Judge Marra’s Quick Entry Denying Renewed Intervention Falsely Claims Lack of Jurisdiction
MAY 24, 2021 | REPUBLISHED BY LIT: MAY 24, 2021
Snr Judge Ken “Magic” Marra, S.D. Fl.
ORDER DENYING JOHN AND JOANNA BURKE’S RENEWED MOTION TO INTERVENE FOR LACK OF JURIDSICTION [DE 786]
THIS CAUSE is before the Court on a pro se renewed motion to intervene filed May 19, 2021 by Joanna Burke and John Burke [DE 786].
By order entered April 21, 2021, this Court entered final judgment in favor of the Ocwen Defendants and closed this case [DE 777]. That ruling is now on appeal before the Eleventh Circuit Court of Appeals [DE 781, 784].
The filing of a notice of appeal divests the district court of jurisdiction to decide matters related to the appeal. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). While certain exceptions to this rule are noted, United States v. Reed, 404 Fed. Appx 464, 465 (11th Cir. 2010)(issues collateral to the appeal); United States v. Noblitt, 343 F. Appx. 544, 546 (11th Cir. 2009) (motions under Rule 60(b); issues collateral to the appeal), they do not apply here.
Because the present motion does not fall within any of the recognized exceptions, the Court lacks jurisdiction to entertain the motion.
It is accordingly ORDERED AND ADJUDGED:
The renewed motion to intervene submitted by John and Joanna Burke [DE 786] is DENIED for lack of jurisdiction.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 24th day of May, 2021.
Renewed Motion to Intervene
MAY 18, 2021 | REPUBLISHED BY LIT: MAY 19, 2021
The Burkes renewed motion to intervene and memorandum in support starts with the background and cases associated with the 2017 lawsuit by the Consumer Financial Protection Bureau (“CFPB”) and how this Court disposed of the case in favor of Ocwen. In the Background section of this memorandum, the Burkes go into the Procedural History relative to their first attempt to intervene, which would be denied by this Court and affirmed on appeal to the Court of Appeals for the Eleventh Circuit. The Burkes also specifically address why the renewed motion to intervene is (i) not barred by res judicata, (ii) is timely and (iii) reaches the standards required for both intervention as of right and permissively.
A. The 2013 District of Columbia Action
On December 19, 2013, the Bureau, the State of Florida, and 48 other States sued Ocwen Financial and OMS alleging that the Ocwen companies violated federal and state laws by engaging in unlawful and deceptive consumer practices with respect to loan servicing and foreclosure processing. By way of example, the Plaintiffs in the District of Columbia action alleged that the Ocwen
companies failed to apply payments timely and accurately; failed to maintain accurate account statements; charged unauthorized fees for default-related services; imposed forced-placed insurance on borrowers who already had sufficient coverage; provided false or misleading account information in response to borrowers’ complaints; provided false or misleading information to borrowers regarding loans transferred from other servicers; failed to provide accurate and timely information to borrowers seeking information about loss mitigation services and loan modifications; provided false or misleading information to borrowers about the status of foreclosure proceedings in cases where the borrowers in good faith were actively pursuing loss mitigation alternatives; failed to calculate eligibility for loan modification programs properly and failed to process applications for loan modifications properly; and gave false or misleading reasons for the denial of loan modifications and they used false or misleading documents as part of the foreclosure process, including the use of “robo-signed” affidavits in foreclosure proceedings. CFPB v. Ocwen Financial Corp., Case No. 13-2025-RMC (Complaint, DE 1) (D.D.C. Dec. 19, 2013) (“D.C. Complaint”) (DE 731-2).
When the Plaintiffs filed the D.C. Complaint, they also entered into a settlement agreement, entitled the National Mortgage Settlement (“NMS”), and filed a proposed consent judgment which incorporated the agreement and its dispute resolution requirements. On February 26, 2014, the District Court for the District of Columbia entered the Consent Judgment (“NMS C.J.”) [DE 731-3] [Case No. 13-2025-RMC, DE 12], which required Ocwen to (1) pay $2 billion in relief in the form of principal reduction loan modifications to consumers who met set eligibility criteria over a three-year period; (2) pay $127.3 million in monetary relief to consumers who were foreclosed upon by Ocwen (or its predecessors) between January 1, 2009 and December 31, 2012; (3) abide by comprehensive “Servicing Standards” [NMS C.J. ¶ 3 and Ex A] [DE 731-4] and corresponding Metrics [NMS C.J.,¶3 and Ex. D-1 through D-21] [DE 731-7] in its servicing practices going forward over the three-year term of the Judgment (February 26, 2014 to February 26, 2017); (4) pay for ongoing compliance monitoring by an independent monitor (Joseph A. Smith, Jr.) during the three-year term of the Judgment, and (5) submit to specific dispute resolution procedures and enforcement terms to redress compliance failures reported by the Monitor during that term [NMS C.J. ¶¶ 3-5 and Ex. D][DE 731-7]. Ocwen also agreed to maintain accurate records and timely update borrowers’ account information to ensure accuracy and completeness as required by the Servicing Standards.
In exchange, the Bureau and States agreed to release Ocwen for all claims for past misconduct, and agreed that Ocwen would not be subject to future administrative or judicial enforcement actions for conduct covered by the NMS Servicing Standards and occurring during the term of the Judgment, unless its loan service performance exceeded certain “Threshold Error Rates” and Metrics set by the NMS, and Ocwen failed to bring itself within the threshold after being afforded an opportunity to cure.
“Ocwen took advantage of borrowers at every stage of the process”, said Richard Cordray, Director of the federal Consumer Financial Protection Bureau.
The Consent Judgment became effective February 26, 2014 and remained in effect until February 26, 2017. The District Court for the District of Columbia retained exclusive jurisdiction over enforcement actions brought by non-State parties [NMS C.J. V., Ex. D at Section I. 2] and retained jurisdiction to enforce any outstanding violations identified in the Monitor’s final Monitor Report that occurred but were not cured during the term of Judgment. [NMS C.J. ¶ 15].
