecutor in the U.S. Attorney’s Office had posted disparaging comments about her online while her trial was underway. Pratt appeals the district court’s denial of this motion, contending that the prosecutor’s misconduct entitled Pratt to a presumption of juror prejudice…
Because the prosecutorial misconduct at issue in this case does not give rise to a presumption of prejudice, we AFFIRM the district court’s denial of Pratt’s motion for a new trial.”
and also contrary to the First Amendment, see United States v. Richards, 755 F.3d 269, 271 (5th Cir. 2014), in part, Judge Higginson’s opinion opened with;
“The First Amendment restrains government to “make no law … abridging the freedom of speech.” U.S. Const. amend. I. Speech, as expression, “arcs toward the place where meaning may lie,” and when that meaning is hurtful or dislikable—meaningful, perhaps, to the bigot, or the flag burner—courts must be vigilant to affirm First Amendment protection.
See Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct. 1207, 1219, 179 L.Ed.2d 172 (2011); Texas v. Johnson,491 U.S. 397, 404–405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
Mark and Shelley Hopkins are seasoned lawyers and admit in their response they are familiar with Texas state laws and Federal laws. They also claim to be extremely knowledgeable about the rules, including Rule 27.4, as detailed in their reply. Hopkins enlarged on this Court’s local rule, including their own misguided interpretation of the rule and which is analyzed in section III below.
Attorneys are officers of the court and held to a higher standard. See; Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1033 (5th Cir. 1990). Here, they are violating their own arguments from earlier in this case and where this court granted their Motions to Strike. Hopkins continually stomps on Federal and Appellate Rules, as well as Texas Disciplinary Rules of Professional Conduct. See In re Medrano, 956 F.2d 101, 102-03 (5th Cir. 1992);
“. . . No attorney permitted to practice before this Court shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice therein.”
Once again, Hopkins ask this court to excuse their malevolent behavior because they are ‘busy’ lawyers and that somehow, several conferences being blanked is excusable conduct for seasoned appellate lawyers, because they don’t want to answer the ‘vexatious’ Burkes ‘bile’ and ‘baseless’ motions. Hopkins wrongly believe they are indomitable.
Examples of their shameless gloating, from their relationship with this court to “loving” a family who lost their appeal and ultimately their home to foreclosure, is evidenced publicly on social media via twitter (@shelleyluan);
“Who has the sample appellees’ brief in the Fifth Circuit website? Yep, We do! 😊” (Jun 10, 2016)
and on Linkedin (Shelley Luan Hopkins profile);
“Literally the shortest opinion we’ve ever received. Love it!”
Citing Graham v US Bank, 18-50738, 5th Cir., Mar 7, 2019. (These facts have previously been recorded in Burkes filings).
These are not isolated incidents. Over the years, Hopkins have become more aggressive, bolstered by the protection afforded to them by the federal judges and the courts who refuse to take any disciplinary action or even warn Hopkins of their responsibilities as officers of the court. See; H.K. Porter Co. v. Goodyear Tire Rubber Co., 536 F.2D 1115, 1119 (6th Cir., 1976).
“Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court”.
For example, it has been well documented Mark Hopkins has admitted;
1. He withheld evidence, the all-important mortgage loan file from the Burkes which would prove lender application fraud, or as the FBI refer to it, financial institution fraud (FIF), see FBI website; https://2dobermans.com/woof/3g;
2. Admitted he lied to Magistrate Judge Peter Bray with his heinous allegations that the Burkes wanted “certain judges be shot”; and
3. Hopkins (et al) committed perjury in this court a year ago, on July 31, 2020, by falsely claiming to have conferenced with the Burkes, when in fact they did not confer and had no answer. As such, Hopkins remained silent and allowed this court to clean up their mess and legal wrongdoings, once again.[1]
Certainly, the evidence herein and throughout this appeal, as memorialized on the dockets both this court and from the lower court, which is the focus of this Motion, wholly supports the perception that admitted serial liar and attorney Mark Hopkins, along with his partner and law firm, receives preferential treatment from this court. Some examples are shown below as evidence;
4. The Burkes were denied extensions of time or times granted were shortened in both appeals during briefing. However, Hopkins extensions for time were always granted for the time requested. This is documented in the Burkes Motion for Reconsideration off the Clerks order dated 8th October, 2020 (Filed 15 October, 2021).
5. Fifth Circuit Clerk Jan Wynne unconstitutionally refused to file a Motion to Clarify[2] wherein the Burkes had telephoned the Department of Justice in Washington to find out if the Attorney General was responding to the Burkes Constitutional Challenge. The Department claimed non-receipt of the challenge and despite the Burkes holding a USPS return receipt.
