Federal Law

Another Texas Federal Court Case Prematurely Decided By the Magistrate Judge While Related Case is On Appeal at The Fifth Circuit

An attorney is a key participant in a mortgage scheme. That’s because being able to point to a lawyer, who is sworn to uphold the law, adds legitimacy to the scam and thus can help ensnare potential victims.

Burke v. Hopkins

Objections to the M&R

Friday, 6 March 2020
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BRAY, PETER, Magistrate Judge

1.     Background and Procedural Posture

Plaintiffs Joanna and John Burke have a long history of litigation relating to a home equity loan they obtained in 2007.1 Relevant to this case is Civil Action No. 4:11-cv-1658 (S.D. Tex. 2011) wherein Deutsche Bank National Trust Company (Deutsche Bank) sued Joanna and John Burke seeking foreclosure. The case was tried before Magistrate Judge Stephen Smith on February 6, 2015. Judge Smith found in favor of the defendants.

Attorney Mark D. Hopkins, one of the defendants in this case, made his first appearance as counsel for Deutsche Bank on March 31, 2015. Notice of Appearance, Deutsche Bank Nat’l Trust Co. v. Burke, et al., No. 4:11-cv-1658 (S.D. Tex. March 31, 2015), ECF No. 79. He filed the notice of appeal to the Fifth Circuit and litigated several post-trial motions. Attorney Shelley L. Hopkins, another defendant in this case, made her appearance as counsel for Deutsche Bank on June 21, 2016. Notice of Attorney Substitution, Deutsche Bank Nat ‘l Trust Co. v. Burke, et al., No. 4:1 l-cv-1658 (S.D. Tex. June 21, 2016), ECF No. 108. Both Mark and Shelley Hopkins served as counsel on appeal. See Deutsche Bank Nat’l Trust Co. v. Burke, et al., No. 15-20201 (5th Cir. 2015).

1 Burke, et al. v. Geithner, No. 4:09-cv-2572 (S.D. Tex. 2009); Burke, et al. v. IndyMac Mortg. Services, et al., No. 4: l l-cv-341 (S.D. Tex. 2011); Deutsche Bank Nat’! Trust Co. v. Burke, et al., No. 4:l l-cv-1658 (S.D. Tex. 2011); Burke, et al. v. Ocwen Loan Servicing, LLC, No. 4: l 8-cv-4544 (S.D. Tex. 2018).

The case was reversed and remanded on July 19, 2016. Deutsche Bank Nat’! Trust Co. v. Burke, et al., 655 F. App’x 251 (5th Cir. 2016). After further briefing and hearings, Judge Smith again entered judgment in favor of defendants and Mark Hopkins again filed notice of appeal. Deutsche Bank Nat ‘l Trust Co. v. Burke, et al., No.  H-11-1658,  2017  WL  6523592  (S.D.  Tex.  Dec.  21,  2017).  Mark and Shelley Hopkins again served as appellate counsel. Deutsche Bank Nat ‘l Trust Co. v. Burke, et al., No. 18-20026 (5th Cir. 2018). The court of appeals reversed and rendered judgment in favor of Deutsche Bank on September 5, 2018. Deutsche Bank Nat’! Trust Co. v. Burke, et al., 902 F.3d 548 (5th Cir. 2018).

The Burkes have now sued Deutsche Bank’s appellate counsel-Mark Hopkins, Shelley Hopkins, and Hopkins Law, PLLC. The Burkes’ amended complaint (D.E. 27) is, with attachments, 160 pages long. In it, the Burkes discuss their lengthy history of litigation relating to the home equity loan. They discuss the conduct of the litigation in the district court and the court of appeals. They make many accusations against Defendants. The complaint is riddled with irrelevancies. As best the court can tell, the Burkes now claim that Defendants’ conduct during the underlying litigation constituted fraud, civil conspiracy, and unjust enrichment, and that it violated both the Texas Debt Collection Act (TDCA) and the Fair Debt Collection Practices Act (FDCPA).

2.     Standard of Review

A plaintiffs complaint should “contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (quotation omitted). Under Rule 12(b)(6), a complaint that does not allege “enough facts to state a claim to relief that is plausible on its face” should be dismissed. Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, “[r]egardless of how well-pleaded the factual allegations may be, they must demonstrate that the party is entitled to relief under a valid legal theory.” Langen v. Sanchez Oil & Gas Corp., No. CV 4:18-2840, 2019 WL 1674348, at *3 (S.D. Tex. Apr. 17, 2019). While a complaint does not require detailed factual allegations, a plaintiff must provide more than labels and conclusions. Twombly, 550 U.S. at 555. “[C]onclusory allegations or legal conclusions masquerading as  factual conclusions will not suffice to prevent a motion to dismiss.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).

Where an “obvious alternative explanation” provides a more likely reason for the complained-of conduct, the plaintiffs claim does not cross the plausibility threshold. See Twombly, 550 U.S. at 567-69 (holding that industry norm and business incentives provided a more plausible explanation for the defendants’ noncompetition than the plaintiff’s allegation that the defendants conspired to engage in antitrust activity); Ashcroft v. Iqbal, 556 U.S. 662, 681-82 (2009) (holding that the plaintiff’s allegation of discrimination was not plausible on its face because the government’s legitimate, heightened national security interests after 9/11 provided a more likely explanation for the plaintiff’s arrest and detention conditions).

The court liberally construes pro se pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under Rule 15(a) of the Federal Rules of Civil Procedure, when a plaintiff’s complaint fails to state a claim, the court should generally give the plaintiff a chance to amend the complaint before dismissing the action with prejudice, unless doing so would be futile. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,329 (5th Cir. 2002). When considering a motion to dismiss, a court must consider the complaint in its entirety, including documents incorporated by reference. Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court may also consider “any documents attached to the complaint and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

3.     Attorney Immunity

Defendants argue that they are immune from suit under the doctrine of attorney immunity. According to the motion to dismiss, all the complained-of conduct took place during pnor litigation while Defendants were discharging duties on behalf of their client, Deutsche Bank.

Under Texas law, attorney immunity 1s a “comprehensive affirmative defense protecting attorneys from liability to non-clients, stemming from the broad declaration … that attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.” Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017) (internal citation omitted). To prevail on a motion to dismiss based on attorney immunity, the attorney must “conclusively establish that the alleged conduct was within the scope of the attorney’s legal representation of the client.” Id. at 375. A dismissal is appropriate if the scope of the attorney’s representation is apparent from the face of the complaint. Id.

Courts have considered several exceptions to the doctrine. First, if an attorney’s actions are not “the kind of conduct in which an attorney engages when discharging duties to a client,” then attorney immunity does not apply. Kelly, 868 F.3d at 374. Additionally, if the Texas Legislature expressly abrogates the defense for a particular statute, attorney immunity will not be available under that statute.

Troice v. Greenberg Traurig, LLP, 921 F.3d 501, 507 (5th Cir. 2019).