The Bureau was familiar with and actively participated in monitoring Ocwen’s servicing performance under the NMS Consent Judgment. As a member of the “Monitoring Committee” designated by the Judgment, the Bureau was also charged with an obligation to monitor Ocwen’s compliance with its terms.
B. The 2017 Florida Action
Two months after expiration of the term of the Consent Judgment, on April 20, 2017, the Bureau filed the instant lawsuit alleging that Ocwen violated the CFPA and other federal consumer financial laws “in numerous instances since January 2014” as the result of alleged loan servicing failures impacting over two million loans. In its now operative Amended Complaint, filed October 4, 2019 [DE 481], the Bureau claims Ocwen used inaccurate and incomplete loan data in the servicing of loans, the product of its inputting of inaccurate and incomplete account information obtained from other servicers without review and substantiation along with other deficiencies in the operation of its proprietary “system of record” (“SOR” ), all constituting “unfair deceptive acts and practices” in violation of the CFPA (Count 1); made material
misrepresentations to borrowers regarding loan terms and status (again allegedly due to its reliance on inaccurate loan data placed into its system of record without substantiation), constituting “unfair deceptive acts and practices” in violation of the CFPA (Count 2); made material misrepresentations to borrowers regarding foreclosures and committed other foreclosure-related misconduct, constituting unfair and deceptive acts and practices in violation of the CFPA (Count 3); failed to provide accurate periodic billing statements to borrowers, constituting unfair deceptive acts and practices in violation of the CFPA, as well as violations of the Truth in Lending Act (TILA) and Regulation Z (Count 4); used inaccurate and incomplete loan data in servicing of loans, constituting violations of both the CFPA and the Fair Debt Collection Practices Act (“FDCPA”) (Count 5); engaged in deceptive debt collection practices, through material misrepresentations made to borrowers, constituting violations of both the FDCPA and the CFPA (Count 6); failed to pay hazard insurance premiums in a timely manner on behalf of escrowed borrowers and other escrow-related misconduct in violation of the Real Estate Settlement Procedures Act (“RESPA”) and Regulation X (Count 7); failed to maintain adequate servicing policies and procedures reasonably designed to ensure that it provided its personnel with access to the accurate loan information needed to service borrower accounts and respond to consumer complaints properly, constituting violations of the RESPA and Regulation X as well as the CFPA (Count 8); improperly initiated foreclosures when the borrower was on track towards a loan modification and other foreclosure-related misconduct in violation of the RESPA and Regulation X and the CFPA (Count 9); and failed to terminate private mortgage insurance (PMI) automatically in connection with residential mortgage transactions when required to do so (i.e. on the “termination date,” the date on which the principal balance is scheduled to reach 78% of property’s original value), constituting violations of the Homeowner Protection Act (“HPA”) as well as the CFPA (Count 10).
1. Res Judicata (Claim Preclusion) Defeats the CFPB’s Causes of Action (Counts 1-9)
In this Court’s March 4, 2021 Order, it concluded “that the Bureau’s attempts to distinguish this case from the D.C. action are artificial and do not avoid the preclusive effect of the Consent Judgment entered in the D.C. action. The Bureau’s claims at Counts 1-9 are the substantially the same as those covered by the NMS Consent Judgment.
2. PMI (Count 10)
At Count 10, the Bureau alleges that Ocwen violated Homeowners Protection Act, 12 U.S.C. § 4902(b) in each of these cases based on its failure to terminate timely PMI for borrowers who were current on their mortgages in “residential mortgage transactions,” i.e. mortgages involving single family homes operating as the principal residence of the borrower. See 12 U.S.C. §§ 4902(b)(1) and (15). This Court decided “that the summary judgment record raises a genuine issue of fact on whether the prequalifying conditions for PMI cancellation were met for each loan identified on the PMI cancellation spreadsheet [DE 729-127].”
3. Final Judgment
On April 20, 2021, the Court issued final judgment in favor of Ocwen:
“In accordance with the requirement for filing a separate document pursuant to Federal Rule of Civil Procedure 58(a), and based on the reasons set forth in the Court’s March 4, 2021 Order Granting in Part the Defendants’ Motion for Summary Judgment as to Counts 1-9 of the Plaintiff’s Amended Complaint, based on res judicata [DE 764], and in light of the Plaintiff’s subsequently filed Second Amended Complaint, dropping Count 10 in its entirety and limiting the claims set forth in Count 1 through 9 to allegations of violations for the time period of January 2014 through February 26, 2017 [DE 775], the Court now entered Final Judgment in the above-captioned matter in favor of the Defendants.”
4. Appeal to the Eleventh Circuit by CFPB
On April 21, 2021, the same day the Court’s decision was posted to the docket, The Consumer Financial Protection Bureau appealed this Court’s decision. Currently, it is in the early stages of its appeal with briefing only recently scheduled.
In order to assess the renewed application for intervention, the Burkes now recant the history and timeline of their intervention(s), cases in Texas and subsequent appeals. Below is the current status and history of these cases.
A. Procedural History
I. Deutsche Bank National Trust Co., v. The Burkes (2011-2018)
In this wrongful foreclosure case, the Burkes obtained judgment in their favor from the lower court twice, once in 2015 after a bench trial and
again in 2017 while on remand from the Fifth Circuit. In both subsequent appeals, the lower court would be reversed by the Fifth Circuit, erroneously.
This sparked the subsequent litigation and motion(s) to intervene as detailed below.
II. Burke v. Ocwen & Burke v. Hopkins, S.D. Tex. (2018-2021)
The Burkes filed two cases, Burke v Ocwen and Burke v Hopkins, which started life in Harris County, Texas assigned to two state judges.
Both civil cases were filed shortly after a disputed judgment of foreclosure was authorized by the appellate court, the Fifth Circuit, in case no. 18-20026, published on September 10, 2018.
