So many lies, falsities and implausible excuses in this response from lyin’ lawyers Mark Daniel Hopkins and Shelley Luan Hopkins of BDF Hopkins, a foreclosure mill in Austin. And they even try to bring in a non-party to the litigation, namely LawInTexas com – which is an online trading name wholly owned by Blogger Inc., a nonprofit 501(c)(3) registered in Delaware.
RESPONSE IN OPPOSITION TO APPELLANTS’ MOTION FOR SANCTIONS
Appellees Ocwen Loan Servicing, LLC (“Ocwen”), Mark Daniel Hopkins, Shelley L. Hopkins, and Hopkins Law, P.L.L.C. (“Attorney Appellees”) (collectively “Appellees”) file this their Response in Opposition to Appellants John Burke and Joanna Burke’s (the “Burkes”) Motion for Sanctions. In support of the foregoing, Appellees would respectfully show the Court as follows:
I. The Burkes’ Vexatious Pro Se Ways
A. The Burkes’ Repeated Efforts to Disqualify Counsel. The latest motion by the Burkes is simply an ongoing example of vexatious litigation by pro se litigants at its worst. Litigation must have an end, and it is long past time for the Burkes’ decade long crusade against the mortgage industry to be concluded.
As with all of the Burkes’ filings, the Burkes’ latest motion weaves in caustic commentary that Appellees’ attorneys (Mark Hopkins and Shelley Hopkins) are “rogue debt collectors” and scoundrels who lie, cheat, and steal at all costs to win. Professionalism requires Appellees’ attorneys to not be reactionary to the bile of the Burkes. The Burkes’ pattern of personal attacks against counsel is nothing new and dates back to the initial litigation which begin in 2011.1
The Burkes have repeatedly filed grievances with the State Bar of Texas against Appellee’s attorneys, with the State Bar of Texas rejecting the Burkes claims.
The Burkes’ dislike of Appellees’ legal counsel is not a proper basis for the consideration of sanctions against Appellees’ counsel.
Our system of justice decided long ago that attorneys should be immune from liability when litigants like the Burkes are unhappy. In fact, the purpose of attorney immunity is to ensure “‘loyal, faithful, and aggressive representation by attorneys employed as advocates.'” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 408 (Tex. App. – Houston [1st Dist.] 2005, pet denied).
B. The Burkes’ Repeated Attacks of the Judiciary and Counsel in the Media
In addition to their repeated efforts at having Appellee’s counsel disqualified as well as their grievances with the State Bar of Texas, the Burkes have also taken to their own website and Twitter to publish falsities about Appellee’s counsel as well as this Court and the United States District Court for the Southern District of Texas. Various examples of the Burkes’ slanderous online posts are as follows:
Additional links to slanderous articles posted to the internet by the Burkes include:
NY man sentenced Monday to 18 months in prison after admitting to threatening to assault and murder D.C. federal judge who oversaw criminal case of former Trump national security adviser Michael Flynn.
The Court’s docket in this consolidated appeal reflects the enduring strength of our judicial system in allowing even the most vexatious of litigants to have their day in court. The Burkes have had their day(s).
Despite the Court having already issued it Opinion in this case on March 30, 2021, the Burkes continue to file baseless motion after motion to either have judges disqualified, issues reconsidered and/or have Appellee’s counsel sanctioned.
As the Burkes’ reasoning goes in their latest motion for sanctions, Appellee’s counsel should be sanctioned for not “immediately” responding to the Burkes inquiries over whether counsel is opposed to the Burkes repeated filings before the Court.
As observed by the Supreme Court of Texas, “the purpose of sanctions is to secure compliance with the rules, to deter future violations of the rules, and to punish parties that violate the rules.” Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).
Appellee’s counsel routinely handle litigation pending before the Supreme Court of Texas, all intermediate Texas appellate courts, and this Court.
Counsel also is admitted to practice before The Court of Appeals for the Second Circuit, The Court of Appeals for the Federal Circuit, and the Supreme Court of the United States. Appellee’s counsel appreciates the importance of local rules as well as the expectation of the judiciary that motion practice should be for contested matters only.
For judicial efficiency, Fifth Circuit Rule 27.4 provides in part,
“All motions must state that the movant has contacted or attempted to contact all other parties and must indicate whether an opposition will be filed.”
5th Cir. R. 27.4. The above rule simply requires a movant to reach out to the opposing party so that the movant can best inform the Court if any opposition is anticipated in response to the motion.
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.” Id.
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.
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.