Many of the Burkes’ claims stem from this exchange that took place during  a 2017 conference in the underlying case:

Mark Hopkins: I’d also point out to the Court, while the Court only has the aid of the evidence that’s before it, the Burkes consistently use  the term “employment  income.”  It’s not-and I believe the Court may have the perception that this loan was closed with no reflection at all with respect to the Burkes’ income. I’ve had the benefit of reviewing that closing file, which wasn’t put in evidence before the Court because the allegations were raised by the Burkes. But it clearly shows that Mrs. Burke has an offshore pension account, foreign bank accounts that she asked be kept strictly confidential, banking relations with Barclay’s, Bank of America, Chase and  Citi, and credit from Neiman’s and Nordstrom’s and Jaguar.

The Court: Well, the bank never-the bank  had  the  opportunity at trial to introduce the evidence or to contradict Mr. Burke’s testimony and did not, so this is out. (D.E. 27 at 93.)

During a September 2019 status conference with this court, the Burkes argued that they had complaints about the way that Mark Hopkins acted during the underlying proceedings. (D.E. 52 at 15-16.) During that conference, the court reminded the Burkes that in response to Defendants’ motion to dismiss, the Burkes needed to point out actions that Defendants took outside of their roles as lawyers. (D.E. 52 at 34.) The Burkes have not pointed out any conduct outside of the representation. Instead, they argue that Defendants’ conduct is exempt from attorney immunity because (i) Mark Hopkins’s in-court statements were made outside of his representative capacity and the litigation context, (ii) his in-court statements constituted “bad faith admissions” that waived immunity, and immunity did not apply because Hopkins did not have the authority to represent Deutsche Bank. (D.E. 27 at 62, 94-97.)

A. Litigation Context

The Burkes contend that Defendants are not protected by attorney immunity because the conduct they are complaining about took place after the bench trial was over. (D.E. 32 at 27; D.E. 59 at 2.) Thus, they argue, Defendants are exempt from attorney immunity because their conduct took place outside of litigation.

Defendants’ complained-of conduct took place during post-trial motions practice before the district court and in connection with the appeal before the Fifth Circuit. The Burkes present no facts to show that Defendants acted outside the litigation context.

B. “Bad Faith Admissions”

The Burkes argue that Mark Hopkins’s statements during the 2017 conference constituted “bad faith admissions” that “waived attorney immunity.” (D.E. 59 at 2.) They believe that Hopkins wrongfully withheld evidence. (D.E. 27 at 48-49, 73.) The Burkes present no facts to show that Defendants wrongfully withheld evidence.

In any event, Texas law makes clear that “an attorney’s conduct may be wrongful but still fall within the scope of client representation.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 (Tex. 2015). “[M]erely labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of client representation or render it ‘foreign to the duties of an attorney.”‘ /ronshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 765-67 (5th Cir. 2019) (“Whether an attorney’s conduct was in the scope of his representation of a client is a legal question.”).

Because the parties agree that the Burkes’ allegations stem from conduct within the underlying foreclosure litigation and because Hopkins’s only role in that case was in his capacity as a lawyer, attorney immunity applies despite the Burkes’ “bad faith” complaints.

C. Attorney-Client Relationship

The Burkes also argue that attorney immunity does not apply because Defendants had no authority to represent Deutsche Bank during the legal proceedings. (D.E. 27 at 62, 83.) The Burkes contend that Defendants must supply a contract or engagement letter to establish their relationship as Deutsche Bank’s counsel in the prior litigation. (D.E. 27 at 83.) Because these documents have not been produced, the Burkes argue, Defendants are not immune from liability as they have not established an attorney-client relationship with Deutsche Bank.

The Burkes raised this complaint during the underlying litigation and the district court found no basis to remove Defendants as Deutsche Bank’s counsel. See Deutsche Bank Nat’! Trust Co. v. Burke, et al., No. 4:11-cv-1658 (S.D. Tex. Oct. 21, 2016), ECF No. 118 (“The court understands that the Burkes have strong feelings about their treatment by the Bank and its representatives during the course of this long litigation. Nevertheless, they do not have veto power over the Bank’s choice of counsel.”). The Burkes offer no facts to suggest that Defendants were not authorized to act as Deutsche Bank’s counsel.

The Burkes also argue that Mark Hopkins’s use of words like “I” and “me” imply that he was appearing in court on his own behalf and not as Deutsche Bank’s representative. (D.E. 27 at 38; D.E. 32 at 27.) The statements the Burkes point out include: “I’d also point out to the Court,” “I believe the Court may have the perception,” and “I’ve had the benefit of reviewing.” (D.E. 27 at 93.) The Burkes argue he should have replaced “I” with “my client” or “the bank.”

The Burkes’ argument is frivolous. Lawyers routinely refer to themselves in the first-person while representing clients in court. The use of first-person pronouns does not terminate the representation.

The Burkes have not provided any facts alleging that Defendants engaged in the type of conduct that may fall outside of the attorney-immunity doctrine. Because all of Defendants’ conduct was within the scope of representation and was “not foreign to the duties of an attorney,” attorney immunity applies to all of the Burkes’ common law claims. See Cantey Hanger, LLP, 467 S.W.3d at 485. Thus, the court recommends that the Burkes’ claims of fraud, civil conspiracy, and unjust enrichment be dismissed.

4.     FDCPA and TOCA Claims

Attorney immunity does not apply if a statute expressly abrogates the defense. Both the Fair Debt Collection Practices Act (FDCPA) and the Texas Debt Collection Act (TDCA) apply to attorneys who regularly engage in consumer-debt collection activity. These statutes prohibit “debt collectors,” including some attorneys, from using deceptive methods in debt collection.

  1. The Burkes’ Allegations

Under the two-step inquiry outlined in Iqbal, the court first identifies and disregards conclusory allegations. Iqbal, 556 U.S. at 664. Legal conclusions, or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not entitled the assumption of truth. Id. at 678. Neither “unsupported conclusions . . . of mixed fact and law” nor “unwarranted deductions” are acceptable. Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004); Stanton v. United States, 434 F.2d 1273, 1276 (5th Cir. 1970). Second, the court “consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief.” Iqbal, 556 U.S. at 664.

The Burkes assert that “Hopkins and his firm Hopkins Law, PLLC, are debt collectors” and refer to Defendants as such throughout the complaint without further explanation. (D.E. 27 at 7, 8, 10, 45, 50, 54, 62, 72, 83, 84, 86, 88, 90, 100.)

The Burkes also make dozens of generalized allegations of fraud, abuse, and misconduct. Despite its length, the amended complaint contains few facts pertaining to Plaintiffs’ causes of action under the TDCA and the FDCPA.

