Distressed and Sick Homeowner Kristana Dunn’s Emotionally Spent and Preyin’ Christians Pounce

MARK STEPHEN BURKE’S MOTION TO INTERVENE AS PLAINTIFF AND MEMORANDUM OF LAW IN SUPPORT

Introduction

Proposed Intervenor, Mark Stephen Burke, contends that intervention is justified in this matter, aligning his interests with the ongoing litigation. The removed Federal Court proceedings involve a dispute between Ms. Kristina Dunn, allegedly retained and represented by Texas lawyer Jason Leboeuf of LeBoeuf Law Firm, PLLC, and PHH Mortgage Corporation, represented by Texas lawyers Mark Cronenwett and Nicholas “Nick” Frame of Mackie Wolf Zientz & Mann P.C. These legal proceedings aim to safeguard Dunn’s residence from foreclosure, with the additional objective of facilitating a transaction wherein a non-party, Epiphany Properties, LLC, is purportedly set to acquire the property for $93,000, backed by a nominal earnest sum of $100. The state court has granted injunctive relief in the form of a Temporary Restraining Order (TRO), effectively halting the scheduled foreclosure sale.

Mark, as the proprietor of Blogger Inc. and the legal blog LawsinTexas.com, is dedicated to investigative journalism, particularly focusing on legal matters of public concern. The ongoing series on related cases, including Dunn v PHH Mortgage Corporation, has been featured on LawsinTexas.com (https://lawsintexas.com/pr/2v2). These articles systematically reveal a troubling pattern of title deed fraud that disproportionately impacts vulnerable homeowners. Allegations of fraud and illicit activities by the Plaintiffs and their counsel are emphatically presented in these publications. Notably, the defendants, along with their legal representatives, are seemingly complicit in downplaying these fraudulent activities. This collaboration extends to both state and federal courts, creating an environment where deceptive legal proceedings, laden with perjury, are utilized to halt foreclosures. It is worth highlighting that the involved parties share legal counsel, forming a tight-knit community within the creditor rights and foreclosure defense vertical. Mark contends that the adverse publicity directed at all named parties and the court has triggered collusion and retaliation, especially within the small and interconnected network of legal professionals representing the involved parties. This retaliatory response has taken a particularly contemptible turn with the latest legal maneuver.

To comprehend the significance, a brief overview is necessary. Behind every business stands an owner, entwined with a personal life. In Mark’s case, his digital media businesses facilitate a home office, doubling as his residence, which has been embroiled in prolonged litigation due to a predatory loan. Legally owned by Joanna Burke, Mark’s mother, the property has hosted Mark’s home office since 2009. Currently, Joanna Burke pursues an active civil suit against PHH Mortgage Corporation in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, currently under appeal to the 8th Circuit. Despite this effectively tolling any foreclosure notice or sale, the same defendants listed here have collectively defied the rule of law. Astonishingly, they have scheduled Mark’s home office for auction on January 2, 2024, disregarding the ongoing legal proceedings.

Intervention Under Civil Rule 24(a)(2)

Under the Federal Rules of Civil Procedure, Proposed Intervenor must satisfy four essential requirements for intervention: timeliness, a necessary interest, impairment of that interest without intervention, and the inadequacy of protection absent intervention (Fed. R. Civ. P. 24(a)(2)).

Necessary Interest

Proposed Intervenor asserts a direct interest in the subject matter of the litigation, a necessary condition for intervention (Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001)). This interest, related to the subject of the action, is legally protectable even if not enforceable, as per Wal–Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 566 (5th Cir. 2016). Mark’s interests are intricately tied to the exposed title deed fraud and predatory lending practices affecting vulnerable and distressed homeowners. The imminent threat to his home office (residence) as a result of the latest conspiracy by and legal maneuver by the defendants directly implicates his business, possessions, civil liberty, and constitutional rights. The urgency of Mark’s proposed intervention is evident in the intertwined personal, business, and legal battles.

Timeliness of Intervention

Proposed Intervenor contends that the intervention is timely, considering the contextual nature of the timeliness inquiry (Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)). This case, active for one and a half months, aligns with the commencement of discovery after Thanksgiving. Mark received formal notice of the scheduled foreclosure sale on Nov. 25.

Impairment of Interest Without Intervention

Failure to allow intervention would impair Mark’s substantial interests, given PHH’s premature actions in seeking foreclosure despite ongoing legal actions. Adequate representation is lacking, requiring intervention to safeguard Mark’s interests (Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967)).