The Clerk abused her position by stating the Burkes had not requested relief by noticing the court of non-receipt by a Government agency, however, the Court was on notice by the Burkes that the Fifth Circuit’s internally issued letter to the AG’s office was never received and reissue was required, which was outwith the Burkes control.
6. Fifth Circuit Clerk Jann Wynne unconstitutionally and in defiance of due process and as per the Appellate Rules Committee, wrongly rejected a compliant Petition for Rehearing En Banc by adding a new deficiency upon receipt of the corrected Petition which was not identified in the initial deficiency letter.[3]
7. Fifth Circuit Clerk Christina Gardner unlawfully entered a motion for reconsideration on behalf of the Burkes.[4]
Truly, one only needs to look at when the Certificate of Conference became a ‘selective’ issue. It was while Hopkins was filing his motions to strike in July 2020. On August 2, the Fifth Circuit clerks’ rejected two of the Burkes motions which had been submitted on a Sunday, as the certificate stated it was submitted out of office hours and hence conferencing could not be performed. However, the Burkes had previously filed many similar motions, successfully navigating the Clerks review(s).
Burkes Motion per screenshot accepted on July 27, 2020, despite disclaimer.
The standard of review at the Fifth Circuit Clerks’ office and Court opinions[5] is random, inconsistent and comes with the whiff of home cooking on Hopkins side of the case, citing Judge Gregg Costa[6].
Burkes Motion per screenshot accepted on July 6, 2020, despite disclaimer.
Relatedly, the Burkes filed similar motions excusing conferencing frequently at the sister court, the Court of Appeals for the Eleventh Circuit, without incident.
Burkes Motion per screenshot accepted at 11th Cir., despite disclaimer.
That stated, when the Burkes were made aware, they immediately complied. Now, as stated in their Motion for Sanctions, they seek to see if lawyers are held to at least the same standards as pro se, non-prisoner litigants in this court.
If there is any due process of law and justice available in this circuit court, then the Burkes meritorious request for sanctions should be granted along with this Motion to Strike.
[1] See Burkes Motion for Sanctions (in part); “The Burkes previously requested this court apply its inherent power to discipline an attorney as detailed in Case 20-20209, Doc. 00515526917, 08/13/2020, ‘Appellants Motion for Reconsideration of Single Judge’s Order Dated 4th August, 2020’.” (Motion denied).
[2] Verbatim; “DOCUMENT RECEIVED – NO ACTION TAKEN. No action will be taken at this time on the entitled, “Appellants notice regarding attorney general Barr’s constitutional…..”, which was filed as a motion for clarification of an order dated 11/13/19, received from Appellants Ms. Joanna Burke and Mr. John Burke because the document is not requesting any relief. It indicates it is a “notice”. The event will be deleted. [19-20267] (JMW) [Entered: 11/15/2019 10:38 AM]”
The title of the Burkes Motion in full; Appellants Notice Regarding Attorney General Barr’s Constitutional Challenge and Motion to Clarify The 60-Day Rule. To deny filing this motion (see https://2dobermans.com/woof/3j) was an abuse of power by Clerk Jann Wynne.
[3] This is subject to a lengthy series of filings which is discussed in a separate, related motion responding to Hopkins Opposition to the Burkes Motion for Reconsideration.
However, the court may wish to review section D of the Burkes Motion to Correct Opinion, filed on 18 July, 2021 discussing Appellate Chair Judge Bybee’s and Mr. Bryon’s comments
[4] See footnote 3.
[5] See; Strong v. Green Tree Servicing, L.L.C., No. 16-11346, at *4 n.3 (5th Cir. Dec. 11, 2017); rejecting argument where there is non-compliance with rule 27.4 and which begs the question; Why was this Motion to Strike only rejected at the time of this Court’s opinion in a pro se foreclosure case and not addressed by the clerks’ office, responsible for checking and rejecting deficient or non-compliant filings?
Furthermore, the opinion in Strong goes onto say; the district court concluded that the motion was rendered untimely because the Strongs failed to comply with the district court’s local rules by failing to include a Certificate of Conference, at *7.
[6] See “We are mindful that the whiff of home cooking also pervades the Texas side of this case. There is a deep irony in allowing DeJoria to contend he was denied due process in Morocco when it was his lobbying efforts that changed the rules of the game midway through the proceedings in the United States. Indeed, the Supreme Court of Texas has been suspicious of retroactive laws that inure to the benefit of only one company or individual. Robinson , 335 S.W.3d at 149.” Dejoria v. Maghreb Petroleum Expl., S.A., 935 F.3d 381, 389 (5th Cir. 2019).