The court has scoured the record for any factual statements that might arguably support the Burkes’ statutory claims. The Burkes moved for leave to file a second amended complaint (D.E. 31), which Judge Hittner denied. (D.E. 37.) Still, the court reviewed all of the Burkes’ factual allegations in this analysis, including those first mentioned in their response to the motion to dismiss. The court considers the following to be facts alleged by the Burkes in support of their statutory claims:2

  • Defendants do not maintain a surety bond (D.E. 27 at 7; D.E. 32 at 36);
  • Mark and Shelley Hopkins are experienced, licensed attorneys (D.E. 27 at 8, 89);
  • Mark Hopkins’s initial notice of appearance in district court listed the name of his law firm as “Hopkins & Williams, PLLC” (D.E. 27 at 28;
2 Record citations in this section are not exhaustive. Many of the recited facts are repeated throughout the Burkes’ filings.
  • Mark Hopkins’s notice of appearance was filed in 2015, after the benchD.E. 32 at 33), but he lists the name of his law firm in the Fifth Circuit as “Hopkins Law PLLC”·
  • Mark Hopkins’s notice of appearance was filed in 2015, after the bench trial, and he filed an appeal each time the trial court ruled against Deutsche Bank (D.E. 27 at 28, 31, 32, 40);
  • Mark Hopkins filed a motion with the court that stated “Deutsche Bank requests the opportunity to reopen the evidence at trial to provide the court with the wet ink original of the Note” (D.E. 27 at 63-64);
  • Mark Hopkins offered as evidence a loan application seeking $539,000 that had been rejected by IndyMac, which differed in many respects from the $615,000 loan application that was eventually approved and that was the subject of the Burkes’ lengthy litigation (D.E. 27 at 30, 32);
  • Mark Hopkins reviewed the Burkes’ mortgage file, which was not included as evidence (See supra Part 3);
  • during a phone call with the Burkes’ attorney, Mark Hopkins accused the Burkes of hiding income and assets (D.E. 27 at 41, 68);
  • in court filings, Defendants stated that the Burkes had resources to retain counsel but were nevertheless appointed pro bono counsel (D.E. 27 at 41);
  • Defendants sent the Burkes both an acceleration notice and a demand letter dated October 15, 2018 (D.E. 32 at 35);
  • Defendants’ October 15, 2018 letter was sent in response to the Burkes’ Qualified Written Request (D.E. 32 at 34, 36-37);
  • the October 15, 2018 letter provided the loan information that the Burkes requested, including the payoff amount of $1.1 million (D.E. 32 at 34, 36-37); and
  • the October 15, 2018 letter also asked the Burkes to “please direct [] inquiries to [Defendants’] attention as counsel for Ocwen & Deutsche Bank.” (D.E. 32 at 34, 36-37.)

Again, the court has construed the Burkes’ pro se amended complaint in the light most favorable to them and has endeavored to ferret out all of the factual statements that might support their statutory claims. Having done so, the court considers the foregoing to be the facts of the case for purposes of its analysis. The court must now determine whether these allegations plausibly give rise to the asserted statutory violations. See Iqbal, 556 U.S. at 680.

  1. Liability under the FDCPA & the TDCA

The FDCPA prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

15 U.S.C. § 1692e. Under the FDCPA, a “debt collector” is a person whose principal business is collecting debts or a person who regularly collects or attempts to collect debts for someone else. 15 U.S.C. § 1692a(6).

Similarly, the TDCA prohibits “debt collectors” from collecting debt using harassing, abusive, and deceptive methods. Plaintiffs must show that Mark Hopkins, Shelley Hopkins, and Hopkins Law, PLLC meet the statute’s definition of “debt collector” or “third-party debt collector” and engaged in prohibited conduct.

Under the TDCA:

“Debt collector” means a person who directly or indirectly engages in debt collection and includes a person who sells or offers to sell forms represented to be a collection system, device, or scheme intended to be used to collect consumer debts.

“Third-party debt collector” means a debt collector, as defined by 15 U.S.C. Section 1692a(6), but does not include an attorney collecting a debt as an attorney on behalf of and  in the name of a client unless the attorney has nonattorney employees who: (A) are regularly engaged to solicit debts for collection; or (B) regularly make contact with debtors for the purpose of collection or adjustment of debts. Tex. Fin. Code Ann.§ 392.001 (West).

The Burkes have not set forth sufficient facts to show that Defendants are “debt collectors” under the FDCPA. Their conclusory statements that Defendants are “debt collectors” are not sufficient. They do not provide any facts to demonstrate that Defendants’ principal business is collecting debts or that they regularly collect debts or attempt to collect debts for someone else. For the same reasons, Plaintiffs have not set forth sufficient facts to show that Defendants would qualify as “third-party debt collectors” under the TDCA. Defendants may qualify as “debt collectors” under the TDCA.

Even if the Burkes had shown that Defendants are “debt collectors,” they have not alleged sufficient facts to show that Defendants engaged in prohibited conduct under either statute. Both statutes prohibit debt collection methods that threaten, harass, abuse, or deceive a debtor. Examples of prohibited methods include: sending a letter to a debtor that looks like it is from a government agency, using obscene or profane language when contacting a debtor, and threatening a debtor with violence or illegal action. See 15 U.S.C. §§ 1692d-1692j; Tex. Fin. Code Ann.§§ 392.301-392.307 (West).

The Burkes have not provided any facts that suggest Defendants engaged  in prohibited conduct. At best, the Burkes have alleged that Defendants responded to their requests for information, that Defendants offered parts of the loan file into evidence, and that Defendants zealously represented their clients. None of this constitutes a violation of either statute.

Three of the Burkes’ allegations merit specific attention. The Burkes allege that Mark Hopkins offered a falsified loan application into evidence. (D.E. 27 at 30.) The Burkes do not set forth any facts to show that Hopkins knew the loan application was false. Rather, it appears Hopkins was offering documents located in his client’s files. Further, the district court rejected Hopkins’s request to admit this document as evidence. This does not constitute a violation of either statute.

The Burkes also claim that the original principal of their loan was $615,000, but Defendants, in response to an inquiry from Plaintiffs, said they owed $1.1 million. (D.E. 32 at 26, 34.) Plaintiffs allege no facts to suggest that Defendants’ response to their inquiry violates either statute. While Plaintiffs seem to say Defendants were being deceptive, it is more plausible that they were reporting the amount of principal plus interest that their client, Deutsche Bank, reported the Burkes then owed.

The Burkes also argue that Defendants failed to file a copy of a surety bond with the Texas Secretary of State as required by Tex. Fin. Code Ann. § 392.101. This statute only applies to “third-party debt collectors” or credit bureaus engaged in debt collection. The Burkes have not provided facts to show that Defendants are “third-party debt collectors” engaged in debt collection. In any event, the Burkes have failed to show how Defendants’ failure to have a surety bond on file caused them any injury.

The court therefore recommends that the Burkes’ statutory claims be dismissed.

5.     Conclusion

Because the Burkes have not alleged any facts against Defendants that may warrant relief, they have not met their burden to defeat the motion to dismiss.

The court finds that an amendment of their complaint would be futile. The Burkes have already filed an amended complaint with leave of court. (D.E. 23, 27.) The Burkes moved for the court’s leave to file a second amended complaint, which the court denied. (D.E. 31, 37.) Given the history of this case, the court finds that the Burkes are “unwilling or unable to amend in a manner that will avoid dismissal.” See Great Plains Tr. Co., 313 F.3d at 329.