Removed on federal question jurisdiction, opposing counsel received service for Ocwen Loan Servicing, LLC (“Ocwen”) and Hopkins Law, PLLC, (“Hopkins”) but only accepted service for attorney’s Mark and Shelley Hopkins.
They would represent Ocwen and proceed pro se in the Hopkins case. The company was never served. The case was [re]assigned to Judge Hittner (“Hittner”) while the ink was still drying in the
Deutsche Bank case, along with novice Magistrate Judge (“MJ”) Bray, the replacement for honest and Honorable Stephen Wm. Smith.
Shortly after filing the state cases, the Burkes sought to intervene in three relevant cases. The Kansas intervention to gather attorney immunity evidence for the Hopkins case, the Illinois and Florida interventions to gain information in support of the Ocwen litigation and where relevant, the Hopkins case. The parties in both Texas federal lawsuits requested the court take judicial notice. All interventions would be denied. However, the Florida intervention materially harmed the Burkes Texas litigation due to legal and judicial misconduct which is discussed herein. See Burke v. Ocwen Fin. Corp., No. 19-13015 (11th Cir. Nov. 2, 2020).
Returning to S.D. Texas, opposing counsel would hurriedly submit premature motions to dismiss only seven days after removing both cases. The Burkes responded, filing a motion to remand and at the same time motion to stay, asking the court to suspend replying to the premature motion(s) until ruling on the Burkes remand motion(s). Concerned with the [re]assignment of both cases to Hittner, the Burkes motioned the court to ensure at least the cases remained separate and furnished the court with their case management plan. Next, the Burkes attended the Scheduling Conference before novice MJ Bray (same date/time for both cases), which turned into a 3-minute ‘proof-of-life’ calendar event. Incomprehensibly, the parties were barred from discussing the pending motions, the case management plan or providing the court with any documents or files relevant to the cases and the Burkes would later provide the court with affidavits detailing the disconcerting events of that conference, which denied the parties due process and which aided the court in negatively deciding the Burkes case(s).
1. The Burke’s Ocwen Case (Texas)
This case was expedited by Hittner. First, “the district court granted Ocwen’s motion to dismiss the Collection Claims…for res judicata.”
This order was issued without (a) considering the Burkes pending motions or after allowing the Burkes to amend their complaint for the first time (unlike the Hopkins case) prior to ruling and where the Burkes specifically requested such relief.
Note: The court denied the motion to remand without explanation. (b) Hittner, longtime co-author of a Summary Judgment Guide which is in the hands of nearly every practicing Texas lawyer, knowingly
accepted a motion to dismiss which, in essence, is a motion for summary judgment – despite the court’s warning this is highly inappropriate and (c) Incorrectly applied res judicata in law.
Second, “The court also concluded that the Burkes did not adequately plead a claim under RESPA but granted the Burkes twenty-one days to address their pleading deficiency. Failure to file an amended complaint within that time period, the district court cautioned, would result in dismissal.”
This, despite no intentional delay, the Burkes responding with a motion to clarify, an omnibus of motions and a request for interlocutory appeal if they were denied the relief sought.
In summary, “the S.D. Texas court…dismissed the cause without prejudice…” However, Fifth Circuit precedent says without prejudice is actually with prejudice and too harsh a sanction. Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212-13 (5th Cir. 1976).
After exhausting the lower court options, the Burkes timely appealed on April 18, 2019.
2. The Burke’s Hopkins Case (Texas)
This is a separate lawsuit against the lawyer(s) assigned by foreclosure mill BDF Law Group to appeal each time the lower court ruled in favor of the Burkes and included lawyers Mark Daniel Hopkins and Shelley Luan Hopkins nee Douglass, ex-BDF Litigation Director and now spouse and lawyer at Hopkins Law, PLLC.
The Burkes maintain the order and judgment was issued (a) with Hopkins Law, PLLC still listed as a defendant and despite being unserved, (b) without ‘de novo’ review (the Burkes specifically asked for de novo review in footnote 1) and (c) the ministerial act of issuing the judgment was executed in violation of Gov. Abbott’s executive order (Pandemic). Hittner had cancelled a scheduled pretrial conference, an ultra vires act.
3. The Consolidated Appeal and Decision, Fifth Circuit
March 30, 2021: Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021) is a consolidated opinion issued by the Court of Appeals for the Fifth Circuit and includes the Burke v. Hopkins appeal, case No. 20-20209. The Court affirmed both lower court decisions.
The Burkes have sought to Petition the Court for Rehearing En Banc, which is pending at the time this memorandum and accompanying motion was posted to this Court (May 18, 2021).
B. Important Arguments and Facts Raised by the Burkes were Erased and/or Discounted
The Burkes filed the Motion to Intervene which was recorded on the docket on Jan 4, 2019 (Doc 220).
The Burkes motion lay percolating for several months and the Burkes sent a reminder, as logged on the docket, May 15, 2019 (Doc. 359).
By this time the Burkes first Texas case against Ocwen had suffered a terminal dismissal (March 19, 2019).
This Court denied the Burkes intervention as of right and permissively on May 30, 2019 (Doc. 375) and again on reconsideration, affirmed the decision, (Doc. 411, July 3, 2019) but not before adding a codicil statement which was untrue.
However, the Burkes only uncovered this while appealing this courts’ decision (Doc 414, Aug. 2, 2019, Notice of Appeal) and in preparation of the Burkes initial brief for submission to the Eleventh Circuit.
1. Intervention as of Right
This court stated;
“Here, the Court concludes that the proposed Intervenors do not meet the requirements for intervention as of right because they have failed to establish that their interests, if any, would be impaired by the disposition of this action, particularly since the proposed Intervenors could raise or could have raised their concerns either in their individual foreclosure lawsuit or the recent litigation they initiated in Texas federal court. Moreover, their interests, if any, would be adequately represented by CFPB, who seeks to hold Ocwen accountable for allegedly wrongfully foreclosing upon property based upon inadequate information.”
