APPELLEES’ JOINT RESPONSE TO APPELLANT’S MOTION TO TRANSFER VENUE
MAR 6, 2023 | REPUBLISHED BY LIT: MAR 6, 2023
MARCH 8, 2023
UNPUBLISHED ORDER
(SUA SPONTE ORDER TO DENY TIME TO REPLY INCLUDING A 3 JUDGE ORDER ISSUED)
Before King, Jones, and Smith, Circuit Judges.
Per Curiam:
IT IS ORDERED that Appellant’s opposed motion to transfer this appeal to the Eighth Circuit Court of Appeals is DENIED.
COME NOW, Appellees Ocwen Loan Servicing, LLC, Mark Daniel Hopkins, Shelley Hopkins, Hopkins Law, PLLC, and PHH Mortgage Corporation, Successor by Merger to Ocwen Loan Servicing (“Appellees”), and file this their Response to Appellant’s Motion to Transfer Venue. Appellees would respectfully show the Court as follows:
I. Background
Save the official tittle, pro se Appellant Joanna Burke (“Burke”) has fully earned the right to be called a vexatious litigant.1
Burke’s litigious ways are fueled by her displaced frustration over her failure to pay her home loan dating back to 2010.
Burke’s frustrations have resulted in three prior opinions from this Court, with each opinion rejecting Burke’s meritless claims.2
Burke now seeks to have this fourth appeal transferred to the Eighth Circuit because, “[she wants] an appeal before an impartial venue of Judges.”
See Appellant’s Motion, at 7.
1 The district court noted that this current case follows a history of litigation including “four cases filed in or removed to the Southern District of Texas, three appeals to the Fifth Circuit, four motions to intervene in three unrelated lawsuits in three separate United States District Courts, two appeals to the Eleventh Circuit based on the denials of said motions … and a writ to the Supreme Court.” (ROA.1000-1009).
Additionally noted by the district court, “Plaintiffs do not dispute that they have filed complaints with the State of Texas against almost every judge and attorney who have ruled against them or represented an adverse party.” Id.
2 Deutsche Bank National Trust Company v. Burke, 655 Fed. Appx. 251 (5th Cir. 2016); Deutsche Bank National Trust Company v. Burke, 902 F.3d 548 (5th Cir. 2018); and Burke v. Ocwen Loan Servicing, L.L.C., 855 Fed. Appx. 180 (5th Cir. 2021).
By way of brief history, in Burke I and Burke II Burke litigated against her mortgagee, Deutsche Bank National Trust Company.
Unsuccessful against her mortgagee, Burke decided to bring a new round of lawsuits (collectively the two new lawsuits referred to as “Burke III”) against the lawyers who previously defended Deutsche Bank on appeal3 as well as Deutsche Bank’s mortgage servicer.4
The district court dismissed Burke III on res judicata grounds (as to the mortgagee) and attorney immunity grounds (as to the attorney defendants).
The Court affirmed the district court’s dismissal. Burke v. Ocwen Loan Servicing, L.L.C., 855 Fed. Appx. 180 (5th Cir. 2021).
Unhappy with Burke III, Burke filed this current lawsuit against Deutsche Bank’s attorneys (again) and Deutsche Bank’s mortgage servicer (again).
While the lawsuit was filed against the attorneys and mortgage servicer, Burke takes aim in Burke IV at the Court, claiming that it was fraud on the part of the “judicial machinery itself”, such fraud resulting in the Court’s Judgment in Burke III being void. (ROA.1003).
Using logic that defies understanding, Burke asserts that when a Fifth Circuit Clerk made a docket entry relabeling a motion filed by Burke as being a motion for reconsideration instead of a “Motion to Clarify,” the docket entry by Burke III ultimately concluded on August 4, 2021, when the Court denied all then-pending motions (including the “Motion to Clarify”), struck Burke’s deficient Petition for Rehearing en Banc, dismissed Burke’s appeals, and entered final judgments in favor of the attorney defendants and the mortgage servicer.