Accordingly, the court recommends that Defendants’ motion to dismiss (D.E. 28) be GRANTED and that this case be dismissed with prejudice. All other pending motions (D.E. 38, 40, 54, 55, 56, 61) are DENIED as MOOT.

The parties have fourteen days from service of this Memorandum and Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. 72. Failure to timely file objections will preclude  appellate  review  of factual findings or legal conclusions, except for plain error. See Thomas v. Arn, 474 U.S. 140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

Signed at Houston, Texas, on February 24, 2020.

United States Magistrate Judge Peter Bray

The Fifth Circuit 3-Panel at the Court of Appeals in the Related Case, Burke v Ocwen #19-20267

WILLETT, DON R.

SOUTHWICK, LESLIE H.

HIGGINGBOTHAM, PATRICK E.

Objection to M&R by Magistrate Judge Peter Bray

OBJECTIONS TO MEMORANDUM AND RECOMMENDATION

Plaintiffs Joanna & John Burke (“Burkes”) object[1] to the entire Memorandum and Recommendation (“M&R) of the Magistrate Judge (“MJ) (Doc.65), pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule 72 of the Federal Rules of Civil Procedure.  Shortly after the financial crisis, Craig Howland, chief of the Federal Bureau of Investigation’s financial institutions fraud unit said:

“An attorney is a key participant in a mortgage scheme. That’s because being able to point to a lawyer, who is sworn to uphold the law, “adds legitimacy” to the scam and thus can help ensnare potential victims.”[2]

This mirrors the pro-se[3] attorney-defendants herein.

THE M&R IS PREMATURE

This court is aware of the pending appeal at the Fifth Circuit in the Burkes Ocwens’ Note[4] case. Many of the arguments raised in this Hopkins Conspiracy[5] case mirror the Ocwens’ Note case, and in relation to the prior Deutsche Bank Fraud[6] civil action. It is well documented since the entry of judgment in favor of Deutsche Bank in 2018, the Burkes stratagem is to flush out the real parties of interest by raising two civil actions, one against Ocwens’ Note and the other against Hopkins Law, PLLC and their lawyers, Mark and Shelley Hopkins, who now claim to represent both Deutsche Bank and Ocwen.[7]  For the reasons stated herein, the M&R is premature.[8] By recommending dismissal with prejudice, this court is guilty of discrimination and circumventing the rule of law.[9]

THE BURKES’ ATTACHING AFFIDAVITS

The Burkes attach individual affidavits[10] pointing out the MJ shouted at John Burke the following question; “Are you a CRIMINAL?” John Burke, calmly replied; “Do I look like a CRIMINAL, your honor?”.[11]

M&R ANALYSIS

The MJ encapsulated the Burkes complaint as fraud, civil conspiracy, and unjust enrichment, and violated both the TDCA and the FDCPA.  The Burkes now respond:

STANDARD OF REVIEW

The Burkes have met the required pleading standards in law to have this case proceed to discovery and a jury trial to prove their case. However, the MJ seemingly demands an evidentiary standard to defeat a motion to dismiss when all that is required per the Supreme Court is a ‘holistically’ sound presentation of the case. The Burkes judiciously obliged but the M&R’s disjointed ‘scouring and ferreting’ has resulted in a confused synopsis and an incomprehensible review.

Hopkins ‘System of Fraud’

This is not “conclusory evidence” nor “merely labeling an attorneys’ conduct as fraudulent”.[12] No, this is incriminating[13] evidence. The Burkes complaint surpasses the ‘standard of review’ (Doc.65, p.4-5). Despite the Burkes detailed filings[14], judicial notices and supplemental authorities (Docs.45/1/2) which presented irrefutable evidence of [BDF] Hopkins system of fraud, none of these documents were deemed substantive.  An ‘abuse of discretion’.

‘Statutory Section”  Standards

The MJ cited specific statutory cases when setting the ‘standard’: Iqbal, Southland and Stanton. Doc.27, p.91-92 addressed Twombly, Iqbal and the ‘higher pleading standards’. It was ignored. There are many statutory cases in the Burkes complaint which repel the M&R’s standards, but there is none more detailed than by Senior Magistrate Judge Fitzwater in Smith v. Moss Law Firm, P.C., No. 3:18-CV-2449-D (N.D. Tex. Feb. 6, 2020). The Burkes meet the statutory standards.

The M&R itself is guilty of ‘mixing’ different standards of fact and law. Fraud has been discussed separately but the MJ brings a higher standard pleading e.g. Fed. R. Civ. P. 9(b) requirement into the statutory section. This is error.[15]

Whilst fraud[16], civil conspiracy[17] and unjust enrichment[18] is a material part of the Burkes complaint, the Supreme Court has stated a complaint should be reviewed ‘holistically’ (Doc.65, p.5); Tellabs v. Makor Issues Rights, 551 U.S. 308, 14 (2007).

(III) Attorney Immunity

 A; Litigation Context: Doc.65, p.8.

Short Response: Misconstrued interpretation. Hopkins voluntarily waived immunity, surrenders it due to fraud and/or withholding evidence, and/or attorney immunity does not reach the cited documents and statements.

B; “Bad Faith Admissions’: Doc.65, p.8-9.

Short Response: Denied.

C; Attorney-Client Relationship: Doc.65, p.9-11.

Short Response: Denied.

RESPONSE: ATTORNEY IMMUNITY

To prove their claims, the Burkes have stated Hopkins should show authority.[19] Hopkins relies upon their legal status as lawyers[20] and ‘attorney immunity’ as their defense. The MJ rejects the Burkes request, even though attorney immunity does not apply in the areas which relate to the ‘mortgage file’ and ‘engagements letters.[21] The Burkes are being denied the right to discovery or in-camera review[22] of the engagement letter(s). The courts assertions are unfounded in law.

The MJ suggests that the Burkes have failed to provide any non-conclusory facts which would require Hopkins to show authority (Doc.65, p.9-11)  and, in any event, this court rejected the Burkes similar request in 2016  e.g. four long years ago. The Burkes emphatically reject this argument.[23] Hopkins has been deceptive, withheld evidence and lied in open court. Now the court is acting as a personal gatekeeper for Hopkins and that stance is mistaken, based on the facts presented. The Burkes request fails to warrant such over-zealous judicial protection for the pro se attorney-defendants.

In support, the Burkes ask; Is Hopkins honorable and trustworthy? The facts suggest that Hopkins is neither and as such the MJ should have granted the show authority request and denied the motion to dismiss, after reviewing the Burkes complaint ‘holistically’; (i) Hopkins fails to maintain a surety bond and is a debt collector (This despite decades of debt collection experience working exclusively in the creditor rights vertical [24]);

(ii) Mark Hopkins conduct was unbecoming a member of the bar[25] in front of the MJ at the last conference and where he repeated outrageous lies that the Burkes were guilty of making threats of violence against Judges[26], a lie Mark Hopkins would later admit.