I. HOPKINS RESPONSES TO THE BURKES EMAIL NOTICES ABOUT PROPOSED MOTIONS ARE INAPPOSITE
Hopkins arguments, including; ‘The Burkes requests were either provided under an impossible timeline or the request failed to include any necessary information upon which an evaluation of the request could be made’ fail.[7]
A. No Time to Reply to Hopkins:
The following email was received from Shelley Hopkins at 12:55 pm and it was filed at the Fifth Circuit 9 minutes later at 1.04 pm and as such, with the wording ‘We will assume you are opposed’ could never be considered an attempt to ‘confer’.
B. Hopkins Responds in 5 minutes
The following email with the Burkes two proposed filings attached were sent at 11:16 am.
Hopkins replied 5 short minutes later at 11:21 am.
C. After the Burkes filed their Motion for Sanctions, a subsequent motion response was timely by Hopkins.
The Burkes sent an email on July 9, 2021 as shown below at 6:42am;
After blanking all prior listed conference emails, once the Burkes filed the Motion for Sanctions, the response by Hopkins was received in less than 3 hours, at 8.58 am.
This repels Hopkins argument;
“While Appellee’s counsel is aware that the Court expects litigants to communicate with one and other, there is no requirement within Rule 27.4 that mandates an immediate response to incoming request from a movant. Rather, Rule 27.4 instructive in that the rule informs a litigant to simply list within the motion that the litigant “attempted to contact all other parties.” As with every attorney’s practice, this case is not the sole matter for Appellee’s counsel. As with a very busy docket, incoming inquiries take time to review and then provide appropriately reasoned responses.”
D. The Arguments presented by Hopkins are Unavailing
Setting aside Hopkins unprofessional response, there is no excuse for blanking all email requests for conferencing when communication by email has been the standard employed in cases involving Hopkins.
Hopkins admitting ‘JOINT Responsibility’ to Confer; ROA19-20267.416, #6, Jan 30, 2019 (This motion was also the submitting in ROA for case 20-20209).
Hopkins admits to ONLY communication IN WRITING as preference when not in court; ROA19-20267.416, #6, Jan 30, 2019 (This motion was also the submitting in ROA for case 20-20209).
Indeed, the Burkes have used the same method in the CFPB/Ocwen intervenor appeals at the 11th Circuit and opposing counsel in those proceedings respond by email in a timely manner. The Burkes are more than willing to furnish this court with this supporting and irrefutable evidence, should the court wish to take judicial notice, or in the alternative, sua sponte this court can order Hopkins to furnish time logs for emails on the days Mark and Shelley Hopkins along with Kate Barry claim that the Burkes notice periods offered an ‘impossible timeline’, considering every response they send is a one word; Opposed.
This data will verify, and as the Burkes suspect, Hopkins response is yet another perjurious and dishonest statement. See In re Grodner, 587 F. App’x 166, 2-3 (5th Cir. 2014). The Burkes maintain, it doesn’t take but a few seconds to type the word ‘Opposed’ into an email response and hit the send button.
Furthermore, the Burkes are the parties who suffered the ‘impossible timeline’ as per the example shown above, namely a notice to confer by Hopkins with a 9 minute lag, in which period of time it was documented as filed on ECF/Pacer at this court. It’s the pot calling the kettle black.[2]
In the alternative, Hopkins states the Burkes never provided sufficient detail of the proposed filings. This argument also fails, first because Hopkins, when they do confer, are guilty of the same alleged shortcomings. Second, if they were that concerned, they would email asking for clarification or raise their concerns in order that the Burkes may respond.
With no attempt to confer by blanking the Burkes good faith efforts, you cannot then blame opposing counsel that they didn’t give you all the information you wanted. That’s what ‘confer’ means. Hopkins response sounds even more absurd when they don’t provide the Burkes the same information or time to respond when filing their motions. Again, it’s the pot calling the kettle black.
Finally, the Burkes ask this court to review the Certificate of Conference included in this motion, wherein Hopkins responded to the Burkes emailed notice in one and a half hours (give or take a minute). It proves that filing a Sanctions motion has stirred Hopkins into compliance, at least temporarily.