On appeal, the 11th Circuit denied intervention as of right, stating in summary;
“To sum up, the Burkes have failed to establish (1) that their intervention is timely, (2) that they have a necessary interest, (3) that failure to intervene would impair that interest, and (4) that their interest would not be adequately protected absent intervention. Accordingly, we hold that the district court did not err in denying the Burke’s motion to intervene as of right.”
2. Permissive Intervention
This court stated;
“In the Motion to Intervene, the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention. Even if there were some overlap between CFPB’s case and the claims of the proposed Intervenors, the present parties in this action would suffer prejudice and undue delay if the proposed Intervenors were permitted to intervene in this case. Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue, and the scope of discovery, which had already been underway for over a year when the Motion to Intervene was filed, would necessarily expand to include those new issues. Therefore, the Court in its discretion finds that permissive intervention is not warranted.”
On appeal, the court concluded;
“Finally, the Burkes argue that, in any event, they may intervene for the purpose of gaining access to sealed files and protected documents. But the Burkes raised this argument for the first time in their motion to reconsider. For the reasons explained above, we decline to consider the Burkes’ argument. Michael Linet, Inc., 408 F.3d at 763 (noting that litigants cannot use motions to reconsider to “relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.”).”
“(2) did not abuse its discretion in denying the motion for permissive intervention because it applied the correct legal standard and did not make a clear error of judgment; and (3) did not abuse its discretion in denying the motion to reconsider because it applied the correct legal standard and did not make a clear error of judgment.”
IV. Constitutional Question
The Eleventh Circuit:-
“The Burkes raise an additional basis for intervention as of right in their brief: “to ensure if Ocwens’ motion to dismiss on the Constitutionality question was granted (which was pending before the lower court at the time), it could allow the Burkes to become the lead Plaintiffs in the case.” The Burkes first raised this argument in their reply brief, so it is not properly before this Court. See United States v. Oakley, 744 F.2d 1553 , 1556 (11th Cir. 1984).”
Fraud and deception is rife in Federal Courts, and prevalent in this case. For example, look at the claims made against CFPB in a related case; Bureau of Consumer Financial Protection v. Forster & Garbus, LLP, Case No. 2:19-cv-02928-SJF-ARL “Plaintiff (CFPB) disingenuously OMITTED half the sentence and destroyed the context of F&G’s point.” (Doc. 40, Mar. 22, 2021 letter). Here, they conspired with Ocwen and the Court to prevent the Burkes intervening, yet they knew all about the Greens Bankruptcy case in Houston, Texas. See; Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019).
A. Matters Discovered After Denial of Intervention.
1. The Greens Case in Texas Bankruptcy Court
The appeal court did not reach the written statement by Judge Marra in his codicil in Doc. 411, wherein he stated;
“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).”
-Signed by Judge Kenneth A Marra, United States District Judge, July 3, 2019.”
The Eleventh Circuit apparently did so for the reasons stated, namely:-
“The Burkes first raised this argument in their reply brief, so it is not properly before this Court.”.
As such the Burkes now renew this written statement by Judge Marra as untrue and false.
“In the Adversary Proceeding, the Greens requested a copy of all transcripts (“CFPB Transcripts”) of proceedings before the Consumer Financial Protection Bureau (“CFPB”) that were referenced and quoted in a complaint filed by the CFPB against Ocwen in the Southern District of Florida. See Joint Discovery/Case Management Plan [Doc. # 9 in Adv. Case No. 18-3351], p. 5…. On February 27, 2019, Judge Isgur held that the CFPB Transcripts were not “Confidential Information” that was “restricted from turnover” under the applicable federal regulations because the CFPB had used the information in the complaint in the Southern District of Florida, and because the applicable regulations do not preclude Ocwen from disclosing the CFPB Transcripts pursuant to a Court order and with appropriate protective measures. See Order Overruling Objections to Turnover of Transcripts (“February Order”) [Doc. # 32 in Adv. Case No. 18-3351].”
Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019).
As shown above, the Burkes are entitled to evidence for other litigation and whilst the other litigation might be ending, it is not currently. In any event, the Burkes will be filing further legal action(s) depending on the Fifth Circuit’s final decision as regards the pending Petition for Rehearing En Banc.
This renewed motion and memorandum seeks open access to documents and to compel production of documents. See; Co. Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014);
“With great respect, we urge litigants and our judicial colleagues to zealously guard the public’s right of access to judicial records—their judicial records—so “that justice may not be done in a corner.” ”
Binh Hoa Le v. Exeter Fin. Corp., No. 20-10377, at *18 (5th Cir. Mar. 5, 2021); Halliburton v. PHH Mortgage Corporation, on its own behalf and as successor-by-merger to Ocwen Loan Servicing, LLC (4:20-cv-00919), District Court, S.D. Texas, Doc. 19, p.7, Order to Compel (Apr. 26, 2021).
2. The Selia Law Decision by the U.S. Supreme Court
The Selia case was decided on June 29, 2020. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020) wherein the court
confirmed the CFPB’s director’s over-reaching authority was unconstitutional. However, it pinged the question of ‘ratification’ of this case back to the lower court. That in turn would impact the rest of the cases in courts nationwide. The results are mixed. They are either pending or recently decided.
For example, in this case, the Court did not ultimately rely upon the Selia decision to dismiss the complaint in favor of Ocwen. However, that is not true in other cases. In Consumer Fin. Prot. Bureau v. Nat’l Collegiate Master Student Loan Tr., C.A. No. 17-1323 (MN) (D. Del. Mar. 26, 2021), the court opined:-
“Given these foregoing facts, or absence of facts, the Court cannot conclude that the Bureau has diligently pursued its rights. Thus, on the current pleading, the Court cannot find that equitable tolling applied to the statute of limitations for the purposes of ratification and as a result, the Bureau did not, at the time of ratification, still have the authority to take the action to be ratified. Ratification “beyond the statute of limitations” is “too late to be effective.” Benjamin, 684 F. App’x at 212. Thus, Director Kraninger’s ratification of the decision to file the complaint in this action did not cure the constitutional defect created by the for-cause removal
provision in existence when this action was commenced. This means that the complaint, initially filed by a Director unconstitutionally insulated from removal, cannot still be enforced. Ambac’s motion to dismiss the complaint based on the lack of enforcement authority is granted.”