It was slander, deliberately schemed to inflame the court and materially malign the Burkes reputation. The MJ is complicit by his bias and inaction[27] post-conference against pro-se Mark Hopkins, (who does not benefit from attorney immunity in this case and should not have been allowed to proceed pro se[28]) and premature publication of this one-sided M&R which never addressed Hopkins conduct.[29];

(iii) Hopkins confessed on open record he withheld vital evidence from the Burkes which would help prove their case and also prevent him filing an appeal (the mortgage file)[30]; (iv) Hopkins initially stated they represented Deutsche Bank, now it is Deutsche Bank and Ocwen, despite the conflicts and also the comments from the Texas Supreme Court Task Force[31]; (v) Due to securitization and RMBS resale marketplace, Banks and Non-Banks change attorneys as often as bedsheets in a motel. Hence, it is unproven and challenged whether straw man Deutsche Bank owns the debt or whether it was purchased by a non-bank like Ocwen[32], a REIT, private entity or Hopkins themselves, who, through Mark Hopkins spoke as if it was his firms’ debt on the record (Doc.27, p.38, 48, 59, 69, 93) ; (vi) Shelley Hopkins’ 15 month delay to replace the bench trial attorney, Jacocks of BDF, casts doubt on when/if she obtained authority (Doc.27, p.28-29, 53); (vii) Texas courts demand lawyers provide detailed billing statements when seeking attorney fees[33]; (viii) Hopkins sent the Burkes a notice for $1.1 million[34] when the judgment is $615k (Doc.27, p.9) and refuses to change the statement of account to reflect the judgment of the court, despite the evidence that the $615k is the full and final amount Hopkins requested repeatedly in the Deutsche Bank II case; (ix) The Texas Supreme Court has recently opined that an email is not a binding contract in law[35]; (x) Hopkins engaged and still engages in fraud, misrepresentation, and misconduct in presentations, verbally and in writing, to the court in both post and pretrial matters, conferences, and in his presentations to the Fifth Circuit in support of his two last appeals from this court’s dismissal of Deutsche Banks’ claims against the Burkes.[36]

Here, the court is relying on Hopkins attorney signature(s)[37] from attorneys who cannot be trusted. Yet without any visible contract(s) or engagement letter(s) or even emails in hand, this court is willing to discard such a simple proof of authority request.[38] This is without justification, when a homestead is at risk.[39] The Texas constitution, state and federal government demand citizens and especially the susceptible and elderly are protected from predatory lending and fraudulent loans. Sister federal courts and judges agree with this sentiment.[40] Hopkins is a known unlicensed, unbonded debt collection law firm. The Burkes request is merited.

The other counts, the ‘financial crimes’[41] leveled at Hopkins in the civil proceedings include withholding evidence.[42] This would have proven beyond a reasonable doubt and based on the preponderance of the (hidden) evidence (the ‘mortgage file’), the original loan application income fraud by  Indymac. Hopkins admitted as much on the record by stating he willfully and knowingly withheld the evidence (no ‘attorney immunity’ applies) from the Burkes. Furthermore, by Hopkins accepting and appealing the case with this knowledge, they were complicit by their acts (no ‘attorney immunity’ applies).[43] The Burkes complain about the introduction of fake documents, forgery[44], fraud, and a known system of fraud being perpetrated in Texas courts by these deceiving, dishonest and malicious lawyers who also attempt to use shell-sham companies to mask their relationship with BDF, who are lucidly and visibly complicit in these ignoble and fraudulent business[45] schemes to steal homes from citizens for financial avarice and leverage the courts to do so.

The Burkes complaint also reveals the serious crime[46] of moral turpitude resulting in theft of property, civil conspiracy, unjust enrichment, and debt collection violations. Hopkins premeditated acts have added five years of additional and unnecessary litigation. The pain, suffering and injury to the Burkes is unconscionable. The mental, physical and life-threatening illnesses will leave permanent and irreversible disabilities and emotional scars. The stress and duress[47] over the many years in courts has been ruinous.

Nevertheless, the M&R ‘mooted’ many motions and denied the Burkes a right to amend their complaint in the future. The Burkes specifically object to that recommendation, considering the first amended complaint was written when Joanna Burke was in hospital with a life-threatening medical emergency and unable to participate in the amended complaints’ construction.[48] They also object to the M&R in totality. As this court recognized, this is a lengthy dispute. However, the court failed to acknowledge five years of this litigation can be attributed to the attorney-defendants. Hopkins, who fatefully arrived in March 2015, after the bench trial and wherein this court had already ruled in favor of the Burkes, dismissing the no-witness, no-evidence Banks’ civil action. The appeal(s) by the unlicensed debt law firm of Hopkins & Williams, PLLC/Hopkins Law, PLLC should never have been granted. The Burkes alerted this court, but they erred in allowing the conniving Hopkins to proceed, believing Hopkins to be trustworthy. That was error.

 (IV) FDCPA, TDCA and Prohibited Conduct: Doc.65, p.11-16.

Short Response: Denied.

RESPONSE: HOPKINS IS A DEBT COLLECTOR

Contrary to the MJ’s opinion, Hopkins is a debt collector according to Senior Judge Nancy Atlas; See Jackson v. U.S. Bank , Civil Action No. 4:17-CV-2516, at *17-18 (S.D. Tex. Aug. 14, 2018);

“…Shapiro responds further that even if it is a “third-party debt collector,” its efforts in connection with the attempted foreclosure[49] of the Property are not “debt collections” within the meaning of the TDCPA. These responses lack merit.”

Hopkins has the ignominy of facing the fact that BDF does maintain a surety bond[50] as debt collectors. BDF are co-conspirators as shown in PNC v Howard[51] and Mark Hopkins has worked on BDF appeal cases for many years and his wife is an ex-employee of BDF.[52]  Today, the BDF Hopkins relationship is extremely close and visible. They perform the same services, creditor rights foreclosure attorneys and more recently, two of BDF’s founding partners relocated, and reside in adjacent offices beside Hopkins. All of these facts were completely discounted in the M&R.

Three of the Burkes’ allegations merit specific attention;

  • The falsified loan application; Doc.65, p.16

RESPONSE: THERE IS NO VERIFIED LOAN APPLICATION

Doc.27, p.21-22, discusses the $539k application, the mortgage file which was intentionally withheld from the Burkes (MJ refers as ‘his client’s files’).  The law firm in the Indymac case before Judge Hughes was Ackerman. The attending lawyer is currently a Partner. He can be called as a witness to corroborate the facts. In the alternative, the Burkes would seek to recover the in-chambers transcript as evidence. The allegations the MJ discusses above, is the Burkes contend Hopkins presented a ‘doctored’ loan application on appeal. Fact; the bank has never provided  a correct and verified loan application into evidence prior to Hopkins self-appointment.