IT’S A SMALL WORLD:
Mark D. Hopkins, Shelley Luan Hopkins, Hopkins Law, P.L.L.C., Austin, TX, Crystal G. Gibson, Barrett, Daffin, Frappier, Turner & Engel, L.L.P., Addison, TX, for Defendant-Appellee Federal Home Loan Mortgage Corp. https://t.co/YRcidPp9HQ#appellatetwitterpic.twitter.com/87xoFrJafr
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’ efforts at conferencing pursuant to Rule 27.4 have been hollow, with their emails and conduct reflecting the disingenuous nature of their ways.
A. Email dated April 23, 2021, at 7:14 a.m.
“We’re filing a motion at the instruction of Ms Wynne for other relief pertaining to her rejection of our Petition for Rehearing En Banc. Please confirm if you’re opposed as usual. If we don’t hear back from you in a timely manner, we’ll take that as being OPPOSED.”
The conference email failed to explain what “other relief” they were seeking and the basis for such relief. The Burkes’ motion was filed less than five (5) hours after they sent their email, at 12:00 p.m.
B. Email dated May 12, 2021, at 6:05 a.m.
“We are filing a motion for extn of time today. Are you opposed or unopposed?”
The Burkes’ conference email failed to indicate what period of time they were requesting for an extension, or for even what they were requesting be extended. The Burkes’ motion was filed at 8:44 a.m., less than three hours after sending their email.
C. Email dated May 14, 2021, at 12:18 p.m.
“We are filing a motion for reconsideration of a single judge order today. Are you opposed or unopposed?”
The Burkes’ conference email failed describe the basis for their request for reconsideration. The Burkes’ motion was filed at 3:54 p.m., less than four hours after sending their email.
D. Email dated May 28, 2021.
No email received by Counsel on or about May 28, 2021.
E. Email dated June 7, 2021, at 8:52 a.m.
“We will be responding via motions to recent orders from the court. Please advise if you are opposed or not.”
The Burkes’ conference email failed to provide any detail about their “motions.” The email did not provide which orders would be the subject of the Burkes’ motions and/or the grounds for motions. The Burkes’ motion was filed at the same day, at 5:36 p.m.
F. Email dated June 28, 2021, at 9:36 a.m.
“We will be filing a Motion to Stay. Please advise if you are opposed or not.”
The Burkes’ conference email failed to provide any detail about their motion, including what the Burkes wanted to have stayed and for how long. The Burkes’ motion was filed later the same day, at 5:36 p.m.
G. Email dated June 29, 2021, at 10:24 a.m.
“We will be filing a Motion to Disqualify the Chief Judge. Please advise if you are opposed or not.”
The Burkes’ conference email did not provide any information or detail as to why they were seeking the disqualification of the Honorable Justice Owen. The Burkes’ motion was filed the next day.
H. Email dated July 7, 2021, at 7:27 a.m.
“We will be filing a Motion to Clarify. Please advise if you are opposed or not.”
The Burkes’ conference email failed to provide any detail as to what the Burkes were seeking to have clarified and the basis for the motion. The Burkes’ motion was filed the next day.
As clear above, at no time did the Burkes attach their proposed motion or provide any detail or specifics in their attempts at “conferencing” under 5th Cir. R.
27.4. The Burkes’ Motion for Sanctions lacks proper support for any sanctionable conduct by Counsel for Appellees.
The Burkes show no sign of ceasing their vexatious ways. The Burkes have shown no basis for the Court to sanction Appellee’s counsel in any respect. For the foregoing reasons, the Burkes’ Motion for Sanctions should be denied in all things. Appellees pray for such other and further relief, at law or in equity, to which they have shown themselves to be justly entitled.
Respectfully submitted,
HOPKINS LAW, PLLC
3 Lakeway Centre Ct., Suite 110
Austin, Texas 78734
Telephone: (512) 600-4320
mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com
/s/ Mark D. Hopkins
Mark D. Hopkins
Texas State Bar No. 00793975
Shelley L. Hopkins
Texas State Bar No. 24036497
ATTORNEYS FOR APPELLEES
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response in Opposition to Motion for Sanctions has been sent to the parties listed below on this 19th day of July 2021.
Joanna Burke
46 Kingwood Greens Drive
Kingwood, TX 77339
PRO SE
John Burke
46 Kingwood Greens
Drive Kingwood, TX 77339
PRO SE
/s/ Mark D. Hopkins
Mark D. Hopkins
CERTIFICATE OF COMPLIANCE
1. This response complies with the type-volume limitation of Fed R. App. P. 27(d)(2)(A) because, it contains in full 1,668 words.
2. This response complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in proportionally-spaced typeface, including serifs, using Microsoft Word 2010, in Times New Roman 14-point font, except for the footnotes, which are in proportionally-spaced typeface, including serifs, using Microsoft Word 2010 in Times New Roman 12-point font.
Dated: July 19, 2021.
/s/ Mark D. Hopkins
Mark D. Hopkins
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