The Fifth Circuit has stayed the All American case as they wait for the U.S. Supreme Court’s decision in the other Fifth Circuit case with similar issues, the Collins v. Yellen, No. 19-422 and Yellen v. Collins, No. 19-563 (consolidated) cases (formerly Mnunchin).
What this means is that the Burkes were correct in their initial request to intervene, where they stated if the CFPB was dismissed as a party for reasons as shown above, the Burkes would remain as plaintiffs. The case could not have been dismissed for res judicata – as this court decided – and the ratification question is not relevant to the Burkes as they are a distressed consumer and not under investigation by the CFPB. Furthermore, the Burkes argued that they were surprised that the CFPB agreed to dismiss Altisource, who rent the RealServicing mortgage loan software back to Ocwen and is a critical component in the case. (This is referred to as “SOR” or “System of Record” in
Judge Marra’s March 4, 2021 Order, p.11). The software was banned by states for being wholly unreliable. In summary, Altisource’s REALServicing Platform was ineffective and incapable of processing Ocwen’s Mortgage Servicing Portfolio in compliance with the law. 
PHH Mortgage Corp., successor to Ocwen Loan Servicing, LLC, has subsequently transferred over a million loan files to another loan software because of the orders banning the software and the fact it is totally unreliable
as a software as a service. The Burkes would and do in this motion and memorandum, seek to enjoin Altisource as a defendant.
B. Arguments Not Reached or Discounted on Appeal
1. The Codicil was Erased from the Appellate Courts Opinion
From the Burke’s Petition for Rehearing En Banc (Pet. den.) at the Eleventh Circuit, Case 19-13015:-
“INTERVENTION AS A RIGHT: THE PANEL IS GUILTY OF A MANIFEST ERROR IN EXCLUDING JUDGE KENNETH A. MARRA’S CODICIL, WHICH IRREFUTABLY CONFIRMS IN WRITING HE KNOWINGLY WITHHELD EVIDENCE FROM THE BURKES AND AS SUCH COMMITTED PERJURY.
It is difficult to discern why the panel found justifiable reason to exclude any reference to Doc. 411, which proved beyond a reasonable doubt the unlawful withholding of evidence and perjury by the Judge’s own words in the codicil;
“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).”
-Signed by Judge Kenneth A Marra, United States District Judge, July 3, 2019.
Although vague, it would appear the panel claim the Burkes raised the matter ‘for the first time’ and hence could discount it entirely. That assertion is rebuffed herein. In any event, the seriousness of the allegations by the Burkes (impeachable conduct) warranted mandatory inclusion and discussion of this codicil in the panel’s opinion, when it includes fraud by the court.
However, by its complete absence, it only illuminated the fact that the panel’s exclusion is not permitted in law. It is a manifest error which commands reversal. In this petition, the Burkes clearly show they are entitled to both Intervention as a right and also permissively.
The evidence – newly discovered and presented by the Burkes in this appeal – wholly supports their claims that the Judge, the opposing parties and respective counsel therein all conspired to withhold evidence from the Burkes.
This conclusion is based on undisputed facts. Namely the Greens, who recovered evidence and sealed documents from the same court, the same case and from the same parties. Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019).
Relying on this courts recent decision in Eldredge v. Edcare Mgmt., Inc., No. 17-14821, at *13-14 (11th Cir. Mar. 19, 2019), as cited in part below, the conduct of the judge and the lawyers here is equally vexatious conduct wherein they obstructed the Burkes and by doing so, withheld critical documents which the Burkes had timely requested for their ongoing Texas litigation. The conduct is so egregious it amounts to bad faith.”
The Burkes now renew this claim as part of the motion and memorandum to intervene.
2. The Greens Case was Excluded from the Appellate Courts Opinion
The lawyers representing Ocwen and the CFPB submitted perjurious motions and briefs on appeal in bad faith. These unethical lawyers colluded and willfully conspired together along with the court to maliciously and unlawfully deny the Burkes access to court documents. This, despite the Greens, homeowners involved in a civil dispute with Ocwen, recovering sealed files from Judge Marra’s court for their own Ocwen case in S.D. Texas.
In fact, counsel for the Greens even documented in court filings they provided Ocwen’s counsel in Texas direct contact information for the Ocwen lawyers in the Florida action after the judge ruled in favor of the Greens recovery and ordered that Ocwen provide the said documents on a timely basis.
These details were clearly known by the parties in the Florida case, yet at no time did Ocwen or their counsel disclose the Greens case to the Burkes directly, or in court filings. Instead, they falsely and knowingly maintained a frivolous argument and did so in bad faith – while continually lying in sworn statements to the Court(s) – vexatiously stating the Burkes could not recover documents for their private action in Texas. This Court also unlawfully denied the Burkes permissive right to intervene for the purpose of recovering documents for their case(s) in Texas.
The CFPB knew these facts and are complicit. Both CFPB and Ocwen continued to provide false statements under oath on appeal. Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019).
Alarmingly, despite the Burkes extensive discussion in their briefing on this topic, the completely new 3-panel at the Eleventh Circuit excluded any mention of the perjury, the Greens case in Texas, the collusion and conspiracy and the lawyers bad faith in the glossed and unpublished opinion. See Burke v. Ocwen Fin. Corp., No. 19-13015 (11th Cir. Nov. 2, 2020).
3. The Access to Sealed Documents
As stated above, the Eleventh Circuit discounted this request as untimely. While the Burkes disputed this fact on appeal and which was rejected, they now resubmit this request in this renewed motion and supplement.