Taking a holistic view of the Burkes allegations and in conjunction with the newly discovered facts (See Docs.45/1/2); [BDF] Hopkins[53] operate a known system of fraud in Texas courts, specifically the two documented, published, high profile and high value foreclosure cases, namely Deutsche Bank Fraud and PNC v. Howard. In the Deutsche Bank Fraud case Hopkins arrived and immediately requested the court allow him to introduce the ‘wet ink original note’ AFTER trial.  Hopkins along with BDF, tried the same scheme in the PNC case, in relation to ‘lost evidence’ (Doc.42, p.2) which ALSO miraculously appeared AFTER trial. This is a known system of fraud (Doc.42, p.4-5) and admitted tactic as highlighted by the Texas Supreme Court Foreclosure Task Force transcript, where members of the judiciary and BDF presided and admitted to these type of illegal acts performed by banks, non-banks, their agents and attorneys.  Both lower court judges denied BDF Hopkins requests to submit fake documents. However, these lawyers and their law firms are not being held accountable for these crimes.[54]

  • The loan was $615,000; Doc.65, p.16.

$615K IS THE VALUE OF THE JUDGMENT

This specific question was also raised in the Ocwens’ Note case and is at the Fifth Circuit. However, see Ocwens’ Note Doc.22. The MJ’s arguments are not plausible, it’s not the loan amount, it’s the judgment amount that counts.

  • The Surety Bond; Doc.65, p.16-17.

ROGUE BOUNTY HUNTERS & HOUSE JACKERS

Contrary to the MJ’s opinion, the Burkes have proven Hopkins engaged in prohibited conduct. TFC; SUBCHAPTER B. SURETY BOND; Sec. 392.101

“…may not engage in debt collection unless the third-party debt collector or credit bureau has obtained a surety bond…”

Hopkins May Not Engage in Debt Collection in the State of Texas

Hopkins should not be operating while Hopkins Law, PLLC fails to maintain the required surety bond.  In this case, Hopkins has injured the Burkes by filing appeals in the underlying Deutsche Bank Fraud case. Hopkins also represent Ocwen in the case currently pending at the 5th Cir. While this court may say Mark and  Shelley Hopkins can trade as lawyers when their licenses are in good standing with the Texas Bar, that may well be, however, there is a conflict which they cannot overcome.

Hopkins, as debt collectors, should not be communicating with the Burkes in relation to their alleged debt or responding to the Burkes direct letters to Deutsche Bank, nor Ocwen, while they are unauthorized to do business in the State.

Currently, Hopkins are in violation of all the above. All communications, including QWR’s which the Burkes’ sent to the servicers corporate address (QWR address)[55] are being redirected to Hopkins in violation of the law.

The MJ states even if Hopkins is a debt collector, the Burkes have not shown injury. That argument is frivolous. If Hopkins fails to maintain a surety bond with the State, they are refrained from doing business as a debt collector. Hopkins should not file any civil action, defend any civil proceedings, or appeal any ongoing legal disputes which involves the Burkes current cases, even if Hopkins are licensed Texas.

Injury; Since the Deutsche Bank Fraud bench trial (2015), Hopkins has been in violation and by deception[56], reversed on appeal the Burkes judgments in their favor twice, 2016 and 2018. Hopkins has caused at least five years of financial losses, distress, duress and substantively contributed to the Burkes life altering medical illnesses. The expert witness list (Doc.36) includes doctors and nurses who averred to have saved Joanna Burke from certain death and are available for any depositions, cross-examination and trial by jury to confirm these facts as true and not ‘conclusory’.

CONCLUSION

For the foregoing reasons, the Burkes object to the recommendations in the memorandum. The motion to dismiss should be DENIED and the case proceed to discovery and jury trial. In the alternative, the Burkes should be allowed to amend their complaint to address any perceived deficiencies.

RESPECTFULLY submitted this 6th day of March, 2020.

[1]These objections should be reviewed de novo, in conjunction with Docs.1-65, and related cases, including judicially noticed and supplemented.

[2]https://www.abajournal.com/news/article/huge_number_of_lawyers_accused_in_civil_and_criminal_mortgage-related_fraud

[3]Chandler v. Phx. Servs., No. 7:19-cv-00014-O, at *5-6 (N.D. Tex. Jan. 30, 2020)

[4]Burke, et al. v. Ocwen Loan Servicing, LLC, No. 4: l 8-cv-4544 (S.D. Tex. 2018)

[5]Burke, et al. v. Hopkins Law, PLLC, et al., No. 4: l 8-cv-4543 (S.D. Tex. 2018)

[6]Deutsche Bank Nat’l Trust Co. v. Burke, et al., No. 4:l l-cv-1658 (S.D. Tex. 2011)

[7] Doc. 28, p.4, #5.

[8]Doc.9, p.4,(d).

[9] https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law

[10]ExhibitS A/B.

[11]https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges

[12]Doc.28, p.11 #19.

[13]Kan. City S. Ry. Co. v. Chavez, No. 14-10286-HCM, at *14 (Bankr. W.D. Tex. Jan. 31, 2020).

[14]Doc.’s 27/32/59 were in the majority, discounted.

[15]Smith v. Moss Law Firm, P.C., No. 3:18-CV-2449-D, at *23 (N.D. Tex. Feb. 6, 2020)

[16]Doc.32, p.25-27, Doc.27, ‘and generally per Burke filings’ (“generally”).

[17]Doc.32, p.28-29, Doc.27, generally.

[18]Doc.32, p.30-31, Doc.27, generally.

[19]Kan. City S. Ry. Co. v. Chavez, No. 14-10286-HCM, at *60-66 (Bankr. W.D. Tex. Jan. 31, 2020)

[20]Wirsche v. Bank of Am., N.A.,7:13-CV-528, at *3 (S.D. Tex. 2013)

[21]Doe v. Baylor University, 320 F.R.D. 430 (W.D. Tex. 2017); Discussing attorney-client privilege v. work product doctrine and confirming that Hopkins waived immunity by his own  voluntary disclosures and… ” Moreover, courts generally construe the privilege narrowly because ‘assertion of privileges inhibits the search for truth.'” Id. (citing Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004); “Waiver of work product immunity” Securities & Exchange, Commission v. Gregory A. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006) and Shields v. Boys Town La., Inc., #15-3243 SECTION “G”(2) (E.D. La., 2016).

[22]George v. Grayco Commc’ns, LP, #18-8953 DIVISION: (1), at *8-9 (E.D. La., 2020)

[23]Doc.65, Exhibit #Attorney-Immunity, P.14-24, Doc.27, P.28,29,52

[24]Doc.65, p.12

[25]In re Ray, No. 19-10875, at *5 (5th Cir. Mar. 3, 2020)

[26]Doc.52, p.30 Hopkins: “… suggesting that some members of the judicial should be shot…” and “… and I would also think the Court would be interested to know that the Burkes are posting that certain judges should be shot…”. And Doc.59,59-1.

[27] Doc.63.

[28]Chandler v. Phx. Servs., No. 7:19-cv-00014-O, at *5 (N.D. Tex. Jan. 30, 2020).

[29]In re Ray, No. 19-10875, at *5 (5th Cir. Mar. 3, 2020).

[30]Doc.27, 48-49, 67, 73-76, 93, 97.