Inadequacy of Protection Absent Intervention

Proposed Intervenor maintains that his interest cannot be adequately protected without intervention. Even if the existing parties have not colluded or taken an adverse position, representation remains plainly inadequate where the existing parties fails to diligently pursue the intervenor’s interests (International Mortgage & Inv. Corp. v. Von Clemm, 301 F.2d 857, 861 (2d Cir. 1962)). It is implausible that the involved parties would offer assistance or safeguard Mark, given their active conspiracy against him and his non-profit media enterprise. Their collaborative efforts aim to dismantle his home office, posing a severe threat to the viability of Mark’s business and his blog at LawsinTexas.com. Mark contends that this shared objective is apparent among the parties, the courts, and government agencies that have recently targeted him and his business pursuits.

Non-Party Damages

A home office undeniably holds significant importance, and any potential disruption, such as eviction, warrants protection—even if Mark is not directly involved in the foreclosure proceedings. Whether Mark has ownership in the property or is a party or obligor on the debt is irrelevant in the context of the standing inquiry. This principle is supported by legal precedents, such as Monroe (936 S.W.2d at 660), which established that standing to bring claims under the TDCA (Texas Deceptive Trade Practices Consumer Protection Act) extends beyond the “parties to the consumer transaction,” and Campbell (616 S.W.2d at 374), stating that “persons other than the debtor may maintain an action for violations of the TDCA.” As per the TDCA (Tex. Fin. Code § 392.403(a)(2)), “A person may sue for: actual damages sustained as a result of a violation of this chapter,” as cited from McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015).  Mark can establish damages, including mental anguish resulting from this latest legal conspiracy and targeted harassment, leading to the unwarranted threat of foreclosure and planned eviction. As highlighted in McCaig, mortgage servicer PHH Mortgage Corporation violates the Texas Finance Code by asserting legal rights it does not possess, concluding that because Wells Fargo (the loan servicer) did not have a right to foreclose, then its threat of initiating foreclosure proceedings was actionable under the TDCA. Mark has met the necessary burden of proof, see; Williams v. Lakeview Load (sic) Servicing, LLC, Civil Action 4:20-CV-1900, at *49 (S.D. Tex. Aug. 14, 2023) (“Proof of an actual injury is a liability element of Plaintiffs’ TDCA claims).

Injunctive Relief

Additionally, and subject to the Proposed Intervenor’s motion being granted, Mark will seek emergency temporary and permanent injunctive relief to refrain PHH Mortgage Corporation from proceeding with the foreclosure sale. See; Marauder Corp. v. Beall, 301 S.W.3d 817, 820 (Tex. App. 2010) (“Under the statute, a person may sue for an injunction to “prevent or restrain” a violation of the TDCA. TEX. FIN. CODE ANN. § 392.403(a) (Vernon 2006).”).  This injunction would also cap his injuries and damages, benefiting all parties affected as Mark is likely to succeed on the merits.

Conclusion

Mark acknowledges the inherent challenges in seeking favorable consideration from this court. Nevertheless, with the recent amendments by the assigned Judge to curb premature motions to dismiss, there is a glimmer of optimism that not all Judges are predisposed to act maliciously or corruptly under the guise of judicial immunity. In light of this, Proposed Intervenor, Mark Stephen Burke—a recognized publisher of legal cases and matters of public concern—respectfully requests the court to grant leave for intervention, facilitating full participation as a party with rights and responsibilities. Alternatively, permissive intervention, at the court’s discretion, is recognized as a viable option. The inclusion of pertinent case law serves to emphasize the legal foundation for intervention in this case.

RESPECTFULLY submitted this day, 28th of November, 2023

Extension of time. pic.twitter.com/EUdGEOca2k

— lawsinusa (@lawsinusa) November 28, 2023

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-03829

RECAP Actions

Judge Lake has recently started implementing this rule visibly in his foreclosure cases, which is good to see.

ORDER – Defendant, PHH Mortgage Corporation, has filed a 4 Motion to Dismiss. The motion seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6). The court’s normal practice is to allow only one dispositive motion per party, and the court sees no reason to make an exception in this case. The practice is especially appropriate in a case like this one where the moving party seeks to apply federal pleading standards to a state court petition. If PHH Mortgage Corporation’s motion to dismiss is denied, the court will therefore not allow it to file a motion for summary judgment. If PHH Mortgage Corporation wishes to withdraw the motion to dismiss, the court will enter a docket control order that includes a date for motions for summary judgment. The court requests that PHH Mortgage Corporation inform the court of its decision by November 3, 2023. (Signed by Judge Sim Lake) Parties notified.(SheilaRAnderson, 4) (Entered: 10/24/2023)

The Wolves withdrew their premature MTD.

Now let’s see who shows up for “Dunn” at the initial conf.

ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons.

Initial Conference set for 11/22/2023 at 03:00 PM in Courtroom 9B before Judge Sim Lake.

(Signed by Judge Sim Lake) Parties notified.(SheilaRAnderson, 4) (Entered: 10/16/2023)

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-03829