“Finally, the Burkes argue that, in any event, they may intervene for the purpose of gaining access to sealed files and protected documents. But the Burkes raised this argument for the first time in their motion to reconsider.”
It is without doubt and based on the fact the Greens were allowed access to sealed documents for their case in the same federal courthouse where the Burkes Texas cases are processed and decided, that they are legally entitled to permissive intervention for the purposes of obtaining access to sealed records from these proceedings in S.D. Florida. The Burkes now renew this request herein.
4. The Constitutional Question
As stated above, the Eleventh Circuit discounted this request as untimely. While the Burkes disputed this fact on appeal, the matter of the constitutional question has not been answered fully.
The Selia opinion by the U.S. Supreme Court determined part of the answer but left open the ratification. The Burkes are aware that Judge Marra struck down Ocwen – incorrectly it appears – when questioning the constitutionality of the CFPB in Doc. 616, Apr 29, 2020 and in light of the opinion and order by Judge Noreika, District of Delaware.
See Consumer Fin. Prot. Bureau v. Nat’l Collegiate Master Student Loan Tr., C.A. No. 17-1323 (MN) (D. Del. Mar. 26, 2021);
Cato Institute Amicus Brief in CFPB v. All American Check Cashing;
“Because protecting individual liberty is the end goal of the separation of powers, individuals are thus the “intended beneficiaries” of the Constitution’s structural provisions”; “Judges “must call foul when the constitutional lines are crossed.”; “An agency that is unconstitutionally structured cannot legitimately exercise power.”; “The cure for such violations is straightforward: dismissal of the enforcement actions.”; “Ratification cannot retroactively create power where none existed; it can only perpetuate the constitutional violation.”; “Lawsuits that fail to provide a cure for the harm suffered are hardly worth winning.”; “Our Constitution’s structure protects and secures individual liberty above all else. When that liberty is compromised by unconstitutional government action, citizens ought to have a means of recourse.”
What we appear to have in this case is Judge Marra trying to protect his error in judgment in prematurely deciding before Selia that the U.S. Supreme Court would find the CFPB constitutional.
When that backfired, he’s found for Ocwen for a different reason, namely ‘res judicata’ to try and claw back his unconstitutional tirade and sanctions on Ocwen’s arguments that the case should be dismissed for reasons discussed above.
The CFPB has pushed to dismiss the rest of the case and pending items to appeal his decision.
The CFPB faces a major obstacle in doing so with the D.C. decision denying ratification, causing another circuit split.
In Bureau of Consumer Fin. Prot. v. Fair Collections & Outsourcing, No. GJH-19-2817, 2020 U.S. Dist. LEXIS 223797, at *14-21 (D. Md. Nov. 30, 2020), Judge Hazel found constitutional ratification after SCOTUS’ decision in Seila Law v. CFPB, 140 S.Ct. 2183 (2020). And Judge Smith the same; In Bureau of Consumer Fin. Prot. v. Citizens Bank, N.A., No. 20-044 WES, 2020 U.S. Dist. LEXIS 224401, at *21-26 (D.R.I. Dec. 1, 2020).
Of course, it is well documented that the Ninth Circuit quickly endorsed ratification as well after the Supreme Court decision and the Petition for Rehearing En Banc by Selia Law, LLC, was denied on 14 May 2021.
The Constitutional Question(s) remain split and disputed.
The Burkes intervention would have ensured the CFPB case could not have been dismissed.
For inexplicable reasons, the CFPB aligned itself with Ocwen in the Burkes first motion to intervene and now they have paid the consequences for such acts of malfeasance and legal malpractice against those they are supposed to protect.
However, the Burkes can aid this anti-consumer watchdog once again, and do so herein.
The Burkes are entitled to renew their motion in law and they now seek to protect their constitutional rights and homestead from wrongful foreclosure by renewing the motion to intervene.
The dismissal of this action by Judge Marra was based on unconstitutional orders and sanctions against Ocwen and an untrue and perjurious written statement directed towards the Burkes in the first motion to intervene.
The decision by the court to terminate CFPB’s causes of action was rash, while questions remain as to the constitutional status of the CFPB and the related legislative statute(s).
The confirmed circuit split only aggravates the situation and this may be resolved in the Collins cases before the U.S. Supreme Court. In any event, what is clear and unambiguous is the dismissal of CFPB’s action was premature and erroneous in law.
This negatively impacts the Burkes own litigation, including this motion and memorandum to renew intervention.
An unconstitutional final judgment cannot be allowed to remain on the record as a final judgment.
The Burkes have expressed in the first motion to intervene and again in this renewed motion and memorandum the reasons why the case should name the Burkes as plaintiffs, preventing dismissal of this lawsuit.
C. This Renewed Motion is Timely
See United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) Held: Respondent’s motion to intervene was “timely” filed under Fed. Rule Civ. Proc. 24, and should have been granted. (Opinion filed within 30 days of final judgment).
“Intervention is appropriate—even after final judgment—as long as the non-party moves “as soon as it [becomes] clear . . . that [his or her] interests . . . would no longer be protected” by the existing parties.”
This also takes to task Judge Marra’s order denying Janice Wolk Grenadier’s renewed motion to intervene (Doc. 767, March 22, 2021) wherein it states;
“Since that time, the Court has entered its Order Granting in Part and Denying in Part the Defendants’ Motion for Summary Judgment upon the claims asserted in the Plaintiff’s Amended Complaint. The Plaintiff has since filed its Second Amended Complaint, dropping the claims left open by the Court’s partial summary judgment ruling. Final Judgment pursuant to Rule 58 in favor of Defendants on all remaining claims is contemporaneously entered, following that development, and there are no live claims now pending between the named parties to this action.
Accordingly, for reasons previously stated in the Court’s earlier order denying Ms. Grenadier’s initial motion to intervene, and in light of the intervening resolution of all claims between the named parties to this suit, Ms. Grenadier’s renewed motion to intervene is appropriately denied.”