[31]Doc.27, p.47,57,64,98,105.

[32]Ocwen Loan Servicing, LLC v. Hudson-Jones, #4:18-cv-02463 (S.D. Tex. Oct. 2018); Doc.1, p.4,#13. (Ocwen owns debt).

[33]Funez v. Ebm, #16-01922 SECTION: “H” (4), at *11 (E.D. La., 2018)

[34]EXHIBIT #2018-HOPKINS-OCT-15-LETTER

[35] https://www.jdsupra.com/legalnews/alert-texas-supreme-court-confirms-no-66950/

[36] In re Ray, No. 19-10875, at *7 (5th Cir. Mar. 3, 2020).

[37]Fed. R. Civ. P.11

[38]Unlike State Court; Sloan v. Rivers, 693 S.W.2d 782, 783 (Tex. App. 1985).

[39]Matter of McDaniel, 70 F.3d 841 (5th Cir. 1995) “Stating that “[i]n Texas, homestead rights are sacrosanct”.

[40]Saccameno v. U.S. Bank N.A., No. 19-1569 (7th Cir. Nov. 27, 2019).

[41]FBI; https://www.fbi.gov/investigate/white-collar-crime/mortgage-fraud/financial-institutionmortgage-fraud-news

[42]In re Ray, No. 4:19-MC-015-A, at *8-9 (N.D. Tex. July 15, 2019) and In re Ray, No. 19-10875 (5th Cir. Mar. 3, 2020).

[43]Kelly v. Nichamoff, 868 F.3d 371, 374-75 (5th Cir. 2017).

[44]Jones v. Hogan, No. 3:15CV8-MPM-JMV, at *17 (N.D. Miss., 2018).

[45] NFTD, LLC v. Haynes & Boone, LLP, No. 14-17-00999-CV (Tex. App. Dec. 17, 2019).

[46]Kan. City S. Ry. Co. v. Chavez, No. 14-10286-HCM, at *14 (Bankr. W.D. Tex. Jan. 31, 2020).

[47]Kan. City S. Ry. Co. v. Chavez, No. 14-10286-HCM, at *104 (Bankr. W.D. Tex. Jan. 31, 2020).

[48]The judiciary and the legal profession are constantly marketing their code of conduct, ethics and civility. With the exception of former Magistrate Judge Stephen Wm. Smith, Steve Berman and his staff at Hagens Berman who represented the Burkes on appeal in Deutsche II, there has been no civility or empathy afforded to these elder citizens. In reality, quite the opposite has been true.

[49]Collins v. Phelan Hallinan Diamond & Jones, LLP, 17-3727, at *7-8 (E.D. Pa. 2018).

[50]Doc.32, p.86

[51]PNC Mortg. v. Howard, No. 05-17-01484-CV (Tex. App., 2019), and Doc.45/1/2.

[52]Doc.32, p.46-58.

[53]BDF Law Group (“BDF”) and Hopkins Law, PLLC (“Hopkins”).

[54]This court has inherent power to prevent future fraudulent activity by BDF Hopkins; Chandler v. Phx. Servs., No. 7:19-cv-00014-O, at *4 (N.D. Tex. Jan. 30, 2020).

[55]Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 995 (5th Cir. 2019)

[56]“Both statutes prohibit debt collection methods that threaten, harass, abuse, or deceive a debtor.” Hopkins deceived the Burkes and this court by not maintaining a Surety Bond and been allowed to harass,  threaten and abuse the Burkes with foreclosure proceedings by the illegal appeals in this court and at the Fifth Circuit.

HIGGINSON, STEPHEN A.

“We Shoulda, Coulda, Woulda…”

HIGGINGBOTHAM, PATRICK E.

“When You Own an Elon Musk Flamethrower…”

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AFFIDAVIT (DECLARATION) OF JOHN BURKE

INDEX

AFFIDAVIT (DECLARATION) OF JOHN BURKE. 1

INDEX.. 2

LEGAL DISCLOSURE.. 3

OBJECTIONS TO M&R.. 3

SECOND RESPONSE TO MTD (DOCS. 59 and 59-1) 3

PLAINTIFFS MOTION TO CLARIFY ORDER DOC. 50 (DOC. 54) 4

AFFIDAVIT OF JOHN BURKE.. 4

CERTIFICATE OF SERVICE.. 7

LEGAL DISCLOSURE

In lieu of an affidavit sworn under oath, federal law allows an “unsworn declaration, certificate, verification, or statement, in writing, of [a] person which is subscribed by him, as true under penalty of perjury, and dated” to have the same force and effect as an affidavit or other sworn statement. See 28 U.S.C. § 1746; see also Peters v. Lincoln Elec.Co., 285 F.3d 456, 475 (6th Cir. 2002) (while an affidavit is required to be sworn to by the affiant in front of an officer authorized to administer oaths, 28 U.S.C. § 1746 allows for “unsworn declarations under penalty of perjury” to support any matter that legally requires an affidavit to support it).

OBJECTIONS TO M&R

I, John Burke, wish to confirm via this unsworn statement that the OBJECTIONS TO MEMORANDUM AND RECOMMENDATION BY UNITED STATES MAGISTRATE JUDGE PETER BRAY are true.

SECOND RESPONSE TO MTD (DOCS. 59 and 59-1)

I, John Burke, wish to confirm via this unsworn statement that as well as relying on the entire docket de novo, I would specifically like to point the court to Doc.’s 59, PLAINTIFFS SECOND RESPONSE TO SECOND MOTION TO DISMISS AS INSTRUCTED BY MAGISTRATE JUDGE PETER BRAY and Doc. 59-1, THE COVERING LETTER FOR DOC. 59  which should be read in conjunction with the Burkes’ OBJECTIONS TO THE M&R and when reading my following affidavit.

PLAINTIFFS MOTION TO CLARIFY ORDER DOC. 50 (DOC. 54)

I, John Burke wish to confirm via this unsworn statement that as well as relying on the entire docket de novo, I would specifically like to point the court to Doc. 54, PLAINTIFFS MOTION TO CLARIFY ORDER (DOC. 50) which should also be read in conjunction with the Burkes’ OBJECTIONS TO THE M&R and when reading my following affidavit.

AFFIDAVIT OF JOHN BURKE

  • This is a declaration, under the penalty of perjury of John Burke.
  • On the afternoon of 10 September 2019, I attended a scheduled court conference with my wife, Joanna Burke at Rusk St., Houston, Texas.
  • In attendance were United States Magistrate Judge Peter Bray, clerk Jason Marchand, the court reporter and Mark Hopkins of Hopkins Law, PLLC.
  • During the conference Mark Hopkins lied and slandered myself and my wife during the hearing.
  • Relying on Doc 52, p.30 along with Doc. 59 and relying on the disclaimers as to the authenticity of the transcript/audio per Doc. 59-1, Hopkins said: “… suggesting that some members of the judicial should be shot…” and “… and I would also think the Court would be interested to know that the Burkes are posting that certain judges should be shot…”.
  • In direct response to me, the Magistrate Judge shouted at me the following question; Are you a CRIMINAL?
  • I replied; Do I look like a CRIMINAL, your honor?
  • This is not documented in the transcript or audio.
  • I wish to ensure this is formally documented and as such becomes part of the courts’ formal record.