See, Appellate Doc. #515965956.
Burke did not file any motion for reconsideration, petition for rehearing en banc, or petition for writ of certiorari with respect to the August 4, 2021 Order.
Instead, Burke brought a new lawsuit in Burke IV.
3 Attorneys Mark Hopkins, Shelley Hopkins and Hopkins Law, PLLC the clerk constituted impersonation and fraud.5 6 As the logic goes, the fraud permeated all things and had the effect of voiding the Court’s prior action of entering Judgment, the District Court’s prior entry of Judgment, and the Court’s denial of Burke’s Petition for Rehearing En Banc.
4 Ocwen Loan Servicing LLC.
II. Argument
Burke filed Burke IV on August 9, 2021, in the United States District Court for the Southern District of Texas.
As stated by Burke in her Amended Complaint, she filed her lawsuit as “an equitable action with one purpose; to vacate void judgment[s] on the basis of fraud.” (ROA. 235).
Upon consideration of the defendants’ Rule 12 (c) Motions for Judgment on the Pleadings, the District Court found the motions to be meritorious and thereafter granted the motions and dismissed Burke’s case. (ROA.1000-1009).
Burke responded by filing a Notice of Appeal. (ROA.1158-1162).
5 Burke filed a Petition for Rehearing En Banc in Burke III. The Petition was defective because, among other things, it did not include a statement of the course of the proceedings.
6 The District Court summarized the multitude of Burke’s motions for reconsideration (and reconsideration of reconsiderations) within its Order Granting Defendants’ Motions for Judgment on the Pleadings. (ROA.1000).
A. Jurisdiction and 28 U.S.C. §1631.
Despite Burke filing her latest lawsuit in the United States District Court for the Southern District of Texas, and despite that court rendering a final appealable judgment, Burke argues that this Court is without Jurisdiction over her current appeal.
Burke requests that her appeal be transferred to the Eighth Circuit Court of Appeals.7
See, Motion to Transfer Venue, at 2.
Burke asserts that the Court should transfer this case to the Eighth Circuit pursuant to 28 U.S.C. § 1631.
However, Section 1631 does not provide for the relief requested by Burke.
Section 1631 provides for the transfer of a case to cure a want of jurisdiction; it is not designed to permit the transfer of cases over which a court has proper jurisdiction.
Section 1631 provides,
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court (or, for cases within the jurisdiction of the United States Tax Court, to that court) in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
28 U.S.C.A. § 1631 (emp. added).
As observed by the Court in its prior analysis of Section 1631 in Franco v. Mabe Trucking Company, Inc.,
“[t]he statue … requires a transfer when a district court lacks either type of jurisdiction [personal or subject matter] and the other statutory prerequisites are met.”
Franco v. Mabe Trucking Company, Inc., 3 F.4th 788, 795 (5th Cir. 2021)(emp. added).
Herein there has been no showing by Burke that either the District Court below, or this Court lacks jurisdiction over the parties and proceedings specifically challenging prior judgments of the Court.
The District Court (in Burke IV) undoubtedly had jurisdiction over Burke’s efforts at having the District Court’s prior judgment in Burke III set aside.
As stated by the Court,
It is well settled that a federal district court can exercise ancillary jurisdiction over a second action in order “to secure or preserve the fruits and advantages of a judgment or decree rendered” by that court in a prior action.” Such jurisdiction is appropriate where the effect of an action filed … would “effectively nullif[y]” the judgment of a prior federal action.
Royal Ins. Co. of America v. Quinn-L Capital Corp., 960 F.2d 1286, 1292 (5th Cir. 1992).
Continuing, this current appeal is an appeal of a final judgment of the United States District Court for the Southern District of Texas, Houston Division.
As a result, the jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1291.8 Burke’s reliance on 28 U.S.C § 1631 is misplaced as section 1631 cannot be utilized as basis for the relief requested by Burke.