Furthermore, the Burkes rely upon:-
“Timeliness presents no automatic barrier to intervention in post-judgment proceedings where substantial problems in formulating relief remain to be resolved. As we declared in Wolpe v. Poretsky, intervention “. . . may be allowed [even] after a final decree where it is necessary to preserve some right which cannot otherwise be protected.” It can hardly be gainsaid that appellants have rights which could be lost irretrievably were intervention not permitted at this time.”
- Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C. Cir. 1972)
It is without doubt the Burkes meet the criteria for Hodgson as detailed in this memorandum and based on the underlying facts revolving around Judge Marra’s questionable orders and statements therein.
D. The Burke’s Homestead is a “Necessary Interest” Per Rule 24 and the CFPB fail[ed] to Adequately Represent the Burkes
This renewed motion and memorandum now cites to the Burkes briefing on appeal at the Eleventh Circuit to reiterate why the Burkes homestead being in foreclosure adequately meets the standard for intervention:-
“THE HOMESTEAD IS AN INTEREST PER RULE 24 AND THE BURKES AMPLY MEET THE STANDARD REQUIRED FOR INTERVENTION.
The panel then attempts to quash the Burkes ‘homestead is an interest’ as a legitimate reason to intervene as a right; for failure to expand their argument in their motion to intervene and reply brief, despite the motion to intervene and memorandum, in totality, focusing completely on the Burkes wrongful foreclosure, their homestead, including their personal assessment of the unconstitutional CFPB and $3 billion admonished Ocwen and discussing why intervention is essential.
The panel’s decision also splits with other circuits: See; Pennsylvania v. President U.S., 888 F.3d 52 (3d Cir. 2018). Furthermore, reviewing the opinion itself, this finding is contradicted later by the panels own words:
“The Burkes share the same ultimate objective [as CFPB] — “to protect homeowners in ‘distress’ nationwide.”” (emphasis added).
Title X of the Dodd-Frank Act created the Consumer Financial Protection Bureau (CFPB). Clearly, if the Burkes are classified as the type of consumer e.g. homeowners, covered by the consumer laws such as RESPA, and which the CFPB oversees, that itself is confirmation of “a legally significant and protectable interest” as it has become a statute protected and governed by law.
The Burkes cite in their original motion to intervene and memorandum, their case in Texas which plainly indicated a judgment of foreclosure had been entered and this meets the impairment standard, which is defined as; “there must be a tangible threat to the applicant’s legal interest.” (see Pennsylvania).
Furthermore, in Pennsylvania, the court opined;
“Because our focus is on the “practical consequences” of the litigation, we “may consider any significant legal effect on the applicant’s interest,” including a decision’s stare decisis effect or a proposed remedy’s impact on the applicant for intervention.”
Thus, the Burkes, facing the same potential restrictions (stare decisis), it should require no further justification for the purposes of intervention as a right. A homestead is sacrosanct. This courts determination is both obtuse and inadmissible in law.
Nevertheless, the panel assessed the CFPB representation as being adequate: This can easily be rebuffed. In addition to Pennsylvania, the Burkes initial motion and memorandum is testament to the evidence identified by the Burkes:
(a) the CFPB were approached by the Burkes before intervention and they were repelled;
(b) the CFPB aligned with Ocwen against the homeowners intervention;
(c) the CFPB has endorsed Altisource be excluded from the civil action despite Ocwen’s reliance on the totally unreliable accounting software called RealServicing it rents from Erbey’s Altisource (alter ego of Ocwen) and as such the Burkes sought to add Altisource as a party upon intervention;
(d) CFPB’s record of financial compensation for homeowners’ true injury and financial loss in the past has been wholly inadequate. The Burkes sought to intervene to ensure, as plaintiffs, they would be compensated financially in full for their injuries;
(e) The former Assistant Director and Head of the Enforcement Office of the CFPB, Tony Alexis switched to opposing counsel (where Alexis is the Head of Goodwin Procter’s Consumer Financial Services Enforcement Practice) and never removed (CIP).
The Burkes appealed to this court in motions where Alexis was listed as counsel for the CFPB. Shockingly, Judge Branch agreed with the tardy CFPB reply that he holds “an arguable interest in the case” – and as such repealed the actual rules on CIP by her order. However, this erroneous final motion order stands, denying the Burkes relief.
(f) The CFPB is guilty of the charges outlined in the Questions I & II above, including perjury, collusion, conspiracy and bad faith.
All these factors, as documented by the Burkes in their motions prior to judgment and briefs on appeal, certainly go above and beyond the [weak] standard(s) necessary in law. The panel erred.”
VI. THE CFPB APPEAL TO THE ELEVENTH CIRCUIT AND FRAUD BY OFFICERS & JUDGE(S) OF THE COURT(S)
The Burkes contend the CFPB’s appeal on the merits of this Court’s decision is dependent on the Collins cases currently before the U.S. Supreme Court due to the circuit split as created by Judge Noreika, District of Delaware, wherein she denied a later attempt by the CFPB to ratify its complaint against the defendants.
The Burkes intervention would and can prevent the case from being dismissed and hence the renewed motion and memorandum herein.
This court unlawfully denied the Burkes access to court documents as discussed. Both sets of counsel conspired with the Court and committed perjury, repeatedly.
They claimed the Burkes were not allowed to obtain documents, which was completely untruthful. Yet they maintained the lies at this court and again on appeal. Hence, there can be no res judicata effect on this renewed motion when it has been proven beyond a reasonable doubt that it was obtained by fraud and resulted in the intervention being denied and these are new wrongs and/or actionable acts of misconduct.
The Supreme Court has repeatedly held that federal courts possess the inherent power “to vacate [their] own judgment[s] upon proof that a fraud has been perpetrated upon the court.”
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)).
The Burkes suggest this can still apply when fraud has been perpetrated by the court as well.