I, John Burke, declare under penalty of perjury that the foregoing is true and correct.

March 6th, 2020, Kingwood, Texas.

SMITH, JERRY E.

“Y’all abandoned our precedents…for personal glory and to settle vendettas…”

AFFIDAVIT (DECLARATION) OF JOANNA BURKE

INDEX

AFFIDAVIT (DECLARATION) OF JOANNA BURKE. 1

INDEX.. 2

LEGAL DISCLOSURE.. 3

OBJECTIONS TO M&R.. 3

SECOND RESPONSE TO MTD (DOCS. 59 and 59-1) 3

PLAINTIFFS MOTION TO CLARIFY ORDER DOC. 50 (DOC. 54) 4

AFFIDAVIT OF JOANNA BURKE.. 4

CERTIFICATE OF SERVICE.. 7

LEGAL DISCLOSURE

In lieu of an affidavit sworn under oath, federal law allows an “unsworn declaration, certificate, verification, or statement, in writing, of [a] person which is subscribed by him, as true under penalty of perjury, and dated” to have the same force and effect as an affidavit or other sworn statement. See 28 U.S.C. § 1746; see also Peters v. Lincoln Elec.Co., 285 F.3d 456, 475 (6th Cir. 2002) (while an affidavit is required to be sworn to by the affiant in front of an officer authorized to administer oaths, 28 U.S.C. § 1746 allows for “unsworn declarations under penalty of perjury” to support any matter that legally requires an affidavit to support it).

OBJECTIONS TO M&R

I, Joanna Burke, wish to confirm via this unsworn statement that the OBJECTIONS TO MEMORANDUM AND RECOMMENDATION BY UNITED STATES MAGISTRATE JUDGE PETER BRAY are true.

SECOND RESPONSE TO MTD (DOCS. 59 and 59-1)

I, Joanna Burke wish to confirm via this unsworn statement that as well as relying on the entire docket de novo, I would specifically like to point the court to Doc.’s 59, PLAINTIFFS SECOND RESPONSE TO SECOND MOTION TO DISMISS AS INSTRUCTED BY MAGISTRATE JUDGE PETER BRAY and Doc. 59-1, THE COVERING LETTER FOR DOC. 59  which should be read in conjunction with the Burkes’ OBJECTIONS TO THE M&R and when reading my following affidavit.

PLAINTIFFS MOTION TO CLARIFY ORDER DOC. 50 (DOC. 54)

I, Joanna Burke wish to confirm via this unsworn statement that as well as relying on the entire docket de novo, I would specifically like to point the court to Doc. 54, PLAINTIFFS MOTION TO CLARIFY ORDER (DOC. 50) which should also be read in conjunction with the Burkes’ OBJECTIONS TO THE M&R and when reading my following affidavit.

AFFIDAVIT OF JOANNA BURKE

  • This is a declaration, under the penalty of perjury of Joanna Burke.
  • On the afternoon of 10 September 2019, I attended a scheduled court conference with my husband, John Burke at Rusk St., Houston, Texas.
  • In attendance were United States Magistrate Judge Peter Bray, clerk Jason Marchand, the court reporter and Mark Hopkins of Hopkins Law, PLLC.
  • During the conference Mark Hopkins lied and slandered myself and my husband during the hearing.
  • Relying on Doc 52, p.30 along with Doc. 59 and relying on the disclaimers as to the authenticity of the transcript/audio per Doc. 59-1, Hopkins said: “… suggesting that some members of the judicial should be shot…” and “… and I would also think the Court would be interested to know that the Burkes are posting that certain judges should be shot…”.
  • In response to my husband, John Burke, the Magistrate Judge shouted at him the following question; Are you a CRIMINAL?
  • The Magistrate Judge’s eyes were popping and his hands were gesticulating wildly.
  • My husband, John Burke, calmly replied; Do I look like a CRIMINAL, your honor?
  • I personally witnessed that exchange.
  • This is not documented in the transcript or audio.
  • I wish to ensure this is formally documented and as such becomes part of the courts’ formal record.

I, Joanna Burke, declare under penalty of perjury that the foregoing is true and correct.

March 6th, 2020, Kingwood, Texas.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTION TO MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION GRANTING DISMISSAL

Defendants Hopkins Law, PLLC, Mark Daniel Hopkins, and Shelley Luan Hopkins (collectively “Attorney Defendants”) file this their Response to Plaintiffs’ Objections to Memorandum and Recommendation Granting Dismissal [Doc. 66] (“Plaintiffs’ Objection”) and in support of the foregoing, Attorney Defendants would respectfully show the Court as follows:

I.

  1. Plaintiffs’ Objection to the Magistrate’s Report is merely a restatement of Plaintiffs’ Response to Defendants’ Motion to Dismiss [Doc. 59]. Plaintiffs objection does not cite to specific reasoning contained in the Magistrate’s Report that is in error and
  2. Since Plaintiffs’ Objection merely restates arguments previously presented and considered by the Magistrate Judge, it is a general objection and need not be considered by the Court. See Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th 1982) (en banc) (“Frivolous, conclusive, or general objections need not be considered by the district court.”), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Fed. R. Civ. P. 72(b) requires that Plaintiffs file written specific objections. A mere restatement of their prior arguments does not constitute sufficient specific objection.
  1. As Plaintiffs merely restated their response to the Amended Motion to Dismiss, with the same arguments, and brought forth no new issues to the Magistrate’s Report, Attorney Defendants Amended Motion to Dismiss [Doc. 28], their Reply to Plaintiffs’ Response to Motion to Dismiss [Doc. 60] are fully responsive to Plaintiffs’ Therefore, Attorney Defendants request the Court enter judgment as recommended by the Magistrate.

II.   PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants Hopkins Law, PLLC, Mark Daniel Hopkins, and Shelley Luan Hopkins respectfully request that the Court enter a ruling granting Defendants’ Motion to Dismiss, and adopt the Interim Memorandum and Recommendation of the United States Magistrate Judge in its entirety and further grant Defendants any and all further relief, whether at law or in equity, to which they may be justly entitled.

Respectfully Submitted,

HOPKINS LAW, PLLC

By:      /s/ Mark D. Hopkins                    Mark D. Hopkins, Attorney in Charge State Bar No. 00793975

Southern District ID No. 20322 Shelley L. Hopkins

State Bar No. 24036497 Southern District ID No. 926469 3809 Juniper Trace, Suite 101

Austin, Texas 78738

(512) 600-4320

mark@hopkinslawtexas.com shelley@hopkinslawtexas.com

ATTORNEYS FOR DEFENDANTS

Judge David Hittner issues Unconstitutional Order(s) immediately after the Scheduled Conference was set to be rescheduled (continued) at the request of Hopkins due to #Coronavirus

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