[7] From Hopkins response: “The reality is that the Burkes have repeatedly violated rule 27.4 by failing to actually attempt to confer in good faith. The Burkes’ “conference” emails have: (1) failed to describe the contents of their motions, (2) failed to indicate what relief is being requested, (3) failed to attach any proposed motion for Appellee’s counsels’ consideration, and (4) failed to give Appellee’s counsel time to respond to the request. The Burkes typically file their frivolous motions within hours of sending an email to Appellee’s counsel whereby essentially prohibiting Appellee’s counsel from inquiring further and/or responding at all.”
“The Burkes typically file their frivolous motions within hours of sending an email to Appellee’s counsel whereby essentially prohibiting Appellee’s counsel from inquiring further and/or responding at all.”
“The Burkes’ efforts at conferencing pursuant to Rule 27.4 have been hollow, with their emails and conduct reflecting the disingenuous nature of their ways.”
[8] See; Wikipedia https://2dobermans.com/woof/3h.
What’s your theory on Judicial Power? pic.twitter.com/DuFxkXnB73
— LawsInTexas (@lawsintexasusa) July 9, 2021
I. DOES FRAP 46 APPLY TO HOPKINS?
As stated above, Hopkins admit they are experienced attorneys at State and Federal courts and know the laws and rules inside out. Thus, the Burkes question their omission of Federal Rule of Appellate Procedure 46 (FRAP46) in their rambling reply. Does failure to reply to several requests to confer fall under the discipline listed in FRAP 46? The Burkes suggest it clearly does;
(c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.
II. RELIEF REQUESTED
The Burkes civilly request this Court strike Hopkins response in its entirety or reject it for refiling without the embedded linked and improperly submitted materials which Hopkins wrongfully disclosed with the intent to do harm. The Burkes adequately rely upon Hopkins own Motion(s) and citations to do so; See Clark v. Coats & Clark Inc., 929 F.2d 604, 609-610 (11th Cir. 1991)(granting motion to strike an affidavit submitted on appeal that was not a part of the record) – as these citations were persuasive in this court.
In the alternative, the Burkes maintain they are protected by the First Amendment and Hopkins claims in their now standard response using over-zealous, unprofessional and rampaging language, for example; “bile, baseless, vexatious, slanderous online posts” is merely smoke and mirrors; an attempt to divert the court and the Burkes away from the simple focus of the Burkes motions, namely Hopkins refusal to respond to requests to confer. As such, this part of the response is wholly without merit or foundation in law and is most certainly yet another wicked assault on the Burkes character and unbecoming of lawyers, as officers of the court.
When they eventually do address the Burkes allegations, Hopkins fails miserably. As stated earlier, the pot calling the kettle black is the simple way to describe Hopkins allegations. As such, the presented arguments (per section II. ARGUMENT in Hopkins response) are absurd. When Mark Hopkins committed perjury in his sworn affidavit/certificate of conference dated July 31, 2020, this court denied the Burkes motions and refused to hold him accountable. A year later and Hopkins is emboldened to the point they are completely flouting the rules as advised. The Burkes once again wish to determine as part of the growing dossier of misconduct by Hopkins, if this court will apply the rules to Hopkins, et al and grant the sanctions as summarized in the conclusion section below.
III. CONCLUSION
In summary, the Burkes formally request the Court (i) strike Hopkins response; (ii) grant the Burkes Motion for Sanctions[9] against Hopkins for their continual [mis]conduct, and to prevent them from filing further Motions in these proceedings (wherein they are guilty of the acts they claim to have been subjected to) and to prevent future inappropriate and repetitively malicious conduct.
Respectfully submitted,
DATED: 28 July, 2021
[9] 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; U.S. v. Garza-Espinoza, C.R. No. M-08-4986M, at *1 (S.D. Tex. Aug. 20, 2008).
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| General Docket United States Court of Appeals for the Fifth Circuit |
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| Joanna Burke; John Burke,
Plaintiffs – Appellants v. Ocwen Loan Servicing, L.L.C., Defendant – Appellee consolidated with No. 20-20209 Joanna Burke; John Burke, Plaintiffs – Appellants v. Mark Daniel Hopkins; Shelley Hopkins; Hopkins Law, P.L.L.C., Defendants – Appellees |
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| _____________
No. 19-20267 Joanna Burke; John Burke, Plaintiffs – Appellants v. Ocwen Loan Servicing, L.L.C., Defendant – Appellee consolidated with No. 20-20209 Joanna Burke; John Burke, Plaintiffs – Appellants v. Mark Daniel Hopkins; Shelley Hopkins; Hopkins Law, P.L.L.C., Defendants – Appellees |