By the express wording of the statute, section 1631 relief is only available if “the court finds there is a want of jurisdiction” and if transfer would then be “in the interest of justice.” See, 28 U.S.C.A. §1631.
As there is no. “want of jurisdiction” section 1631 is not applicable to Burke’s cause.
The Court has flatly stated, “The task of statutory interpretation begins and, if possible, ends with the language of the statute.”
Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013).
“When the language is plain, we ‘must enforce the statute’s plain meaning, unless absurd.’” Id.
7 Burke provides no explanation as to why she believes Burke IV could have been brought before a district court in the Eighth Circuit and/or how the Eighth Circuit could have any jurisdiction over this matter.
B. Transfer would not be in the interest of justice.
Even if jurisdiction were lacking (which it is not), transfer to another court that would have jurisdiction (which there is none) would not be in the interest of justice.
Burke complains that the Court is biased against her, as displayed by the Court’s unwillingness to accept Burke’s arguments.
The reality is that Burke’s arguments have been without merit and that is why the Court has rejected those arguments.
The Court has displayed no bias or impartiality toward Burke, much less any bias or impartiality that would justify the transfer of the appeal, with the transfer being akin to the Court’s recusal of itself.
A judge has as much of a duty not to recuse himself absent a factual basis for doing so as he does to step aside when recusal is warranted.
In re Wilborn, 401 B.R. 848, 861 (Bankr. S.D. Tex. 2009); relying on Nat’l Auto Brokers Corp. v. Gen Motors Corp. 572 F.2d 953, 948 (2nd Cir. 1978).
As explained by the Court in In re Assadi,
Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
In re Assadi, 2022 WL 17819599, *2 (5th Cir. 2022); relying on Liteky v. United States, 510 U.S. 540, 555 (1994).
8 In addition, the subject matter jurisdiction of the District Court, and the Court, over the Burke III proceedings is not subject to collateral attack.
“If the parties against whom a judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”
Royal Ins. Co. of America v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992).
The foregoing is true because
“a party that has had an opportunity to litigate the question of subject-matter jurisdiction may not … reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations – both subject matter and personal.”
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 2104 n.9, 72 L.Ed.2d 492 (1982).
III. Conclusion and Prayer
Sadly, the only legacy of Burke I-IV is the awareness that pro se litigants (who cannot comprehend that their cause lacks merit) are capable of spiraling into a detached world of vexatiousness.
Nothing supports Burke’s theories of fraud and corruption other than the shadowy world of fiction that Burke has created for herself.
Burke’s fiction should not be the basis of the Court finding cause to transfer this appeal to another circuit.
Burke’s argument has no basis in fact, and she has cited no support in the law for the transfer of an appeal from the Court to any other court.
Appellees Ocwen Loan Servicing, LLC, Mark Daniel Hopkins, Shelley Hopkins, Hopkins Law, PLLC, and PHH Mortgage Corporation, Successor by Merger to Ocwen Loan Servicing respectfully request that Appellant Burke’s Motion to Transfer Venue be in all things denied and that Appellees be granted such other relief to which they have shown themselves justly entitled.
Respectfully submitted,
HOPKINS LAW, PLLC
Wild West Hired Guns Misfire: PHH ONITY’s Cooked-Up n’ Cockamamie Arguments Implode
Judge Werlein recused in July and hence ONITY’s argument is frivolous, and their motion for summary judgment violates court procedures.
Southern District Court in Houston: Addressing the Missing USPS Express Mail with Specificity
All non-attorney pro se litigants must deliver or mail filings to the Clerk’s Office, as per SD TX Guidelines for Litigants Without Lawyers.
Mortgage Debt Buyer and Servicer CMG Mortgage Inc. Fires Rogue Foreclosure Mill BDF Hopkins
Maybe BDF Hopkins are only retained when there’s a bandit foreclosure defense lawyer like Erick Joseph Delarue in the Higa foreclosure.