Accordingly, the Burkes now renew their request for intervention in this civil action.
This intervention is an attempt to correct a criminal act in a civil action and to ensure justice is served. For the purpose of transparency; any and all past and future denial(s) will form part of the Burkes’ legal dossier, detailing with particularity the criminal actions by the lawyers and the courts against these law-abiding, elder citizens, the Burkes.
It will be submitted to the appropriate authorities for a criminal investigation.
In other words, the Burkes are aware of the limitations of civil remedy and only seek non-criminal relief in this motion and memorandum.
VII. FAILURE TO INTERVENE WOULD HARM THE BURKES INFINITELY
The Burkes reiterate to this court, failure to intervene would harm the Burkes as they would lose their home to wrongful foreclosure. The original
Texas cases. The Greens obtained access to documents from this Court, yet the same Court unlawfully denied the Burkes this relief.
This can be corrected by granting the Burkes intervention in this case, if for no other reason than limiting it to permissive intervention, to allow the Burkes to recover the named mortgage loan file from Ocwen’s successor PHH Mortgage Corp.
See; Halliburton v. PHH Mortgage Corporation, on its own behalf and as successor-by-merger to Ocwen Loan Servicing, LLC (4:20-cv-00919), District Court, S.D. Texas, Doc. 19, p.7, Order to Compel (Apr. 26, 2021).
Furthermore, the Burkes have noted in lengthy and ongoing post Financial Crisis litigation, ResCap is obtaining judgments based on predatory loans which mirror the Burkes’ own loan and have received in excess of $9 billion dollars to-date.
Without the consumers, who were harmed by predatory and fraudulent lending – like the Burkes – the ResCap litigation could not have prevailed.
By way of background, on February 15, 2013, Ocwen Loan Servicing, LLC (OLS), a wholly owned subsidiary of Ocwen Financial Corporation (Ocwen) completed the acquisition of certain Purchased Assets (the ResCap Acquisition), pursuant to an asset purchase agreement with Residential Capital, LLC, Residential Funding Company, LLC, GMAC Mortgage.
As part of RFC’s Bankruptcy, RFC’s creditors formed ResCap, a trust authorized to sue the dozens of banks and mortgage lenders that had sold RFC the loans that were subsequently bundled into RMBS.
What’s more, PHH Mortgage Corporation along with 11 others, were being sued by ResCap in 2014 in S.D.N.Y. ResCap said that the quality of the loans was critical to the company’s success and it required its correspondent lenders to abide by “stringent loan-level contractual representations and warranties designed to protect (the company) from the risks of borrower fraud, appraisal fraud, failure to comply with state and federal law, and other credit and compliance factors that could negatively impact the performance and value of the loans it purchased.”
As stated, in the Burkes case it was lender application fraud, where the bank added a fraudulent income to the loan application without the Burkes knowledge or consent, as well as the fact there is no signed, complete loan application form for the alleged final mortgage loan.
VIII. OTHER RELIEF SOUGHT
As explained, the Burkes Petition for Rehearing En Banc is pending. Once that has been decided, the Burkes civilly ask the Court to allow the Burkes to amend or supplement this motion and memorandum, as necessary, and for 30 days to do so, or for a period the court determines as reasonable for out-of-state pro se litigants.
IX. BREVITY CAN BE EXPANDED AS REQUIRED
The Burkes have provided this memorandum in condensed format. The court should reference the case docket as necessary, as well as the dockets for the Eleventh Circuit case 19-13015; Burke v. Ocwen Fin. Corp., No. 19-13015 (11th Cir. Nov. 2, 2020) and S.D. Tex. cases against Ocwen; Burke v. Ocwen, Civil Action H-18-4544 (S.D. Tex.) and Hopkins; Burke v. Hopkins, Civil Action H-18-4543 (S.D. Tex.) by the Burkes and In re Green; Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019) as well as the Burkes related and now consolidated appeals at the Fifth Circuit in case numbers 19-20267 and 20-20209; Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021)
In response to the Eleventh Circuit; the Burkes have clearly established; (1) that their intervention is timely, (2) that they have a necessary interest, (3) that failure to intervene would impair that interest, and (4) that their interest would not be adequately protected absent intervention.
The Burkes have addressed all those points in this renewed motion to intervene and memorandum in support.
In summary, the Burkes wish to conclude this memorandum in support of the renewed motion to intervene with a reminder of the duty of even a Senior and retiring judge.
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of life, liberty, or property by the government except as authorized by law.
Authored by the Fifth Circuit’s newest Judge in a concurring opinion comprising panel Judges Southwick and Jolly, Wilson remarked;
“A litigant has the fundamental right to fairness in every proceeding. Fairness is upheld by avoiding even the appearance of partiality.
See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
When a judge’s actions stand at odds with these basic notions, we must act or suffer the loss of public confidence in our judicial system. “[J]ustice must satisfy the appearance of justice.”
Offutt v. United States, 348 U.S. 11, 14 (1954).” – Miller v. Sam Hous. State Univ., No. 19-20752 (5th Cir. Jan. 29, 2021). Judge Wilson goes on to discuss the pre-judgment and bias by Senior Judge Hughes. The final decision would be reversal and reassignment of the case(s). It’s eerily similar to the Burkes case(s) in both Texas and Florida, including the appellate courts, but with a material difference on appeal: the decision(s).
The rule of law requires the law to be clear and to be correctly applied.
Inconsistent judgments which purport to create or apply legal standards breach both requirements, as patently the case here.
The Burkes contend if the rules, laws and actual facts had not been manipulated, erased, withheld and the lawyers representing both sides had not committed perjury, it would have meant a completely different conclusion(s) and opinion(s), one granting intervention to the Burkes.
For a Court to be considered legitimate, due process, fairness and impartiality should always be present. The Constitution demands it.
Based on the foregoing reasons, the Burkes civilly requests that this Court grant the Burkes renewed motion to intervene.
– END –
DATED: May 18, 2021
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